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

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

06-1665 and 06-1697, 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). 

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 : 

 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 are 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 10 Filed 10/24/06 Page 1 of 18
3By separate Order, we will deny Plaintiff‘s Motion for Appointment of Counsel. (Doc.

5). 

4

In his form Complaint, the Plaintiff indicates that he has not fully exhausted 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. 

 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. Plaintiff is 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 alleges that on September 19, 2006, Plaintiff fell out of his

wheelchair, while going downhill. Plaintiff states that he is housed in Unit 3A, handicap cell # 115.

Plaintiff claims 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 states 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 states that,

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

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 2 of 18
5The correct spelling of this Defendant’s name is “Laino” and not “Lano,” as Plaintiff

writes on pages 1-2 of his Complaint, Doc. 1. See Doc. 1, att. p. 2. We shall direct the Clerk of

Court to correct the spelling of this Defendant’s name on the docket sheet.

3

been placed in a housing unit on a hill, albeit a handicap cell unit. Plaintiff avers that “because of

me filing civil rights on staff members they put me up on the hill.” (Id.). Plaintiff also states that

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

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

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

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

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

September 19. However, Plaintiff states 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 states that his chin

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

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

medical staff did not even make an injury report on him afer his fall. Plaintiff states that he wrote

to Defendant Warden Hogsten, as well as the Associate Warden and Defendant Health

Administrator (“HA”) Laino5 and the clinical Director. (Id., att. p. 2). However, he states that he

did not receive an answer from anyone. 

Plaintiff avers 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 does not name these staff members as Defendants herein, and he does not

specifically state what they have done to retaliate against him. 

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 3 of 18
4

Plaintiff names as Defendants the United States, Warden Hogsten and HA Laino. The stated

two individual Defendants are both employed at FCI-Allenwood. 

Defendant Laino 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. Plaintiff only claims that he wrote to this

Defendant, and he received no response. Also, as to Defendant Warden Hogsten, Plaintiff only

avers that he wrote to this Defendant, and he received no response. Plaintiff does not state the

personal involvement of either Defendant Hogsten or Defendant Laino with respect to his Eighth

Amendment denial of medical care claim or with respect to his First Amendment retaliation claim.

Rather, both of these Defendants appeared to be named in this case based on respondeat superior.

Further, the United States is not a proper Defendant in a Bivens action. 

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

Defendants Laino and Hogsten. These Defendants are not alleged to have played any role in the

alleged retaliatory assignment of Plaintiff to a cell on a hill or to have played any role in the denial

of medical care to Plaintiff after his September 19, 2006 fall. Nor are these Defendants alleged to

have been aware at the time of the incident that the medical staff was denying him treatment for

his injuries. Plaintiff alleges only that he wrote to Defendants Hogsten and Laino, and that they did

not respond. Plaintiff does not aver that he requested Defendants Hogsten and Laino to give him

medical care and that they denied it. Nor does Plaintiff allege any serious or permanent injuries

as a result of his fall, although he states that he was in severe pain for many days. Plaintiff does not

state that Defendants Laino and Hogsten were ever aware that the other prison staff members were

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 4 of 18
6As we have noted in Plaintiff ‘s previous actions, 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 Amended Complaint. See

Stuckey v. Ross, Civil No. 05-2354, M.D. Pa., 1-9-06 Order, J. McClure. 

7Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996).

8The 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, 4 and 7). 

5

retaliating against him or threatening him at any time. 

As relief, Plaintiff seeks compensatory damages in the amount of $1 million. (Id., p. 3, ¶ V.)6

II. PLRA.

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

Defendants, namely the failure to state an Eighth Amendment deliberate indifference claim and a

First Amendment retaliation claim against Defendants Laino and Hogsten. We find that the

Defendant United States cannot be named in this Bivens action. We also find 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

are retaliating against him, and how they are engaging in retaliation. 

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 1995,7 (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. § 1915.8 Specifically, Section 1915(e)(2), which was created by § 805(a)(5) of the Act,

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 5 of 18
6

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, Laino, and Hogsten.

We find that Plaintiff should amend his pleading as to his Eighth Amendment claim against the

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

the prison staff who are allegedly retaliating against him for his prior civil rights actions filed with

this Court. 

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.

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 6 of 18
7

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 Complaint, as stated, Plaintiff does not allege any involvement of Defendants Laino

and Hogsten 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. As

to both Defendants Laino and Hogsten, Plaintiff only states that he wrote to them and that he

received no response from them. Plaintiff does not indicate that either of these two stated

supervisory Defendants were involved with his denial of medical care on September 19, 2006, or

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 7 of 18
8

that they were involved with the retaliation against him. As stated, Plaintiff does not state if he

suffered any permanent injuries as a result of the September 19, 2006 fall. Plaintiff’s allegations do

not indicate that Defendants Laino and Hogsten were deliberately indifferent to any denial of

medical care on him by the medical staff. Nor do Plaintiff’s allegations indicate that either

Defendant had a causal connection to the claimed retaliatory acts being taken against him.

Also, Plaintiff does not claim that Defendants Laino and Hogsten retaliated against him or

denied him required medical care. Plaintiff does not claim that he told Defendants Laino and

Hogsten he was in pain after his fall, and that they refused to assist him to receive medical care.

In fact, Plaintiff states that Lt. Shepard, despite being named as a Defendant in one of Plaintiff‘s

prior actions, “sent me to medical [on September 19, 2006] as emergency.” (Doc. 1, att. p. 2).

Plaintiff does not claim that Defendants Laino and Hogsten caused him any injuries or that they

refused to allow him to be medically treated after the fall in question. Plaintiff does not claim that

these two Defendants were aware at any time that he was being retaliated against or that they had

any knowledge that any of the staff were harassing and threatening him. The 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 Defendants Laino and Hogsten. Further,

Plaintiff’s own allegations do not show that the two stated Defendants denied him necessary

medical treatment following the September 19, 2006 fall or that he suffered any serious conditions

as a result of their conduct to establish an Eighth Amendment claim against them. Nor do Plaintiff‘s

allegation show that these Defendants were part of the retaliatory actions being taken against him.

 

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 8 of 18
9

Finally, the Plaintiff has not properly named the responsible prison personnel who were

personally involved with his First Amendment and Eighth Amendment claims. 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 Defendants Laino and Hogsten. Plaintiff’s Eighth Amendment claim as

to these Defendants should be dismissed, and he should amend his pleading as to the responsible

prison officials. 

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

Defendants Laino and Hogsten, 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 two 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

through allegations of personal direction or of actual knowledge and

acquiescence. Allegations of participation or actual knowledge

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 9 of 18
10

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

Laino and Hogsten. Plaintiff does not allege that the stated two Defendants retaliated against him

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

fell. Thus, the alleged conduct of these two Defendants does not amount to deliberate indifference

and is not sufficient to constitute an Eighth Amendment violation. Nor is the conduct of these two

Defendants with respect to their alleged failure to respond to Plaintiff‘s letter sufficient to hold them

liable in this action. Pursuant to Rode, supra, the supervisory Defendants cannot be held liable

based on respondeat superior in this case. Thus, Defendants Hogsten and Laino should be

dismissed from this case. 

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 10 of 18
11

Moreover, a prison official’s response or lack thereof to an inmate’s Administrative remedies

is not sufficient alone to hold the official liable in a civil rights action. The law is well-settled that

there is no constitutional right to a grievance procedure. See Jones v. North Carolina Prisoners’

Labor Union, Inc. 433 U.S. 119, 137-138 (1977). This very Court has also recognized that

grievance procedures are not constitutionally mandated. See Chimenti v. Kimber, Civil No. 3:CV01-0273, slip op. at p. 18 n. 8 (March 15, 2002) (Vanaskie, C.J.), reversed in part, C.A. No. 03-2056

(3d Cir. June 8, 2005)(Non-Precedential). Even if the prison provides for a grievance procedure,

as the BOP does, violations of those procedures do not amount to a civil rights cause of action.

Mann v. Adams, 855 F. 2d 639, 640 (9th Cir 1988), cert denied, 488 U.S. 898 (1988); Hoover v.

Watson, 886 F. Supp. 410, 418 (D. Del. 1995), aff’d 74 F. 3d 1226 (3d Cir. 1995). See also

Burnside v. Moser, Civil No. 04-2485, 12-16-04 Order, p. 3, J. Muir, M.D. Pa. (Even “[i]f the state

elects to provide a grievance mechanism, violations of its procedures do not ... give rise to a

[constitutional] claim.”) (citations omitted). Thus, even if the prison official allegedly failed to

process the prisoner’s grievances, no constitutional claim is stated. Burnside, supra. 

As the Court stated in Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985) (per curiam) a

mere "linkage in the prison chain of command" is not sufficient to demonstrate personal

involvement for purposes of a civil rights action. Permitting supervisory liability where a defendant,

after being informed of the violation through the filing of grievances, reports or appeals, failed to

take action to remedy the alleged wrong is not enough to show that the defendant has the

necessary personal involvement. Rode, supra. Allowing only a letter sent to an official to be

sufficient to impose supervisory liability would permit an inmate to subject defendants to potential

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 11 of 18
12

liability in any case in which the prisoner merely transmitted correspondence to the official. Id.

Thus, several courts have held that "it is well-established that an allegation that an official ignored

a prisoner's letter of protest and request for an investigation of allegations made therein is

insufficient to hold that official liable for the alleged violations." Greenwaldt v. Coughlin, 1995 WL

232736, at *4 (S.D.N.Y. Apr.19, 1995) (citations omitted); accord Rivera v. Goord, 119 F.Supp.2d

327, 344 (S.D.N.Y. 2000) (allegations that inmate wrote to prison officials and was ignored

insufficient to hold those officials liable under section 1983); Woods v. Goord, 1998 WL 740782,

at *6 (S.D.N.Y. Oct. 23, 1998) ("Receiving letters or complaints ... does not render [prison officials]

personally liable under § 1983."); Watson v. McGinnis, 964 F.Supp. 127, 130 (S.D.N.Y. 1997) ("The

law is clear that allegations that an official ignored a prisoner's letter are insufficient to establish

liability.") (citations omitted). The Second Circuit Court has stated that "if mere receipt of a letter

or similar complaint were enough, without more, to constitute personal involvement, it would result

in liability merely for being a supervisor, which is contrary to the black-letter law that § 1983 does

not impose respondeat superior liability."Walker v. Pataro, 2002 WL 664040, at *12 (S.D.N.Y. Apr.

23, 2002). 

Nor has Plaintiff stated a First Amendment retaliation claim against Defendants Hogsten and

Laino. Plaintiff only alleges that unnamed staff deliberately housed him in a cell on top of a hill, and

that the stated four (4) prison staff members, who are not named as Defendants herein, have

continued to harass and threaten him in retaliation for his lawsuits. (Doc. 1, att. pp. 1-2). 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

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 12 of 18
9As 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 

13

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 either of our two

supervisory Defendants, Hogsten and Laino. 

Further, the United States is not a Defendant. 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.

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.9 Thus, Defendant United States

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 13 of 18
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).” 

10In 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.

14

should be dismissed from this action. Defendants Hogsten and Laino should be dismissed, and

Plaintiff should amend his Complaint to name the prison officials who were personally involved

in the denial of his medical care after his September 19, 2006 fall, and who have been retaliating

against him due to his previous lawsuits filed with this Court. 

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,10 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

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 14 of 18
11Notwithstanding the Plaintiff’s pro se status and our finding that his § 1331 claim is

insufficient as to Defendants Laino and Hogsten, we do not recommend that he be permitted to

amend his Complaint to include more specific facts against these Defendants, since we find that

the Plaintiff‘s claim against the stated Defendants 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. Thus, we find futility of any amendment of this claim as to

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

leave to amend his pleading regarding these three 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). 

15

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 Defendants Laino and Hogsten.

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

sufficient personal involvement of the stated two Defendants in any Eighth Amendment and First

Amendment violations. 

Plaintiff fails to make a claim showing that Defendants Laino and Hogsten’s alleged conduct

violates 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, Laino and Hogsten, and that Plaintiff be directed to file an amended complaint as to the

responsible prison officials with respect to his First Amendment retaliation claim and his Eighth

Amendment denial of medical care claim.11 

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 15 of 18
16

VI. Recommendation. 

Based on the above, it is respectfully 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 Amendment against these Defendants. It is

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

recommended that Plaintiff be directed to file an amended complaint against the responsible

prison officials 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 24, 2006 

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 16 of 18
17

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNY CYRUS, : CIVIL ACTION NO. 4:CV-06-2022 

:

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 24, 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 10 Filed 10/24/06 Page 17 of 18
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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 24, 2006 

Case 4:06-cv-02022-JFM Document 10 Filed 10/24/06 Page 18 of 18