NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

BERNARD CAMPBELL, :

 :

Plaintiff, :

 :

v. :

 :

GIBB, et al., : 

 :

Defendants. :

 :

Civil No. 10-6584 (JBS)

OPINION

APPEARANCES:

BERNARD CAMPBELL, Plaintiff pro se

Reg. No. # 55199-066

FCI Fort Dix - 5703

P.O. Box 2000

Fort Dix, New Jersey 08640

SIMANDLE, District Judge

Plaintiff, Bernard Campbell, a federal inmate confined at

the FCI Fort Dix in Fort Dix, New Jersey, at the time he

submitted the above-captioned Complaint for filing, seeks to

bring this action in forma pauperis. Based on his affidavit of

indigence, the Court will grant plaintiff’s application to

proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)

(1998) and order the Clerk of the Court to file the Complaint.

At this time, this Court must review the Complaint, pursuant

to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether the

Complaint should be dismissed as frivolous or malicious, for

failure to state a claim upon which relief may be granted, or

Case 1:10-cv-06584-JBS-JS Document 4 Filed 07/07/11 Page 1 of 24 PageID: 20
because it seeks monetary relief from a defendant who is immune

from such relief. For the reasons set forth below, the Court

concludes that the Complaint should be dismissed without

prejudice.

I. BACKGROUND

Plaintiff, Bernard Campbell (“Campbell”), brings this civil

action, pursuant to 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986,

alleging violations of his First, Seventh, Eighth and Fourteenth

Amendment rights by the following defendants: Gibb, an EMT

employed at FCI Fort Dix; Dr. Nicoletta, a doctor employed at the

FCI Fort Dix Medical Department; Lopez, the Clinical Director of

the Medical Department at FCI Fort Dix; Baker, Acting

Administrator of the Medical Department at FCI Fort Dix; and

Warden Zickefoose. (Complaint, Caption and ¶¶ 4 through 8). The

following factual allegations are taken from the Complaint, and

are accepted for purposes of this screening only. The Court has

made no findings as to the veracity of plaintiff’s allegations.

Campbell alleges that, on October 2, 2010, defendant Gibb

responded to a medical emergency involving plaintiff. Upon

Gibb’s arrival at the scene, he found plaintiff lying on the

ground. Plaintiff asked for a wheelchair, whereupon Gibb

allegedly “violently jerked plaintiff up off the ground and threw

him onto the medical cart.” (Compl., ¶ 11). Campbell further

alleges that Gibb pulled plaintiff from the medical cart “without

professional care or justification, forcefully threw plaintiff

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onto an office chair with rollers on it, that hurted [sic]

plaintiff worse than the pain in his back that was throbbing.” 

(Compl., ¶ 12). Campbell claims that Gibb’s actions were

“racially motivated, with excessive force, and without

professionalism.” (Id.). Campbell also alleges that he lost

consciousness for a few minutes and that the racial abuse

continued for several hours. (Compl., ¶ 14).

Campbell further claims that all of the defendants acted in

concert and conspired with each other to retaliate against

plaintiff and falsify reports to cover-up the “racial and

excessive abusive acts of defendant Gibb.” (Compl., ¶ 15). 

Campbell alleges generally that he was denied medical treatment

for his injuries. (Compl., ¶ 16). Campbell further asserts that

defendants failed to adequately train, supervise and discipline

the defendants. (Compl., ¶ 17).

Campbell seeks compensatory, punitive and consequential

damages against all of the defendants in excess of $300,000.00.

(Compl., ¶ 21).

II. STANDARDS FOR A SUA SPONTE DISMISSAL

The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-

134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),

requires a district court to review a complaint in a civil action

in which a prisoner is proceeding in forma pauperis or seeks

redress against a governmental employee or entity. The Court is

required to identify cognizable claims and to sua sponte dismiss

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any claim that is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a

defendant who is immune from such relief. 28 U.S.C. §§

1915(e)(2)(B) and 1915A. This action is subject to sua sponte

screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) an 

§ 1915A.

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94

(2007)(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). See also United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must

“accept as true all of the allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them

in the light most favorable to the plaintiff.” Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court

need not, however, credit a pro se plaintiff’s “bald assertions”

or “legal conclusions.” Id. 

A complaint is frivolous if it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989) (interpreting the predecessor of § 1915(e)(2), the

former § 1915(d)). The standard for evaluating whether a

complaint is “frivolous” is an objective one. Deutsch v. United

States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

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A pro se complaint may be dismissed for failure to state a

claim only if it appears “‘beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.’” Haines, 404 U.S. at 521 (quoting Conley v.

Gibson, 355 U.S. 41, 45-46 (1957)). See also Erickson, 551 U.S.

at 93-94 (In a pro se prisoner civil rights complaint, the Court

reviewed whether the complaint complied with the pleading

requirements of Rule 8(a)(2)).

However, recently, the Supreme Court revised this standard

for summary dismissal of a Complaint that fails to state a claim

in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The issue before

the Supreme Court was whether Iqbal’s civil rights complaint

adequately alleged defendants’ personal involvement in

discriminatory decisions regarding Iqbal’s treatment during

detention at the Metropolitan Detention Center which, if true,

violated his constitutional rights. Id. The Court examined Rule

8(a)(2) of the Federal Rules of Civil Procedure which provides

that a complaint must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” 

Fed.R.Civ.P. 8(a)(2). Citing its recent opinion in Bell 1

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the

proposition that “[a] pleading that offers ‘labels and

conclusions' or ‘a formulaic recitation of the elements of a

 Rule 8(d)(1) provides that “[e]ach allegation must be 1

simple, concise, and direct. No technical form is required.”

Fed.R.Civ.P. 8(d).

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cause of action will not do,’ “Iqbal, 129 S.Ct. at 1949 (quoting

Twombly, 550 U.S. at 555), the Supreme Court identified two

working principles underlying the failure to state a claim

standard:

First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

not suffice ... . Rule 8 ... does not unlock the doors of

discovery for a plaintiff armed with nothing more than

conclusions. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss. 

Determining whether a complaint states a plausible claim for

relief will ... be a context-specific task that requires the

reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not

permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged-but it has not

“show[n]”-“that the pleader is entitled to relief.” Fed.

Rule Civ. Proc. 8(a)(2).

Iqbal, 129 S.Ct. at 1949-1950 (citations omitted).

The Court further explained that

a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.

While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.

When there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.

Iqbal, 129 S.Ct. at 1950.

Thus, to prevent a summary dismissal, civil complaints must

now allege “sufficient factual matter” to show that a claim is

facially plausible. This then “allows the court to draw the

reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. at 1948. The Supreme Court’s ruling in

Iqbal emphasizes that a plaintiff must demonstrate that the

allegations of his complaint are plausible. Id. at 1949-50; see

also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside,

578 F.3d 203, 210(3d Cir. 2009).

Consequently, the Third Circuit observed that Iqbal provides

the “final nail-in-the-coffin for the ‘no set of facts’ standard”

set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that 2

applied to federal complaints before Twombly. Fowler, 578 F.3d

at 210. The Third Circuit now requires that a district court

must conduct the two-part analysis set forth in Iqbal when

presented with a motion to dismiss:

First, the factual and legal elements of a claim should be

separated. The District Court must accept all of the

complaint’s well-pleaded facts as true, but may disregard

any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50]. 

Second, a District Court must then determine whether the

facts alleged in the complaint are sufficient to show that

the plaintiff has a “plausible claim for relief.” [Id.] In

other words, a complaint must do more than allege the

plaintiff’s entitlement to relief. A complaint has to

“show” such an entitlement with its facts. See Phillips,

515 F.3d at 234-35. As the Supreme Court instructed in

Iqbal, “[w]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct,

the complaint has alleged-but it has not ‘show [n]’-‘that

the pleader is entitled to relief.’” Iqbal, [129 S.Ct. at

1949-50]. This “plausibility” determination will be “a

 In Conley, as stated above, a district court was 2

permitted to summarily dismiss a complaint for failure to state a

claim only if “it appear[ed] beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief. Id., 355 U.S. at 45-46. Under this “no set of

facts” standard, a complaint could effectively survive a motion

to dismiss so long as it contained a bare recitation of the

claim’s legal elements.

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context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id.

Fowler, 578 F.3d at 210-211.

 This Court is mindful, however, that the sufficiency of this

pro se pleading must be construed liberally in favor of

Plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89

(2007). Moreover, a court should not dismiss a complaint with

prejudice for failure to state a claim without granting leave to

amend, unless it finds bad faith, undue delay, prejudice or

futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110-

111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.

2000).

III. BIVENS ACTIONS

Campbell asserts that his constitutional rights have been

violated, and proceeds under 42 U.S.C. § 1983. To state a claim 3

for relief under § 1983, a plaintiff must allege, first, the

violation of a right secured by the Constitution or laws of the

United States and, second, that the alleged deprivation was

committed or caused by a person acting under color of state law. 

West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v.

Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Here,

plaintiff is a federal prisoner and his claims are asserted

against federal actors. Consequently, his claims alleging

constitutional violations are more appropriately brought under

 Plaintiff also proceeds under 42 U.S.C. §§ 1984, 1985 and 3

1986.

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Bivens v. Six Unknown Named Agents of Federal Bureau of

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

In Bivens, the Supreme Court held that one is entitled to

recover monetary damages for injuries suffered as a result of

federal officials’ violations of the Fourth Amendment. In doing

so, the Supreme Court created a new tort as it applied to federal

officers, and a federal counterpart to the remedy created by 42

U.S.C. § 1983. The Supreme Court has also implied Bivens damages

remedies directly under the Eighth Amendment, see Carlson v.

Green, 446 U.S. 14 (1980), and the Fifth Amendment, see Davis v.

Passman, 442 U.S. 228 (1979).

Bivens actions are simply the federal counterpart to 

§ 1983 actions brought against state officials who violate

federal constitutional or statutory rights. Egervary v. Young,

366 F.3d 238, 246 (3d Cir. 2004), cert. denied, 543 U.S. 1049

(2005). Both are designed to provide redress for constitutional

violations. Thus, while the two bodies of law are not “precisely

parallel”, there is a “general trend” to incorporate § 1983 law

into Bivens suits. Chin v. Bowen, 833 F.2d 21, 24 (2d Cir.

1987)).

In order to state a claim under Bivens, a claimant must show

(1) a deprivation of a right secured by the Constitution and laws

of the United States; and (2) that the deprivation of the right

was caused by an official acting under color of federal law. See

Mahoney v. Nat’l Org. For Women, 681 F. Supp. 129, 132 (D. Conn.

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1987)(citing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56

(1978)).

The United States has sovereign immunity except where it

consents to be sued. United States v. Mitchell, 463 U.S. 206,

212 (1983). In the absence of such a waiver of immunity,

plaintiff cannot proceed in an action for damages against the

United States or an agency of the federal government for alleged

deprivation of a constitutional right, see FDIC v. Meyer, 510

U.S. 471, 484-87 (1994), or against any of the individual

defendants in their official capacities, see Kentucky v. Graham,

473 U.S. 159, 166 (1985) (a suit against a government officer in

his or her official capacity is a suit against the government).

IV. ANALYSIS

A. Denial of Medical Care Claim

Campbell generally asserts that defendants violated his

Eighth Amendment right to adequate medical care by denying him

medical treatment that he “was medically diagnose[d] to have.” 

(Compl., 16). 

The Eighth Amendment proscription against cruel and unusual

punishment requires that prison officials provide inmates with

adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103-04

(1976); Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999). In order

to set forth a cognizable claim for a violation of his right to

adequate medical care, an inmate must allege: (1) a serious

medical need; and (2) behavior on the part of prison officials

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that constitutes deliberate indifference to that need. Estelle,

429 U.S. at 106; Natale v. Camden County Correctional Facility,

318 F.3d 575, 582 (3d Cir. 2003).

To satisfy the first prong of the Estelle inquiry, the

inmate must demonstrate that his medical needs are serious. 

“Because society does not expect that prisoners will have

unqualified access to health care, deliberate indifference to

medical needs amounts to an Eighth Amendment violation only if

those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9

(1992). The Third Circuit has defined a serious medical need as:

(1) “one that has been diagnosed by a physician as requiring

treatment;” (2) “one that is so obvious that a lay person would

recognize the necessity for a doctor’s attention;” or (3) one for

which “the denial of treatment would result in the unnecessary

and wanton infliction of pain” or “a life-long handicap or

permanent loss.” Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d

Cir. 2003)(internal quotations and citations omitted); see also

Monmouth County Correctional Institutional Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006

(1988).

The second element of the Estelle test requires an inmate to

show that prison officials acted with deliberate indifference to

his serious medical need. See Natale, 318 F.3d at 582 (finding

deliberate indifference requires proof that the official knew of

and disregarded an excessive risk to inmate health or safety). 

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“Deliberate indifference” is more than mere malpractice or

negligence; it is a state of mind equivalent to reckless

disregard of a known risk of harm. Farmer v. Brennan, 511 U.S.

825, 837-38 (1994). Furthermore, a prisoner’s subjective

dissatisfaction with his medical care does not in itself indicate

deliberate indifference. Andrews v. Camden County, 95 F. Supp.2d

217, 228 (D.N.J. 2000); Peterson v. Davis, 551 F. Supp. 137, 145

(D. Md. 1982), aff’d, 729 F.2d 1453 (4th Cir. 1984). Similarly,

“mere disagreements over medical judgment do not state Eighth

Amendment claims.” White v. Napoleon, 897 F.2d 103, 110 (3d Cir.

1990). “Courts will disavow any attempt to second-guess the

propriety or adequacy of a particular course of treatment ...

[which] remains a question of sound professional judgment.” 

Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d

Cir. 1979) (internal quotation and citation omitted). Even if a

doctor’s judgment concerning the proper course of a prisoner’s

treatment ultimately is shown to be mistaken, at most what would

be proved is medical malpractice and not an Eighth Amendment

violation. Estelle, 429 U.S. at 105-06; White, 897 F.3d at 110.

The Third Circuit has found deliberate indifference where a

prison official: (1) knows of a prisoner’s need for medical

treatment but intentionally refuses to provide it; (2) delays

necessary medical treatment for non-medical reasons; or (3)

prevents a prisoner from receiving needed or recommended

treatment. See Rouse, 182 F.3d at 197. The court also has held

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that needless suffering resulting from the denial of simple

medical care, which does not serve any penological purpose,

violates the Eighth Amendment. Atkinson, 316 F.3d at 266. See

also Monmouth County Correctional Institutional Inmates, 834 F.2d

at 346 (“deliberate indifference is demonstrated ‘[w]hen ...

prison authorities prevent an inmate from receiving recommended

treatment for serious medical needs or deny access to a physician

capable of evaluating the need for such treatment”); Durmer v.

O’Carroll, 991 F.2d 64 (3d Cir. 1993); White v. Napoleon, 897

F.2d 103 (3d Cir. 1990).

Here, Campbell has not alleged any facts under either the

objective prong (serious medical need) or the subjective prong

(deliberate indifference) to support an Eighth Amendment

violation. Rather, he simply recites bare allegations, which

“are no more than conclusions, [and thus,] are not entitled to

the assumption of truth.” Iqbal, 129 S.Ct. at 1950. 

Accordingly, this Court will disregard this denial of medical

care claim’s “naked assertions devoid of further factual

enhancement” and “threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements,” Iqbal, 129

S.Ct. at 1949, and dismiss the claim without prejudice, as

against all named defendants, pursuant to 28 U.S.C. §

1915(e)(2)(B) and § 1915A(b)(1), for failure to state a claim at

this time.

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B. Excessive Force Claim

Next, Campbell appears to assert a claim against defendant

Gibb for use of excessive force in violation of the Eighth

Amendment. See Graham v. Connor, 490 U.S. 386, 392-394

(1989)(cases involving the use of force against convicted

individuals are examined under the Eighth Amendment’s

proscription against cruel and unusual punishment).

“The Eighth Amendment, in only three words, imposes the

constitutional limitation upon punishments: they cannot be

‘cruel and unusual.’” Rhodes v. Chapman, 452 U.S. 337, 345

(1981). The Eighth Amendment prohibits conditions which involve

the unnecessary and wanton infliction of pain or are grossly

disproportionate to the severity of the crime warranting

imprisonment. Id. at 347. The cruel and unusual punishment

standard is not static, but is measured by “the evolving

standards of decency that mark the progress of a maturing

society.” Id. at 346 (quoting Trop v. Dulles, 356 U.S. 86, 101

(1956)). To state a claim under the Eighth Amendment, an inmate

must satisfy an objective element and a subjective element. 

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

The objective element questions whether the deprivation of a

basic human need is sufficiently serious; the subjective

component asks whether the officials acted with a sufficiently

culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298

(1991). The objective component is contextual and responsive to

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“‘contemporary standards of decency.’” Hudson v. McMillian, 503

U.S. 1, 8 (1992). The subjective component follows from the

principle that “‘only the unnecessary and wanton infliction of

pain implicates the Eighth Amendment.’” See Farmer, 511 U.S. at

834 (quoting Wilson, 501 U.S. at 297 (internal quotation marks,

emphasis, and citations omitted)); Rhodes, 452 U.S. at 345. What

is necessary to establish an unnecessary and wanton infliction of

pain varies also according to the nature of the alleged

constitutional violation. Hudson, 503 U.S. at 5.

Where the claim is one of excessive use of force, the core

inquiry as to the subjective component is that set out in Whitley

v. Albers, 475 U.S. 312, 320-21 (1986)(citation omitted): 

“‘whether force was applied in a good faith effort to maintain or

restore discipline or maliciously and sadistically for the very

purpose of causing harm.’” Quoted in Hudson, 503 U.S. at 6. 

“When prison officials maliciously and sadistically use force to

cause harm, contemporary standards of decency always are

violated.” Id. at 9. In such cases, a prisoner may prevail on

an Eighth Amendment claim even in the absence of a serious

injury, the objective component, so long as there is some pain or

injury and something more than de minimis force is used. Id. at

9-10 (finding that blows which caused bruises, swelling, loosened

teeth, and a cracked dental plate were not de minimis for Eighth

Amendment purposes).

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To determine whether force was used in “good faith” or

“maliciously and sadistically,” courts have identified several

factors, including:

(1) “the need of the application of force”; (2) “the

relationship between the need and the amount of force

that was used”; (3) “the extent of 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 the facts known to them”; and

(5) “any efforts made to temper the severity of a

forceful response.”

Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting

Whitley v. Albers, 475 U.S. at 321). Thus, not all use of force

is “excessive” and will give rise to the level of a

constitutional violation. See Hudson, 503 U.S. at 9 (it is clear

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

a federal cause of action”). Therefore, “[n]ot every push or

shove, even if it may later seem unnecessary in the peace of a

judge’s chambers, violates a prisoner’s constitutional rights.” 

Id. at 9-10.

Here, the allegations of the Complaint, if true, may suggest

a claim that defendant Gibb acted in a malicious and excessive

manner. Campbell alleges that he did not provoke the rough

response from Gibb; indeed, he was injured and Gibb was

responding to an “inmate down” call. However, Campbell alleges

little in the way of injuries allegedly sustained from Gibb’s use

of force. In fact, he fails to allege what injuries he

sustained. The Complaint does not articulate plaintiff’s

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injuries –- he refers to throbbing back pain from the initial

injury that caused Gibb to respond to the “inmate down” call, but

alleges only that Gibb’s acts “hurted plaintiff worse than the

pain in his back that was throbbing.” (Compl., ¶ 12). He also

alleges that he “lost consciousness for a few minutes,” (Compl.,

¶ 14), but provides no factual support to show an actual injury

from the alleged force used by Gibb. There are no allegations of

bruising, cuts, or swelling, that would suggest that Gibb used

more than de minimis force. Therefore, this claim of excessive 4

force in violation of the Eighth Amendment will be dismissed

without prejudice, as against defendant Gibb, for failure to

state a claim at this time. To the extent that Campbell can

allege additional facts to cure the deficiencies noted herein, he

may seek leave to re-open this case and file an amended pleading.5

 “[T]he Eighth Amendment analysis must be driven by the 4

extent of the force and the circumstances in which it is applied;

not by the resulting injuries.” Smith v. Mensinger, 293 F.3d

641, 648 (3d Cir. 2002). Thus, the pivotal inquiry in reviewing

an excessive force claim is whether the force was applied

maliciously and sadistically to cause harm. Id. at 649; Brooks,

204 F.3d at 106. Otherwise, an inmate “could constitutionally be

attacked for the sole purpose of causing pain as long as the

blows were inflicted in a manner that resulted” in injuries that

were de minimis. Id. 

 Should plaintiff so choose to amend his Complaint to cure 5

the deficiencies noted herein, pursuant to Federal Rule of Civil

Procedure 15, Campbell should note that when an amended complaint

is filed, the original complaint no longer performs any function

in the case and “cannot be utilized to cure defects in the

amended [complaint], unless the relevant portion is specifically

incorporated in the new [complaint].” 6 Wright, Miller & Kane,

Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes

omitted). An amended complaint may adopt some or all of the

allegations in the original complaint, but the identification of

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C. Claims Alleging Retaliation and Conspiracy

Campbell also asserts a general claim that the defendants

conspired with each other to cover-up the incident and to

retaliate against plaintiff. (Compl., ¶ 15). The claim,

however, is completely devoid of any factual support. “[N]aked

assertions devoid of further factual enhancement” and “threadbare

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

conclusory statements” cannot sustain an action. Iqbal, 129

S.Ct. at 1949. Therefore, this Court must dismiss these bald

claims, without prejudice, as against all named defendants,

pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1), for

failure to state a claim at this time. 

D. Supervisor Liability Claim

Campbell also asserts a claim against defendants Nicoletta,

Lopez, Baker and Zickefoose, alleging that they failed to

adequately train, supervise or discipline Gibb. This essentially

is a claim of supervisor liability. Because the Court has found

no actionable claim of a constitutional violation by the

subordinate employee, Gibb, at this time, any claim based on

supervisor liability must likewise be dismissed for failure to

state a claim. 

Moreover, even if Gibb had violated plaintiff’s

constitutional rights, as alleged, as a general rule, government

the particular allegations to be adopted must be clear and

explicit. Id. To avoid confusion, the safer course is to file

an amended complaint that is complete in itself. Id.

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officials may not be held liable for the unconstitutional conduct

of their subordinates under a theory of respondeat superior. See

Iqbal, 129 S.Ct. at 1948; Monell v. New York City Dept. Of Social

Servs., 436 U.S. 658, 691 (1978)(finding no vicarious liability

for a municipal “person” under 42 U.S.C. § 1983); Robertson v.

Sichel, 127 U.S. 507, 515-16 (1888)(“A public officer or agent is

not responsible for the misfeasances or position wrongs, or for

the nonfeasances, or negligences, or omissions of duty, of

subagents or servants or other persons properly employed by or

under him, in discharge of his official duties”). In Iqbal, the

Supreme Court held that “[b]ecause vicarious or supervisor

liability is inapplicable to Bivens and § 1983 suits, a plaintiff 6

must plead that each Government-official defendant, through the

official’s own individual actions, has violated the

Constitution.” Iqbal, 129 S.Ct. at 1948. Thus, each government

official is liable only for his or her own conduct. The Court

rejected the contention that supervisor liability can be imposed

where the official had only “knowledge” or “acquiesced” in their

subordinates conduct. Id., 129 S.Ct. at 1949.

Under pre- Iqbal Third Circuit precedent, “[t]here are two

theories of supervisory liability,” one under which supervisors

can be liable if they “established and maintained a policy,

practice or custom which directly caused [the] constitutional

 Bivens v. Six Unknown Named Agents of Federal Bureau of 6

Narcotics, 403 U.S. 388 (1971)

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harm,” and another under which they can be liable if they

“participated in violating plaintiff’s rights, directed others to

violate them, or, as the person[s] in charge, had knowledge of

and acquiesced in [their] subordinates’ violations.” Santiago v.

Warminster Twp., 629 F.3d 121, 127 n. 5 (3d Cir. 2010)(internal

quotation marks omitted). “Particularly after Iqbal, the

connection between the supervisor’s directions and the

constitutional deprivation must be sufficient to demonstrate a

plausible nexus or affirmative link between the directions and

the specific deprivation of constitutional rights at issue.” Id.

at 130.

The Third Circuit has recognized the potential effect that

Iqbal might have in altering the standard for supervisory

liability in a § 1983 suit but, to date, has declined to decide

whether Iqbal requires narrowing of the scope of the test. See

Santiago, 629 F.3d 130 n. 8; Bayer v. Monroe County Children and

Youth Servs., 577 F.3d 186, 190 n. 5 (3d Cir. 2009)(stating in

light of Iqbal, it is uncertain whether proof of personal

knowledge, with nothing more, provides sufficient basis to impose

liability upon supervisory official). Hence, it appears that,

under a supervisory theory of liability, and even in light of

Iqbal, personal involvement by a defendant remains the touchstone

for establishing liability for the violation of a plaintiff’s

constitutional right. Williams v. Lackawanna County Prison, 2010

WL 1491132, at *5 (M.D.Pa. Apr. 13, 2010).

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Facts showing personal involvement of the defendant must be

asserted; such assertions may be made through allegations of

specific facts showing that a defendant expressly directed the

deprivation of a plaintiff’s constitutional rights or created

such policies where the subordinates had no discretion in

applying the policies in a fashion other than the one which

actually produced the alleged deprivation; e.g., supervisory

liability may attach if the plaintiff asserts facts showing that

the supervisor’s actions were “the moving force” behind the harm

suffered by the plaintiff. See Sample v. Diecks, 885 F.2d 1099,

1117–18 (3d Cir. 1989); see also Iqbal, 129 S.Ct. at 1949–54.

Here, plaintiff provides no facts describing how the

supervisory defendants allegedly violated his constitutional

rights, i.e., he fails to allege facts to show that these

defendants expressly directed the deprivation of his

constitutional rights, or that they created policies which left

subordinates with no discretion other than to apply them in a

fashion which actually produced the alleged deprivation. In

short, Campbell has alleged no facts to support personal

involvement by the supervisory defendants, and simply relies on

recitations of legal conclusions such that they failed to

supervise or failed to protect plaintiff in violation of his

constitutional rights. These bare allegations, “because they are

no more than conclusions, are not entitled to the assumption of

truth.” Iqbal, 129 S.Ct. at 1950. Accordingly, this Court will

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dismiss the claim asserting supervisor liability, pursuant to 28

U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1), because plaintiff has

failed to state a claim at this time.

E. Plaintiff’s Claims Under §§ 1981, 1985(3) and 1986 

42 U.S.C. § 1981 prohibits racial discrimination in the

making and enforcement of contracts and property transactions,

providing:

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to

make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is

enjoyed by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses and exactions

of every kind, and to no other.

42 U.S.C. § 1981. In order to prove a claim under § 1981, a

plaintiff must show (1) that plaintiff is a member of a racial

minority; (2) intent to discriminate on the basis of race by the

defendant; and (3) discrimination concerning one or more of the

activities enumerated in the statute, which includes the right to

make and enforce contracts. Brown v. Phillip Morris Inc., 250 F.

3d 789, 797 (3d Cir. 2001). The statute defines the term “make

and enforce contracts” to include “the making, performance,

modification, and termination of contracts, and the enjoyment of

all benefits, privileges, terms, and conditions of the

contractual relationship.” 42 U.S.C. § 1981(b).

The Complaint is completely devoid of facts to show all of

the required elements of § 1981 claim. Principally, Campbell has

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not alleged any facts to show that the defendants intended to

discriminate against plaintiff to make and enforce contracts. 

Indeed, the allegations are based on claims of excessive force

and denial of medical care. Therefore, this § 1981 claim will be

dismissed with prejudice.

Next, plaintiff asserts a claim under 42 U.S.C. §§ 1985(3)

and 1986, alleging a conspiracy by the defendants. The elements

of a § 1985(3) claim are “(1) a conspiracy; (2) for the purpose

of depriving, either directly or indirectly, any person or class

of persons of the equal protection of the laws, or of equal

privileges and immunities under the laws; and (3) an act in

furtherance of the conspiracy; (4) whereby a person is injured in

his person or property or deprived of any right or privilege of a

citizen of the United States.” Farber v. City of Paterson, 440

F.3d 131, 134 (3d Cir. 2006)(internal quotations and citations

omitted). State law civil conspiracy has similar requirements. 

LoBiondo v. Schwartz, 970 A.2d 1007, 1029–30 (N.J. 2009)(noting

that the elements include an agreement between the parties to

inflict a wrong against or an injury upon another, and an overt

act that results in damage).

As discussed above, in Section IV.C., the Complaint fails to

allege facts sufficient to support a conspiracy claim of any

kind. Consequently, plaintiff’s § 1985(3) and § 1986 claims

likewise will be dismissed for failure to state a claim. 

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V. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed without prejudice, in its entirety, as against all

named defendants, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

1915A(b)(1), for failure to state a claim upon which relief may

be granted at this time. An appropriate order follows.

 s/ Jerome B. Simandle 

JEROME B. SIMANDLE

United States District Judge

Dated: July 7, 2011

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