NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-2775

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ANDREW MCCORMICK,

Appellant

v.

OFFICER KLINE, SCI SOMERSET

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 3-16-cv-00048)

Magistrate Judge: Honorable Keith A. Pesto

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Submitted Pursuant to Third Circuit LAR 34.1(a)

December 1, 2016

Before: SHWARTZ, COWEN and FUENTES, Circuit Judges

(Opinion filed: December 2, 2016)

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OPINION*

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PER CURIAM

Pro se appellant Andrew McCormick appeals the Magistrate Judge’s order sua 

sponte dismissing his complaint for failure to state a claim without allowing him leave to 

amend. For the reasons discussed below, we will affirm.

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

McCormick is an inmate at S.C.I. Benner. His present federal claim alleges that 

Officer Kline, a corrections officer at S.C.I. Somerset, violated his Eighth and Fourteenth 

Amendment rights by standing outside McCormick’s cell while licking his lips in a 

sexually suggestive manner and referring to a previous alleged assault committed against 

McCormick by a doctor at S.C.I. Graterford. McCormick’s complaint states, without 

additional detail, that “this is not the first time issues like this occurred” and that he has 

filed grievances stemming from similar incidents in the past, but prison security changed 

the dates of the incidents and denied them. Dist. Ct. Rec. Doc. 4 at p. 3. McCormick 

requested a federal investigation of both Somerset and Graterford prisons regarding the 

ongoing sexual harassment and actual assault and battery.1 He did not request money 

damages but queried whether he should. 

Magistrate Judge Pesto, acting by consent pursuant to 28 U.S.C. § 636(c)(1), sua 

sponte dismissed the complaint for failure to state a claim and denied leave to amend. 

Relying on City of Los Angeles v. Lyons, 461 U.S. 95 (1983), Magistrate Judge Pesto 

held that one past incident of abuse, even if serious, does not confer standing to seek 

injunctive relief. Further, to find that qualified immunity would apply to an amended 

complaint, and thus render any amendment futile, the Magistrate Judge relied on the 

proposition that “[i]t is well settled that verbal harassment of a prisoner, although 

deplorable, does not violate the Eighth Amendment.” See McBride v. Deer, 240 F.3d 

 

1 Concurrent with the present suit against Officer Kline, McCormick filed a civil action 

against four other officers and two nurses at S.C.I. Somerset alleging actual assault and 

battery; that case is pending before Magistrate Judge Pesto. See W.D. Pa. Civ. No. 16-

cv-00049. 
3

1287, 1291 n.3 (10th Cir. 2001); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000); 

Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997). McCormick filed a timely notice 

of appeal, restating the claims of his concurrent pending action and further alleging the 

nurses were “smart” with him while he received stiches, and that in 2011 a doctor 

surgically placed electronic chips in his brain. McCormick has filed a brief in support of 

his appeal which we consider in addition to the record before the District Court.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review 

over the Magistrate Judge’s decision to dismiss, and review the denial of leave to amend 

for abuse of discretion. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000); Great 

W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 163 (3d Cir. 2010). In 

looking at the complaint, we must accept as true the factual allegations and all reasonable 

inferences that can be drawn therefrom. Allah, 229 F.3d at 223. To survive dismissal, a 

plaintiff’s claim of injury or imminent danger must be plausible on its face, such that the 

court could reasonably infer that the defendant is liable for the conduct alleged. Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009). We may affirm on any ground supported by the 

record. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). 

We agree with the Magistrate Judge that McCormick failed to state a claim for 

injunctive relief. Absent a real and immediate threat of future injury by the defendant, 

injunctive relief is not an appropriate remedy for the emotional consequences of single 

prior act. Lyons, 461 U.S. at 107 n.8. Taken as true, the factual matter in McCormick’s 

complaint against Officer Kline details one act of verbal sexual harassment and vague 

references to similar instances in the past. No real and immediate threat of future injury 
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by Officer Kline is alleged, nor are any facts pleaded that would allow a court to infer 

that it is plausible—not merely possible—that Officer Kline is liable for some actual or 

imminent injury. See Iqbal, 556 U.S. at 678. Accordingly, the complaint fails to state a 

plausible claim for relief and was properly dismissed.

The Magistrate Judge also denied leave to amend, reasoning that an amended 

complaint seeking monetary damages as compensation for a constitutional violation 

would be futile because Officer Kline would be entitled to qualified immunity. See 28 

U.S.C. § 1915(e)(2)(B)(iii) (providing the court shall dismiss the case at any time if the 

action seeks monetary relief against a defendant who is immune from such relief); 

Grayson v. Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002). “[A]mendment is 

futile if the amended complaint would not survive a motion to dismiss for failure to state 

a claim upon which relief could be granted.” Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 

2000). We allowed McCormick to file a brief with specific instructions to address 

whether the Magistrate Judge properly dismissed Appellant’s complaint without leave to 

amend on the basis of qualified immunity.

After reviewing McCormick’s brief, we conclude the dismissal without leave to 

amend was proper. In his pleadings before the District Court, McCormick stated 

generally that various other instances of harassment had occurred, but he gave no 

specifics. McCormick’s brief in this Court includes claims against prison staff and nurses 

for conspiring against him as retaliation for filing a grievance against Officer Kline. 

However, McCormick alleges no additional harassment – verbal or otherwise – by 

Officer Kline specifically. While the Magistrate Judge’s finding regarding qualified 
5

immunity may have been premature, we may affirm on any ground supported by the 

record. Tourscher, 184 F.3d at 240. McCormick has not come forward with facts or 

allegations sufficient to state a claim against Officer Kline. Furthermore, any instances 

of physical abuse by the prison staff would be properly addressed in his pending action. 

Therefore, it would be futile to allow leave to amend.

For these reasons, we will affirm the Magistrate Judge’s decision to dismiss for 

failure to state a claim without leave to amend.