NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LUIS DASTAS, :

: Civil Action No. 11-1473 (FLW)

Plaintiff, :

:

v. : OPINION

:

EDMOND C. CICCHI, et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Luis Dastas

MCACC

P.O. Box 266

New Brunwsick, NJ 08903

WOLFSON, District Judge

Plaintiff Luis Dastas, a prisoner confined at Middlesex

County Adult Correctional Center in New Brunswick, New Jersey,

seeks to bring this action in forma pauperis pursuant to 42

U.S.C. § 1983, 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 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

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 1 of 17 PageID: 29
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 are accepted as true for purposes of this review.

Plaintiff alleges that on eight separate occasions between

November 15, 2010, and March 6, 2011, he asked to see medical

personnel for itching. He was seen on several, but not all, of

these occasions, when he was told that he did not have scabies,

and he was given several one-time doses of medication. The

medication did not relieve his itching for the long term and, on

the last time he was itching, an officer refused to forward his

request to see medical personnel, and he scratched until he bled.

Plaintiff names as defendants Warden Edmond C. Cicchi and

C.F.G. Health Systems, L.L.C. He seeks monetary damages for pain

and suffering, including emotional and mental stress.

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

2

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 2 of 17 PageID: 30
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

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

3

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 3 of 17 PageID: 31
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 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

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

4

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 4 of 17 PageID: 32
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

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).

5

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 5 of 17 PageID: 33
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. SECTION 1983 ACTIONS

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

§ 1983 for certain violations of his 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 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).

6

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 6 of 17 PageID: 34
IV. ANALYSIS

A. The Due Process Claim

A liberty interest protected by the Due Process Clause may

arise from either of two sources: the Due Process Clause itself

or State law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983);

Asquith v. Department of Corrections, 186 F.3d 407, 409 (3d Cir.

1999).

Pre-trial detainees and convicted but unsentenced prisoners

retain liberty interests firmly grounded in the Due Process

Clause of the Fourteenth Amendment. See Hubbard v. Taylor, 399 1

F.3d 150 (3d Cir. 2005); Fuentes v. Wagner, 206 F.3d 335, 341

(3d Cir. 2000). Analysis of whether such a detainee or

unsentenced prisoner has been deprived of liberty without due

process is governed by the standards set out by the Supreme Court

in Bell v. Wolfish, 441 U.S. 520 (1979). Hubbard, 399 F.3d at

157-60, 164-67; Fuentes, 206 F.3d at 341-42.

In evaluating the constitutionality of conditions

or restrictions of pretrial detention that implicate

only the protection against deprivation of liberty

without due process of law, we think that the proper

inquiry is whether those conditions amount to

punishment of the detainee. For under the Due Process

Clause, a detainee may not be punished prior to an

adjudication of guilt in accordance with due process of

law. ...

 Although Plaintiff does not state that he is a pre-trial 1

detainee, the Court notes that the New Jersey Department of

Corrections Inmate Locator reflects that Plaintiff was sentenced

on August 1, 2011, after the dates of the events described in the

Complaint.

7

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 7 of 17 PageID: 35
Not every disability imposed during pretrial

detention amounts to “punishment” in the constitutional

sense, however. Once the government has exercised its

conceded authority to detain a person pending trial, it

obviously is entitled to employ devices that are

calculated to effectuate this detention. ...

A court must decide whether the disability is

imposed for the purpose of punishment or whether it is

but an incident of some other legitimate governmental

purpose. Absent a showing of an expressed intent to

punish on the part of detention facility officials,

that determination generally will turn on “whether an

alternative purpose to which [the restriction] may

rationally be connected is assignable for it, and

whether it appears excessive in relation to the

alternative purpose assigned [to it].” Thus, if a

particular condition or restriction of pretrial

detention is reasonably related to a legitimate

governmental objective, it does not, without more,

amount to “punishment.” Conversely, if a restriction

or condition is not reasonably related to a legitimate

goal--if it is arbitrary or purposeless--a court

permissibly may infer that the purpose of the

governmental action is punishment that may not

constitutionally be inflicted upon detainees qua

detainees. ...

441 U.S. at 535-39 (citations omitted). The Court further

explained that the government has legitimate interests that stem

from its need to maintain security and order at the detention

facility. “Restraints that are reasonably related to the

institution’s interest in maintaining jail security do not,

without more, constitute unconstitutional punishment, even if

they are discomforting and are restrictions that the detainee

would not have experienced had he been released while awaiting

trial.” 441 U.S. at 540. Retribution and deterrence, however,

are not legitimate nonpunitive governmental objectives. 441 U.S.

8

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 8 of 17 PageID: 36
at 539 n.20. Nor are grossly exaggerated responses to genuine

security considerations. Id. at 539 n.20, 561-62.

Here, Plaintiff alleges that he requested medical attention

for itching on eight occasions over almost four months, that he

was seen on several occasions, that he was diagnosed as not

suffering from scabies, that he received medication on several

occasions. These facts do not state a claim for unconstitutional

punishment with respect to a medical issue.

To the extent Petitioner was a sentenced prisoner at the

time of the events complained of, the result would be the same

under an Eighth Amendment analysis.

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.

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.

9

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 9 of 17 PageID: 37
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

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

10

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 10 of 17 PageID: 38
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,’

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.

11

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 11 of 17 PageID: 39
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). Compare

Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (summary

judgment properly granted to prison warden and state commissioner

of corrections, the only allegation against whom was that they

failed to respond to letters from prisoner complaining of prison

doctor’s treatment decisions) with Sprull v. Gillis, 372 F.3d

218, 236 (3d Cir. 2004) (a non-physician supervisor may be liable

under § 1983 if he knew or had reason to know of inadequate

medical care).

The facts alleged by Plaintiff establish neither a serious

medical need nor deliberate indifference on the part of personnel

at the Middlesex County Adult Correctional Center. Plaintiff has

alleged that he has itching on only an intermittent, not

constant, basis. He has alleged no facts suggesting that the

itching arises from a serious medical condition or from any

conditions at the jail; to the contrary, he alleges that medical

personnel have evaluated the itching and determined that he does

12

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 12 of 17 PageID: 40
not suffer from scabies. Moreover, he alleges that medical

personnel have provided him with medications for his itching. In

short, he alleges only a difference of opinion about what

treatment he should be receiving, plainly an insufficient basis

for a claim that his Eighth Amendment right to medical care has

been violated.

For all the foregoing reasons, the Complaint must be

dismissed.

B. No Vicarious Liability

In addition, the claims against the named defendants appear

to be based solely upon an untenable theory of vicarious

liability, seeking to hold the named defendants liable for the

actions of individual nurses and/or correctional officers. 

Municipal corporations and supervisors are not liable under

§ 1983 solely on a theory of respondeat superior. See City of

Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8 (1985); Monell v.

New York City Department of Social Services, 436 U.S. 658, 690-

91, 694 (1978) (municipal liability attaches only “when execution

of a government’s policy or custom, whether made by its lawmakers

or by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury” complained of); Natale v.

Camden County Correctional Facility, 318 F.3d 575, 583-84 (3d

Cir. 2003). “A defendant in a civil rights action must have

personal involvement in the alleged wrongs, liability cannot be

13

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 13 of 17 PageID: 41
predicated solely on the operation of respondeat superior. 

Personal involvement can be shown through allegations of personal

direction or of actual knowledge and acquiescence.” Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations

omitted). Accord Robinson v. City of Pittsburgh, 120 F.3d 1286,

1293-96 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-

91 (3d Cir. 1995).

To establish municipal liability under § 1983, “a plaintiff

must show that an official who has the power to make policy is

responsible for either the affirmative proclamation of a policy

or acquiescence in a well-settled custom.” Bielevicz v. Dubinon,

915 F.2d 845, 850 (3d Cir. 1990), quoted in Blanche Rd. Corp. v.

Bensalem Twp., 57 F.3d 253, 269 n.16 (3d Cir.), cert. denied, 516

U.S. 915 (1995), and quoted in Woodwind Estates, Ltd. v.

Gretkowski, 205 F.3d 118, 126 (3d Cir. 2000). A plaintiff must

demonstrate that, through its deliberate conduct, the

municipality was the moving force behind the plaintiff’s injury. 

Monell, 436 U.S. at 689.

A policy is made “when a decisionmaker possess[ing]

final authority to establish municipal policy with

respect to the action issues a final proclamation,

policy or edict.” Kneipp v. Tedder, 95 F.3d 1199, 1212

(3d Cir. 1996) (quoting Pembaur v. City of Cincinnati,

475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452

(1986) (plurality opinion)). A custom is an act “that

has not been formally approved by an appropriate

decisionmaker,” but that is “so widespread as to have

the force of law.” [Bd. of County Comm’rs of Bryan

County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997).]

14

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 14 of 17 PageID: 42
There are three situations where acts of a

government employee may be deemed to be the result of a

policy or custom of the governmental entity for whom

the employee works, thereby rendering the entity liable

under § 1983. The first is where “the appropriate

officer or entity promulgates a generally applicable

statement of policy and the subsequent act complained

of is simply an implementation of that policy.” The

second occurs where “no rule has been announced as

policy but federal law has been violated by an act of

the policymaker itself.” Finally, a policy or custom

may also exist where “the policymaker has failed to act

affirmatively at all, [though] the need to take some

action to control the agents of the government ‘is so

obvious, and the inadequacy of existing practice so

likely to result in the violation of constitutional

rights, that the policymaker can reasonably be said to

have been deliberately indifferent to the need.’”

Natale, 318 F.3d at 584 (footnote and citations omitted).

The same standard applies to claims against a private

corporation that is functioning as a “state actor.” See Weigher 2

 Private parties may be liable under § 1983 only when they 2

have acted under color of state law. Mark v. Borough of Hatboro,

51 F.3d 1137, 1141 (3d Cir.), cert. denied, 516 U.S. 858 (1995)

(quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978)). 

The “under color of state law” requirement of 42 U.S.C. § 1983

has been treated identically to the “state action” requirement of

the Fourteenth Amendment. See Mark, 51 F.3d at 1141 (citing

United States v. Price, 383 U.S. 787, 794 n.7 (1966)); Lugar v.

Edmondson Oil Co., 457 U.S. 922, 928 (1982); Rendell-Baker v.

Kohn, 457 U.S. 830, 838 (1982)). State action exists under

§ 1983 only when it can be said that the government is

responsible for the specific conduct of which a plaintiff

complains. Mark, 51 F.3d at 1141-42. “Put differently, deciding

whether there has been state action requires an inquiry into

whether ‘there is a sufficiently close nexus between the State

and the challenged action of [the defendants] so that the action

of the latter may fairly be treated as that of the State

itself.’” Id. at 1142 (quoting Blum v. Yaretsky, 457 U.S. 991,

1004 (1982)).

A private entity can be sued under § 1983 only where (1) it

“has exercised powers that are traditionally the exclusive

15

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 15 of 17 PageID: 43
v. Prison Health Services, 402 Fed.Appx. 668, 669-70, 2010 WL

4739701 (3d Cir. Nov. 23, 2010). For purposes of this Opinion

and the accompanying Order, this Court will assume that C.F.G.

Health Systems, L.L.C., could be considered a “state actor” for

purposes of § 1983. 

Nevertheless, here, where Plaintiff has alleged no facts

suggesting that the challenged events were the result of a

policy, practice, or custom, there is no basis to find the named

defendants liable.

V. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed, 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. However, because it is conceivable that Plaintiff may be 3

prerogative of the State,” Mark, 51 F.3d at 1142; (2) the State

and the private party act in concert or jointly to deprive a

plaintiff of his rights, Adickes v. S.H. Kress & Co., 398 U.S.

144, 170-171 (1970); (3) the State has permitted a private party

to substitute his judgment for that of the State, Cruz v.

Donnelly, 727 F.2d 79, 81-82 (3d Cir. 1984); or (4) the private

party and the State have a symbiotic relationship as joint

participants in the unconstitutional activity, Edmonson v.

Leesville Concrete Co., Inc., 500 U.S. 614, 620 (1991); Mark, 51

F.3d at 1143.

 The Court notes that “‘[g]enerally, an order which 3

dismisses a complaint without prejudice is neither final nor

appealable because the deficiency may be corrected by the

plaintiff without affecting the cause of action.’ ... The

dispositive inquiry is whether the district court’s order finally

resolved the case.” Martin v. Brown, 63 F.3d 1252, 1257-58 (3d

Cir. 1995) (quoting Borelli v. City of Reading, 532 F.2d 950, 951

(3d Cir. 1976)) (other citations omitted). In this case, if

16

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 16 of 17 PageID: 44
able to supplement his pleading with facts sufficient to overcome

the deficiencies noted herein, the Court will grant Plaintiff

leave to move to re-open and to file an amended complaint. To 4

overcome the deficiencies noted herein, Plaintiff must be able to

assert facts establishing (1) a serious medical condition, and

(2) deliberate indifference, (3) by the named defendants.

An appropriate order follows.

s/Freda L. Wolfson 

Freda L. Wolfson

United States District Judge

Dated: October 24, 2011 

Plaintiff can correct the deficiencies of his Complaint, he may

file a motion to re-open these claims in accordance with the

court rules.

 Plaintiff should note that when an amended complaint is 4

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.

17

Case 3:11-cv-01473-FLW-TJB Document 6 Filed 10/24/11 Page 17 of 17 PageID: 45