BLD-167                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 12-4591
                                     ___________

                                GREGG L. SMITH, JR.,
                                             Appellant

                                           v.

                  WILKES BARRE POLICE OFFCER BADGE #667
                    ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 3:12-cv-02001)
                     District Judge: Honorable Robert D. Mariani
                     ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 21, 2013

       Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

                             (Opinion filed: April 10, 2013)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Pro Se Appellant Gregg L. Smith, Jr., appeals the dismissal of his complaint under

28 U.S.C. § 1915(e)(2)(B)(ii). Because the appeal does not present a substantial
question, we will summarily affirm the judgment of the District Court. See 3d Cir.

L.A.R. 27.4; I.O.P. 10.6.

       Smith filed this § 1983 civil rights action against Defendant Wilkes Barre Police

Department Officer Badge # 667. The allegations of Smith’s complaint are difficult to

discern, but the gist of his complaint seems to be that the officer threatened to stab him in

the neck with a pen. This was one of five civil rights actions filed by Smith. On October

26, 2012, a Magistrate filed a report and recommendations in which he recommended

that Smith’s application to proceed in forma pauperis be granted and that all five civil

rights actions filed by Smith be dismissed pursuant to 28 U.S.C. § 1915 for failure to

state a claim. The Magistrate’s report did not specifically address Smith’s claims against

Wilkes Barre Police Department Officer Badge # 667, but stated that overall, Smith

failed to meet the pleading requirements of Rule 8 of the Federal Rules of Civil

Procedure, and that he failed to identify the constitutional right in question in each of his

complaints. On November 30, 2012, the District Court adopted the Magistrate’s report

and recommendation and dismissed Smith’s complaints with prejudice. Smith then

timely filed this appeal.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise

plenary review over the District Court’s dismissal order. See Allah v. Seiverling, 229

F.3d 220, 223 (3d Cir. 2000). The legal standard for dismissing a complaint for failure to

state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See id. This Court
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affirms a district court’s dismissal for failure to state a claim “only if, accepting all

factual allegations as true and construing the complaint in the light most favorable to the

plaintiff, we determine that the plaintiff is not entitled to relief under any reasonable

reading of the complaint.” McGovern v. City of Philadelphia, 554 F.3d 114, 115 (3d Cir.

2009). We may summarily affirm if the appeal does not present a substantial question,

and may do so on any basis supported by the record. Murray v. Bledsoe, 650 F.3d 246,

247 (3d Cir. 2011) (per curiam).

       We agree with the District Court that Smith’s complaint against Wilkes Barre

Police Department Officer Badge # 667 fails to state a claim upon which relief can be

granted. To survive dismissal, “a 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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570 (2007)). Here, even affording Smith with the liberal construction we must give to

pro se pleadings, see Haines v. Kerner, 404 U.S. 519, 520 (1972), his complaint does not

state a plausible claim for relief. Specifically, Smith alleges:

       I, Gregg Smith am making this complaint because this officer threatend
       (sic) to stab me in my neck with a pen at the residence of 29 Essex Lane. I
       was detained inside Arlene Bly “Great Grandmother” of my daughter wile
       (sic) he was walking me to his car he already snatched the pen out of my
       hand in the house because I ask him his name a badge because the mother
       of my child was to leave because Arlene didn’t want here there at the time.
       Arlene told the officers that I was pefictly (sic) fine. The gave mea public
       drunkness (sic) fine wile (sic) I was in the police station. They detained me
       inside the house 29 Essex Lane Wilkes Barre PA 18702. He officer # 667
       also stated wile (sic) I was in the back of the car “Do you know about the
       basement” I wouldn’t say a word to him after he threaten me with the pen
                                               3
       that he took from me. He also doing the car ride asked me what I was
       doing in Wilkes Barre PA. “Family” etc. I was there to see my daughter.
       This officer new (sic) that he was wrong. I believe that why he didn’t come
       to the madgestrate (sic). The madgestrait (sic) told me that he was on his
       way. I wated (sic) an he dismissed the case. I put a copy of the sitation
       (sic) in the complaint.

These allegations do not constitute a “short and plain statement of the claim showing that

[Smith] is entitled to relief,” as required by Rule 8 of the Federal Rules of Civil

Procedure. Using our judicial common sense, we conclude that Smith’s complaint does

not state a plausible claim for relief. See Iqbal, 556 U.S. at 679 (“Determining whether a

complaint states a plausible claim for relief will, as the Court of Appeals observed, be a

context-specific task that requires the reviewing court to draw on its judicial experience

and common sense” (citation omitted)). Accordingly, the District Court properly

dismissed Smith’s complaint for failure to state a claim. Moreover, we are satisfied that

amendment to Smith’s complaint would be futile, and therefore conclude that the District

Court properly dismissed the complaint without providing leave to amend. See Grayson

v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

       For the foregoing reasons, we will summarily affirm the District Court’s order

dismissing Smith’s complaint with prejudice. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.




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