Opinion
No. 99-1229
September 14, 2000
MEMORANDUM ORDER
The appeal in this matter of the Plaintiff, Ronald B. Wesley ("Wesley"), was remanded by the United States Court of Appeals for the Third Circuit to allow the Court to clarify and supplement the record upon appeal. The Court of Appeals also suggested that the Court review Wesley's claims filed pursuant to the public entity provisions of the Americans with Disabilities Act, 42 U.S.C. § 12132 (1994) ("ADA").
Wesley's pro se Complaint consists of the following components: (1) a Complaint; (2) a Memorandum of Law in Support of his claim under the ADA; (3) a Memorandum of Law in Support of his civil rights claim under 42 U.S.C. § 1983; (4) a package of exhibits labeled A — T; and (5) an application to proceed in forma pauperis. Apparently, when the Clerk of Court transmitted the record in this case to the Court of Appeals, the only component of Wesley's Complaint that was transmitted was his Memorandum of Law in support of his ADA claim. As a result, the Third Circuit could not locate Wesley's admission that a pulmonary specialist examined him and refilled his allergy prescriptions. Wesley states in his Complaint:
On 8/31/98, I am called forth for a scheduled appointment with Dr. Drizen, the pulmonary specialist who regularly treats my chronic allergic asthmatic respiratory condition. He performs a preliminary examination conducts a breathing test. He notes that there's some "wheezing" occuring (sic) in my breathing passageway that I recorded a slightly lower reading in my breathing test this time, as compared to my last examination test. Dr. Dirzen then re-orders all of my medications, including my allergic medication, re-schedules me to be see in (sic) pulmonary clinic again on 10/26/98.
Pl.'s Memm., ¶ 27. As Wesley has admitted he received adequate medical care and has not alleged a serious injury, the Court properly dismissed his § 1983 claim as frivolous.
It is ORDERED that the Clerk of Court will expand the record before the Court of Appeals to include all of the component parts of Wesley's Complaint.
Upon review of Wesley's claims filed pursuant to the ADA, it appears that they should not be dismissed as frivolous. Therefore, the Court requests that Court of Appeals remand this matter to allow Wesley to proceed on his ADA claim.