IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JEFFREY SCOTT, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-15-2379

:

WARDEN DOMINICK DEROSE, : (Judge Brann)

ET AL., :

:

Defendants :

MEMORANDUM

August 23, 2016

Background

 This pro se civil rights action was filed by Jeffrey Scott, an inmate

presently confined at the Dauphin County Prison, Harrisburg, Pennsylvania. 

Named as Defendants are the following Dauphin County Prison officials: Warden

Dominick DeRose, Correctional Officers Jess Weary and Roxanne Morton. 

Service of the Complaint was previously ordered.

This Complaint generally contends that Warden DeRose forces inmates to

live in overcrowded conditions, to eat where you use the restroom, and allows his

correctional officers to harass inmates in protective custody. See Doc. 1, ¶ IV. It

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is further alleged that Scott is being denied proper medical care for a

psychological condition that he has suffered from since childhood and that he is

not afforded adequate exercise. Scott also vaguely asserts Defendants Weary and

Morton harass inmates in protective custody for high profile crimes “and put

them on the spot for child crimes.” Id.

Presently pending is Defendants’ motion to dismiss the Complaint.1

 See

Doc. 14. The motion is unopposed.

Discussion

Defendants claim entitlement to entry of dismissal on the grounds that: (1) 

Scott cannot represent the interests of other prisoners; (2) allegations of verbal

harassment are not actionable; (3) the claims against Warden DeRose are

improperly premised on a theory of supervisory liability; (4) the Plaintiff only

alleges a de minimis physical injury; (5) Scott admittedly failed to exhaust his

available administrative remedies ; (6) a viable claim of deliberate indifference is

not stated; and (7) they are entitled to qualified immunity.

1

 While the motion to dismiss indicates that it is filed solely on behalf of

Warden DeRose, the supporting brief asserts arguments on behalf of all three

Defendants. As such, the unopposed request for dismissal will be construed as

seeking relief on behalf of all three Defendants.

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Standard of Review 

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of

complaints that fail to state a claim upon which relief can be granted. When ruling

on a motion to dismiss under Rule 12(b)(6), the court must “accept as true all

factual allegations in the complaint and all reasonable inferences that can be

drawn therefrom, and view them in the light most favorable to the plaintiff.” 

Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)(quoting Evancho v. Fisher,

423 F.3d 347, 350 (3d Cir. 2005)). 

A plaintiff must present facts that, if true, demonstrate a plausible right to

relief. See Fed. R. Civ. P. 8(a)(stating that the complaint should include “a short

and plain statement of the claim showing that the pleader is entitled to relief”);

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This requirement “calls

for enough facts to raise a reasonable expectation that discovery will reveal

evidence of” the necessary elements of the plaintiff’s cause of action. Id. at 556. 

A complaint must contain “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements do not suffice.” Id. Legal conclusions must be supported by factual

allegations and the complaint must state a plausible claim for relief. See id. at

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679. 

“Factual allegations must be enough to raise a right to relief above the

speculative level, on the assumption that all the allegations in the complaint are

true (even if doubtful in fact).” Twombly, 550 U.S. at 555. The reviewing court

must determine whether the complaint “contain[s] either direct or inferential

allegations respecting all the material elements necessary to sustain recovery

under some viable legal theory.” Id. at 562; see also Phillips v. County of

Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)(in order to survive a motion to

dismiss, a plaintiff must allege in his complaint “enough facts to raise a reasonable

expectation that discovery will reveal evidence of the necessary element[s]” of a

particular cause of action). Additionally, pro se pleadings are to be construed

liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972).

Class Certification

A pro se litigant lacks the capacity to represent the interests of his fellow

inmates in a class action. Cahn v. United States, 269 F. Supp.2d 537, 547 (D.N.J.

2003); Caputo v. Fauver, 800 F. Supp 168, 170 (D.N.J. 1992); Collinsgru v.

Palmyra Board Of Education, 161 F.3d 225, 232 (3d Cir. 1998)(non-attorneys

cannot litigate the rights of others); Osei-Afriye v. Medical College of Pa., 937

F.2d 876, 883 (3d Cir. 1991). It is plain error to permit a pro se inmate litigant to

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represent fellow inmates. Whalen v. Wiley, No. 06- 809, 2007 WL 433340 *2

(D. Col. Feb. 1, 2007). 

However, a pro se litigant seeking class certification may “continue

individually to pursue his claims.” Id. Simply put, a pro se prisoner pursuing a

civil rights claim in federal court “must allege a personal loss and seek to

vindicate a deprivation of his own constitutional rights.” Id.; Nilsson v. Coughlin,

670 F. Supp. 1186, 1190 (S.D.N.Y. 1987). 

Accordingly, since a pro se litigant cannot represent and protect the interests

of a class fairly and adequately, any request by Scott to obtain relief or pursue

claims on behalf of his fellow inmates will be denied. See Sacaza-Jackson v.

Aviles, Civ. No. 06-4492, 2007 WL 38905 *3 (D.N.J. Jan. 4, 2007). 

Verbal Abuse

The Complaint includes allegations that Scott was subjected to verbal

harassment by Correctional Officers Weary and Morton. It is well settled that the

use of words generally cannot constitute an assault actionable under § 1983. 

Johnson v. Glick, 481 F.2d 1028, 1033 n.7 (2d Cir.); Maclean v. Secor, 876 F.

Supp. 695, 698-99 (E.D. Pa. 1995); Murray v. Woodburn, 809 F. Supp. 383, 384

(E.D. Pa. 1993) ("Mean harassment . . . is insufficient to state a constitutional

deprivation."); Prisoners' Legal Ass'n v. Roberson, 822 F. Supp. 185, 189 (D.N.J.

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1993) ("[V]erbal harassment does not give rise to a constitutional violation

enforceable under § 1983.").

Mere threatening language and gestures of a custodial officer do not, even if

true, amount to constitutional violations. Balliet v. Whitmire, 626 F. Supp. 219,

228-29 (M.D. Pa.) ("[v]erbal abuse is not a civil rights violation . . ."), aff'd, 800

F.2d 1130 (3d Cir. 1986) (Mem.). A constitutional claim based only on verbal

threats will fail regardless of whether it is asserted under the Eighth Amendment's

cruel and unusual punishment clause, see Prisoners' Legal Ass'n, 822 F. Supp. at

189, or under the Fifth Amendment's substantive due process clause.

Verbal harassment, with some reinforcing act accompanying it, however,

may state a constitutional claim. For example, a viable claim has been found if

some action taken by a defendant escalated the threat beyond mere words. See

Northington v. Jackson, 973 F.2d 1518 (10th Cir. 1992) (guard put a revolver to

the inmate's head and threatened to shoot); Douglas v. Marino, 684 F. Supp. 395

(D.N.J. 1988) (involving a prison employee who threatened an inmate with a

knife). Moreover, alleged instances of verbal harassment which are not

accompanied by any physical contact are constitutionally insufficient. See Hart v.

Whalen, Civ. No. 08-0828, 2008 WL 4107651 *10 (M.D. Pa. July 29, 2008); 

Wright v. O’Hara, Civ. No. 00-1557, 2004 WL 1793018 *7 (E.D. Pa.

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2004)(correctional officer’s words and gestures, including lunging at prisoner with

a clenched fist were constitutionally insufficient because there was no physical

contact).

There is no indication that the verbal harassment allegedly directed against

Scott was accompanied by a reinforcing act involving a deadly weapon as

contemplated under Northington and Douglas. More importantly, it is not stated

that the alleged verbal abuse was accompanied by any physically intrusive

behavior. Given the circumstances described by Plaintiff, the purported verbal

abuse was not of such magnitude to shock the conscience as contemplated by this

Court in S.M. v. Lakeland School District, 148 F. Supp.2d 542, 547-48 (M.D. Pa. 

2001); thus, the vague assertions of verbal harassment referenced in the Complaint

do not rise to the level of a viable constitutional claim.

Personal Involvement

 Defendants next assert that the Complaint fails to sufficiently allege

personal involvement by Warden DeRose in any alleged constitutional violations. 

See Doc. 15, p. 8. It is again noted that this argument is unopposed.

 A plaintiff, in order to state an actionable civil rights claim, must plead two

essential elements: (1) that the conduct complained of was committed by a person

acting under color of law, and (2) that said conduct deprived the plaintiff of a

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right, privilege, or immunity secured by the Constitution or laws of the United

States. Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995);

Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990). 

Civil rights claims brought cannot be premised on a theory of respondeat

superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each

named defendant must be shown, via the complaint's allegations, to have been

personally involved in the events or occurrences which underlie a claim. See

Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials,

546 F.2d 1077 (3d Cir. 1976). As explained in Rode:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs. . . . [P]ersonal involvement

can be shown through allegations of personal direction or of

actual knowledge and acquiescence. Allegations of

participation or actual knowledge and acquiescence, however,

must be made with appropriate particularity. 

Rode, 845 F.2d at 1207.

Warden DeRose is clearly employed in a supervisory capacity within the

prison. The Complaint generally contends that the Warden was responsible for

alleged inadequate conditions of confinement existing in the prison and allowed

correctional officers to harass prisoners. See Doc. 1, ¶IV(1). This contention

arguably alleges personal involvement by the Warden. However, any attempt by

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Plaintiff to establish liability against Warden DeRose solely based upon his

supervisory capacity is insufficient under Rode. 

 It is also possible that Plaintiff may be attempting to establish liability

against DeRose due to his responses or non-response to administrative grievances

or complaints. Prisoners have no constitutionally protected right to a grievance

procedure. See Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S.

119, 137-38 (1977)(Burger, C.J., concurring) (“I do not suggest that the

[grievance] procedures are constitutionally mandated.”); Speight v. Sims, 283 Fed.

Appx. 880, 881 (3d. Cir. 2008)(citing Massey v. Helman, 259 F.3d 641, 647 (7th

Cir. 2001)(“[T]he existence of a prison grievance procedure confers no liberty

interest on a prisoner.”) 

 While prisoners do have a constitutional right to seek redress of their

grievances from the government, that right is the right of access to the courts

which is not compromised by the failure of prison officials to address an inmate’s

grievance. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (federal grievance

regulations providing for administrative remedy procedure do not create liberty

interest in access to that procedure). Any attempt by Plaintiff to establish liability

against Defendant DeRose based upon his handling of Scott’s administrative

grievances or complaints does not support a constitutional claim. See

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also Alexander v. Gennarini, 144 Fed. Appx. 924, 925 (3d Cir. 2005)(involvement

in post-incident grievance process not a basis for § 1983 liability); Pryor-El v.

Kelly, 892 F. Supp. 261, 275 (D. D.C. 1995) (because prison grievance procedure

does not confer any substantive constitutional rights upon prison inmates, the

prison officials' failure to comply with grievance procedure is not actionable). 

Pursuant to the above discussion the request for entry of dismissal on the

basis of lack of personal involvement will be granted to the extent that Plaintiff

seeks to establish liability against Warden DeRose solely on the basis of his

supervisory capacity or his responses or non-responses to Plaintiff’s

administrative grievances.

Lack of Injury

Defendants’ motion next claims that entry of dismissal is proper because the

Plaintiff “alleges no injury at all in this case.” Doc. 15, p. 11. A review of the

Complaint shows that Scott is not requesting an award of compensatory damages

but is instead seeking punitive damages for emotional injury caused by having to

live in what he alleges are unconstitutional conditions of confinement. See Doc.

1, ¶ IV.

Title 42 U.S.C. § 1997e(e) provides that “[n]o federal civil action may be

brought by a prisoner confined in a jail, prison or other correctional facility, for

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mental or emotional injury suffered while in custody without a prior showing of

physical injury." In Allah v. Al-Hafeez, 226 F.3d 247,250 (3d Cir. 2000), the

United States Court of Appeals for the Third Circuit recognized that where a

plaintiff fails to allege actual injury, Section 1997e(e) bars recovery of

compensatory damages. However, the Court of Appeals added that an inmate

alleging a violation of his constitutional rights may still pursue the action to

recover nominal and/or punitive damages even in the absence of compensable

harm.

 Under the standards announced in Allah, any request by Plaintiff for 

compensatory damages for emotional and psychological injuries for violation of

his constitutional rights is barred by Section 1997e(e). However, his request for

punitive damages may still be pursued.

Administrative Exhaustion

Defendants further argue that this action cannot proceed since “Plaintiff

candidly admits that he did not exhaust his remedies.” Doc. 15, p. 13. As

previously noted, this argument is unopposed.

Section 1997e(a) of Title 42 U.S.C. provides:

No action shall be brought with respect to prison

conditions under Section 1979 of the Revised Statutes of

the United States (42 U.S.C. 1983), or any other federal

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law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies

as are available are exhausted. 

Section 1997e(a) requires administrative exhaustion “irrespective of the forms of

relief sought and offered through administrative avenues.” Porter v. Nussle, 122

S.Ct. 983, 992 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). Claims

for monetary relief are not excused from the exhaustion requirement. Nyhuis v.

Reno, 204 F.3d 65, 74 (3d Cir. 2000). Dismissal of an inmate’s claim is

appropriate when a prisoner has failed to exhaust his available administrative

remedies before bringing a civil rights action. Ahmed v. Sromovski, 103 F. Supp.

2d 838, 843 (E.D. Pa. 2000). “[E]xhaustion must occur prior to filing suit, not

while the suit is pending.” Tribe v. Harvey, 248 F.3d 1152, 2000 WL 167468, *2

(6th Cir. 2000)(citing Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999));

Oriakhi v. United States, 165 Fed. Appx. 991, 993 (3d Cir. 2006).

An inmate is not required to specifically plead or demonstrate exhaustion in

his or her complaint. See Jones v. Bock, 549 U.S. 199, 216 (2007); see also Ray

v. Kertes, 285 F.3d 287 (3d Cir. 2002)(a prisoner does not have to allege in his

complaint that he has exhausted administrative remedies). Rather, pursuant to the

standards announced in Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997), it

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is the burden of a defendant asserting the defense of non-exhaustion to plead and

prove it.2

 The United States Supreme Court in Jones noted that the primary

purpose of the exhaustion requirement is to allow prison officials to address

complaints before being subjected to suit, reducing litigation to the extent

complaints are satisfactorily resolved, and improving litigation that does occur by

leading to the preparation of a useful record. 

The administrative exhaustion mandate also implies a procedural default

component. Spruill v. Gillis 372 F.3d 218, 222 (3d Cir. 2004). As explained by

the Court of Appeals, a procedural default rule “prevents an end-run around the

exhaustion requirement.” Id. at 230. It also ensures “prisoner compliance with

the specific requirements of the grievance system” and encourages inmates to

pursue their administrative grievances “to the fullest.” Id. Similarly, the Supreme

Court has observed that proper exhaustion of available administrative remedies is

mandatory, meaning that prisoners must comply with the grievance system’s

procedural rules, including time limitations. Woodford v. Ngo, 548 U.S. 81

(2006).

2 In Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003), the Third Circuit

similarly stated that “[f]ailure to exhaust administrative remedies is an affirmative

defense for the defendant to plead.” 

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It has been recognized that “[t]here is no futility exception” to the

exhaustion requirement. Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002)

(citing Nyhuis, 204 F.3d at 75). Courts have reiterated the no futility exception

by an inmate’s argument that exhaustion should be excused because prisoner

grievances were regularly denied. Hill v. Smith, 186 Fed. Appx. 271, 274 (3d

Cir. 2006). Likewise, arguments of “sensitive’ subject matter or ‘fear of

retaliation’ as a basis for excusing a prisoner’s failure to exhaust” have also been

rejected. Pena-Ruiz v. Solorzano, 281 Fed. Appx. 110, 113 (3d Cir. 2008).

In his Complaint, Plaintiff acknowledges that the Dauphin County Prison

has an available prisoner grievance procedure. See Doc. 1, ¶ II. Scott further

states that he did not exhaust his available administrative remedies regarding his

pending claims “because the supervisor always agrees without full investigation

being done and no matter what you do your always wrong.” Id.

The Dauphin County Prison has an established four step inmate grievance

procedure. See Mathis v. Dauphin County Prison, Civ. No. 3:CV-12-1317, 2013

WL 4718918 *6 (M.D. Pa. Aug. 30, 2013). It provides that an inmate seeking

resolution of problems or other issues of concern arising during the course of his

confinement must first file a written grievance with the Warden. An appeal from

the Warden’s decision may be made to the Prison Board Chairman. If unsatisfied

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with that response, an appeal may be taken to the full Prison Board. Thereafter, a

final appeal may be presented to the Dauphin County Solicitor. See id.; Ortiz v.

Prison Board Members, Cic. No. 3:CV-08-2126, 2012 WL 2192256 * 4 (M.D.

Pa. June 14, 2012)

It is undisputed that the Dauphin County Prison had an established

grievance procedure in place during the relevant time period. In addition, Plaintiff

readily admits that he was aware of the procedure and elected not to file a

grievance relating to any of his pending claims against the Defendants. There is

also no futility exception to the exhaustion requirement. Based upon those factors,

as well as Plaintiff’s failure to oppose the request for dismissal, a finding of nonexhaustion and entry of dismissal in favor of the Defendants under the well-settled

Spruill and Woodford standards is appropriate.3

 See Lockett v. DeRose, 355 Fed

Appx. 582, 584-85 (3d Cir. 2009). An appropriate Order will enter.

BY THE COURT:

3 Since dismissal for non-exhaustion is appropriate, consideration of

Defendants’ remaining arguments is not required. However, the Court notes that all

of the Defendants are non-medical personnel and there is no discernible assertion that

any of them denied or delayed Plaintiff from receiving any medical care. As such,

Scott’s vague claim that he was denied mental health treatment is lacking. See

Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). 

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 s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

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