UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ISAAC BROOKS, JR., :

:

Plaintiff : No. 4:CV-05-1041

:

vs. : (Complaint Filed 05/23/05)

:

: (Judge Muir)

JEFFREY BEARD, et al., :

:

Defendants :

ORDER

June 3, 2005

Background

On May 23, 2005, Isaac Brooks, Jr., an inmate presently

confined in the Rockview State Correctional Institution,

Bellefonte (“SCI-Rockview”), Pennsylvania, filed this pro se

civil rights action pursuant to 42 U.S.C. § 1983. The named

defendants are Jeffrey Beard, Secretary of the Department of

Corrections; Franklin J. Tennis, SCI-Rockview Superintendent;

Richard Eller, Health Care Administrator and the Department of

Corrections. Along with his complaint, plaintiff submitted an

application requesting leave to proceed in forma pauperis under

28 U.S.C. § 1915. The Prison Litigation Reform Act (the "Act"),

Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996) imposed new

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1. Section 1915(e)(2) provides:

(2) Notwithstanding any filing fee, or any portion

thereof, that may have been paid, the court shall dismiss

the case at any time if the court determines that (A) the

allegation of poverty is untrue; or (B) the action or

appeal (i) is frivolous or malicious; (ii) fails to state

a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from

such relief. 

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obligations on prisoners who file suit in federal court and wish

to proceed in forma pauperis under 28 U.S.C. § 1915, e.g., the

full filing fee ultimately must be paid (at least in a nonhabeas suit). Also, a new section was added which relates to

screening complaints in prisoner actions.1

The complaint will now be reviewed pursuant to the screening

provisions of the Act. For the reasons set forth below, the

instant complaint will be dismissed, without prejudice, as

legally frivolous pursuant 28 U.S.C. § 1915(e)(2)(B)(i).

When considering a complaint accompanied by a motion to

proceed in forma pauperis, a district court may determine that

process should not be issued if the complaint is malicious,

presents an indisputably meritless legal theory, or is

predicated on clearly baseless factual contentions. Neitzke vs.

Williams, 490 U.S. 319, 327-28 (1989); Wilson vs. Rackmill, 878

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2. Indisputably meritless legal theories are those "in which

it is either readily apparent that the plaintiff's complaint

lacks an arguable basis in law or that the defendants are

clearly entitled to immunity from suit." Roman vs. Jeffes,

904 F.2d 192, 194 (3d Cir. 1990) (quoting Sultenfuss vs. Snow,

894 F.2d 1277, 1278 (11th Cir. 1990)). Clearly baseless

factual contentions describe scenarios "clearly removed from

reality." Id.

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F.2d 772, 774 (3d Cir. 1989).2 "The frivolousness determination

is a discretionary one," and trial courts "are in the best

position" to determine when an indigent litigant's complaint is

appropriate for summary dismissal. Denton vs. Hernandez, 504

U.S. 25, 33 (1992).

The plaintiff alleges that on July 29, 2003, he injured his

Achilles-tendon on a two inch pipe sticking out of the floor of

his cell. He states that on July 30, 2003, he was seen in the

medical department, where it was determined that plaintiff had

snapped his Achilles-tendon and would have to be referred to an

outside specialist. Plaintiff was seen by the specialist who

indicated that he would have to perform surgery in order to

repair the tendon. On August 8, 2003, Plaintiff was operated on

and sent back to the prison the same day. (Doc. No. 1,

complaint). 

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Plaintiff files the instant complaint, claiming that he has

not received appropriate medical treatment from the medical

department at SCI-Rockview. Specifically, plaintiff states that

he has never received any follow up visits or physical therapy.

For relief, plaintiff seeks compensatory and punitive damages,

medical attention from SCI-Rockview medical department, as well

as, to be seen again by the specialist. Id. 

Discussion

In order to prevail on a claim made under § 1983, the

plaintiff must satisfy two criteria: (1) that some person has

deprived him or her of a federal right, and (2) that the person

who caused the deprivation acted under color of state or

territorial law. West vs. Atkins, 487 U.S. 42, 48 (1988); Flagg

Bros., Inc. vs. Brooks, 436 U.S. 149, 155 (1978).

In the context of medical care, the relevant inquiry is

whether defendants were: (1) deliberately indifferent (the

subjective element) to (2) plaintiff's serious medical needs

(the objective element). Monmouth County Correctional

Institution Inmates vs. Lanzaro, 834 F.2d 326, 346 (3d Cir.

1987); West vs. Keve, 571 F.2d 158, 161 (3d Cir. 1979). Because

only flagrantly egregious acts or omissions can violate this

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standard, mere medical malpractice can not result in an Eighth

Amendment violation, nor can disagreements over a prison

physician's medical judgment. White vs. Napoleon, 897 F.2d 103,

108-10 (3d Cir. 1990). Furthermore, a complaint that a

physician or a medical department "has been negligent in

diagnosing or treating a medical condition does not state a

valid claim of medical mistreatment under the Eighth

Amendment...." Estelle vs. Gamble, 429 U.S. 97, 106 (1976).

Assuming without deciding, that plaintiff’s injury is

serious in the constitutional sense, the allegations in the

complaint illustrate clearly that plaintiff has received medical

attention. The allegations in the plaintiff’s complaint amount

to nothing more than plaintiff's subjective disagreement with

the treatment decisions and medical judgment of the medical

staff at the prison. At most, the allegations in the complaint

only rise to the level of mere negligence. As simple negligence

can not serve as a predicate to liability under § 1983, Hudson

vs. Palmer, 468 U.S. 517 (1984), plaintiff's civil rights

complaint fails to articulate an arguable claim under § 1983.

See White, 897 F.2d at 108-110. 

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Moreover, to the extent that plaintiff names Secretary

Beard, Superintendent Tennis and Health Care Administrator Eller

as defendants, claims brought under § 1983 cannot be premised on

a theory of respondeat superior. Rode vs. Dellarciprete, 845

F.2d 1195, 1207 (3d Cir. 1988). Rather, each named defendant

must be shown, via the complaint's allegations, to have been

personally involved in the events or occurrences which underlie

a claim. See Rizzo vs. Goode, 423 U.S. 362 (1976); Hampton vs.

Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). As

explained in Rode:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs. . . . [P]ersonal

involvement can be shown through allegations of

personal direction or of actual knowledge and

acquiescence. Allegations of participation or actual

knowledge and acquiescence, however, must be made with

appropriate particularity.

Rode, 845 F.2d at 1207.

Based on a review of plaintiff’s complaint, it is apparent

that he is relying solely upon a theory of respondeat superior

as to these defendants. Plaintiff fails to assert that they had

any personal involvement in actions which resulted in a

violation of his constitutional rights. In fact plaintiff

states that defendant Beard is “the head of the Department of

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Corrections Institutions in PA” and defendant Tennis “is in

charge of everything that goes on in the prison and the safety

of everyone's medical care.” (Doc. No. 1, p. 2). Accordingly,

these defendants are entitled to dismissal.

Finally, With respect to the Department of Corrections, this

defendant is an entity that is not considered a person subject

to suit under § 1983. The United States Supreme Court has ruled

that a § 1983 action brought against a "State and its Board of

Corrections is barred by the Eleventh Amendment" unless the

State has consented to the filing of such a suit. Alabama v.

Pugh, 438 U.S. 781, 782 (1978). Pennsylvania has not consented

to the filing of such a suit.

Thus, under the circumstances, the court is confident that

service of process is not only unwarranted, but would waste the

increasingly scarce judicial resources that § 1915 is designed

to preserve. See Roman vs. Jeffes, 904 F.2d 192, 195 n. 3 (3d

Cir. 1990).

IT IS HEREBY ORDERED THAT:

1. The motion to proceed in forma pauperis (Doc. No.

2) is construed as a motion to proceed without

full prepayment of fees and costs and the motion

is GRANTED.

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3. The dismissal of this action does not relieve plaintiff of

the obligation to pay the full filing fee. Until the filing

fee is paid in full, the Administrative Order is binding on

the SCI-Rockview Superintendent and the warden of any

correctional facility to which plaintiff is transferred. 

2. The complaint is DISMISSED without prejudice

as frivolous pursuant to 28 U.S.C. §

1915(e)(2)(B)(i).3

3. Plaintiff's motion for appointment of counsel

(Doc. No. 6) is DISMISSED as moot. 

4. The Clerk of Court shall CLOSE this case.

 s/Malcolm Muir

 

MUIR

United States District Judge

MM:dlb

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