MEMORANDUM

MALACHY E. MANNION, District Judge.

I. Background

Plaintiff, Anthony Leonard Floyd, an inmate confined in the State Correctional Institution, Camp Hill ("SCI-Camp Hill"), Pennsylvania, filed the above captioned civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1, complaint). Plaintiff names as Defendants the Department of Corrections, and the following SCI-Camp Hill employees: Mr. Radziewicz, CCPM Manager; Mr. Whalen, Unit Manager; Mrs. Easterday, GED teacher; and Correctional Officer Kerstetter. Id. Plaintiff alleges that Defendants improperly denied him admission to GED classes at SCI-Camp Hill. Id. Specifically, he claims that Defendants told him he was ineligible for this program because he is a temporary transfer to SCI-Camp Hill. Id.

On January 5, 2016, Defendants filed a motion to dismiss Plaintiff's complaint or for a more definite statement, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(e), along with a brief in support. (Docs. 21, 22).

By Order dated February 5, 2016, the Court directed Plaintiff to file a brief in opposition to Defendants' pending motion to dismiss. (Doc. 25). The Court forewarned Plaintiff that his failure to file a brief in opposition on, or before, February 25, 2016, would result in the motion being deemed unopposed and granted without a merits analysis. Id. To date, Plaintiff has neither filed a brief in opposition to Defendants' motion, nor requested an enlargement of time within which to do so.

II. Discussion

If a plaintiff fails to prosecute or comply with a court order, the court may dismiss the action, with prejudice. See Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984); Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991) (failure of a plaintiff to comply with a court's specific direction to comply with a local rule which required the filing of an opposing brief, warranted the treatment of a motion to dismiss as being unopposed and subject to dismissal without a merits analysis).

The Court of Appeals for the Third Circuit in Poulis set forth six (6) factors which must be considered in determining whether to dismiss an action with prejudice for failure to prosecute: (1) extent of the party's personal involvement; (2) prejudice to the opposing party by the dilatoriness; (3) whether a history of dilatoriness existed; (4) whether the dilatoriness was willful and in bad faith; (5) possible effectiveness of alternative sanctions; and (6) the merit of the claim or defense. See Adams v. Trustees, NJ Brewery Trust Fund, 29 F.3d 863 (3d Cir. 1994). No single factor is dispositive, and "[e]ach factor need not be satisfied for the trial court to dismiss a claim." Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003). However, the factors "should be weighed by the district courts in order to assure that the `extreme' sanction of dismissal . . . is reserved for the instances in which it is justly merited." Poulis, 747 F.2d at 870.

Adequate grounds have been established for the extreme sanction of dismissal. Plaintiff's brief in opposition to Defendants' motion to dismiss was due on February 25, 2016. At this point, the Court has been waiting for more than six months for Plaintiff to move the litigation forward and can only conclude that he is personally responsible for failing to comply with Court orders. Plaintiff's failure to litigate this claim or comply with this Court's February 5, 2016 Order now wholly frustrates and delays the resolution of this action. In such instances, the Defendants are plainly prejudiced by the Plaintiff's continuing inaction and dismissal of the case clearly rests in the discretion of the trial judge. Tillio v. Mendelsohn, 256 F. App'x 509 (3d Cir. 2007) (failure to timely serve pleadings compels dismissal); Reshard v. Lankenau Hospital, 256 F. App'x 506 (3d Cir. 2007) (failure to comply with discovery compels dismissal); Azubuko v. Bell National Organization, 243 F. App'x 728 (3d Cir. 2007) (failure to file amended complaint prejudices defense and compels dismissal). However, regardless of a response, the factor that weighs most heavily in favor of dismissal is the lack of merit to Plaintiff's claim.

"A claim, or defense, will be deemed meritorious when the allegations of the pleadings, if established at trial, would support recovery by plaintiff or would constitute a complete defense." Poulis, 747 F.2d at 869-70, citing United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984); Feliciano v. Reliant Tooling Co., 691 F.2d 653, 657 (3d Cir. 1982); Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir. 1982). The standard for a Rule 12(b)(6) motion to dismiss is utilized in determining whether a claim is meritorious. Poulis, 747 F.2d at 869-70. A claim, or defense is considered meritorious when the allegations of the pleading, if established at trial, would support recovery by plaintiff. Id.

Plaintiff alleges that Defendants denied him entry into the GED program because he was a "temporary transfer" to SCI-Camp Hill. (Doc. 1, complaint). However, prisoners have no constitutional right to an education. See Rhodes v. Chapman, 452 U.S. 337, 348 (1981) ("Prisoners have no constitutional right to . . . education"); Wenk v. N.J. State Prison Educ. Dep't, Civil Action No. 11-5774, 2011 WL 6002097, at *1 (D. N.J. Nov. 29, 2011); Mason v. Educ. Dep't, Civil Action No. 08-129, 2008 WL 2219304 (D. Del. May 28, 2008) ("[Plaintiff] contends he is being denied education and schooling. Unfortunately for [Plaintiff], prisoners have no constitutional right to an education"). See also Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976) (inmate has no legitimate statutory or constitutional entitlement in eligibility for rehabilitative program sufficient to invoke due process when eligibility decision is discretionary with prison officials); McFadden v. Lehman, 968 F.Supp. 1001, 1004 (M.D. Pa. 1997) (no inmate right to rehabilitative programming); Stankowski v. Farley, 487 F.Supp.2d 543, 572 (M.D. Pa. 2006), appeal dismissed, 251 Fed. Appx. 743 (3d Cir. 2007) (same). Accordingly, Plaintiff's complaint is subject to dismissal as being legally frivolous pursuant to 28 U.S.C. §1915(e)(2)(B).

In balancing the Poulis factors, no single factor is dispositive, Ware, 322 F.3d at 222, and not all of the factors need be satisfied in order to dismiss a complaint. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). However, it is clear that the majority of the six factors weigh heavily in favor of Defendants and dismissal of the action for failure to prosecute.

III. Conclusion

Based upon the present circumstances, dismissal of this action for failure to prosecute is warranted under the standards announced in Poulis and Stackhouse. A separate Order shall issue.

MEMORANDUM OPINION

SHERIDAN, District Judge.

*1 Plaintiff Michael Wenk ("Plaintiff"), an inmate confined at the New Jersey State Prison ("NJSP"), Trenton, New Jersey, seeks to bring this Section 1983 action in forma pauperis, alleging violations of his constitutional rights.

The Court will allow Plaintiff to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(a), and will order the Clerk to file the Complaint. At this time, the Court must review the Complaint to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief.

I. BACKGROUND

The Complaint asserts that Plaintiffs rights were violated when his prison officials refused to provide him with materials he requested in order to prepare for the General Educational Development (or "GED") tests.1 See Docket Entry No. 1. Naming the New Jersey State Prison Education Department, New Jersey State Prison Education Department Prison Social Services and two prison officials as Defendants in this matter, Plaintiff seeks $15,000 from each Defendant and, in addition, seeks injunctive relief in the form of this Court's order directing NJSP officials to provide inmates with educational materials allowing them to "better their lives." Id. at 1 and 7.

II. STANDARD OF REVIEW

In determining the sufficiency of a complaint, the Court must be mindful to construe the facts stated in the complaint liberally in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir.1992). Indeed, it is long established that a court should "accept as true all of the [factual] allegations in the complaint and reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir.1997). However, while a court will accept well-pled allegations as true, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See id.

Addressing the clarifications as to the litigant's pleading requirement stated in the United States Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Court of Appeals for the Third Circuit provided the courts in this Circuit with detailed and careful guidance as to what kind of allegations qualify as pleadings sufficient to pass muster under the Rule 8 standard. See Phillips v. County of Allegheny, 515 F.3d 224, 230-34 (3d Cir.2008). Specifically, the Court of Appeals observed as follows:

*2 Id. at 230-34 (original brackets removed). This pleading standard was further refined by the United States Supreme Court in its recent decision Ashcroftv. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009):

[In any civil action, t]he pleading standard . . . demands more than an unadorned ["]the-defendantunlawfully-harmed-me["] accusation. [Twombly, 550 U.S.] at 555 . . . . A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." [Id.] at 555. Nor does a complaint suffice if it tenders "naked assertion [s]" devoid of "further factual enhancement." Id. at 557. . . . A claim has facial plausibility [only] when the plaintiff pleads factual content . . . . Id. at 556. [Moreover,] the plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully. Id. [Indeed, even w]here a complaint pleads facts that are "merely consistent with" a defendant's liability, [the so-alleging complaint still] "stops short of [showing] plausibility of `entitlement to relief.'" Id. at 557 (brackets omitted). [A fortiori,] the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions [or to t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements [i.e., by] legal conclusion[s] couched as a factual allegation [e.g.,] the plaintiffs' assertion of an unlawful agreement [or] that [defendants] adopted a policy "`because of,' not merely `in spite of,' its adverse effects upon an identifiable group." . . . . [W]e do not reject these bald allegations on the ground that they are unrealistic or nonsensical. . . . It is the conclusory nature of [these] allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth. . . . [Finally,] the question [of sufficiency of] pleadings does not turn. . . the discovery process. Twombly, 550 U.S.] at 559. . . . [The plaintiff] is not entitled to discovery [where the complaint alleges any of the elements] "generally," [i.e., as] a conclusory allegation [since] Rule 8 does not [allow] pleading the bare elements of [the] cause of action [and] affix [ing] the label "general allegation" [in hope to develop facts through discovery].

Iqbal, 129 S.Ct. at 1949-54.

III. DISCUSSION

Here, Plaintiff asserts that his rights were violated because he was not provided with GED educational materials. However, prisoners have no constitutional right to an education. See Rhodes v. Chapman, 452 U.S. 337, 348, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) ("Prisoners have no constitutional right to . . . education"); Canterino v. Wilson, 869 F.2d 948, 952-54 (6thCir.1989) (same); Risso v. Dawson, 778 F.2d 527, 530-31 (9th Cir.1985) (same); Garza v. Miller, 688 F.2d 480, 486 (7th Cir.1982) (same); Shaw v. Parker, 2009 U.S. Dist. LEXIS 12007 (D.Del. Feb. 18, 2009) (same); Short v. Danberg, 2008 U.S. Dist. LEXIS 84917 (D.Del. Oct. 21, 2008) (same); Mason v. Educ. Dep't, 2008 U.S. Dist. LEXIS 42183 (D.Del. May 28, 2008) ("[Plaintiff] contends he is being denied education and schooling. Unfortunately for [Plaintiff], prisoners have no constitutional right to an education"); Wright v. Williams, 2008 U.S. Dist. LEXIS 38851 (D.Del. May 13, 2008) (same); Boyer v. Taylor, 2007 U.S. Dist. LEXIS 51159 (D.Del. July 16, 2007) (same); Glenn v. Hayman, 2007 U.S. Dist. LEXIS 20092 (D.N.J. Mar. 20, 2007) (same); Longendorfer v. Roth, 1992 U.S. Dist. LEXIS 5806 (E.D.Pa. Apr. 23, 1992) (same). Moreover, to the degree Plaintiff wishes to obtain GED materials to "better his life," his claim is too facially without merit: it is well-established that the individuals serving criminal sentences have no constitutional right to rehabilitation while in prison. See Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) (inmate has no legitimate statutory or constitutional entitlement in eligibility for rehabilitative program sufficient to invoke due process when eligibility decision is discretionary with prison officials); Torres Garcia v. Puerto Rico, 402 F.Supp.2d 373, 383 (D.P.R.2005) (inmates have no constitutional interest in participation in a rehabilitation program); Pabon v. McIntosh, 546 F.Supp. 1328, 1339 (E.D.Pa.1982) (the failure of prison authorities to afford rehabilitative programs in prison is constitutionally unobjectionable). Accordingly, the Court will dismiss Plaintiffs claims as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) (1).

IV. LEAVE TO AMEND

*3 Ordinarily, the plaintiff may be granted "leave [to amend,] . . . when justice so requires." See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); accord Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir.1993).

Indeed, "[t]he Federal Rules rej ect the approach that pleading is a game of skill in which one misstep . . . may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Foman, 371 U.S. at 182-83. However, "[a]llowing leave to amend where there is a stark absence of any suggestion by the plaintiffs [may] cure the defects in the pleadings . . . would frustrate Congress's objective in enacting this statute of `provid[ing] a filter at the earliest stage (the pleading stage) to screen out lawsuits that have no factual basis." Cal. Pub. Emples'. Ret. Sys. v. Chubb Corp., 394 F.3d 126, 164 (3d Cir.2004) (internal quotation marks and citation omitted); accord In re Career Educ. Corp. Sec. Litig., 2007 U.S. Dist. LEXIS 23635, at *36 (N.D.Ill. Mar. 29, 2007) (where "plaintiffs have had ample opportunities to research and plead their claims," but failed to compose a sufficient pleading, the complaint must be dismissed with prejudice).

Here, Plaintiff's Complaint fails to state a cognizable claim. Moreover, the Complaint unambiguously indicates that Plaintiff's challenges based on the alleged denial of educational materials are without merit, and this deficiency cannot be cured by repleading. Therefore, allowing Plaintiff an opportunity to amend his pleading will be futile. Consequently, Plaintiff's claims will be dismissed with prejudice.

V. CONCLUSION

For the foregoing reasons, the Court will grant Plaintiff in forma pauperis status and direct filing of Plaintiff's Complaint. The Court will dismiss Plaintiff's allegations for failure to state a claim upon which relief can be granted. Such dismissal will be with prejudice.

An appropriate Order accompanies this Opinion. All Citations

Not Reported in F.Supp.2d, 2011 WL 6002097

Footnotes

MEMORANDUM

GREGORY M. SLEET, Chief District Judge.

*1 The plaintiff, Marquis Mason ("Mason"), an inmate at the Howard R. Young Correctional Institution, ("HRYCI"), Wilmington, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983. (D.I.2.) He appears pro se and was granted permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (D.I.5.) The court now proceeds to review and screen the complaint pursuant to 28 U.S.C. § 1915 and § 1915A.

I. BACKGROUND

Mason sets forth a litany of complaints.1 He alleges that the conditions at HRYCI are unsanitary and unsafe, juveniles are housed with adults, he is housed with a sex offender and child offender which endangers his welfare. He alleges that he was sent to "the hole" for disciplinary reasons, the time has expired, but he is denied general population housing. He is only allowed out of his cell once every forty-eight to sixty-three hours for exercise. He is being denied education or schooling, medical care, he has inadequate access to the library, and that the mail system is inadequate.

According to Mason, the foregoing acts took place under the authority of defendant Jill Walters ("Walters"). Finally, he alleges that all of these events demonstrate intentional retaliation against him by the defendants Walters, Cpt. Berggrun ("Berggrun"), the Education Committee, and the Medical Committee.2

II. STANDARD OF REVIEW

When a litigant proceeds in forma pauperis, 28 U.S.C. § 1915 provides for dismissal under certain circumstances. When a prisoner seeks redress from a government defendant in a civil action, 28 U.S.C. § 1915A provides for screening of the complaint by the court. Both 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1) provide that the court may dismiss a complaint, at any time, if the action 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. An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).

In performing its screening function under § 1915(e)(2)(B), the court applies the standard applicable to a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Fullman v. Pennsylvania Dep't of Corr., No. 4:07CV-000079, 2007 WL 257617 (M.D.Pa. Jan. 25, 2007) (citing Weiss v. Cooley, 230 F.3d 1027, 1029 (7th Cir.2000). The court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff. Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007). A complaint must contain "`a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); Fed.R.Civ.P. 8. A complaint does not need detailed factual allegations, however, "a plaintiffs obligation to provide the `grounds' of his `entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1965 (citations omitted). The "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted).

*2 Mason is required to make a "showing" rather than a blanket assertion of an entitlement to relief. Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir.2008). "[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only "fair notice," but also the "grounds" on which the claim rests. Id. (citing Twombly, 127 S.Ct. at 1965 n. 3). Therefore, "`stating. . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element." Id. at 235 (quoting Twombly, 111 S.Ct. at 1965 n. 3). "This `does not impose a probability requirement at the pleading stage,' but instead `simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 134. Because Mason proceeds pro se, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 111 S.Ct. 1191, 1100 (1001) (citations omitted).

III. DISCUSSION

A. Deficient Pleading

Initially, the court notes that the complaint contains a blanket assertion of entitlement to relief. Moreover, the complaint is deficiently pled. A civil rights complaint must state the conduct, time, place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher, 413 F.3d 341, 353 (3d Cir.1005) (citing Boykins v. Ambridge Area Sch. Dist., 611 F.1d 15, 80 (3d Cir.1980); Hall v. Pennsylvania State Police, 510 F.1d 86, 89 (3d Cir.1918)). Additionally, when bringing a § 1983 claim, a plaintiff must allege that some person has deprived him of a federal right, and that the person who caused the deprivation acted under color of state law. West v. Atkins, 481 U.S. 41, 48 (1988). While the complaint contains general allegations, it does not provide sufficient facts to apprise the defendants of their alleged actions. For this reason alone, the court will dismiss the complaint.

Accordingly, the court will dismiss the complaint for failure to state a claim upon which relief may be granted pursuant to 18 U.S.C. § 1915(e)(1)(B) and § 1915A(b)(1). Mason, however, will be given leave to amend his complaint as to the conditions of confinement claim,3 the medical needs claim,4 and the denial, delay and misplacement of mail claim.5 As will be discussed, all other claims are dismissed with prejudice.

B. Housing/Classification

Mason complains that even though he has served his disciplinary time in "the hole" he has not been returned to general population. Inmates have "no legitimate statutory or constitutional entitlement" to any particular custodial classification even if a new classification would cause that inmate to suffer a "grievous loss." Moody v. Daggett, 419 U.S. 18, 88 n. 9 (1916).

*3 Moreover, neither Delaware law nor Delaware Department of Correction regulations create a liberty interest in a prisoner's classification within an institution. See Del.Code Ann. tit. 11, § 6519(e). "`As long as the conditions or degree of confinement to which [a] prisoner is subj ected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight.'" Hewitt v. Helms, 459 U.S. 460, 468 (1983) (quoting Montanye v. Haymes, 411 U.S. 136, 141 (1916)). It has thus been determined that the transfer of a prisoner from one classification is unprotected by "`the Due Process Clause in and of itself,'" even though the change in status involves a significant modification in conditions of confinement. Hewitt, 459 U.S. at 468 (citation omitted); Moody v. Daggett, 419 U.S. 18 (1916).

The court concludes that Mason's continued placement in disciplinary segregation does not violate his due process rights, and as a result, cannot be viewed as falling outside the scope of "the sentence imposed upon him [or] otherwise violative of the Constitution." Mason cannot state a claim a claim for violation of a liberty interest created by the Due Process Clause or State law. His due process claim has no arguable basis in law or in fact, and therefore, will be dismissed as frivolous pursuant to 18 U.S.C. § 1915(e)(1)(B) and § 1915A(b)(1).

C. Education

Mason contends he is being denied education and schooling. Unfortunately for Mason, prisoners have no constitutional right to an education. Canterino v. Wilson, 869 F.1d 948, 951-54 (6th Cir.1989); Risso v. Dawson, 118 F.1d 511, 530-31 (9th Cir.1985); Garza v. Miller, 688 F.1d 480, 486 (1th Cir.1981); Longendorfer v. Roth, No. 91-1180, 1991 WL 95919, at *1 (E.D.Pa. Apr. 13, 1991). Therefore, the court will dismiss the claim as frivolous pursuant to 18 U.S.C. § 1915(e)(1)(B) and § 1915A(b)(1).

D. Law Library

Mason alleges he is receiving inadequate time in the library. The court presumes he complains about law library time, even though he refers, generally, to the library and not the law library.

Prisoners must be allowed "adequate, effective and meaningful" access to the courts. Bounds v. Smith, 430 U.S. 811, 811 (1911) (holding that prisons must give inmates access to law libraries or direct legal assistance). A violation of the First Amendment right of access to the courts is only established where a litigant shows that he was actually injured by the alleged denial of access. The actual injury requirement is a constitutional prerequisite to suit. Lewis v. Casey, 518 U.S. 343, 351 (1996); Christopher v. Harbury, 536 U.S. 403, 415 (1001) (explaining that the constitutional right of access is "ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court"). An actual injury is shown only where a nonfrivolous, arguable claim is lost. Christopher, 536 U.S. at 415.

*4 Mason alleges that he does not receive adequate library time, but gives no specifics. Moreover, he does not allege an injury, as is required for denial of access to the courts. Accordingly, the court will dismiss the claim as frivolous and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).

E. Retaliation

Mason alleges that all his allegations demonstrate retaliation against him by Walters and Berggrun. Proof of a retaliation claim requires that Mason demonstrate (1) constitutionally protected conduct; (2) an adverse action by prison officials "`sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights,'" and (3) "a causal link between the exercise of his constitutional rights and the adverse action taken against." Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003) (citations omitted).

Even applying the retaliation standard and construing the complaint liberally, Mason has failed to state a claim of retaliation. Therefore, the court will dismiss the retaliation claim against Walters and Berggrun pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).

F. Respondeat Superior

Mason alleges that the acts, as alleged, took place under Walters' authority. It appears that she is named as a defendant based upon her supervisory position. Liability in a § 1983 action cannot be predicated solely on the operation of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1998) (citations omitted). A plaintiff may set forth a claim for supervisory liability under § 1983 if he "(1) identifies] the specific supervisory practice or procedure that the supervisor failed to employ, and show[s] that (2) the existing custom and practice without the identified, absent custom or procedure created an unreasonable risk of the ultimate injury, (3) the supervisor was aware that this unreasonable risk existed, (4) the supervisor was indifferent to the risk; and (5) the underling's violation resulted from the supervisor's failure to employ that supervisory practice or procedure." Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir.2001) (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.1989)). It is not enough for a plaintiff to argue that the alleged injury would not have occurred if the supervisor had "done more." Id. He must identify specific acts or omissions of the supervisor that evidence deliberate indifference and establish a link between the act or omission and the ultimate injury. Id.

In order for a supervisory public official to be held liable for a subordinate's constitutional tort, the official must either be the "moving force [behind] the constitutional violation" or exhibit "deliberate indifference to the plight of the person deprived." Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.1989) (citing City of Canton v. Harris, 489 U.S. 378, 389 (1989)). There is nothing in the complaint to indicate that Walters was the "driving force [behind]" Mason's alleged constitutional violation. Moreover, the complaint does not indicate that Wallace was aware of Mason's allegations and remained "deliberately indifferent" to his plight. Sample v. Diecks, 885 F.2d at 1118. Accordingly, the claim against Walters i:s dismissed inasmuch as it has no arguable basis in law or in fact pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).

G. Persons

*5 Mason names as defendants the Education Department and the Medical Committee. To state a viable § 1983 claim, a plaintiff must allege facts showing a deprivation of a constitutional right, privilege or immunity by a person acting under color of state law See Daniels v. Williams, 474 U.S. 327, 330 (1986). The claims against the Education Department and the Medical Committee are barred by Will v. Michigan Department of State Police, 491 U.S. 58, 69 (1989), which holds that neither states nor state officials sued in their official capacities for money damages are "persons" within the meaning of § 1983. See Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.2005).

Additionally, the Education Department and the Medical Committee are immune from suit. "Absent a state's consent, the Eleventh Amendment bars a civil rights suit in federal court that names the state as a defendant." Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir.1981) (citing Alabama v. Pugh, 438 U.S. 781 (1978)). The State has not waived its immunity from suit in federal court, and although Congress can abrogate a state's sovereign immunity, it did not do so through the enactment of 42 U.S.C. § 1983. Brooks-McCollum v. Delaware, 213 Fed. Appx. 92, 94 (3d Cir.2007) (citations omitted). Hence, as an agency of the State of Delaware, the HYRCI, including its Education Department and Medical Committee, is entitled to immunity under the Eleventh Amendment. See e.g. Evans v. Ford, C.A. No. 03-868-KAJ, 2004 WL 2009362, *4 (D.Del. Aug. 25, 2004) (dismissing claim against DOC, because DOC is state agency and DOC did not waive Eleventh Amendment immunity).

The Education Department and the Medical Committee are not persons within the meaning of § 1983, and also they are immune from suit. As a result, the claims against them lack an arguable basis in law or in fact and they are dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).

IV. CONCLUSION

For the above stated reasons the court finds that the complaint fails to state a claim upon which relief may be granted. Therefore, the court will dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(l). Mason will be given leave to amend the complaint only as to the medical needs claim, the conditions of confinement claim, and the mail claim. An appropriate order will be entered.

ORDER

At Wilmington this 25th day of May, 2008, for the reasons set forth in the Memorandum issued this date

1. The complaint is dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).

2. Mason is given leave to amend the complaint only as to the medical needs claim, the conditions of confinement claim, and the delay or denial of mail claim. The amended complaint shall be filed within thirty days from the date of this order. Mason is placed on notice that the copies of the amended complaint submitted to the court must be identical. If an amended complaint is not filed within the time allowed, then the case will be closed.

All Citations

Not Reported in F.Supp.2d, 2008 WL 2219304.