1Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 91 S.Ct.

1999 (1971). Plaintiff has recently filed four other actions with this Court, namely 06-1698, 06-

1665, 06-1697 and 06-2265, M.D. Pa. 

 Plaintiff incorrectly styled his present action as being also under § 1983. (Doc. 1, p. 1). 

However, a § 1983 civil rights suit is against state officials and not federal officials of the Bureau

of Prisons (“BOP”), as Plaintiff is naming in this case. See Holocheck v. Luzerne County Head

Start, Inc., 385 F. Supp. 2d 491, 498-499 (M. D. Pa.). 

 

2By separate Order, we granted Plaintiff‘s Motion for in forma pauperis. (Doc. 2). 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNY CYRUS, : CIVIL ACTION NO. 3:CV-06-2022 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

 : 

KAREN F. HOGSTEN, et al., :

 :

Defendants : 

 REPORT AND RECOMMENDATION 

I. Background. 

Plaintiff,Johnny Cyrus, an inmate at the Federal Correctional Institution at Allenwood, White

Deer, Pennsylvania (“FCI-Allenwood”), filed, pro se, the instant civil rights action under Bivens1

pursuant to 28 U.S.C. § 1331 on October 16, 2006. The Plaintiff has also filed an application for

leave to proceed in forma pauperis. (Doc. 2).2 Attached to the Complaint were three handwritten

pages of the Statement of Facts. Plaintiff also filed a Motion for Appointment of Counsel. (Doc.

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 1 of 21
3By separate Order, we denied Plaintiff‘s Motion for Appointment of Counsel. (Doc. 5). 

4

In his form Complaint, the Plaintiff indicated that he did not fully exhaust the

grievance procedure available at FCI-Allenwood. (Doc. 1, p. 1, ¶ II. A.-C.). It is well-settled that

the Plaintiff must exhaust his administrative remedies prior to filing a civil rights suit. In Porter v.

Nussle, 534 U.S. 516, 532 (2002), the Supreme Court reiterated that the exhaustion

requirement under § 1997e(a) applies to all actions regarding prisons conditions, including 

§ 1983 actions or actions brought pursuant to any other federal law. The Porter Court held that

“the PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they

involve general circumstances or particular episodes, and whether they allege excessive force or

some other wrong.” Id.; Woodford v. Ngo, 126 S Ct. 2378 (2006); Fortune v. Bitner, 2006 WL

2769158, *7 (M.D. Pa.)(“The PLRA mandates that inmates ‘properly’ exhaust administrative

remedies before filing suit in federal court.”)(citation omitted). Further, the Defendants have

the burden to plead exhaustion as an affirmative defense. See Ray v. Kertes, 285 F.3d 287, 295

(3d Cir. 2002); Fortune v. Bitner, 2006 WL 2769158, *7. 

 As we previously noted, since Plaintiff‘s claim arose on September 19, 2006, it hardly

seems possible that he could have exhausted all of his available BOP Administrative remedies

before he filed this action. We also noted that Plaintiff was well aware of the PLRA exhaustion

requirement based on his three prior cases he has filed with this Court. 

2

5).3 

Plaintiff’s claim was set forth on a form civil rights complaint which this Court routinely

provides to pro se litigants. See Doc. 1.4 As stated, Plaintiff has attached three handwritten pages

to his Complaint. The Complaint alleged that on September 19, 2006, Plaintiff fell out of his

wheelchair, while going downhill. Plaintiff stated that he was housed in Unit 3A, handicap cell #

115. Plaintiff claimed that “[i]n retaliation; deliberately put me, on top of the hill, to make me

suffer knowing that I had a stroke and only one side of my body is working from the stroke. I don’t

belong on no hill!” (Doc. 1, att. p. 1). Plaintiff stated that there is another housing unit much lower

than his. As a result of his fall, Plaintiff suffered various injuries to his body. (Id.). Plaintiff stated

that, notwithstanding the signs on the prison grounds that no wheelchairs are allowed on the hill,

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 2 of 21
3

he has been placed in a housing unit on a hill, albeit a handicap cell unit. Plaintiff averred that

“because of me filing civil rights on staff members they put me up on the hill.” (Id.). Plaintiff also

stated that unnamed staff members have assaulted him, threatened him and harassed him. 

Plaintiff also averred that, on the day of his fall, as further retaliation, “the medical staff

denied me medical treatment for my injuries.” (Id.). Thus, Plaintiff raised a First Amendment

retaliation claim and an Eighth Amendment denial of proper medical care claim. 

Plaintiff then stated that Lieutenant Shepard sent him to medical as an emergency on

September 19. However, Plaintiff stated that he sat in the clinic lobby for several hours without

receiving any treatment that day for his injures he sustained in his fall. Plaintiff stated that his chin

and elbow were bleeding, and that he was in pain. Plaintiff stated he did not receive any medical

care on September 19, and that for many days he was in severe pain. Plaintiff stated that the

medical staff did not even make an injury report on him afer his fall. 

Plaintiff averred that the retaliation, threats, and harassment against him are ongoing by his

unit manager Sims, case manager Dewey and counselor Moser, and by Corrections Officer ( CO)

Arnold. Plaintiff did not name these staff members as Defendants in his original Complaint, but

names Sims and Arnold as Defendants in his amended pleading. 

In his original Complaint, Plaintiff named as Defendants the United States, Warden Hogsten

and HA Laino. The stated two individual Defendants were both employed at FCI-Allenwood. 

On October 24, 2006, we preliminarily screened Plaintiff‘s Complaint under the PLRA. We

recommended that this case be dismissed as to Defendants Laino and Hogsten, as the Plaintiff has

failed to state a retaliation claim under the First Amendment and a claim under the Eighth

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 3 of 21
5Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996).

4

Amendment against these Defendants. It was also recommended that this case be dismissed as

against Defendant United States. It was further recommended that Plaintiff be directed to file an

amended complaint against the responsible prison officials with respect to his stated two claims.

Specifically, we recommended that Plaintiff should be allowed to amend his Complaint to name

the medical staff members who allegedly denied him medical care on September 19, 2006, and

to specifically state the staff members at the prison who were retaliating against him, and how they

were engaging in retaliation. 

On December 5, 2006, the District Court reviewed our Report and Recommendation and

adopted it in full. (Doc. 13). The District Court noted that Plaintiff had already filed his Amended

Complaint and remanded it to us for further proceedings. Plaintiff also attached five (5) Inmate

Request to Staff forms to his amended pleading. We thus now screen the Amended Complaint.

(Doc. 12). 

Plaintiff names seven new Defendants and makes no request for relief in his Amended

Complaint.

II. PLRA.

We now review the Plaintiff‘s amended pleading and find that it contains fatal deficiencies

as to some of the Defendants, namely the failure to state an Eighth Amendment deliberate

indifference claim and a First Amendment retaliation claim against Defendants Sims, Hepner and

DiFrancesco. As stated, the Plaintiff has filed an application to proceed in forma pauperis pursuant

to 28 U.S.C. § 1915. The Prison Litigation Reform Act of 1995,5 (the “PLRA”), obligates the Court

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 4 of 21
5

to engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to

28 U.S.C. § 1915. Specifically, Section 1915(e)(2), which was created by § 805(a)(5) of the Act,

provides: 

(2) Notwithstanding any filing fee, or any

portion thereof, that may have been paid, the

court shall dismiss the case at any time if the

court determines that (A) the allegation of

poverty is untrue; or (B) the action or appeal

(i) is frivolous or malicious; (ii) fails to

state a claim on which relief may be granted;

or (iii) seeks monetary relief against a

defendant who is immune from such relief.

In reviewing the Amended Complaint under 28 U.S.C. §1915(e)(2)(B), we have determined

that the Plaintiff is unable to maintain this action as against Defendants Sims, Hepner and

DiFrancesco. We find that Plaintiff should be permitted to proceed with his amended pleading as

to his Eighth Amendment claim against Defendants Eichensehr, Powanda and Roces, the medical

staff who allegedly denied him medical care after his September 19, 2006 fall, and against

Defendant Arnold, the prison staff member who allegedly prevented Plaintiff from going to the

medical clinic for treatment.

III. Section 1331 Standard. 

Under Bivens, the District Court has federal question jurisdiction pursuant to 28 U.S.C. 

§ 1331 to entertain an action brought to redress alleged federal constitutional or statutory violations

by a federal actor under Bivens, supra. Pursuant to Bivens, “a citizen suffering a compensable injury

to a constitutionally protected interest could invoke the general federal question jurisdiction of the

district court to obtain an award of monetary damages against the responsible federal official.” Butz

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 5 of 21
6

v. Economou, 438 U.S. 478, 504 (1978). A Bivens-style civil rights claim is the federal equivalent

of an action brought pursuant to 42 U.S.C. § 1983 and the same legal principles have been held

to apply. See, Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp.

1486, 1492 (M.D. Pa. 1992); Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D. Pa. 1992).

In order to state an actionable Bivens claim, a plaintiff must allege that a person has deprived him

of a federal right, and that the person who caused the deprivation acted under color of federal law.

See West v. Atkins, 487 U.S. 42, 48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D. Pa.

1992). 

IV. Motion to Dismiss Standard. 

In considering whether a pleading states an actionable claim, the court must accept all

material allegations of the complaint as true and construe all inferences in the light most favorable

to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint should not be dismissed

for failure to state a claim unless it appears “beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 44-46

(1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). A complaint that sets out facts

which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed

without leave to amend. Estelle v. Gamble, 429 U.S. 97, 107-108 (1976). 

V. Discussion. 

In his Amended Complaint, Plaintiff does not re-name Laino and Hogsten as Defendants.

Notwithstanding his failure to name Defendant Hogsten in his Amended Complaint, Plaintiff realleges his claim that Warden Hogsten ignored his grievance. (Doc. 12, p. 3). Since Plaintiff has

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 6 of 21
6Plaintiff attaches a copy of his September 20, 2006 Inmate Request to Staff complaining

that he was denied medical care by medical staff for his September 19, 2006 fall. This request

does not show that Plaintiff has completed the BOP Administrative remedy process. 

7

not re-named Hogsten as a Defendant, and since we have already discussed this claim against the

Warden in detail in our prior Report and Recommendation, which was adopted by the District

Court, we shall not repeat herein why Hogsten is not a proper Defendant in this case. Thus, for the

reasons specified in our prior Report and Recommendation, to the extent Plaintiff attempts to rename Hogsten as a Defendant in his Amended Complaint, it is recommended that this Defendant

be dismissed. 

Plaintiff names the following Defendants in his amended pleading: L. Eichensehr, H. I.T.;

M. Powanda, PA; R. Roces, PA; Lt. Hepner; Hattie Sims, Unit Manager; Joe DiFrancesco, Case

Manger; and CO Arnold. 

A. Defendants Eichensehr, Powanda and Roces

Plaintiff alleges that on September 19, 2006, a Lt. informed Defendant Eichensehr that he

fell down a hill and out of his wheel chair, he had injuries and was being sent over as an

emergency. Plaintiff avers that Defendant Eichensehr told him to wait in the lobby of the medical

clinic, and that he waited there for four (4) hours without ever being treated. Plaintiff states that

Defendants PA Powanda and PA Roces looked at him, walked right past him, and ignored him as

he was in pain and bleeding. Plaintiff states that he was sent back to his unit without being given

any treatment for his injuries. Plaintiff has stated an Eighth Amendment denial of medical care

claim against Defendants Eichensehr, PA Powanda and PA Roces. Plaintiff has not stated a First

Amendment retaliation claim against these Defendants. (Doc. 12, p. 2).6 

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 7 of 21
7As stated below, Plaintiff concedes in his Amended Complaint on page 5, Doc. 12, that

he had a wheelchair assistant. Thus, Plaintiff contradicts himself with respect to his claim against

Defendant DiFrancesco.

8

B. Defendant DiFrancesco

Plaintiff simply alleges that Defendant DiFrancesco assigned him to the top of the hill in 3AUnit on July 5, 2006, deliberately, and that he knew that Plaintiff needed help to go up and down

the hill. (Id., pp. 3-4). Plaintiff avers that Defendant DiFancesco lied to him, since he told Plaintiff

that they had someone to assist Plaintiff and since Plaintiff never received any assistance.7 Plaintiff

states that it is mandatory to assign someone to him due to the hills and the handicap sign. Plaintiff

claims that Defendant DiFrancesco violated his First Amendment and Eighth Amendment rights.

We find no claim is stated against Defendant DiFrancesco. Plaintiff does not state that this

Defendant had any personal involvement with respect to the denial of medical care on September

19, 2006, and with respect to the retaliation being taken against him as a result of his previous civil

rights actions he filed. Nor do we find that Defendant DiFrancesco’s alleged failure to assign an

assistant to Plaintiff to help him up and down the hill is a per se violation of the Eighth Amendment

without any claims of deliberate indifference to a serious medical need or to any conditions of

confinement by Plaintiff. Defendant DiFrancesco is not alleged to have played any role in the

denial of Plaintiff‘s medical care on September 19, 2006, or to have engaged in any conduct

amounting to a violation of Plaintiff‘s Eighth Amendment Constitutional rights with respect to his

conditions of confinement.

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 8 of 21
9

C. Defendant Sims 

 Plaintiff alleges that on four (4) occasions, he asked Defendant Sims for some help to get

him up and down the hills and she said to him, “We don’t have anyone for that job, you have to

handle it.” (Id., p. 4). Plaintiff alleges that on a second occasion, he was at the bottom of the hill

and asked Sims for assistance, and she ignored him. On the third occasion, Plaintiff avers that

Defendant Sims said to him, “You file on me to the Warden Hogsten and you want something for

me, ‘please’ and she walk away.” (Id.). Finally, Plaintiff claims that Defendant Sims said to him that

he got nothing coming and she said don’t ask her anything, and she walked away. 

Plaintiff also claims that Defendant Sims told him that since he was indigent, she and his

counselor must read all of his legal mail before they put stamps on it. Plaintiff states that there is

no such policy and that Sims was lying to him. (Id., p. 5). Plaintiff concludes that Defendant

Sims violated his First Amendment and Eighth Amendment rights. 

 We find no Constitutional claim against Defendant Sims. We do not find that the alleged

failure to help Plaintiff up and down the hill to state an Eighth Amendment claim. As stated,

Plaintiff concedes that he had a wheelchair assistant. (Doc. 12, p. 5). Nor does Plaintiff properly

allege that Defendant Sims retaliated against him due to his lawsuits. 

 While "[t]he Constitution 'does not mandate comfortable prisons,' ... neither does it permit

inhumane ones...." Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970 (1994)(quoting Rhodes

v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, (1981)). "[I]t is now settled that 'the treatment a

prisoner receives in prison and the conditions under which he is confined are subject to scrutiny

under the Eighth Amendment.' " Farmer, 511 U.S. at 832, 114 S.Ct. 1970 (quoting Helling v.

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 9 of 21
10

McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475 (1993)). Under Farmer, conditions of confinement will

violate the Eighth Amendment if the following two-prong test is met: (1) the deprivation is

sufficiently serious; and (2) deliberate indifference by the prison official Defendants. Id. at 834.

Stated simply, an Eighth Amendment violation exists when the prisoner is denied "the minimal

civilized measure of life's necessities" and the prison official acted with recklessness. Farmer, 511

U.S. at 834-35 (quoting Rhodes, 452 U.S. at 347, 101 S.Ct. 2392); Wilson v. Seiter, 501 U.S. 294,

303, 111 S.Ct. 2321 (1991). In order to find an Eighth Amendment violation regarding conditions

of confinement, the evidence must show that the prison official was "both aware of facts from which

the inference could be drawn that a substantial risk of serious harm exists, and he must also draw

the inference." Farmer, 511 U.S. at 837. Plaintiff makes no such claim as to Defendant Sims. 

 Further, Plaintiff does not allege that Defendant Sims interfered with any of his legal mail or

that she refused to mail out any. Plaintiff alleges no actual injury with respect to any denial of

access to courts claim. 

It is well established that prisoners have a constitutional due process right of access to the

courts. Bounds v. Smith, 430 U.S. 817 (1977). However, in order to prevail on such a claim, it is

necessary to allege an actual injury -- an instance in which the Plaintiff was actually denied access

to the courts. Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2163 (1996); Peterkin v. Jeffes, 855 F.2d

1021, 1041 (3d Cir. 1988), citing Hudson v. Robinson, 678 F.2d 462, 466 (3d Cir. 1982); Kershner

v. Mazurkiewicz, 670 F.2d 440, 444 (3d Cir. 1982). 

Since the Plaintiff does not allege any actual injury or adverse action with respect to his First

Amendment claim against Defendant Sims, it must fail. In fact, based on Plaintiff‘s numerous cases

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 10 of 21
8Plaintiff‘s admission in this claim that he had a wheelchair assistant belies his earlier

claim that Defendant DiFranceso would not allow him to have such an assistant. It also belies his

Eighth Amendment claim against Defendant Sims that she would not assist him up the hill to his

cell.

9Plaintiff attaches a copy of his October 3, 2006 Inmate Request to Staff form

complaining that on October 2, 2006, Defendant Hepner “denied me from getting insulin and

pills.” Doc. 12, Ex. 3. Plaintiff does not indicate if he exhausted his BOP administrative

remedies with respect to this claim.

11

he has recently filed with this Court, and the filings made therein, it is apparent that Plaintiff‘s legal

mail is not being hindered in any way. 

D. Defendant Hepner 

Plaintiff alleges that Lt. Hepner stopped him and his wheelchair assistant on October 2,

2006, and told Plaintiff to turn around, to go to the rec yard, and that he was not going to the pill

line.8 Plaintiff states that he told Defendant Hepner that he gets an insulin shot and pills, and he

claims Defendant told him “I don’t give a shit.” Plaintiff states that Defendant Hepner told him he

would go to the SHU, presumably if he did not turn around. (Id.). Plaintiff alleges that this conduct

violated his First Amendment and Eighth Amendment rights. Plaintiff does not allege that

Defendant Hepner acted in retaliation for his filing of his lawsuits. Nor does the one-time denial

of allowing Plaintiff to go to the pill line when it was his rec time amount to an Eighth Amendment

violation.9 

Plaintiff does not allege that he suffered any adverse health consequences as a result of not

being allowed to go to the pill line on October 2, 2006 by Defendant Hepner. Plaintiff does not

state if he was allowed later in the day to get his medicine or if he was denied to go to the pill line

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 11 of 21
10Further, some of the claims of Plaintiff‘s Amended Complaint have nothing to do with

his original claims for which he was allowed by the Court to amended his pleading. Rather,

Plaintiff is attempting to add new claims that are unrelated to his original claims, namely that he

was denied medical care on September 19, 2006, and that he was being retaliated against as a

result of his previous civil rights actions he filed. Our prior Report and Recommendation, which

was adopted by the District Court, only found that Plaintiff should be allowed to amend his

Complaint as to the responsible prison officials with respect to his stated two claims. We did

not find that Plaintiff should be allowed to join unrelated claims against unrelated Defendants in

his Amended Complaint, as he is attempting to do against Defendant Hepner, and with respect

to his two (2) claims against Defendant Arnold. We find that such an attempt violates Rule 20(a)

and that Plaintiff should not be allowed to circumvent the filing fee requirement for raising new

claims. 

 

Fed. R. Civ. P. 20 (a). Rule 20(a) provides: 

(a) Permissive Joinder. All persons . . . may be joined in one action as defendants

if there is asserted against them jointly, severally, or in the alternative, any right

to relief in respect of or arising out of the same transaction, occurrence, or

series of transactions or occurrences and if any questions of law or fact

common to all defendants will arise in the action. A plaintiff or defendant

need not be interested in obtaining or defending against all the relief

demanded. Judgment may be given for one or more of the plaintiffs

according to their respective rights to relief, and against one or more

defendants according to their respective liabilities.

Fed.R.Civ.P. 20(a).

Rule 20 only permits “joinder in a single action of all persons asserting, or defending

against, a joint, several, or alternative right to relief that arises out of the same transaction or

occurrence and presents a common question of law or fact.” 7 Charles Allen Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure § 1652 at 371-72 (1986). “Permissive

joinder is not, however, applicable in all cases. The rule imposes two specific requisites to the

joinder of parties: (1) a right to relief must be asserted by, or against, each plaintiff or defendant

12

at that time since it was his rec time. We do not find that Plaintiff has stated Constitutional claim

against Defendant Hepner. Nor does Plaintiff state a retaliation claim against Defendant Hepner.

Since we have previously advised Plaintiff of the requirements to state a retaliation claim, we hall

not repeat it herein.10 

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 12 of 21
relating to or arising out of the same transaction or occurrence, or series of transactions or

occurrences; and (2) some question of law or fact common to all the parties must arise in the

action.” Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974).

13

E. Defendant Arnold 

Plaintiff claims that on September 21, 2006, CO Arnold told Plaintiff to get out of his way

or he would flip him out of his wheelchair, and then slapped him in the back of his head. (Id., p.

6). Plaintiff does not state if he suffered any injuries, temporary or permanent, as a result of the

September 21, 2006 slap by Defendant Arnold. On September 22, 2006, Plaintiff alleges that CO

Arnold would not let him go to the medical clinic for his injures he sustained in his September 19,

2006 fall. Plaintiff alleges that CO Arnold told him to go back to his Unit even though he was in

severe pain and hurting from his fall. On September 23, 2006, Plaintiff alleges that CO Arnold told

him that “I want your cripple ass in your wheel chair for my damn count not sitting on your fucking

bed (fuckface).” (Id., pp. 6-7). 

Plaintiff alleges an Eighth Amendment assault against Defendant Arnold and a First

Amendment claim for racial insult. Insofar as Plaintiff alleges the Defendant Arnold would not let

him go to the medical clinic on September 22, 2006 for treatment of his injury from the September

19, 2006 fall, Plaintiff states an Eighth Amendment denial of medical care claim against this

Defendant. However, we do not find that this Defendant’s one-time slap of Plaintiff and racial

insults amount to Constitutional violations. 

As the Court stated in Wright v. O’Hara, 2004 WL 1793018 (E.D. Pa.) * 7, “[w]here Plaintiff

has not been physically assaulted, Defendant‘s words and gestures alone are not of constitutional

merit.” (Citation omitted). The Wright Court also stated:

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 13 of 21
14

“Mean harassment . . . is insufficient to state a 

constitutional deprivation.” Murray v. Woodburn, 809 F.Supp.

383, 384 (E.D. Pa. 1993). Verbal abuse or threats alone

do not state a constitutional claim. See Maclean v. Secor,

876 F.Supp. 695, 698 (E.D. Pa. 1995). “This is so because

‘[n]ot every unpleasant experience a prisoner might endure

while incarcerated constitutes cruel and unusual

punishment. Ramos v. Vaughn, No. 94-2596, 1995 U.S.

Dist. LEXIS 2164 at *12 (E.D.Pa. June 27, 1995), quoting

Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987).

Id. * 6. 

In the Wright case, Plaintiff alleged that the CO verbally threatened and harassed him and

lunged towards him with a fist, without any physical contact. The Wright Court concluded that this

conduct, ‘while inappropriate, does not give rise to an Eighth Amendment violation as it is not

‘sufficiently serious’.” Id. *7 (citation omitted). 

There is no claim that Plaintiff was placed in risk of serious injury by Defendant Arnold.

There is no claim, as noted, that Plaintiff was even injured by Defendant Arnold when the

Defendant allegedly slapped him. 

 In Bright v. Gillis, 89 Fed. Appx. 802, 805 (3d Cir. 2004), the Court stated the factors in

establishing an Eighth Amendment excessive force claim against prison staff: 

 a number of factors bear on an excessive force determination, including: 

"(1) the need for the application of force; (2) the relationship between 

the need and the amount of force that was used; (3) the extent of the 

injury inflicted; (4) the extent of the threat to the safety of staff and 

inmates, as reasonably perceived by responsible officials on the basis of 

facts known to them; and (5) any efforts made to temper the severity 

of the forceful response." Brooks v. Kyler, 204 F.3d 102, 106 

(3d Cir.2000) (citing Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 

89 L.Ed.2d 251 (1986)).

 

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 14 of 21
15

The Court in Wesley v. Dombrowski, 2004 WL 1465650 *6 (E.D. Pa.), stated:

“The core inquiry in claims of excessive force is ‘whether force was 

applied in a good-faith effort to maintain or restore discipline, or 

maliciously and sadistically to cause harm’." (Citing Hudson v. McMillian,

503 U.S. 1, 7 (1992)).

The Wesley Court also stated: 

While the Eighth Amendment's proscription against cruel and 

unusual punishment excludes from constitutional recognition 

de minimis uses of physical force if the use of force is not of a sort 

"repugnant to the conscience of mankind," to state a claim, the 

plaintiff need only allege that force was maliciously applied to 

cause harm.” Id. (Citation omitted). 

Id. 

The Court in Eppers v. Dragovich, 1996 WL 420830 (E.D. Pa.), stated:

“In Hudson, the Supreme Court held that an inmate need not suffer 

a serious injury in order for the excessive use of force to violate 

the Eighth Amendment.. However, the Court also recognized 

that not "every malevolent touch by a prison guard gives rise to a 

federal cause of action," and reaffirmed that the Eighth Amendment's 

prohibition of cruel and unusual punishment "necessarily excludes 

from constitutional recognition de minimis uses of physical force, 

provided that the use of force is not of a sort 'repugnant to 

the conscience of mankind.' " (citing Hudson, supra at 9). 

 Under the aforementioned standards, we do not find that the one-time slap by Defendant

Arnold on the back of Plaintiff‘s head violates the Eighth Amendment. 

Thus, we shall recommend that this case proceed with respect to the denial of medical care

on September 19, 2006, by Defendants Eichensehr, PA Powanda and PA Roces. As stated, we find

no First Amendment claim against these Defendants since Plaintiff does not allege any retaliation

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 15 of 21
16

being taken against him by these Defendants as a result of his previous civil rights actions he filed.

We shall recommend that Defendant DiFranceso be dismissed for failure to state a Constitutional

claim against him. We shall recommend that Defendant Sims be dismissed, since we find no

Constitutional claim against Defendant Sims. We do not find that Plaintiff has stated Constitutional

claim against Defendant Hepner, and shall recommend that this Defendant be dismissed. We find

that Plaintiff has stated an Eighth Amendment claim against Defendant Arnold with respect to only

the September 22, 2006 incident of preventing Plaintiff from going to medical clinic for treatment

for his injuries from his September 19, 2006 fall. 

Moreover, Plaintiff does not allege with sufficient specificity the personal involvement of

Defendants DiFrancesco, Sims and Hepner, who admittedly did not participate in the retaliatory

threats and harassment of Plaintiff, with respect to his First Amendment retaliation claim. As

discussed, Plaintiff does not adequately state what these three Defendants did to violate any of his

Constitutional rights. Liability may only be based upon the Defendant’s personal involvement in

conduct amounting to a constitutional violation. Hampton v. Holmesburg Prison Officials, 546 F.2d

1077 (3d Cir. 1976); Sutton v. Rasheed, 323 F.3d 236, 249-50 (3d Cir. 2003). It is also well settled

in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations

is a requirement in a civil rights case and that a complaint must allege such personal involvement.

Id. Each named defendant must be shown, through the complaint’s allegations, to have been

personally involved in the events or occurrences upon which Plaintiff’s claims are based. Id. As the

Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998): 

A defendant in a civil rights action must have personal involvement

in the alleged wrongs . . . . [P]ersonal involvement can be shown

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 16 of 21
17

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. (Citations omitted).

A civil rights complaint must state time, place, and responsible persons. Id. “A prison

official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the

Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825 (1994) citing Helling v. McKinney, 509 U.S.

25 (1993); Wilson v. Seiter, 501 U.S. 294 (1991); Estelle v. Gamble, 429 U.S. 97 (1976). 

The Eighth Amendment requires that the official must know of and disregard an excessive

risk to inmate health or safety. Farmer, 511 U.S. at 837. “[T]he official must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.” Id. “The question...is whether prison officials, acting with deliberate

indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to his future

health.’” Farmer, 511 U.S. at 843. 

Here, Plaintiff does not allege to have suffered any injury from the actions of Defendants

DiFrancesco, Sims and Hepner. Plaintiff does not allege that the stated three Defendants retaliated

against him or that they were involved in the medical staff’s failure to provide him with 

treatment for his injuries. Plaintiff alleges that these Defendants failed to provide him with 

assistance up the hill (DiFrancesco and Sims), and failed to allow him to go to the pill line on one

day when it was his rec time (Defendant Hepner). The alleged conduct of these three Defendants

does not amount to deliberate indifference and is not sufficient to constitute an Eighth Amendment

violation. Nor is the conduct of the two Defendants (DiFrancesco and Sims) with respect to their

alleged failure to provide Plaintiff with assistance up the hill sufficient to hold them liable in this

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 17 of 21
18

action. Indeed, Plaintiff readily admits in his Amended Complaint that he had a wheelchair

assistant to help him get around the prison grounds. Thus, Defendants DiFrancesco, Sims and

Hepner should be dismissed from this case.

Nor has Plaintiff stated a First Amendment retaliation claim against Defendants DiFrancesco,

Sims and Hepner. In Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001), the Court stated that “a

prisoner litigating a retaliation claim must show that he suffered some ‘adverse action’ at the hands

of the prison officials.” To establish a retaliation claim, the Plaintiff must also show that there exists

a causal nexus between the Plaintiff’s constitutionally protected conduct and the adverse action.

Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). We find that this nexus does not exist with

respect to any of the stated three Defendants. 

VI. Recommendation. 

Based on the above, it is respectfully recommended that this case be dismissed as to

Defendants DiFrancesco, Sims and Hepner. Plaintiff has failed to state a retaliation claim under the

First Amendment and a claim under the Eighth Amendment against these Defendants. We

recommend that this case proceed with respect to the denial of medical care on September 19,

2006, by Defendants Eichensehr, PA Powanda and PA Roces. We recommend that Plaintiff’s

Eighth Amendment claim against Defendant Arnold proceed with respect to only the September

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19

22, 2006 incident of preventing Plaintiff from going to medical clinic for treatment for his injuries

from his September 19, 2006 fall. We recommend that Plaintiff‘s other claims against Defendant

Arnold be dismissed. Finally, it is recommended that this case be remanded to the undersigned for

further proceedings. 

 

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: December 15, 2006 

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20

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNY CYRUS, : CIVIL ACTION NO. 3:CV-06-2022 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

UNITED STATES OF AMERICA and : 

KAREN F. HOGSTEN, et al., :

 :

Defendants : 

 NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated December 15, 2006. 

Any party may obtain a review of the Report and Recommendation pursuant to 

Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings,

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within ten (10)

days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all

parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection

is made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where 

required by law, and may consider the record developed before the

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 20 of 21
21

magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: December 15, 2006 

Case 4:06-cv-02022-JFM Document 14 Filed 12/15/06 Page 21 of 21