NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

DAVID L. GREEN, :

 :

Plaintiff, :

 :

v. :

 :

BAYSIDE STATE PRISON, et al., :

:

 Defendants. :

 :

Civil Action No.:11-1833 (RBK)

O P I N I O N

APPEARANCES:

David L. Green, Pro Se

#398123C/666302

Southern State Correctional Facility

4295 Route 47

Delmont, NJ 08314

KUGLER, District Judge

Plaintiff, David L. Green, is currently confined at the

Southern State Correctional Facility, Delmont, New Jersey. 

Plaintiff seeks to bring this action in forma pauperis, alleging

violations of his constitutional rights. At this time, the Court

must review the complaint, pursuant to 28 U.S.C. §§ 1915(e)(2)

and 1915A, 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. For the following

reasons, the complaint will be dismissed, without prejudice.

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BACKGROUND

Plaintiff alleges that on October 16, 2010, while housed at

Bayside State Prison, he got into a verbal altercation with a

female correctional officer, defendant Jane Doe, who accused him

of grabbing his private area while walking past her. Her

partner, defendant Officer Pepper, had words with Plaintiff, and

then, in retaliation, kicked Plaintiff in the groin while

defendant officer John Doe held him. Defendant Pepper asked

Plaintiff if he had anything to say to the female officer and

Plaintiff replied that he did not, and after more words,

defendant Pepper kicked Plaintiff a second time in the groin. 

Plaintiff seeks to sue defendant Pepper for excessive force,

and the female correctional officer for failure to intervene, as

she allegedly watched defendant Pepper kick Plaintiff.

Plaintiff asks for monetary and other relief.

DISCUSSION

A. Standards for 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 screen a complaint in a civil

action in which a plaintiff is proceeding in forma pauperis and

to sua sponte dismiss any claim if the Court determines that it

is frivolous, malicious, fails to state a claim on which relief

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may be granted, or seeks monetary relief from a defendant who is

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

The pleading standard under Rule 8 was refined by the United

States Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). In

Ashcroft, the Supreme Court hammered 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), which was 1

previously applied to determine if a federal complaint stated a

claim. See Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir.

2009). The Supreme Court clarified as follows:

Two working principles underlie our decision in

Twombly. 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

marks a notable and generous departure from the

hyper-technical, code-pleading regime of a prior era,

but it 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

 The Conley court held that a district court was permitted 1

to 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.”

Conley, 355 U.S. at 45–46.

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alleged-but it has not “show[n]”-“that the pleader is

entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).

In keeping with these principles 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 1949–1950 (citations omitted).

Since Iqbal, the Third Circuit has required district courts

to conduct, with regard to Rule 8 allegations, a three-part

analysis when reviewing a complaint for dismissal for failure to

state a claim:

To determine the sufficiency of a complaint under

the [Iqbal] pleading regime ..., a court must take

three steps: First, the court must “tak[e] note of the

elements a plaintiff must plead to state a claim.”

Iqbal, 129 S.Ct. at 1947. Second, the court should

identify allegations that, “because they are no more

than conclusions, are not entitled to the assumption of

truth.” Id. at 1950. Finally, “where there are

well-pleaded factual allegations, a court should assume

their veracity and then determine whether they

plausibly give rise to an entitlement for relief.” Id.

Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010)

(internal footnote omitted).

The Court is mindful that the sufficiency of this pro se

pleading must be construed liberally in favor of the plaintiff,

even after Iqbal. See Erickson v. Pardus, 551 U.S. 89 (2007).

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B. Section 1983 Actions

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

§ 1983 for certain violations of his or her constitutional

rights. 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 establish a violation of 42 U.S.C. § 1983, a plaintiff

must demonstrate that the challenged conduct was committed by (1)

a person acting under color of state law and (2) that the conduct

deprived him of rights, privileges, or immunities secured by the

Constitution or laws of the United States. See Parratt v.

Taylor, 451 U.S. 527, 535 (1981), overruled in part on other

grounds by Daniels v. Williams, 474 U.S. 327 (1986); Adickes v.

S.H. Kress & Co., 398 U.S. 144, 152 (1970); Piecknick v.

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

C. Plaintiff’s Complaint Must Be Dismissed.

First, this Court notes that Bayside State Prison is not a

proper defendant in this § 1983 action, and will be dismissed

from the action, with prejudice. See Grabow v. Southern State

Correctional Facility, 726 F. Supp. 537, 538-39 (D.N.J.

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1989)(stating that New Jersey Department of Corrections and state

prison facilities not "persons" under § 1983). 

Next, Plaintiff asserts a claim against defendant Pepper 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. See id. at 347. To state a claim under the Eighth

Amendment, an inmate must satisfy an objective element and a

subjective element. See 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. See 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

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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. See Hudson, 503 U.S. at 5.

In an excessive force claim, 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. See 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, 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 Pepper acted in a malicious and excessive

manner. However, Plaintiff fails to sufficiently allege what

injuries he sustained from the alleged force. While he states

that he had blood in his urine and sharp jolts of pain in his

left testicle, and “mental pain,” (Complt., ¶ 7), Plaintiff does

not assert facts indicating the extent of these injuries, whether

they are related to the alleged kicks to his groin, or whether

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they are ongoing injuries or have resolved. There are no

allegations of bruising, cuts, or swelling, that would support a

claim that Pepper used more than de minimis force. Therefore,

this claim of excessive force in violation of the Eighth

Amendment will be dismissed without prejudice, for failure to

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

allege additional facts to cure the deficiencies noted herein, he

may seek leave to reopen this case and file an amended pleading.2

As to defendant Jane Doe, the female corrections officer,

Plaintiff alleges that she failed to intervene to stop the

assault. A prison official'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.” Smith v.

Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). Here, Plaintiff has

not made clear in his complaint that defendant Jane Doe officer

 Should plaintiff so choose to amend his complaint to cure 2

the deficiencies noted herein, pursuant to Federal Rule of Civil

Procedure 15, 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. See id. To avoid confusion, the safer

course is to file an amended complaint that is complete in

itself. See id.

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had a reasonable opportunity to intervene to stop defendant

Pepper’s kicks to the groin. Again, if Plaintiff chooses to file

an amended complaint, as outlined above, he may do so to allege

facts against the Jane Doe defendant indicating so.

CONCLUSION

Based on the foregoing, Plaintiff’s complaint will be

dismissed, without prejudice, for failure to state a claim, under

28 U.S.C. §§ 1915(e) and 1915A. However, because Plaintiff may

cure the deficiencies of the complaint to assert facts stating a

claim, the dismissal is without prejudice. Plaintiff may file a

motion to reopen and amend the complaint in accordance with the

attached Order.

s/Robert B. Kugler 

ROBERT B. KUGLER

United States District Judge

Dated: October 13, 2011

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