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Plaintiff alleges that she is detained as a pre-trial inmate. See Doc. 1 at 2, ¶ 3.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PATRICIA COLEMAN HERBERT, :

 :

Plaintiff, : CIVIL NO. 4:CV-06-1030

 :

v. : (Judge Jones)

 :

GREENCARDS OFFICE, et al., :

 :

 Defendants. :

O R D E R

July 24, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Plaintiff, Patricia Coleman Herbert (“Herbert” or “Plaintiff”), currently

detained1

 at the Lehigh County Prison in Allentown, Pennsylvania, commenced this

action by filing a pro se civil rights complaint under the provisions of 42 U.S.C. §

1983. Plaintiff contemporaneously filed an application for leave to proceed in forma

pauperis (Doc. 2). Although the complaint is illegible in places, rambling and

disjointed, Plaintiff appears to seek: (1) an Order of this Court directing her immediate

release or, in the alternative, transfer to another institution; and (2) employment

termination of a corrections officer for refusing to summon emergency medical

attention for Plaintiff. For the following reasons, the complaint will be dismissed,

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without prejudice, under 28 U.S.C. § 1915.

DISCUSSION 

Preliminary Review of Complaint

The Prison Litigation Reform Act (“PLRA”) established new procedures for

prisoners’ civil rights actions filed in federal court. Under § 1915(e)(2) of the Act,

the Court shall dismiss claims by parties seeking to proceed in forma pauperis “if the

court determines that – (B) the action or appeal – (i) is frivolous . . . .” 28 U.S.C. §

1915(e)(2)(B)(i). Similarly, under Section 1915A of the Act, the Court is required to

screen civil complaints by prisoners who seek redress from a governmental entity, or

employees or officers of a governmental entity, and Section 1915A(b) requires courts

to “dismiss the complaint . . . if the complaint – (1) is frivolous . . . .” 28 U.S.C. §

1915A(b)(1). 

The frivolousness determination applies equally to cases that are factually

frivolous and those that are legally frivolous. Neitzke v. Williams, 490 U.S. 319, 327-

28 (1989). An action is legally frivolous if it is based upon an indisputably meritless

legal theory. Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989). Indisputably

meritless legal theories are those “in which it is . . . readily apparent that the plaintiff’s

complaint lacks an arguable basis in law . . . .” Roman v. Jeffes, 904 F.2d 192, 194

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(3d Cir. 1990). “[T]he frivolousness determination is a discretionary one,” and trial

courts “are in the best position” to determine when a complaint is appropriate for

summary dismissal. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Although the

Court is mindful that pro se complaints are to be liberally construed, Haines v. Kerner,

404 U.S. 519, 520 (1972), a complaint that does not establish entitlement to relief

under any reasonable interpretation is properly dismissed without leave to amend. 

Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002). 

Plaintiff’s Request For Release From Custody

To the extent that Plaintiff “would like to be released from Lehigh Count (sic)

Prison A.S.A.P.” (Doc. 1 at 2, ¶ 4), such relief is not cognizable in the context of a §

1983 complaint. To state a viable § 1983 claim, the Plaintiff must establish (1) that

the alleged wrongful conduct was committed by a person acting under color of state

law, and (2) that the conduct deprived the plaintiff of a right, privilege, or immunity

secured by the Constitution or laws of the United States. Nicini v. Morra, 212 F.3d

798, 806 (3d Cir. 2000). However, a prisoner in state custody may not utilize a §1983

action to challenge “the fact or duration of [her] confinement.” Preiser v. Rodriguez,

411 U.S. 475, 489 (1973); see also Wolff v. McDonnell, 418 U.S. 539, 554 (1974);

Heck v. Humphrey, 512 U.S. 477, 481 (1994); Wilkinson v. Dotson, 544 U.S. 74, 77

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(2005). In Heck, the Court recognized “the hoary principle that civil tort actions are

not appropriate vehicles for challenging the validity of outstanding criminal

judgments.” Heck, 512 U.S. at 486. Although “Wolff makes clear that § 1983

remains available for procedural challenges where success in the action would not

necessarily spell immediate or speedier release for the prisoner,” Wilkinson, 544 U.S.

at 79 (emphasis in original), a § 1983 action will not lie where “establishing the basis

for [relief] necessarily demonstrates the invalidity of the [conviction or sentence].” 

Heck, 512 U.S. at 481-482. Thus, to the extent that Plaintiff is challenging the fact or

duration of confinement, such a claim must be brought in a properly filed habeas

action, and the claim will be dismissed. 

Transfer to Another Institution

Plaintiff’s request for “transfer to another jail while I await my court date” (doc.

1 at 1) is also without merit. It is well-settled that a prisoner has no justifiable

expectation that she will be incarcerated in a particular prison or facility. Olim v.

Wakinekona, 461 U.S. 238 (1983). Pennsylvania law leaves the housing of inmates in

particular institutions to the discretion of state officials. See 37 Pa. Code § 93.11(a);

Hannon v. Terra, 1995 WL 129219 at *11 (E.D. Pa. 1995). Where the state does not

provide a liberty interest in being housed at a particular institution, prison officials

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may transfer an inmate “for whatever reason or for no reason at all.” Meachum v.

Fano, 427 U.S. 215, 228 (1976). “If the prisoner can be lawfully held in the facility to

which [s]he has been transferred, [s]he cannot object to that transfer, even if the

transfer results in [her] being placed in a more restrictive . . . facility.” Ali v. Gibson,

631 F.2d 1126, 1135 (3d Cir. 1980). “[T]ransfer to less amenable quarters for

nonpunitive reasons [is] ‘ordinarily contemplated by a prison sentence.’” Sandin v.

Conner, 515 U.S. 472, 477 (1995) (quoting Hewitt v. Helms, 459 U.S. 460, 468

(1983)). Moreover, interference in the placement determinations of the Pennsylvania

Department of Corrections would involve the judiciary in “the day-to-day functioning

of . . . prisons . . . [and] issues and discretionary decisions that are not the business of

federal judges.” Meachum, 427 U.S. at 228-29. Consequently, this claim will be

dismissed as well. 

Deliberate Indifference to Medical Needs

As previously noted, a viable § 1983 claim requires Plaintiff to establish (1) that

the alleged wrongful conduct was committed by a person acting under color of state

law, and (2) that the conduct deprived the plaintiff of a right, privilege, or immunity

secured by the Constitution or laws of the United States. Nicini, 212 F.3d at 806.

Both elements must be present to sustain a § 1983 action, and Plaintiff’s deliberate

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indifference claim fails to satisfy the second. 

The Constitutional issue implicated in this case is the Eighth Amendment

requirement that prison officials provide adequate medical care to inmates, and make

reasonable efforts to assure prisoner health and safety. Farmer v. Brennan, 511 U.S.

825, 832 (1994). That duty is violated when prison officials know of and disregard an

excessive risk to inmate health or safety. Id. at 837. Not every illness or injury enjoys

constitutional protection; only serious medical needs or injuries will give rise to

constitutional scrutiny. Gerber v. Sweeney, 292 F.Supp.2d 700, 706 (E.D. Pa. 2003). 

A serious medical need is one that has been diagnosed by a physician as requiring

treatment, or one that is so obvious that a layperson would recognize the need for a

doctor’s attention. Monmouth County Correctional Institutional Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987); McCabe Prison Health Services, 117 F.Supp. 2d

443, 450 (E.D. Pa. 1997). 

In Estelle v. Gamble, 429 U.S. 97 (1976), as here, the prisoner/plaintiff claimed

that inadequate medical treatment violated his Eighth Amendment protection from

cruel and unusual punishment. The Supreme Court acknowledged that the

government has an obligation to provide medical care to its prisoners, but held that a

constitutional violation does not occur unless the Plaintiff can show Defendants had a

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“deliberate indifference to serious medical needs of prisoners” which constitutes

“unnecessary and wanton infliction of pain.” Id. at 104 (citation omitted). Plaintiff

fails to establish that any of the Defendants were deliberately indifferent to her serious

medical needs or that they unnecessarily or wantonly inflicted pain.

Plaintiff alleges that she was handcuffed while being led from the shower, and

she fell and hit her right leg. Although Plaintiff alleges “it hurt” (doc. 1 at 5), the

complaint and sick call request attached confirm that the skin was not broken. (Rec.

Doc. 1 at 3.) Moreover, although Plaintiff claims that the alleged offender denied her

request for medical attention, Plaintiff concedes that one of the witnessing guards did

summon medical help. (Rec. Doc. 1 at 5.) There is no allegation of a serious medical

need, there is no allegation of deliberate indifference to such a need or a wanton

infliction of pain, and review of the complaint and attachments confirms that Plaintiff

did receive requested medical attention. Accordingly, this claim will also be

dismissed.

Conclusion

Since the complaint is legally frivolous, and since Plaintiff seeks relief which is

not cognizable in the context of a § 1983 action, the complaint will be dismissed under

the provisions of 28 U.S.C. § 1915. 

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NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Plaintiff’s applications to proceed in forma pauperis (Docs. 2 and 8) are

GRANTED for the limited purpose of filing this complaint.

2. Plaintiff’s complaint is dismissed as legally frivolous under the

provisions of 28 U.S.C. § 1915(e)(2)(B)(I).

3. The Clerk of Court is directed to close the file in this case.

4. Any appeal from this Order will be deemed frivolous, without probable

cause, and not taken in good faith.

s/ John E. Jones III

John E. Jones III

United States District Judge

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