NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

MAURICE GAY, :

: Civil Action No. 10-6354 (MLC)

Plaintiff, :

:

v. : O P I N I O N

:

S.I.D. STEVENS, et al., :

:

Defendants. :

 :

COOPER, District Judge

Plaintiff, Maurice Gay, a prisoner confined at New Jersey

State Prison in Trenton, New Jersey, seeks to bring this action

in forma pauperis pursuant to 42 U.S.C. § 1983, alleging

violations of constitutional rights. Based on his affidavit of

indigence and the absence of three qualifying dismissals within

28 U.S.C. § 1915(g), the Court will grant Plaintiff’s application

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

order the Clerk of the Court to file the Complaint. The Court

will review the Complaint to determine whether it should be

dismissed as frivolous or malicious, for failure to state a claim

upon which relief may be granted, or because it seeks monetary

relief from a defendant who is immune from such relief.

I. BACKGROUND

The following factual allegations are from the Complaint and

accepted as true for purposes of this review. Plaintiff alleges

that S.I.D. Officer Stevens “set him up.” He alleges that Sgt.

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Newsom then sprayed Plaintiff in the eyes with pepper spray; that

D. Smith roughed him up and hit him in the eye; that Correctional

Officer Lashley pushed his thumb into Plaintiff’s eye. Plaintiff

alleges that he was taken to the medical department where Nurse

Craig “got an earful” and was slow in treating Plaintiff’s

injuries. Plaintiff alleges that Nurse Craig neither treated all

of his medical problems nor reported their seriousness.1

II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,

claims asserted by prisoners that are frivolous, are malicious,

fail to state a claim, or seek monetary relief from a defendant

who is immune from such relief. See 28 U.S.C. § 1915(e)(2); 28

U.S.C. § 1915A; 42 U.S.C. § 1997e. In determining the sufficiency

of a pro se complaint, the Court must construe it liberally in

the plaintiff’s favor. Haines v. Kerner, 404 U.S. 519, 520-21

(1972); 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 Sch. Dist., 132 F.3d 902, 906

(3d Cir. 1997). But any complaint must still comply with the

pleading requirements of the Federal Rules of Civil Procedure.

 “McEady” is named as a defendant. The Complaint alleges 1

no facts about McEady. The Complaint insofar as it may be

construed to assert claims against McEady will be dismissed.

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Rule 8(a)(2) requires that a complaint contain “a short and

plain statement of the claim showing that the pleader is entitled

to relief”. A complaint must plead facts sufficient at least to

“suggest” a basis for liability. Spruill v. Gillis, 372 F.3d

218, 236 n.12 (3d Cir. 2004). “Specific facts are not necessary;

the statement need only ‘give the defendant fair notice of what

the ... claim is and the grounds upon which it rests.’” Erickson

v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

While a complaint ... does not need detailed factual

allegations, a plaintiff’s obligation to provide the

“grounds” of his “entitle[ment] to relief” requires more

than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do, see

Papasan v. Allain, 478 U.S. 265, 286 . . . (1986) (on a

motion to dismiss, courts “are not bound to accept as

true a legal conclusion couched as a factual

allegation”). Factual allegations must be enough to

raise a right to relief above the speculative level[.]

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

omitted).

The Supreme Court has demonstrated the application of these

general standards to a Sherman Act conspiracy claim.

In applying these general standards to a § 1

[conspiracy] claim, we hold that stating such a claim

requires a complaint with enough factual matter (taken

as true) to suggest that an agreement was made. Asking

for plausible grounds to infer an agreement does not

impose a probability requirement at the pleading stage;

it simply calls for enough fact to raise a reasonable

expectation that discovery will reveal evidence of

illegal agreement. And, of course, a well-pleaded

complaint may proceed even if it strikes a savvy judge

that actual proof of those facts is improbable, and

“that a recovery is very remote and unlikely.” ... It

makes sense to say, therefore, that an allegation of

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parallel conduct and a bare assertion of conspiracy

will not suffice. Without more, parallel conduct does

not suggest conspiracy, and a conclusory allegation of

agreement at some unidentified point does not supply

facts adequate to show illegality. Hence, when

allegations of parallel conduct are set out in order to

make a § 1 claim, they must be placed in a context that

raises a suggestion of a preceding agreement, not

merely parallel conduct that could just as well be

independent action.

The need at the pleading stage for allegations

plausibly suggesting (not merely consistent with)

agreement reflects the threshold requirement of Rule

8(a)(2) that the “plain statement” possess enough heft

to “sho[w] that the pleader is entitled to relief.” A

statement of parallel conduct, even conduct consciously

undertaken, needs some setting suggesting the agreement

necessary to make out a § 1 claim; without that further

circumstance pointing toward a meeting of the minds, an

account of a defendant’s commercial efforts stays in

neutral territory.

Twombly, 550 U.S. at 556-57 (citations and footnotes omitted).

The Twombly pleading standard applies in the context of a

§ 1983 civil rights action. See Phillips v. County of Allegheny,

515 F.3d 224, 234 (3d Cir. 2008).

Context matters in notice pleading. Fair notice under

Rule 8(a)(2) depends on the type of case -- some

complaints will require at least some factual

allegations to make out a “showing that the pleader is

entitled to relief, in order to give the defendant fair

notice of what the ... claim is and the grounds upon

which it rests.” Indeed, taking Twombly and the

Court’s contemporaneous opinion in Erickson v. Pardus,

127 S.Ct. 2197 (2007), together, we understand the

Court to instruct that a situation may arise where, at

some point, the factual detail in a complaint is so

undeveloped that it does not provide a defendant the

type of notice of claim which is contemplated by

Rule 8. Put another way, in light of Twombly, Rule

8(a)(2) requires a “showing” rather than a blanket

assertion of an entitlement to relief. We caution that

without some factual allegation in the complaint, a

claimant cannot satisfy the requirement that he or she

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provide not only “fair notice,” but also the “grounds”

on which the claim rests.

Phillips, 515 F.3d at 232 (citations omitted).

When assessing the sufficiency of any civil complaint, a

court must distinguish factual contentions — which allege conduct

on the part of a defendant that, if true, would satisfy one or

more elements of the claim asserted — from “[t]hreadbare recitals

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

statements.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 

Although the Court must assume the veracity of the facts asserted

in a complaint, it is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Id. at 1950. Thus,

“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.” Id.

[D]istrict courts should conduct a two-part analysis. 

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. 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.” 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.’” 

This “plausibility” determination will be “a

context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.”

5

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Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)

(citations omitted).

Rule 10(b) of the Federal Rules of Civil Procedure provides:

A party must state its claims ... in numbered paragraphs,

each limited as far as practicable to a single set of

circumstances. ... If doing so would promote clarity,

each claim founded on a separate transaction or occurrence

... must be stated in a separate count or defense.

Rule 18(a) controls the joinder of claims. In general, “[a]

party asserting a claim ... may join as independent or alternative

claims, as many claims as it has against an opposing party.”

Rule 20(a)(2) controls the permissive joinder of defendants

in civil actions.

Persons ... may be joined in one action as defendants if:

(A) any right to relief is asserted against them

jointly, severally, or in the alternative with respect to

or arising out of the same transaction, occurrence, or

series of transactions or occurrences; and

(B) any question of law or fact common to all

defendants will arise in the action.

(emphasis added).

The requirements prescribed by Rule 20(a) are to be

liberally construed in the interest of convenience and judicial

economy. Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir. 2002). But

the policy of liberal application of Rule 20 is not a license to

join unrelated claims and defendants in one lawsuit. See, e.g.,

Pruden v. SCI Camp Hill, 252 Fed.Appx. 436 (3d Cir. 2007); George

v. Smith, 507 F.3d 605 (7th Cir. 2007); Coughlin v. Rogers, 130

F.3d 1348 (9th Cir. 1997).

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III. SECTION 1983 ACTIONS

A plaintiff may have a cause of action under 42 U.S.C.

§ 1983 for certain violations of constitutional rights. To state

a claim 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).

A § 1983 action brought against a person in his or her

official capacity “generally represent[s] only another way of

pleading an action against an entity of which an officer is an

agent.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55

(1978). “[I]n an official-capacity action, ... a governmental

entity is liable under § 1983 only when the entity itself is a

‘moving force’ behind the deprivation; thus, in an official

capacity suit the entity’s ‘policy or custom’ must have played a

part in the violation of federal law.” Kentucky v. Graham, 473

U.S. 159, 166 (1985) (internal quotation marks and citations

omitted).

IV. ANALYSIS

A. The Excessive Force Claim

Plaintiff alleges that S.I.D. Officer Stevens “set him up”,

that Sgt. Newsom sprayed him in the eye with pepper spray, that

D. Smith hit Plaintiff in the eye, and that Correctional Officer

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Lashley pushed his thumb in the same eye that Sgt. Newsom had

sprayed pepper spray into.

The Eighth Amendment prohibits the states from inflicting

“cruel and unusual punishments” on those convicted of crimes. 

Rhodes v. Chapman, 452 U.S. 337, 344-46 (1981). An Eighth

Amendment claim includes both an objective component, whether the

deprivation of a basic human need is sufficiently serious, and a

subjective component, 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 “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.” Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (citations and quotations

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

omitted). “When prison officials maliciously and sadistically

8

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use force to cause harm, contemporary standards of decency always

are violated.” Hudson, 503 U.S. 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 cracked dental plate were not de minimis for

Eighth Amendment purposes).

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

“maliciously and sadistically,” there are several factors:

(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, 475 U.S. at 321). Thus, not all use of force is

“excessive,” the level of a constitutional violation.

A “corrections officer’s failure to intervene in a beating

can be the basis of liability for an Eighth Amendment violation

under § 1983 if the corrections officer had a reasonable

opportunity to intervene and simply refused to do so. Furthermore,

... a corrections officer can not escape liability by relying

upon his inferior or non-supervisory rank vis-a-vis the other

officers.” Smith v. Mensinger, 293 F.3d 641, 640 (3d Cir. 2002).

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Plaintiff here has failed to allege facts sufficient to

demonstrate that S.I.D. Officer Stevens applied “force” to

Plaintiff at all. The characterization of S.I.D. Officer

Stevens’s conduct as “setting up” Plaintiff is too vague to give

Stevens notice of what he is alleged to have done, or to permit

this Court to determine whether Plaintiff can state a claim

against Stevens.

While Plaintiff has alleged that three other officers

applied force, he has failed to allege any facts that would

demonstrate that the force was excessive under the circumstances

or that the force was applied maliciously and sadistically, as

opposed to in a good faith effort to restore order. The mere

assertion that force was used against a prisoner is not

sufficient to state a claim for an Eighth Amendment violation.

B. The Medical-Care Claim

Plaintiff also alleges that Nurse Craig “got an earful” from

the officers who took him to the medical department, was slow to

deliver treatment, and failed to report the seriousness of his

injuries.

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). To set forth a cognizable claim for a violation of his

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

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

officials that constitutes deliberate indifference to that need. 

Id. at 106.

To satisfy the first prong of the Estelle inquiry, the

inmate must demonstrate that the 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, 503 U.S. at 9. Serious

medical needs include those that have been diagnosed by a

physician as requiring treatment or that are so obvious that a

lay person would recognize the necessity for medical attention,

and those conditions which, if untreated, would result in

lifelong handicap or permanent loss. Monmouth Cnty. Corr. Inst’l

Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).

The second element of the Estelle test requires an inmate to

show that prison officials acted with deliberate indifference to

a serious medical need. “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, 511 U.S.

at 837-38. 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.

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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. Implicit in this

deference to prison medical authorities is the assumption that

such informed judgment has, in fact, been made.” Inmates of

Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)

(quotation and citation omitted). Even if the decision on 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.2d at 110.

“Where prison authorities deny reasonable requests for

medical treatment, however, and such denial exposes the inmate

‘to undue suffering or the threat of tangible residual injury,’

deliberate indifference is manifest. Similarly, where ‘knowledge

of the need for medical care [is accompanied by the] ...

intentional refusal to provide that care,’ the deliberate

indifference standard has been met. ... Finally, 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

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evaluating the need for such treatment.” Lanzaro, 834 F.2d at

346 (citations omitted). Short of an absolute denial, if

necessary medical treatment is delayed for non-medical reasons, a

case of deliberate indifference has been made out. See id. 

“Deliberate indifference is also evident where prison officials

erect arbitrary and burdensome procedures that ‘result[] in

interminable delays and outright denials of medical care to

suffering inmates.’” Id. at 347 (citation omitted).

Plaintiff here has failed to allege facts demonstrating

either deliberate indifference or a serious medical need. The

mere happenstance that the nurse listened to the officers

transporting Plaintiff to the medical department before treating

him does not demonstrate deliberate indifference. Moreover,

while the pepper spray and the thumb in his eye were no doubt

painful at the time, Plaintiff has alleged no facts suggesting an

ongoing injury. Nor does he explain what treatment he thinks

should have been given or how the failure to provide that

treatment led to ongoing injury or pain. Instead, it appears

that he merely has a difference of opinion about what treatment

he should have received; such a difference of opinion does not

rise to the level of an Eighth Amendment violation.

Plaintiff’s allegations about his injuries and medical

treatment do not state a claim.

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V. CONCLUSION

The Complaint will be dismissed, pursuant to 28 U.S.C.

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

claim. The Court will issue an appropriate order and judgment.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: November 2, 2011

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