UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

HUBERT FONT, :

:

Plaintiff : No. 4:CV-05-1226

:

vs. : (Complaint Filed 06/20/05)

:

: (Judge Muir)

LUZERNE COUNTY, et al., :

:

Defendants :

ORDER

July 12, 2005

BACKGROUND

On June 20, 2005, plaintiff, an inmate presently confined

in the State Correctional Institution, Albion, Pennsylvania,

filed this pro se civil rights action pursuant to 42 U.S.C. §

1983. He complains of incidents which occurred at his former

place of confinement, the Luzerne County Prison. The only named

defendants are Luzerne County, Pennsylvania and the Warden of

the Luzerne County Prison. 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 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

Case 4:05-cv-01226-MM-DB Document 7 Filed 07/12/05 Page 1 of 11
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. 

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.

2

(at least in a non-habeas 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

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

Case 4:05-cv-01226-MM-DB Document 7 Filed 07/12/05 Page 2 of 11
3

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).

Plaintiff alleges that upon his initial commitment to the

Luzerne County Prison, on June 20, 2003, he had severe injuries

which he incurred during his arrest. He states that defendants

were deliberately indifferent to his serious medical needs “in

that although the defendants contracted physician diagnosed

'nerve damage' plaintiff was not given any treatment for it and

now as a result of defendants' failure to provide treatment, the

nerve damage is permanent and plaintiff is in constant pain from

it.” Plaintiff contends that defendant's “medical staff failed

to diagnose a severe concussion and seizure disorder that were

present as a result of his injuries incurred during arrest and

that their failure to diagnose and treat the serious needs do

constitute deliberate indifference.” (Doc. No. 1, complaint).

Plaintiff further alleges that “defendants by and through

their corrections staff violated plaintiff's 8th Amendment rights

by their failure to protect plaintiff from harm by other

inmates.” Specifically, plaintiff state that he was “placed in

a cage-type cell and was subject to being scalded by hot water

and coffee thrown at him by other inmates, who repeatedly

Case 4:05-cv-01226-MM-DB Document 7 Filed 07/12/05 Page 3 of 11
4

threatened plaintiff's life.” Plaintiff allegedly reported this

to corrections staff by no action was taken to protect plaintiff

from further harm. Plaintiff states that “due to the fact that

[his] underlying criminal charge was a sex offense, by placing

plaintiff in general prison population, they were putting

plaintiff at great risk to be assaulted by other inmates which

is commonplace in the prison system.” (Doc. No. 1, complaint).

Plaintiff files the instant action in which he contends that

“the 8th Amendment guarantees his right to be protected from

assault by other inmates and that while his injuries from the

assaults were not permanent physically the emotional damage

remains.” Thus, plaintiff seeks compensatory and punitive

damages. 

Discussion

A plaintiff, in order to state a viable § 1983 claim, must

allege that the conduct complained of was committed by a person

acting under color of state law and that said conduct deprived

the plaintiff of a right, privilege, or immunity secured by the

Constitution or by laws of the United States. E.g., Cohen vs.

City of Philadelphia, 736 F.2d 81, 83 (3d Cir.), cert. denied,

469 U.S. 1019 (1984). A defendant's conduct must have a close

causal connection to plaintiff's injury in order for § 1983

Case 4:05-cv-01226-MM-DB Document 7 Filed 07/12/05 Page 4 of 11
3. The Martinez court explained: "Although a § 1983 claim has

been described as 'a species of tort liability,' Imbler vs.

Pachtman, 424 U.S. 409, 417 [(1976)], it is perfectly clear

that not every injury in which a state official has played

some part is actionable under that statute." Id.

5

liability to attach. Martinez vs. California, 444 U.S. 277, 285

(1980).3 A prerequisite for a viable civil rights claim is that

a defendant directed, or knew of and acquiesced in, the

deprivation of a plaintiff's constitutional rights. See Monell

vs. Department of Social Serv. of the City of N.Y., 436 U.S.

658, 694-95 (1978); Gay vs. Petsock, 917 F.2d 768, 771 (3d Cir.

1990); Rode vs. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir.

1988). Plaintiff must allege that each named defendant was

personally involved in the events or occurrences that underlie

the claim. See Atkinson vs. Taylor, 316 F.3d 257 (3d Cir.

2003), (citations omitted). Liability may not be imposed under

Section 1983 on the principle of respondeat superior. Capone

vs. Marinelli, 868 F.2d 102, 106 (3d Cir. 1989) (citing Hampton

vs. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir.

1976)). Rather, “supervisory personnel are only liable for the

§ 1983 violations of their subordinates if they knew of,

participated in or acquiesced in such conduct.” Id. at 106 n.7.

To establish an Eighth Amendment claim under § 1983, the

plaintiff must show that the prison official acted with

Case 4:05-cv-01226-MM-DB Document 7 Filed 07/12/05 Page 5 of 11
6

“deliberate indifference” to a substantial risk of serious harm.

Farmer vs. Brennan, 511 U.S. 825, 827 (1994) (citing Helling vs.

McKinney, 509 U.S. 25 (1993); Wilson vs. Seiter, 501 U.S. 294

(1991); Estelle vs. Gamble, 429 U.S. 97 (1976)). In other

words, the official must know of and disregard an excessive risk

to inmate health or safety. Natale vs. Camden County Corr.

Facility, 318 F.3d 575, 582 (3d Cir. 2003); Farmer, 511 U.S. at

837. This standard “affords considerable latitude to prison

medical authorities in the diagnosis and treatment of the

medical problems of inmate patients. Courts will ‘disavow any

attempt to second guess the propriety or adequacy of a

particular course of treatment. . . which remains a question of

sound professional judgment.’” Little vs. Lycoming County, 912

F. Supp. 809, 815 (M.D. Pa. 1996) (quoting Inmates of Allegheny

County Jail vs. Pierce, 612 F.2d 754, 762 (3d Cir. 1979). 

Further, a complaint that a physician or a medical

department was “negligent in diagnosing or treating a medical

condition does not state a valid claim of medical mistreatment

under the Eighth Amendment.” Estelle, 429 U.S. at 106. More

than a decade ago, the Third Circuit held that “[w]hile the

distinction between deliberate indifference and malpractice can

be subtle, it is well established that as long as a physician

exercises professional judgment his behavior will not violate a

Case 4:05-cv-01226-MM-DB Document 7 Filed 07/12/05 Page 6 of 11
7

prisoner’s constitutional rights.” Brown vs. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990); see also

Estelle, 429 U.S. at 107 (finding that a medical decision that

certain tests, or like measures, are unnecessary, does not

represent cruel and unusual punishment. At most it is medical

malpractice). 

When an inmate is provided with medical care and the dispute

is over the adequacy of that care, no Eighth Amendment claim

exists. White vs. Napoleon, 897 F.2d 103, 108-10 (3d Cir.

1990). A mere difference of opinion between the inmate and the

prison’s medical staff regarding the diagnosis or treatment that

the inmate receives does not support a claim of cruel and

unusual punishment. See McFadden vs. Lehman, 968 F. Supp. 1001

(M.D. Pa. 1997); Young vs. Quinlan, 960 F.2d 351, 358 n.18 (3d

Cir. 1992). Additionally, a non-physician defendant cannot be

considered deliberately indifferent for failing to respond to an

inmate’s medical complaints when the inmate is already receiving

treatment from the prison’s medical staff. See Durmer vs.

O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993). The key question is

whether the defendant has provided the plaintiff with some type

of treatment, despite whether it is what the plaintiff wants.

Farmer vs. Carlson, 685 F. Supp. 1335, 1339 (M.D. pa. 1988).

Case 4:05-cv-01226-MM-DB Document 7 Filed 07/12/05 Page 7 of 11
8

The plaintiff fails to allege that the Warden of the Luzerne

County Prison was personally involved in his medical treatment.

Neither has he alleged that the Warden had knowledge of the

prison medical staff’s treatment for him. Rather, plaintiff

premises the Warden's liability solely on the theory of

respondeat superior. In fact, plaintiff specifically avers that

the warden “supervises and directs the policy of staff at

Luzerne County Prison.” (Doc. No. 1, p. 2). As discussed above,

liability under § 1983 cannot be based on respondeat superior.

Capone, 868 F.2d at 106. Moreover, a claim of deliberate

indifference to the plaintiff’s medical needs cannot lie against

the Warden, a non-physician, because the plaintiff alleges that

he was under the care of a prison physician. Durmer, 991 F.2d

at 69.

With respect to defendant, Luzerne County, although it is

recognized that the plaintiff is not held to a “heightened”

standard of pleading in his claim against the municipality,

Leatherman vs. Tarrant County, 507 U.S. 163 (1993); Verney vs.

Pennsylvania Turnpike Commission, 881 F. Supp. 145 (M.D. Pa.

1995), the plaintiff’s complaint fails to set forth any

allegations whatsoever that Luzerne County undertook any act

pursuant to an official municipal policy of some nature which

caused a Constitutional tort. See Monell vs. Department of

Case 4:05-cv-01226-MM-DB Document 7 Filed 07/12/05 Page 8 of 11
9

Social Servs., 436 U.S. 658, 690-91 (1978); see also Board of

County Comm'rs of Bryan County, OK vs. Brown, 520 U.S. 397, 117

S. Ct. 1382, 1388-89 (1997); Roman vs. Jeffes, 904 F.2d 192,

196-97 (3d Cir. 1990); Illiano vs. Clay Township, 892 F. Supp.

117, 121 (E.D. Pa. 1995). 

Moreover, it has been repeatedly held that a municipality

may not be subjected to § 1983 liability on a theory of

respondeat superior. Bryan County, 117 S. Ct. at 1388; City of

Canton vs. Harris, 489 U.S. 378, 392 (1989); City of St. Louis

vs. Praprotnik, 485 U.S. 112, 121-22 (1988); Pembaur vs.

Cincinnati, 475 U.S. 469, 478-79 (1986); Oklahoma City vs.

Tuttle, 471 U.S. 808, 818, reh'g denied, 473 U.S. 925 (1985);

Monell, 436 U.S. at 691; Beck vs. City of Pittsburgh, 89 F.3d

966, 971 (3d Cir. 1996), cert. denied, 519 U.S. 1151, 117 S. Ct.

1086 (1997); Andrews vs. City of Philadelphia, 895 F.2d 1469,

1480 (3d Cir. 1990). 

A review of the complaint reveals that plaintiff has not

alleged that anyone in the Luzerne County government ever

promulgated a policy of indifference to his constitutional

rights, and he has not alleged that county officials ever

violated the rights of anyone but himself. See St. Louis vs.

Praprotnik, 485 U.S. 112, 128 (1988). Therefore, the claims

against Luzerne County will be dismissed as legally frivolous.

Case 4:05-cv-01226-MM-DB Document 7 Filed 07/12/05 Page 9 of 11
10

Finally, with respect to plaintiff's claim that the

defendants failed to protect him from assault by other inmates,

Section 803(d) of the Prisoner Litigation Reform Act, codified

at 42 U.S.C. §1997e(e), predicates a prisoner’s claim for mental

or emotional injury, suffered while in custody, on a showing of

accompanying physical injury. Under § 1997e(e), “[n]o Federal

civil action may be brought by a prisoner confined in a jail,

prison, or other correctional facility, for mental or emotional

injury suffered while in custody without a prior showing of

physical injury.” The “physical injury” requirement of §

1997e(e) may be satisfied by a

“less-than-significant-but-more-than-de minimis physical injury

as a predicate to allegations of emotional injury.” Mitchell

vs. Horn, 318 F.3d 523, 534 (3d Cir. 2003). While it may be

that the plaintiff was “put at great risk,” he does not allege

that he suffered a physical injury from the alleged lack of care

by the defendants to his claims of mistreatment by other

inmates, not even a de minimis physical injury. Thus, the Court

finds that § 1997e(e) precludes plaintiff from recovering for

his emotional and mental injuries. 

IT IS HEREBY ORDERED THAT:

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

2) is construed as a motion to proceed without

Case 4:05-cv-01226-MM-DB Document 7 Filed 07/12/05 Page 10 of 11
full prepayment of fees and costs and the motion

is GRANTED.

2. The complaint is DISMISSED without prejudice

as frivolous pursuant to 28 U.S.C. §

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

3. The Clerk of Court shall CLOSE this case.

4. Any appeal from this order will be deemed

frivolous, not taken in good faith and

lacking probable cause. 

 s/Malcolm Muir

 

MUIR

United States District Judge

Case 4:05-cv-01226-MM-DB Document 7 Filed 07/12/05 Page 11 of 11