Opinion
Civil Action 21-883
09-09-2021
ASIA JOHNSON, Plaintiff, v. ORLANDO HARPER, Warden; OFFICER BENJAMIN, Zone 2 Police Officer; DR. MARTONE, Doctor; and KIM CLARK, Judge Heard, Defendant.
Maureen P. Kelly, Magistrate Judge
RE: ECF NO. 4
REPORT AND RECOMMENDATION
William S. Stickman IV, District Judge
I. RECOMMENDATION
Plaintiff Asia Johnson (“Plaintiff”) is a pro se serial-filer of civil rights lawsuits. Plaintiff was granted leave to proceed in forma pauperis (“IFP”) in this matter on September 7, 2021. ECF No. 3. Presently before the Court is the latest in a series of pro se complaints filed by Plaintiff. ECF No. 4. For the reasons that follow, it is respectfully recommended that this case be dismissed, and that leave to amend be granted only with respect to a protentional Fourteenth Amendment claim relating to excessive force and/or denial of medical care, if appropriate.
See Johnson v. Rothschild, Civil Action No. 18-606 (W.D. Pa. filed May 7, 2018), ECF No. 2 at 2, for a brief discussion of some of Plaintiff's federal filings.
II.REPORT
The in forma pauperis statute, 28 U.S.C. § 1915, “is designed to ensure that indigent litigants have meaningful access to the federal courts.” Douris v. Middletown Twp., 293 Fed.Appx. 130, 131 (3d Cir. 2008) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). Congress recognized, however, that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits. Neitzke, 490 U.S. at 324; Deutsch v. United States, 67 F.3d 1080, 1084 (3d Cir. 1995). Accordingly, this Court must review the Complaint and determine whether it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant immune from such relief pursuant to 28 U.S.C. § 1915(e)(2)(B).
In order to withstand this review, Plaintiff's Complaint must present a colorable legal argument. In other words, her Complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). “[M]ere conclusory statements[] do not suffice." Id. As Plaintiff is proceeding pro se, the Court construes her allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011) (citing cases).
This Court has carefully reviewed Plaintiff's Complaint. As best as this Court can discern, Plaintiff complains that Defendant Benjamin allegedly made false statements during a competency hearing, and that Plaintiff was subjected to a use of force as a pre-trial detainee, after which she was not provided medical treatment. ECF No. 4 at 5.
The allegations in the instant Complaint largely track with those that Plaintiff made in Johnson v. Benjamin, Case No. 21-923, (W.D. Pa. filed July 16, 2021). On August 9, 2021, Judge Stickman sua sponte issued an order dismissing that case, and denying leave to amend because Plaintiff's allegations therein failed to raise a colorable legal claim. See id. at ECF No. 3 at 2. The lion's share of the claims in the present matter should be dismissed without leave to amend for the same reasons set forth by Judge Stickman in Civil Action No. 21-923. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
The sole exception is Plaintiff's allegation regarding the use of force recited above, which may be an attempt to state a claim under the Fourteenth Amendment for excessive force and/or denial of medical care. While Plaintiff has not provided sufficient allegations of fact to state a claim that is plausible on its face in either respect, it does not appear that leave to amend would be futile. Thus, while such a claim should be dismissed, Plaintiff should be given leave to amend with respect to this claim only, out of an abundance of caution.
III. CONCLUSION
For the reasons stated herein, it is respectfully recommended that this case be dismissed, and that leave to amend be granted only with respect to a protentional Fourteenth Amendment claim relating to excessive force and/or denial of medical care, if appropriate.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.