NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

OMAR ABREU, :

: Civil Action No. 11-0933 (RMB)

Plaintiff, :

:

v. : OPINION

:

(DOCTOR) MR. GOSTKOWSKI, :

:

Defendant. :

APPEARANCES:

Plaintiff pro se

Omar Abreu

F.C.I. Fort Dix

P.O. Box 2000

Fort Dix, NJ 08640

BUMB, District Judge

Plaintiff Omar Abreu is a federal prisoner serving a 246-

month sentence upon conviction of racketeering and related

offenses. See United States v. Abreu, Criminal No. 00-0732

(S.D.N.Y.). Currently confined at the Federal Correctional

Institution at Fort Dix, New Jersey, he seeks to bring this

action in forma pauperis pursuant to Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971), alleging violations of his

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

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

Clerk of the Court to file the Complaint.

At this time, the Court must 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 taken from Plaintiff’s

Complaint, and its attachments, and are accepted as true for

purposes of this review.

Plaintiff alleges that his knee was operated on in October

of 2007. He alleges that, as a result of the operation, and

because he has flat feet, a Dr. Patel prescribed “medical shoes.” 

Plaintiff alleges that this footwear is necessary to prevent the

condition of his knees from deteriorating. 

In 2010, Dr. Gostkowski determined that there was no medical

need for the previously prescribed “medical shoes.” Instead, to

treat Plaintiff’s flat feet, Dr. Gostkowski advised Plaintiff to

purchase soft shoes or boots from the commissary and prescribed

orthotics. Plaintiff has been advised that he will be provided

replacement orthotics in the future. Plaintiff alleges that he

is in some pain from his condition.

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Plaintiff has brought this action seeking an order for the

previously-prescribed medical shoes and for monetary compensation

for his pain and suffering.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,

certain in forma pauperis and prisoner actions that are

frivolous, 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) (in forma pauperis actions); 28 U.S.C.

§ 1915A (actions in which prisoner seeks redress from a

governmental defendant); 42 U.S.C. § 1997e (prisoner actions

brought with respect to prison conditions).

In determining the sufficiency of a pro se complaint, the

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

plaintiff. 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 School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

In addition, any complaint must comply with the pleading

requirements of the Federal Rules of Civil Procedure.

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

plain statement of the claim showing that the pleader is entitled

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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, 106

S.Ct. 2932, 92 L.Ed.2d 209 (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 Atlantic 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

parallel conduct and a bare assertion of conspiracy

will not suffice. Without more, parallel conduct does

not suggest conspiracy, and a conclusory allegation of

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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 Court of Appeals for the Third Circuit has held, in the

context of a § 1983 civil rights action, that the Twombly

pleading standard applies outside the § 1 antitrust context in

which it was decided. See Phillips v. County of Allegheny, 515

F.3d 224, 234 (3d Cir. 2008) (“we decline at this point to read

Twombly so narrowly as to limit its holding on plausibility to

the antitrust context”).

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

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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

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

on which the claim rests.

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

More recently, the Supreme Court has emphasized that, when

assessing the sufficiency of any civil complaint, a court must

distinguish factual contentions -- which allege behavior on the

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

elements of the claim asserted -- and “[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 the 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.

Therefore, after Iqbal, when presented with a

motion to dismiss for failure to state a claim,

district 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

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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.”

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

(citations omitted).

Where a complaint can be remedied by an amendment, a

district court may not dismiss the complaint with prejudice, but

must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d

Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane

v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal

pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg

County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

III. Bivens v. Six Unknown Agents

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

Narcotics, 403 U.S. 388, 389 (1971), the Supreme Court held that

a violation of the Fourth Amendment by a federal agent acting

under color of his authority gives rise to a cause of action

against that agent, individually, for damages. The Supreme Court

has also implied damages remedies directly under the Eighth

Amendment, see Carlson v. Green, 446 U.S. 14 (1980), and under

the equal protection component of the Fifth Amendment’s Due

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Process Clause, see Davis v. Passman, 442 U.S. 228 (1979). But

“the absence of statutory relief for a constitutional violation

does not necessarily mean that courts should create a damages

remedy against the officer responsible for the violation.” 

Schreiber v. Mastrogiovanni, 214 F.3d 148, 152 (3d Cir. 2000)

(citing Schweiker v. Chilicky, 487 U.S. 412 (1988).

Relying upon Bivens, several lower federal courts have implied a

damages cause of action against federal officers, under the Due

Process Clause of the Fifth Amendment, for claims by federal pretrial detainees alleging inadequate medical care or

unconstitutional conditions of confinement. See, e.g., Lyons v.

U.S. Marshals, 840 F.2d 202 (3d Cir. 1988); Magluta v. Samples,

375 F.3d 1269 (11th Cir. 2004); Loe v. Armistead, 582 F.2d 1291

(4th Cir. 1978), cert. denied, 446 U.S. 928 (1980).

IV. ANALYSIS

A. Exhaustion of Administrative Remecies

No action may be brought by a prisoner with respect to

prison conditions unless the prisoner has exhausted available

administrative remedies. 42 U.S.C. § 1997e(a). Specifically, 42

U.S.C. § 1997e(a) provides:

No action shall be brought with respect to prison

conditions under section 1983 of this title, or any

other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such

administrative remedies as are available are exhausted.

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“[T]he ... 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.” Porter v. Nussle, 534 U.S. 516, 532 (2002)

(citation omitted). 

In addition, a prisoner must exhaust all available

administrative remedies even where the relief sought, such as

monetary damages, cannot be granted through the administrative

process. Booth v. Churner, 532 U.S. 731 (2001).

Inmates are not required to specifically plead or

demonstrate exhaustion in their complaints; instead, failure to

exhaust is an affirmative defense that must be pled by the

defendant. Jones v. Bock, 549 U.S. 199 (2007). Nevertheless, a

district court has inherent power to dismiss a complaint which

facially violates this bar to suit. See, e.g., Bock, 549 U.S. at

214-15 (referring to the affirmative defense of a statute of

limitations bar); Lindsay v. Williamson, 271 Fed.Appx. 158, 159-

160, 2008 WL 902984, *1 (3d Cir. 2008); Ray v. Kertes, 285 F.3d

287, 293 n.5 (3d Cir. 2002); Nyhuis v. Reno, 204 F.3d 65 (3d Cir.

2000).

The Third Circuit observed in Nyhuis, however, that an

inmate may satisfy § 1997e(a) through substantial compliance. 

“Without embellishing - for the case law in the area will have to

develop - we note our understanding that compliance with the

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administrative remedy scheme will be satisfactory if it is

substantial.” Nyhuis, 204 F.3d at 77-8. See also Veteto v.

Miller, 794 F.2d 98, 99-100 (3d Cir. 1986) (vacating sua sponte

dismissal based upon failure to exhaust BOP’s Administrative

Remedy Program where prisoner alleged that he had “repeatedly

requested administrative remedies” from the defendants with no

response or success, and remanding to enable plaintiff “to amend

his complaint so as to supply more specific facts on this subject

and to enable the court to hold a preliminary hearing, if

needed”).

The Bureau of Prisons Administrative Remedy Program is a

multi-tier process that is available to inmates confined in

institutions operated by the BOP for “review of an issue which

relates to any aspect of their confinement.”1 28 C.F.R.

§ 542.10. An inmate must initially attempt to informally resolve

the issue with institutional staff. 28 C.F.R. § 542.13(a). If

informal resolution fails or is waived, an inmate may submit a

BP-9 Request to “the institution staff member designated to

receive such Requests (ordinarily a correctional counsel)” within

20 days of the date on which the basis for the Request occurred,

1 “This rule does not require the inmate to file under the

Administrative Remedy Program before filing under statutorilymandated procedures for tort claims (see 28 CFR 543, subpart C),

Inmate Accident Compensation claims(28 CFR 301), and Freedom of

Information Act or Privacy Act requests (28 CFR 513, subpart

D),[ or other statutorily-mandated administrative procedures].” 

67 F.R. 50804-01, 2002 WL 1789480 (August 6, 2002).

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or within any extension permitted. 28 C.F.R. § 542.14. An

inmate who is dissatisfied with the Warden’s response to his BP-9

Request may submit a BP-10 Appeal to the Regional Director of the

BOP within 20 days of the date the Warden signed the response. 

28 C.F.R. § 542.15(a). The inmate may appeal to the BOP’s

General Counsel on a BP-11 form within 30 days of the day the

Regional Director signed the response.2

 Id. Appeal to the

General Counsel is the final administrative appeal. Id. If

responses are not received by the inmate within the time allotted

for reply, “the inmate may consider the absence of a response to

be a denial at that level.” 28 C.F.R. § 542.18.

Here, Plaintiff initiated the Federal Bureau of Prisons

administrative remedy program. He timely pursued the first and

second levels of administrative remedy, at the level of the

Warden and the Regional Director. The Regional Director’s

response was dated June 25, 2010, and provided Plaintiff notice

that his appeal must be received in the office of the General

Counsel within 30 days after the date of the decision. Plaintiff

alleges that he mailed his appeal on July 23, 2010, 28 days after

the date of the Regional Director decision, but the appeal was

not received in the General Counsel’s office until August 19,

2010. Therefore, Plaintiff’s appeal to the General Counsel was

2

 Response times for each level of review are set forth in

28 C.F.R. § 542.18.

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rejected as untimely, but Plaintiff was granted leave to resubmit

the appeal in proper form with staff verification on BOP

letterhead documenting that the untimely filing of the appeal was

not Plaintiff’s fault. Instead, Plaintiff submitted a new

administrative remedy which was rejected at the level of the

Warden because it was untimely and the issue had already been

addressed.

Plaintiff’s attachments to the Complaint reflect that he did

not exhaust his administrative remedies, as he did not timely

appeal to the office of the General Counsel. Nor do the

attachments reflect substantial compliance, as Plaintiff received

timely notice of the 30-day deadline for receipt of the appeal to

the General Counsel, yet he waited 28 days to place his appeal

into the institutional mail system. Accordingly, the Complaint

will be dismissed with prejudice for failure to satisfy the

statutory prerequisite of exhaustion of administrative remedies.

B. Eighth Amendment Medical-Care Claim

To the extent Plaintiff can demonstrate substantial

compliance with the administrative remedy requirement, the

Complaint nevertheless fails to state a claim.

The Eighth Amendment to the United States Constitution,

applicable to the individual states through the Fourteenth

Amendment, prohibits the states from inflicting “cruel and

unusual punishments” on those convicted of crimes. Rhodes v.

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Chapman, 452 U.S. 337, 344-46 (1981). This 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). 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 that constitutes deliberate

indifference to that need. Id. at 106.

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). 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

doctor’s attention, and those conditions which, if untreated,

would result in lifelong handicap or permanent loss. 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. “Deliberate indifference” is more than

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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. Implicit in this deference to prison medical

authorities is the assumption that such informed judgment has, in

fact, been made.” 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.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,’

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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

evaluating the need for such treatment.” Monmouth County Corr.

Inst. Inmates v. Lanzaro, 834 F.2d at 346 (citations omitted). 

“Short of absolute denial, ‘if necessary medical treatment [i]s

... delayed for non-medical reasons, a case of deliberate

indifference has been made out.” Id. (citations omitted). 

“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).

Here, no inference of “deliberate indifference” arises from

the facts pleaded in his Complaint and its attachments. Instead,

Plaintiff has demonstrated merely a disagreement over medical

care. See Ex. To Complt., at 23. Accordingly, the Complaint

fails to state a claim for violation of Plaintiff’s right under

the Eighth Amendment to adequate medical care.

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V. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed with prejudice, pursuant to 28 U.S.C.

§§ 1915(e)(2)(B)(ii) and 1915A(b)(1) and 42 U.S.C. § 1997e(e),

for failure to state a claim. If Plaintiff can overcome the

deficiencies noted herein, he may file a motion to re-open and

file a proposed amended complaint within 30 days of this Opinion

and the related Order.3 

An appropriate order follows.

s/Renée Marie Bumb 

Renée Marie Bumb

United States District Judge

Dated: September 14, 2011 

3 Plaintiff 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

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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