See Bivens v. Six Unknown Named Agents of Federal Bureau of 1

Narcotics, 403 U.S. 388 (1971).

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN T. P.-GEORGE, aka : CIVIL NO. 4:05-CV-2181

JOHN R. DALEY, JR., :

:

Plaintiff : (Judge Muir)

:

v. : (Magistrate Judge Smyser)

:

WARDEN, FCI Schuylkill, and :

THE HEALTH ADMINISTRATION DEPT.,:

:

Defendants :

REPORT AND RECOMMENDATION

On October 26, 2005, the plaintiff, a federal prisoner

proceeding pro se, commenced this Bivens action by filing a 1

complaint. The plaintiff also filed an application to proceed

in forma pauperis.

By an Order dated November 22, 2005, we reviewed the

complaint pursuant to 28 U.S.C. § 1915A which provides, in

pertinent part:

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2

(a) Screening.- The court shall review,

before docketing, if feasible or, in any event,

as soon as practicable after docketing, a

complaint in a civil action in which a prisoner

seeks redress from a governmental entity or

officer or employee of a governmental entity.

(b) Grounds for dismissal.- On review, the

court shall identify cognizable claims or

dismiss the complaint, or any portion of the

complaint, if the complaint-

(1) is frivolous, malicious, or fails to

state a claim upon which relief may be granted;

or

(2) seeks monetary relief from a defendant

who is immune from such relief.

The complaint names as defendants the Warden at the

Federal Correctional Institution at Schuylkill and the Health

Administration Department.

The plaintiff alleges that he requested a complete HIV

test including blood, semen and urine testing. The plaintiff

attached to his complaint as an exhibit a response by Ronnie R. 

Holt, the Warden at FCI-Schuylkill, to his Inmate Request to

Staff requesting complete HIV testing. Warden Holt responded

by stating that the Health Services Administrator informed him

that the plaintiff was tested for HIV on September 8, 2005,

that pursuant to a Health Services policy the test used was a

Case 4:05-cv-02181-JEJ Document 17 Filed 01/09/06 Page 2 of 7
3

blood test, and that semen and urine are not routinely used in

the diagnosis of HIV. 

In the Order of November 22, 2005, we concluded that

the plaintiff failed to state a claim upon which relief can be

granted. We stated and reasoned as follows:

The plaintiff has failed to state a claim

upon which relief can be granted based on the

fact the semen and urine tests were not

performed to check for HIV. Although there are

tests that use other body fluids to screen for

antibodies to HIV, the standard HIV screening

test is a blood test. See

www.cdc.gov/hiv/pubs/faq/faq8.htm (visited on

Nov. 22, 2005). The plaintiff does not have a

constitutional or statutory right to have urine

and semen tests to screen for HIV. 

Accordingly, the plaintiff fails to state a

claim upon which relief may be granted based on

the denial of urine and semen HIV tests. 

The plaintiff also alleges that he was

denied access to the law library while he was

in segregation, that the law books available to

him are inadequate and that he is not given

adequate time in the law library. 

Inmates have a right of access to the

courts. Lewis v. Casey, 518 U.S. 343, 350

(1996); Bounds v. Smith, 430 U.S. 817 (1977). 

In order to succeed on an access to the courts

claim an inmate must prove actual injury.

Lewis, supra, 518 U.S. at 351. Actual injury

is the loss of a non-frivolous claim that

relates to a challenge, direct or collateral,

Case 4:05-cv-02181-JEJ Document 17 Filed 01/09/06 Page 3 of 7
4

to an inmate’s conviction or relates to a

challenge to the conditions of confinement. Id.

at 351-54. 

Although the plaintiff alleges that he has

a number of habeas corpus petitions pending, he

has not alleged that denial of access to the

law library or law books has actually resulted

in a loss of a non-frivolous claim that relates

to a challenge to his conviction or that

relates to a challenge to the conditions of his

confinement. Thus, the plaintiff has not pled

an actual injury to his right of access to the

courts. Accordingly, the plaintiff fails to

state an access to the courts claim upon which

relief may be granted.

The plaintiff alleges “dilatory

retaliation” by the administration of the

Bureau of Prisons. The plaintiff alleges that

he was given numerous disciplinary sanctions

after applying for a job in the institutional

law library. The plaintiff, however, has not

alleged that the named defendants retaliated

against him for exercising a constitutional

right.

Liability in a Bivens action may not be

based on respondeat superior. Simpkins v.

District of Columbia, 108 F.3d 366, 369 (D.C.

Cir. 1997). The complaint must contain

averments of the involvement of the defendants

in the conduct which caused a violation of the

plaintiff's constitutional rights. Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988). An action against supervisory officials

requires allegations that the defendants

actually participated in or had actual

knowledge of and acquiesced in the events

forming the basis of the claims. Egan v.

Concini, 585 F. Supp. 801, 804 (M.D. Pa. 1984).

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5

Since the plaintiff has not alleged that

the named defendants actually retaliated

against him or had actual knowledge of and

acquiesced in retaliation against him because

of his exercise of a constitutional right, the

plaintiff has failed to state a retaliation

claim upon which relief may be granted. 

Doc. 10 at 3-5.

Before dismissing a complaint for failure to state a

claim upon which relief may be granted pursuant to the

screening provisions of 28 U.S.C. § 1915A, the court must grant

the plaintiff leave to amend his complaint unless amendment

would be inequitable or futile. See Grayson v. Mayview State

Hospital, 293 F.3d 103, 114 (3 Cir. 2002). In the instant rd

case, we granted the plaintiff leave to file an amended

complaint on or before December 23, 2005. We noted that any

amended complaint shall be complete in all respects, shall be a

new pleading which stands by itself as an adequate complaint

without reference to the complaint already filed, and shall

also be "simple, concise, and direct" as required by the

Federal Rules of Civil Procedure. We noted that if the

plaintiff does not file an amended complaint, it will be

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recommended that the complaint be dismissed for failure to

state a claim upon which relief may be granted.

On December 1, 2005, the plaintiff filed what he termed

an amendment to his civil action. On January 5, 2006, the

plaintiff filed another document termed as an amendment to his

civil action. In both of these documents, the plaintiff sets

forth additional citations to statutes and rules. Neither of

these amendments cures the deficiencies noted in the Order of

November 22, 2005. 

On December 12, 2005, the plaintiff filed a document

and exhibits in response to the Order of November 22, 2005. We

construe this document as an amended complaint. The amended

complaint suffers from the same deficiencies (noted in the

Order of November 22, 2005) as the original complaint. For the

reasons stated in the Order of November 22, 2005, we will

recommend that the plaintiff’s amended complaint be dismissed

for failure to state a claim upon which relief may be granted.

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Based on the foregoing, it is recommended that the

plaintiff’s amended complaint be dismissed pursuant to 28

U.S.C. § 1915A for failure to state a claim upon which relief

may be granted. It is further recommended that the case be

closed.

/s/ J. Andrew Smyser

J. Andrew Smyser

Magistrate Judge

Dated: January 9, 2006. 

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