IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RUBEN VELEZ-MALDONADO, : Plaintiff, : : v. : CIVIL ACTION NO. 20-CV-4685 : CEMOR, et al., : Defendants. :

MEMORANDUM JONES, II, J. JUNE 17, 2021 Plaintiff Ruben Velez-Maldonado, a prisoner currently incarcerated at George W. Hill Correctional Facility (“GWH”), filed this civil rights action pursuant to

. Named as Defendants are three employees of GWH identified as “Cemor,” “Appollo,” and “Francis.” Velez-Maldonado seeks to proceed in forma pauperis and has submitted a copy of his institutional account statement. For the following reasons, the Court will grant Velez- Maldonado leave to proceed in forma pauperis, dismiss his Complaint in part with prejudice for failure to state a claim pursuant to

(e)(2)(B)(ii), and permit the remaining claims to proceed. I. FACTUAL ALLEGATIONS1 Velez-Maldonado’s allegations are brief. On April 7, 2020, while working in the kitchen at GWH he injured his hand when the hand was caught in tray washer machine. (ECF No. 2 at 3.) Defendant Cemor had directed him to fix the machine which had malfunctioned. He claims the Defendants knew the machine was faulty. (Id.) Appollo helped Velez-Maldonado free his

1 The allegations are taken from Complaint. (See ECF No. 2.) The Court adopts the pagination supplied by the CM/ECF docketing system. hand and gave him napkins and to stop the bleeding but told him to go back to work. (Id.) Velez-Maldonado instead went to the medical unit at GWH for treatment. (Id.) He asserts he filed a grievance and was fired as a result by Defendant Francis. (Id.) Velez-Maldonado asserts the still suffers pain and discomfort from his injury and has lost full use of his ring and pinky

fingers. (Id.) He claims he has nerve and ligament damage. (Id.) He seeks money damages from each Defendant. (Id. at 5.) II. STANDARD OF REVIEW The Court grants Velez-Maldonado leave to proceed in forma pauperis because it appears that he is incapable of paying the fees to commence this civil action.2 Accordingly,

(e)(2)(B)(ii) applies, which requires the Court to dismiss the Complaint if it fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough,

(3d Cir. 1999), which requires the Court to determine whether the complaint contains “sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (quotations omitted). Conclusory allegations do not suffice.

As Velez-Maldonado is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att’y Gen.,

, 339 (3d Cir. 2011). III. DISCUSSION “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was

2 However, as Velez-Maldonado is a prisoner, he will be obligated to pay the filing fee in installments in accordance with the Prison Litigation Reform Act. See

(b). committed by a person acting under color of state law.” West v. Atkins,

(1988). For the following reasons, Velez-Maldonado has failed to state a claim against Cemor and Appollo. The United States Supreme Court has held that § 1983 claims may not be predicated on a

state actor’s mere negligence. See Canton v. Harris,

(1989) (holding that mere negligence in training cannot form basis of § 1983 liability); Daniels v. Williams,

(1986) (holding that official’s mere negligence is not actionable under § 1983 because “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property”). While Velez-Maldonado’s injury is unfortunate, his claim alleges nothing more than simple negligence on the part of Defendants Cemor and Appollo in failing to maintain the tray washing machine and directing Velez- Maldonado to try to fix it when it malfunctioned. Because his claims do not rise to the level of a constitutional violation, they must be dismissed pursuant to

(e)(2)(B)(ii). To the extent Velez-Maldonado asserts a claim based on retaliation due to filing a

grievance over his injury, this claim will be served for a response. In order to state a plausible First Amendment retaliation claim, a prisoner must allege that: (1) he engaged in constitutionally protected conduct; (2) he suffered an adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) the constitutionally protected conduct was “a substantial or motivating factor” for the adverse action. See Rauser v. Horn,

(3d Cir. 2001); Mitchell v. Horn,

(3d Cir. 2003); Coit v. Garman, No. 19-2580,

, at *3 (3d Cir. May 5, 2020). A prisoner’s filing of a grievance is constitutionally protected conduct. See Robinson v. Taylor,

(3d Cir. 2006) (citing Mitchell,

; Davis v. Goord,

(2d Cir. 2003)). As Velez-Maldonado asserts he was fired by Defendant Francis in retaliation for filing a grievance, this claim passes § 1915 screening. IV. CONCLUSION For the foregoing reasons, the Court will dismiss Velez-Maldonado’s claims against

Defendants Cemor and Appollo for failure to state a claim, pursuant to

(e)(2)(B)(ii). Because any attempt to amend the negligence claim to state a constitutional violation would prove futile, the dismissal of these Defendants will be with prejudice. See Grayson v. Mayview State Hosp.,

(3d Cir. 2002) The retaliation claim against Defendant Francis will be served. An appropriate Order follows. BY THE COURT:

/s/ Hon. C. Darnell Jones II _________________________________________ C. DARNELL JONES, II, J.