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Anthony J. Walters v. Director: Al Bosher

January 25, 2011

ANTHONY J. WALTERS,
PLAINTIFF,
v.
DIRECTOR: AL BOSHER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kugler, District Judge

NOT FOR PUBLICATION

OPINION

Plaintiff Anthony J. Walters seeks to file a complaint in forma pauperis pursuant to 28 U.S.C. § 1915. This Court will grant in forma pauperis status.*fn1 As required by 28 U.S.C. § 1915(e)(2)(B), this Court has screened the Complaint for dismissal and, for the reasons set forth below, will dismiss the Complaint for failure to state a claim upon which relief may be granted.

I. BACKGROUND

Plaintiff asserts violation of his Eighth Amendment rights by Hope Hall halfway house and its director, Al Bosher. He asserts the following facts, which this Court is required to regard as true for the purposes of this review. See Stevenson v. Carroll, 495 F. 3d 62, 66 (3d Cir. 2007).

Plaintiff alleges that on March 10, 2010, while he was incarcerated at Hope Hall in Camden, New Jersey, his body felt itchy when he woke up. Plaintiff alleges that when he looked in the mirror, he observed bite marks on his face, earlobe, the back of his head, and his legs. Plaintiff asserts that when he walked outside his room, he saw the Terminix man named Bill Davis spraying the premises for bugs. Plaintiff allegedly showed Mr. Davis the bite marks, Mr. Davis inspected Plaintiff's room and bunk bed, and he advised Plaintiff that the bites were from bed bugs but he didn't have the proper treatment for bed bugs with him at that time. Plaintiff states that he complained to Mr. Marshall, who asked Mr. Davis to treat Plaintiff's room, but Davis repeated that he didn't have the appropriate treatment with him. Plaintiff alleges that Mr. Marshall gave Plaintiff Lysol, which Plaintiff sprayed in his room, but this did not eliminate additional bites. Plaintiff asserts that he informed Mr. Marshall that the Lysol didn't work and Mr. Marshall gave Plaintiff money to wash his clothing. Plaintiff alleges that he washed his clothing but the bed bugs continued to bite. Plaintiff asserts that he asked officials to change his room and they moved him to a different room. In response to Plaintiff's request for medical care, officials took him to Yardville Medical Center where he was prescribed cortisone cream. Plaintiff further alleges that on March 18, 2010, the Terminix man - Mr. Davis - returned to the building and informed Plaintiff that officials were getting rid of the bunkbed and chairs, and changing the beds from wood to metal. Plaintiff asserts: "I was told they already was aware of this outbreak because upstair[s] where they move[d] me they had to evacuate two rooms because of these bugs [and] they exchange[d] wood bunks to metal bunks." (Docket No. 1, p. 6.) Plaintiff also complains that he received inadequate medical care in that the only treatment he received was cortisone and, although medical staff noted the number of bites, no one checked his pubic hair for eggs. As relief, Plaintiff seeks "compensation and [he] would like those responsible to be held accountable and liable for their negligence as well as their continued negligence." (Docket Entry #1, p. 7.)

II. STANDARD FOR SUA SPONTE DISMISSAL

The Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires the Court, prior to docketing or as soon as practicable after docketing, to review a complaint in a civil action in which a plaintiff is proceeding in forma pauperis or a prisoner seeks redress against a governmental employee or entity. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A. The PLRA requires the Court to sua sponte dismiss any claim if the Court determines that it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. A claim is frivolous if it "lacks even an arguable basis in law" or its factual allegations describe "fantastic or delusional scenarios." Neitzke v. Williams, 490 U.S. 319, 328 (1989); see also Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990).

The pleading standard under Rule 8 was refined by the United States Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), where the Supreme Court clarified as follows:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice . . . . Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not "show[n]"-"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 129 S. Ct. at 1949 -1950 (citations omitted).

The Third Circuit observed that Iqbal hammered the "final nail-in-the-coffin" for the "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),*fn2 which was applied to federal complaints before Twombly. See Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009). The Third Circuit instructs that, to determine the sufficiency of a complaint under the pleading regime established by Iqbal and Twombly, a court must take three steps: First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, 129 S.

Ct. at 1947. Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id.

Santiago v. Warminster Township, F. 3d , 2010 WL 5071779 at *4 (3d Cir. Dec. 14, 2010); see also Fowler, 578 F.3d at 210-11 ("a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to ...


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