NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

COREY M. ARMSTEAD, :

 :

Plaintiff, :

 :

v. :

 :

ADMIN. DONALD MEE, et al., : 

 :

Defendants. :

 :

Civil No. 11-1740 (PGS)

OPINION

APPEARANCES:

COREY M. ARMSTEAD, Plaintiff pro se

# 424970/SBI # 962

South Woods State Prison

215 Burlington Road South

Bridgeton, New Jersey 08302

SHERIDAN, District Judge

Plaintiff, Corey M. Armstead, a state inmate presently

confined at the South Woods State Prison in Bridgeton, New

Jersey, at the time he submitted this 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, the Court must review the Complaint, pursuant

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

should be dismissed as frivolous or malicious, for failure to

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state a claim upon which relief may be granted, or 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 proceed in part. 

I. BACKGROUND

Plaintiff, Corey M. Armstead (“Armstead”), brings this civil

action, pursuant to 42 U.S.C. § 1983, against the following

defendants: Donald Mee, Administrator at East Jersey State

Prison; SCO William Egan; SCO Dominick Auriemma; Lieutenant

Pasquale Capozzoli; and Sgt. Anthony DeVito. (Complaint,

Caption). 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.

Armstead alleges that, on June 1, 2009, Sgt. DeVito wrote

disciplinary charges against plaintiff, namely, Prohibited Act

303, for not doing his jobs in the mess hall. Armstead contends

that video tape would dispute DeVito’s charges. Armstead

appealed the charges but his appeal was denied. Later, a

polygraph test allegedly showed that plaintiff was being

truthful, and on September 17, 2010, he was exonerated. 

(Complaint at ¶ 6).

Armstead also alleges that, on or about June 9, 2009, he was

strip searched by defendants DeVito, Egan and Auriemma. After no

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contraband was found, DeVito allegedly approached plaintiff and

told Armstead that he did not like Armstead’s attitude. Then

Devito punched plaintiff in the face, causing Armstead to fall to

the ground, where defendant continued to strike plaintiff and

kick him. The other named defendant officers watched the

incident but did nothing to stop it. (Complaint, ¶ 6).

Armstead seeks declaratory judgment that his constitutional

rights were violated. He also asks for an unspecified amount in

compensatory damages. (Comp., ¶ 7).

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

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

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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).

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)).

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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

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

 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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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

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”

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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

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

 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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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. SECTION 1983 ACTIONS

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. 

Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory ... subjects, or causes to be subjected,

any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress ... .

Thus, 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).

IV. ANALYSIS

A. Excessive Force claim

Armstead alleges that defendant DeVito assaulted him without

provocation. These allegations suggest that plaintiff is

asserting that defendant used excessive force against him in

violation of the Eighth Amendment because he is a convicted

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prisoner. 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

“‘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

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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).

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

“maliciously and sadistically,” courts have identified several

factors, including:

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(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 DeVito acted in a malicious and excessive

manner. Armstead alleges that he did not provoke an assault, and

that he did nothing to resist the initial strip search or respond

in kind to defendant’s blows. Further, Armstead claims that he

sustained injuries requiring medical attention. These

allegations may suggest that plaintiff sustained more than a de

minimis injury. Therefore, this claim of excessive force in 3

 “[T]he Eighth Amendment analysis must be driven by the 3

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,

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violation of the Eighth Amendment will be allowed to proceed at

this time against the named defendant DeVito.

B. Failure to Protect Claim

Armstead also alleges that the correctional officers who

responded to the scene did nothing to stop or prevent DeVito’s

attack against plaintiff. Rather, they just watched the assault

and failed to act in any way to prevent harm or injury to

plaintiff. Thus, it appears that Armstead is asserting a failure

to protect claim in violation of his Eighth Amendment right to be

free from cruel and unusual punishment.

In the context of a failure-to-protect claim, the inmate

must show that he is “incarcerated under conditions posing a

substantial risk of harm,” Farmer, 511 U.S. at 833, and that

prison officials knew of and disregarded the excessive risk to

inmate safety, Id. at 837. “A pervasive risk of harm may not

ordinarily be shown by pointing to a single incident or isolated

incidents, but it may be established by much less than proof of a

reign of violence and terror.” Riley v. Jeffes, 777 F.2d 143,

147 (3d Cir. 1985). “Whether ... prison official[s] had the

requisite knowledge of a substantial risk is a question of fact

subject to demonstration in the usual ways, including inference

from circumstantial evidence, and a fact finder may conclude that

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. 

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... prison official[s] knew of a substantial risk from the very

fact that the risk was obvious.” Farmer, 511 U.S. at 842. 

Deliberate indifference is more than a mere lack of ordinary due

care, however; it is a state of mind equivalent to a reckless

disregard of a known risk of harm. Farmer, 511 U.S. at 834.

Here, Armstead alleges that defendants, Egan, Auriemma and

Capozzoli witnessed the assault by DeVito and did nothing to stop

the attack and help plaintiff, who had sustained injury. These

allegations, if true, may be sufficient, at this early screening

stage, to withstand dismissal because the allegations tend to

show that defendants knew, indeed, actually watched, as plaintiff

was exposed to a plain risk of serious harm from Sgt. DeVito’s

assault of plaintiff, and that defendants did nothing to prevent

or alleviate plaintiff’s exposure to such potential harm. See

Farmer, 511 U.S. at 842; Nami v. Fauver, 82 F.3d 63, 67-68 (3d

Cir. 1996); accord Hamilton v. Leavy, 117 F.3d 742, 747-48 (3d

Cir. 1997); Ingalls v. Florio, 968 F. Supp. 193, 199-200 (D.N.J.

1997). Accordingly, plaintiff’s Eighth Amendment failure to

protect claim will be allowed to proceed as against defendants

Egan, Auriemma and Capozzoli at this time.

C. False Disciplinary Charges

Armstead further asserts that false disciplinary charges

were filed against him in violation of his constitutional rights. 

However, the act of filing false disciplinary charges does not

itself violate a prisoner’s constitutional rights. See Freeman

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v. Rideout, 808 F.2d 949, 952-53 (2d Cir. 1986)(holding that “the

mere filing of [a false] charge itself” does not constitute a

cognizable claim under § 1983 so long as the inmate “was granted

a hearing, and had the opportunity to rebut the unfounded or

false charges”), cert. denied, 485 U.S. 982 (1988); Hanrahan v.

Lane, 747 F.2d 1137, 1140 (7th Cir. 1984)(finding that so long as

prison officials provide a prisoner with the procedural

requirements outlined in Wolff v. McDonnell, 418 U.S. 539, 558

(1974), then the prisoner has not suffered a constitutional 4

violation). See also Creter v. Arvonio, No. 92-4493, 1993 WL

306425, at *7 (D.N.J. Aug. 5, 1993); Duncan v. Neas, No. 86-109,

1988 WL 91571, at *1 (D.N.J. Aug. 30, 1988)(determining that “the

alleged knowing falsity of the charge [does not state] a claim of

deprivation of a constitutionally protected liberty interest ...

where procedural due process protections were provided”). 

In this case, Armstead does not allege that he was denied an

institutional disciplinary hearing or an opportunity to present

evidence to refute the charges. Rather, he merely complains that

 In Wolff v. McDonnell, the Supreme Court set forth the 4

requirements of due process in prison disciplinary hearings. An

inmate is entitled to (1) written notice of the charges and no

less than 24 hours to marshal the facts and prepare a defense for

an appearance at the disciplinary hearing; (2) a written

statement by the fact finder as to the evidence relied on and the

reasons for the disciplinary action; and (3) an opportunity “to

call witnesses and present documentary evidence in his defense

when to do so will not be unduly hazardous to institutional

safety or correctional goals.” Wolff, 418 U.S. at 563-71. In

this case, there are no allegations that Plaintiff was denied

these due process requirements.

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a video tape and polygraph test contradicted the charges. 

Consequently, there are no factual allegations of wrongdoing that

would rise to the level of a constitutional deprivation in order

to support a claim of false disciplinary charges, and such claim

will be dismissed, as against all named defendants, for failure

to state a claim upon which relief may be granted.

D. Supervisor Liability Claim

Finally, it appears that Armstead is asserting a claim of

liability against Administrator Mee on the sole basis that he is

a supervisor of the East Jersey State Prison, where the events

alleged took place. The Complaint fails to allege any facts in

support of a claim based on supervisor liability. Accordingly,

the Complaint should be dismissed as against defendant Mee

pursuant to Iqbal.

As a general rule, government 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

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“[b]ecause vicarious or supervisor liability is inapplicable to

Bivens and § 1983 suits, a plaintiff must plead that each 5

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. 

Here, in the instant Complaint, there are no allegations of

any wrongful conduct with respect to defendant Mee, other than in

his capacity as Administrator at East Jersey State Prison. 

Accordingly, any § 1983 claim must be dismissed as against 

defendant Mee.

IV. CONCLUSION

For the reasons set forth above, plaintiff’s claim asserting

false disciplinary charges will be dismissed with prejudice, in

its entirety as against all defendants, for failure to state a

claim upon which relief may be granted, pursuant to 28 U.S.C. §§

1915(e)(2)(B)(ii) and 1915A(b)(1). Further, the Complaint will

be dismissed without prejudice, as against defendant

Administrator Mee, for failure to state a claim at this time. 

However, plaintiff’s remaining claims asserting excessive force

 Bivens v. Six Unknown Named Agents of Federal Bureau of 5

Narcotics, 403 U.S. 388 (1971)

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and failure to protect, in violation of his Eighth Amendment

right to be free from cruel and unusual punishment, will be

allowed to proceed at this time, as against defendants, Egan,

Auriemma, Capozzoli and DeVito. An appropriate order follows.

s/Peter G. Sheridan 

PETER G. SHERIDAN, U.S.D.J. 

May 9, 2011

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