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

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

1665, 06-1697, 06-2022, 06-2052, M.D. Pa. 

 Plaintiff incorrectly styles 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 shall grant Plaintiff‘s Motion for in forma pauperis. (Doc. 2). 

3

In his present Complaint, similar to most of his other recently filed Complaints, the

Plaintiff indicates that he has not fully exhausted the grievance procedure available at FCIIN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNY CYRUS, : CIVIL ACTION NO. 3:CV-06-2051 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

UNITED STATES OF AMERICA and : 

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 19, 2006. The Plaintiff has also filed an application for

leave to proceed in forma pauperis. (Doc. 2).2 The Complaint consists of four handwritten pages,

including two pages of the Statement of Facts. (Doc. 1). 3 

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 1 of 16
Allenwood. (Doc. 1, p. 1). As we have repeatedly noted in our prior Reports and

Recommendations when screening Plaintiff‘s cases, 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. 

 Since Plaintiff‘s claim arose on August 3, 2006, it seems doubtful that he could have

exhausted all of his available BOP administrative remedies before he filed this action. Plaintiff is

well aware of the PLRA exhaustion requirement based on the screening of his prior cases he has

filed with this Court. 

2

The Complaint alleges that on August 3, 2006, Plaintiff was having chest pain and the SHU

CO’s called Defendant P.A. J.W. Freynik. Defendant Freynik took Plaintiff to the clinic but did not

give him oxygen to help him breathe. (Doc. 1. P. 3). Plaintiff claims that “in retaliation, for me

filing on (his friends) staff members P.A. Freynik, in front of the nurses, he deliberately, sticks his

finger, in the corner of my right eye, like he was trying to pull it out, of the socket. He pressed, so

hard, it was more, painful then the chest pains.” Plaintiff claims that after this incident, Defendant

and the nurses laughed at him. Plaintiff avers that Defendant Freynik then made a fist and with

both hands put his knuckles in his chest ands started rubbing real hard, “trying to crush my chest

in.” Plaintiff states that they all laughed, and he was caused severe pain. Plaintiff avers that he still

has trouble with his right eye and chest as a result of Defendant Freynik’s conduct. (Id., p. 4). 

Plaintiff indicates that on August 3, 2006, he was taken to the hospital and stayed there for three

days. Plaintiff avers that he asked a doctor at the hospital if Defendant Freynik’s treatment of him

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 2 of 16
3

was “some kind of medical treatment,” and the doctor stated “no.” Plaintiff concludes that he has

permanent eye damage and has severe pain. (Id.). Thus, Plaintiff raises a First Amendment

retaliation claim and an Eighth Amendment denial of proper medical care claim against Defendant

Freynik. Plaintiff does not state any claim against Defendant Warden Hogsten. 

Plaintiff avers that Defendant Freynik gave him improper medical care for his chest pain and

that he deliberately injured his right eye as retaliation against him due to his lawsuits against prison

staff. As stated, Plaintiff does not specifically state what Defendant Hogsten did to retaliate against

him or to deny him proper medical care. 

Plaintiff names as Defendants the United States, Warden Hogsten and P.A. Freynik. The

stated two individual Defendants are both employed at FCI-Allenwood. 

Defendant Hogsten is not alleged to have played any role in the denial of Plaintiff‘s medical

care on August 3, 2006, or to have engaged in any conduct amounting to a violation of Plaintiff‘s

Eighth Amendment Constitutional rights. Plaintiff does not state the personal involvement of

Defendant Hogsten with respect to his Eighth Amendment denial of medical care claim or with

respect to his First Amendment retaliation claim. Rather, this Defendant appears to be named in

this case based on respondeat superior. Further, as we have indicated in our prior Reports and

Recommendations screening Plaintiff‘s cases, the United States is not a proper Defendant in a

Bivens action. 

The Complaint does not sufficiently specify any conduct, wrongful or otherwise, of

Defendant Hogsten. This Defendant is not alleged to have played any role in the alleged retaliatory

injury to Plaintiff or to have played any role in the denial of medical care to Plaintiff after his

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 3 of 16
4As we have noted in Plaintiff‘s previous actions, and as the District Court has directed,

Plaintiff‘s request for a specific amount of monetary damages should be stricken. Since Plaintiff

seeks unliquidated damages, he cannot claim a specific sum of relief. Pursuant to Local Rule

8.1, M.D. Pa., Plaintiff‘s request for specific monetary damages of $1 million should be stricken

from his Complaint. See Stuckey v. Ross, Civil No. 05-2354, M.D. Pa., 1-9-06 Order, J.

McClure. 

 Also, to the extent that Plaintiff sues for medical malpractice, such a claim is not proper

in a Bivens action. See Davidsen v. O’Lone, 752 F.2d 817 (3d Cir. 1984); Daniels v. Williams,

474 U.S. 327 (1986).

4

August 3, 2006, chest pain. Nor is this Defendant alleged to have been aware at the time of the

incident that the medical staff was denying him proper treatment for his chest pain or that P.A.

Freynik was causing him injuries. Plaintiff does not even mention Defendant Hogsten in his

pleading, and he does not aver that he requested Defendant Hogsten to give him medical care and

that she denied it. Nor does Plaintiff allege any serious or permanent injuries as a result of any

conduct by Defendant Hogsten. Rather, he states that he was in severe pain from Defendant

Freynik’s conduct. Plaintiff does not state that Defendant Hogsten was aware that a prison staff

member was retaliating against him by injuring him on August 3, 2006. 

As relief, Plaintiff seeks compensatory damages in the amount of $1 million for medical

malpractice, pain and suffering, assault, and cruel and unusual punishment, as well as retaliation.

(Id., p. 5).4 

II. PLRA.

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

Defendant Hogsten, namely the failure to state an Eighth Amendment deliberate indifference claim

and a First Amendment retaliation claim against this Defendant. We find that the Defendant

United States cannot be named in this Bivens action. We also find that Plaintiff should be allowed

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 4 of 16
5Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996).

6The Plaintiff completed an application to proceed in forma pauperis and authorization

to have funds deducted from his prison accounts. The court then issued an administrative order

directing the warden to commence deduction of the full filing fee due the court from the

Plaintiff’s prison trust fund account. (Docs. 2, 3 and 4). 

5

to proceed with respect to his Complaint against Defendant Freynik, the medical staff member who

allegedly denied him proper medical care on August 3, 2006, and retaliated against him by injuring

his right eye. 

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 to

engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 28

U.S.C. § 1915.6 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 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 United States and Hogsten. We find

that Plaintiff should be allowed to proceed as to his Eighth Amendment and First Amendment

retaliation claims against the Defendant Freynik. 

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 5 of 16
6

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

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

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 6 of 16
7

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 Complaint, as stated, Plaintiff does not allege any involvement of Defendant Hogsten

with respect to the denial of proper medical care on August 3, 2006, and with respect to the

retaliation taken against him as a result of his previous civil rights actions he filed. As to Defendant

Hogsten, Plaintiff makes no claim against her. Plaintiff does not indicate that this stated supervisory

Defendant was involved with his denial of proper medical care on August 3, 2006, or that she was

involved with the retaliation against him. Plaintiff’s allegations do not indicate that Defendant

Hogsten was deliberately indifferent to any serious medical need of Plaintiff. Nor do Plaintiff’s

allegations indicate that this Defendant had a causal connection to the claimed retaliatory acts that

were taken against him, i.e. his right eye injury. 

Also, Plaintiff does not claim that Defendant Hogsten retaliated against him or denied him

required medical care. Plaintiff does not claim that he told Defendant Hogsten he was having chest

pain, and that she refused to direct that he receive medical care. In fact, Plaintiff states that the

SHU CO’s called Defendant Freynik, despite Plaintiff‘s prior actions against prison staff, and that

he was taken to the medical clinic on August 3, 2006. (Doc. 1, p. 3). Plaintiff then indicates that

he was taken to the hospital and remained there for three days. Plaintiff does not claim that

Defendant Hogsten caused him any injuries or that she refused to allow him to be medically treated

after his chest pain. Plaintiff does not claim that this Defendant was aware at any time that he was

being retaliated against or that she had any knowledge that any of the staff was injuring him. The

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 7 of 16
8

allegations in Plaintiff‘s Complaint do not support Plaintiff‘s present Eighth Amendment denial of

medical care claim and First Amendment retaliation claim as against Defendant Hogsten. Further,

Plaintiff’s own allegations do not show that this stated Defendant denied him necessary medical

treatment following his August 3, 2006, chest pain or that she was deliberately indifferent to any

of his serious conditions to establish an Eighth Amendment claim against her. Nor do Plaintiff‘s

allegation show that this Defendant was part of the retaliatory actions being taken against him by

Defendant Freynik. 

Plaintiff has properly named the responsible prison personnel who was personally involved

with his First Amendment and Eighth Amendment claims, namely Defendant Freynik. However,

he has also improperly named the United States as a Defendant in this case. 

Consequently, based on the present pleading, the Plaintiff has failed to allege an Eighth

Amendment violation by Defendant Hogsten. Plaintiff’s Eighth Amendment claim as to this

Defendant should be dismissed, and he should be allowed to proceed with his pleading as to the

responsible prison official, namely Defendant Freynik. 

Moreover, Plaintiff does not allege any specific personal involvement of Defendant Hogsten,

who admittedly did not participate in the retaliatory injury of Plaintiff, with respect to his First

Amendment retaliation claim. As discussed, Plaintiff does state what this Defendant 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

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 8 of 16
9

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

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 Defendant

Hogsten. Plaintiff does not allege that this Defendant retaliated against him or that she was involved

in the medical staff’s failure to provide him with proper treatment. Thus, there is no alleged

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 9 of 16
10

conduct by this Defendant that amounts to deliberate indifference, and thus the Complaint is not

sufficient to constitute an Eighth Amendment claim as against this Defendant. Nor is there any

personal involvement of this Defendant with respect to the alleged retaliatory injury of Plaintiff‘s

eye. Pursuant to Rode, supra, the supervisory Defendant cannot be held liable based on respondeat

superior in this case. Thus, Defendant Hogsten should be dismissed from this case. 

Nor has Plaintiff stated a First Amendment retaliation claim against Defendant Hogsten. 

Plaintiff only alleges that medical staff member Defendant Freynik deliberately stuck his finger in

Plaintiff‘s right eye in retaliation for his lawsuits. (Doc. 1, p. 3). 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 the supervisory Defendant, Hogsten. 

Further, the United States is not a proper Defendant in this case. While the United States

has waived sovereign immunity for an FTCA action, it has not waived sovereign immunity for a

Bivens action. See Jaffee v. U.S., 592 F.2d 712, 717-18 (3d Cir.), cert. denied, 441 U.S. 961 (1979)

(no waiver of United States’ sovereign immunity for suits alleging constitutional violations). Thus,

Plaintiff improperly named the United States with respect to his Bivens Complaint. 

The United States has not waived its sovereign immunity for a Bivens action, and it is not

a proper Defendant in a Bivens action. See FDIC v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 999

(1994); Alexander v. Hargrove, 1995 WL 144636, E.D. Pa.; Howard v. U.S., 2000 WL 128701, E.D.

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 10 of 16
7As this Court stated in Arrington v. Inch, 2006 WL 860961, * 4 (M.D. Pa.): 

“The doctrine of sovereign immunity precludes a plaintiff from 

bringing a Bivens action against a federal agency, See FDIC v. Meyer,

510 U.S. 471, 484-86 114, --- S.Ct. ----, ---- - ---- ----, --- L.Ed.2d ----, 

---- - ---- ----(1994). Suits brought against federal officials in 

their official capacities are to be treated as suits against the 

employing government agency. Will v. Mich. Dep't of State Police,

491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (cited 

with approval in Christy v. Pa. Turnpike Comm'n, 54 F.3d 1140, 

1143 n. 3 (3d Cir.1995)). As a result, a Bivens suit brought against 

an individual federal official acting in his official capacity is barred 

by the doctrine of sovereign immunity, See also Chinchello v. 

Fenton, 805 F.2d 126, 130 n. 4 (3d Cir.1986) (affirming district 

court's conclusion that sovereign immunity barred an 

official-capacity Bivens claim), and the court lacks jurisdiction to

hear the claim. See Kabakjian v. United States, 267 F.3d 208, 

211 (3d Cir.2001) (holding that district courts lack jurisdiction to 

hear claims brought against the United States unless Congress 

has explicitly waived sovereign immunity).” 

11

Pa.; see also Jaffee, supra.; Aladiem v. HUD, 199 WL 718069, E.D. Pa. Further, to the extent that

Plaintiff’s Bivens action is against any federal prison official in his official capacity and seeks

monetary damages, it is basically a claim against the United States.7 

Thus, Defendant United States should be dismissed from this action. Defendant Hogsten

should be dismissed, and Plaintiff should be allowed to proceed with his Complaint as against

Defendant Freynik, who was personally involved in the denial of proper medical care after Plaintiff’s

August 3, 2006, chest pain, and who allegedly retaliated against Plaintiff due to his previous lawsuits

filed with this Court. 

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 11 of 16
8

In Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163 (1993), the United States

Supreme Court held that it was improper to apply heightened pleading standards to § 1983 civil

rights actions. The Court noted that a civil rights complaint need only comply “with the liberal

system of ‘notice pleading’ set up by the Federal Rules.” Id at 167.

12

Pro se parties are accorded substantial deference and liberality in federal court. Haines v.

Kerner, 404 U.S. 519, 520 (1972); Hughes v. Rowe, 449 U.S. 5, 9 (1980). They are not, however,

free to ignore the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 8(a) requires

that a complaint contain a short and plain statement setting forth (1) the grounds upon which the

court’s jurisdiction rests; (2) the claim showing that the pleader is entitled to relief; and (3) a

demand for judgment for the relief sought by the pleader. 

Although there is not a heightened pleading standard in civil rights cases,8 a civil rights

complaint in order to comply with Rule 8 must contain at least a modicum of factual specificity,

identifying the particular conduct of the defendant that is alleged to have harmed the plaintiff, so

that the court can determine that the compliant is not frivolous and a defendant has adequate

notice to frame an answer. Frazier v. Southeastern Pennsylvania Transp. Auth., 785 F.2d 65, 68 (3d

Cir. 1986). A civil rights complaint complies with this standard if it alleges the conduct violating the

plaintiff’s rights, the time and the place of that conduct, and the identity of the responsible officials.

Under even the most liberal construction, we find that Plaintiff’s present Complaint fails to

allege any Eighth Amendment and First Amendment violations by Defendant Hogsten. Even taking

into account the fact that Plaintiff is proceeding pro se, his Complaint fails to allege sufficient

personal involvement of the stated Defendant in any Eighth Amendment and First Amendment

violations. 

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 12 of 16
9Notwithstanding the Plaintiff’s pro se status and our finding that his § 1331 claim is

insufficient as to Defendant Hogsten, we do not recommend that he be permitted to amend his

Complaint to include more specific facts against this Defendant, since we find that the Plaintiff‘s

claim against the stated Defendant fails to state a constitutional violation under the First

Amendment and the Eighth Amendment. Also, Defendant United States cannot be named in a

Bivens action. Plaintiff is well aware of the requirements of a Bivens action based on our

screening of his previous actions. Thus, we find futility of any amendment of this claim as to

Defendants United States and Hogsten, and we shall not recommend Plaintiff be granted leave

to amend his pleading regarding these Defendants. See Forman v. Davis, 371 U.S. 178, 182

(1982); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (The futility exception means that a

complaint, as amended, would fail to state a claim upon which relief can be granted). 

13

Plaintiff fails to make a claim showing that Defendant Hogsten violated either the First

Amendment or the Eighth Amendment based on the standards discussed above. Accordingly, we

shall recommend that this case be dismissed as to Defendants United Sates and Hogsten, and that

Plaintiff be allowed to proceed as against Defendant Freynik, the responsible prison official with

respect to his First Amendment retaliation claim and his Eighth Amendment denial of medical care

claim.9 

VI. Recommendation. 

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

Defendant Hogsten, as the Plaintiff has failed to state a retaliation claim under the First Amendment

and a claim under the Eighth Amendment against this Defendant. It is recommended that this case

be dismissed as against Defendant United States. It is further recommended that Plaintiff be

allowed to proceed with his Complaint as against Defendant Freynik, the responsible prison official

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 13 of 16
14

with respect to his stated two claims. 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: October 27, 2006 

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 14 of 16
15

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNY CYRUS, : CIVIL ACTION NO. 4:CV-06-2051 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

UNITED STATES OF AMERICA, et al., :

 :

Defendants :

 NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated October 27, 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-02051-JFM Document 6 Filed 10/27/06 Page 15 of 16
16

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: October 27, 2006 

Case 4:06-cv-02051-JFM Document 6 Filed 10/27/06 Page 16 of 16