NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ALBERT H. ROBERTS, :

: Civil Action No. 11-1793 (RMB)

Plaintiff, :

:

v. : OPINION

:

KAREN BALICKI, et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Northern State Prison

168 Frontage Road

Newark, NJ 07114

BUMB, District Judge

Plaintiff Albert H. Roberts, a prisoner presently confined

at Northern State Prison in Newark, New Jersey, seeks to bring

this action in forma pauperis pursuant to 42 U.S.C. § 1983,1

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

1

 Plaintiff incorrectly asserts jurisdiction under 28 U.S.C.

§ 1347 (establishing jurisdiction in civil actions for partition

where the United States is a joint tenant), 18 U.S.C. § 1959 (a

criminal statute related to violent crimes in aid of racketeering

activity), and 18 U.S.C. § 1962 (a criminal statute prohibiting

certain activities in connection with racketeering activity).

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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 are accepted as true for purposes of this review.

Plaintiff alleges that, while he was confined at South Woods

State Prison, Correctional Officer P. Heaten verbally harassed

him by making racial slurs and death threats. Plaintiff reported

the alleged verbal harassment to the Ombudsman and alleges that

Correctional Officers R. Hogan and R. Yacovelli then began to

threaten and harass him. Plaintiff alleges that he wrote letters

to South Woods State Prison Administrator Karen Balicki, New

Jersey Department of Corrections Commissioner George Hayman, and

Acting Director Gary M. Lanigan advising them of these threats. 

Plaintiff alleges that these officials took no action to protect

Plaintiff in response to his letters. Plaintiff alleges that

correctional officers of South Woods State Prison have a long

history of assaulting prisoners and using excessive force and

that Karen Balicki, George Hayman, and Gary M. Lanigan were aware

2

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of this history but refused to take reasonable measures to stop

this practice.

Plaintiff alleges that on April 23, 2009, he was subjected

to a pat-down search by Correctional Officer Yacovelli. 

Plaintiff alleges that, as he approached Plaintiff to conduct the

pat-down search, Officer Yacovelli said loudly “This is the

nigger who likes to file complaints!” Plaintiff alleges that

Correctional Officers Horan, Volov, McCoy, Gandy, and Lago were

in the immediate area and began to laugh. Plaintiff alleges that

one of the officers said “Let’s show him that the boys in blue

run this ... prison.” Plaintiff alleges that, instead of

performing a pat-down search, Officer Yacovelli pulled

Plaintiff’s pants down and then began to punch Plaintiff’s face

and slam it into a thick safety-glass window, while stating “I’ll

teach your dumb ass to complain about one of us!!” Plaintiff

alleges that he did not resist Officer Yacovelli and complied

with all of his demands. Plaintiff alleges that he suffered

severe pain and a large gash on his forehead as a result of

Officer Yacovelli’s actions. Plaintiff alleges that Officer

Hogan said, “Leg’s kill this nigger!!!” Plaintiff alleges that

Officer Yacovelli then continued to punch Plaintiff and that

Officers Hogan, Horan, Lago, Volov, McCoy, and Gandy joined in

the attack. Plaintiff alleges that he fell to the ground as the

attack continued. Plaintiff alleges that he was then handcuffed

3

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and shackled, and that he was attacked again by Officers

Yacovelli, Hogan, Lago, Volov, Horan, Gandy, McCoy, Sgt.

Richards, and Sgt. Jilla, who kicked, stomped, punched, and spit

on Plaintiff. Plaintiff alleges that this attack lasted 15 to 20

minutes. Plaintiff alleges that he was then dragged to another

location and beaten again by “the defendants,” unspecified. 

Plaintiff alleges that he was then dragged to a holding cell and

punched and beaten by Officers Hogan and Yacovelli. Plaintiff

alleges that Sgt. Richards and Sgt. Jilla give unspecified

“defendants” a high-five and told them “Good work Guys. That

will teach that nigger.”

Plaintiff alleges that Sgt. Richards and Sgt. Jilla refused

to get Plaintiff medical attention for his injuries, which he

alleges included: head trauma, contusions, cut on his forehead,

black eyes, back injury, chest pains, inability to walk, blurred

vision, and swelling of the face, hands, chin, and head.

Plaintiff alleges that Sgt. Richards and Sgt. Jilla allowed

Officer Yacovelli to write a false disciplinary report on

Plaintiff. Plaintiff alleges that he told Hearing Officer L.

Jantz about the assaults, that Officer Jantz refused to conduct

an inadequate investigation, but that he nevertheless offered to

downgrade the disciplinary charge in order to cover up the

actions of the officers who assaulted Plaintiff. Plaintiff

alleges that he refused the offer and that he then appeared

4

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before Hearing Officer Z. Maguire, who also failed to conduct an

adequate investigation and found Plaintiff guilty on the

disciplinary charge. Plaintiff alleges that Hearing Officer

Maguire’s decision served to promote an unwritten policy and

practice of allowing unjustified assaults on inmates by officers.

Plaintiff alleges that he continues to receive threats to

his safety and harassment by Correctional Officers King, Sheldon,

and L. Kenlowe.

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

5

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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

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

6

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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

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”).

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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

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.

8

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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).

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

A party must state its claims ... in numbered

paragraphs, each limited as far as practicable to a

single set of circumstances. ... If doing so would

promote clarity, each claim founded on a separate

transaction or occurrence ... must be stated in a

separate count or defense.

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

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

alternative claims, as many claims as it has against an opposing

party.”

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

in pro se prisoner actions as well as other civil actions.

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

if:

(A) any right to relief is asserted against them

jointly, severally, or in the alternative with respect

to or arising out of the same transaction, occurrence,

or series of transactions or occurrences; and

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

defendants will arise in the action.

(emphasis added). See, e.g., Pruden v. SCI Camp Hill, 252

Fed.Appx. 436 (3d Cir. 2007); George v. Smith, 507 F.3d 605 (7th

Cir. 2007).

In actions involving multiple claims and multiple

defendants, Rule 20 operates independently of Rule 18.

Despite the broad language of rule 18(a),

plaintiff may join multiple defendants in a single

action only if plaintiff asserts at least one claim to

relief against each of them that arises out of the same

transaction or occurrence and presents questions of law

or fact common to all. If the requirements for joinder

of parties have been satisfied, however, Rule 18 may be

invoked independently to permit plaintiff to join as

many other claims as plaintiff has against the multiple

defendants or any combination of them, even though the

additional claims do not involve common questions of

law or fact and arise from unrelated transactions.

7 Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane,

Federal Practice and Procedure, § 1655 (3d ed. 2009).

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

liberally construed in the interest of convenience and judicial

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

However, the policy of liberal application of Rule 20 is not a

license to join unrelated claims and defendants in one lawsuit. 

See, e.g., Pruden v. SCI Camp Hill, 252 Fed.Appx. 436 (3d Cir.

10

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

Rogers, 130 F.3d 1348 (9th Cir. 1997).

Pursuant to Rule 21, misjoinder of parties is not a ground

for dismissing an action. Instead, a court faced with a

complaint improperly joining parties “may at any time, on just

terms, add or drop a party. The court may also sever any claims

against a party.”

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 ... .

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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).

Finally, a § 1983 action brought against a person in his or

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

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

agent.” Monell, 436 U.S. at 690 n.55. “[I]n an officialcapacity action, ... a governmental entity is liable under § 1983

only when the entity itself is a ‘moving force’ behind the

deprivation; thus, in an official capacity suit the entity’s

‘policy or custom’ must have played a part in the violation of

federal law.” Kentucky v. Graham, 473 U.S. 159, 166 (1985)

(internal quotation marks and citations omitted).

IV. ANALYSIS

A. Eighth Amendment Claim Arising from Verbal Threats

Plaintiff alleges that Correctional Officer P. Heaten

verbally harassed him by making racial slurs and death threats. 

Plaintiff alleges that Correctional Officers R. Yacovelli and R.

Hogan also threatened him after he reported Officer Heaten’s

threats to the Ombudsman.

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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). An Eighth Amendment claim

includes both an objective component, whether the deprivation of

a basic human need is sufficiently serious, and a subjective

component, whether the officials acted with a sufficiently

culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298

(1991). The objective component is contextual and responsive to

“‘contemporary standards of decency.’” Hudson v. McMillian, 503

U.S. 1, 8 (1992). The subjective component follows from the

principle that “‘only the unnecessary and wanton infliction of

pain implicates the Eighth Amendment.’” See Farmer v. Brennan,

511 U.S. 825, 834 (1994) (quoting Wilson, 501 U.S. at 297

(internal quotation marks, emphasis, and citations omitted));

Rhodes v. Chapman, 452 U.S. 337, 345 (1981). What is necessary

to establish an unnecessary and wanton infliction of pain varies

also according to the nature of the alleged constitutional

violation. Hudson v. McMillian, 503 U.S. at 5.

As the United States Supreme Court has stated,

“[i]ntentional harassment of even the most hardened criminals

cannot be tolerated by a civilized society.” Hudson v. Palmer,

468 U.S. 517, 528 (1984). The Eighth Amendment protects

13

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prisoners against calculated harassment. Id. at 530. Generally,

however, mere verbal harassment does not give rise to a

constitutional violation. See McBride v. Deer, 240 F.3d 1287,

1291 n.3 (10th Cir. 2001)(taunts and threats are not an Eighth

Amendment violation); Oltarzewski v. Ruggiero, 830 F.2d 136 (9th

Cir. 1987) (vulgar language); Rivera v. Goord, 119 F. Supp.2d

327, 342 (S.D.N.Y. 2000)(verbal harassment does not violate

inmate’s constitutional rights); Prisoners’ Legal Ass’n v.

Roberson, 822 F. Supp. 185 (D.N.J. 1993); Murray v. Woodburn, 809

F. Supp. 383 (E.D. Pa. 1993); Douglas v. Marino, 684 F. Supp. 395

(D.N.J. 1988). Allegations that prison personnel have used

threatening language and gestures also are not cognizable claims

under § 1983. Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979)

(defendant laughed at prisoner and threatened to hang him). 

However, threatening language coupled with the threatening use of

a weapon and outrageous conduct by prison personnel may indicate

a constitutional deprivation. Douglas, 684 F. Supp. at 398

(brandishing a butcher knife in close proximity to prisoner and

threatening to kill him may amount to a constitutional

violation); see also Northington v. Jackson, 973 F.2d 1518 (10th

Cir. 1992) (gun was put to prisoner’s head); Burton v.

Livingston, 791 F.2d 97 (8th Cir. 1986)(guard threatened to shoot

prisoner).

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Here, the initial verbal remarks are not sufficient to rise

to the level of an Eighth Amendment violation. Nor does

Plaintiff state a retaliation claim based upon the threats by

Officers Yacovelli and Hogan, allegedly made after Plaintiff

complained about Officer Heaten’s threats.

To prevail on a retaliation claim, a plaintiff must

demonstrate that (1) he engaged in constitutionally-protected

activity; (2) he suffered, at the hands of a state actor, adverse

action “sufficient to deter a person of ordinary firmness from

exercising his [constitutional] rights;” and (3) the protected

activity was a substantial or motivating factor in the state

actor’s decision to take adverse action. Rauser v. Horn, 2001 WL

185120 (3d Cir. 2001) (quoting Allah, 229 F.3d at 225). See also

Anderson v. Davila, 125 F.3d 148, 160 (3d Cir. 1997) (citing Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274

(1977)); Thaddeus-X v. Blatter, 175 F.3d 378, 386-99 (6th Cir.

1999), cited with approval in Allah, 229 F.3d at 225. Officer

Yacovelli’s and Hogan’s verbal threats were not sufficient, in

and of themselves, to deter a person of ordinary firmness from

exercising his constitutional rights.

Plaintiff also asserts, however, that he continued to

receive threats, after his beating and disciplinary hearing, from

Officers King, Sheldon, and Kenlowe. Coupled with the allegedly

severe beating Plaintiff had already suffered, along with the

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alleged false disciplinary report, the claim of alleged continued

threats to his safety is sufficient to avoid dismissal at this

preliminary screening stage. Accordingly, the Eighth Amendment

harassment claim may proceed as against Defendants King, Sheldon

and Kenlowe.

B. Eighth Amendment Excessive Force Claim

Plaintiff alleges that Officers Yacovelli, R. Hogan, Horan,

McCoy, Lago, Gandy, and Volov, and Sgts. Richards and Jilla, used

excessive force against him.

Where the Eighth Amendment 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).

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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 v. Albers, 475 U.S. at 321). Thus, not all use of force

is “excessive,” the level of a constitutional violation.

In addition, “a corrections officer’s failure to intervene

in a beating can be the basis of liability for an Eighth

Amendment violation under § 1983 if the corrections officer had a

reasonable opportunity to intervene and simply refused to do so. 

Furthermore, ... a corrections officer can not escape liability

by relying upon his inferior or non-supervisory rank vis-a-vis

the other officers.” Smith v. Mensinger, 293 F.3d 641, 640 (3d

Cir. 2002).

The Eighth Amendment claim for excessive use of force is

sufficient to proceed as against Officers Yacovelli, R. Hogan,

Horan, McCoy, Lago, Gandy, and Volov, and Sgts. Richards and

Jilla. 

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C. Eighth Amendment Failure-to-Protect Claim

Plaintiff alleges that Karen Balicki and Commissioners

George Hayman and G. Lanigan failed to take reasonable measures

to protect him, despite his sending them letters advising of the

initial threats by Officers Yacovelli and Hogan.

Under the Eighth Amendment, prison officials must take

reasonable measures “to protect prisoners from violence at the

hands of other prisoners.” Farmer, 511 U.S. at 833 (1994)

(internal quotations omitted). “Being violently assaulted in

prison is simply ‘not part of the penalty that criminal offenders

pay for their offenses against society.’” Id. at 834 (quoting

Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

To successfully state a claim for violation of the Eighth

Amendment, an inmate must satisfy both the objective and

subjective components of such a claim. The inmate must allege a

deprivation which was “sufficiently serious,” and that in their

actions or omissions, prison officials exhibited “deliberate

indifference” to the inmate’s health or safety. See Farmer, 511

U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 305 (1991); Nami v.

Fauver, 82 F.3d 63, 67 (3d Cir. 1996).

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

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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

... 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.

Applying Farmer to the instant action, the first question is

whether Plaintiff has alleged facts showing that he faced a

substantial risk of assault. The second question is whether

Plaintiff has alleged facts from which it could be inferred that

these administrative defendants were aware of and disregarded

that risk.

Plaintiff’s letters reporting mere verbal threats and racial

slurs, however reprehensible, are not sufficient to put these

administrative defendants on notice that Plaintiff faced a

substantial risk of assault. The letters do not suggest that

defendants were informed of a specific risk of harm to Plaintiff

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or other inmates, Nami, 82 F.3d at 67-68; Young, 960 F.2d at 362,

or that “a substantial risk of ... attacks was longstanding,

pervasive, well-documented” or otherwise obvious to them. 

Farmer, 511 U.S. at 842; 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). While defendants may not have exercised due

care in failing to prevent the attack, such negligence is

insufficient to establish a violation of the Eighth Amendment. 

Davidson v. Cannon, 474 U.S. 344, 345-48 (1986) (finding that

prison officials’ negligent failure to heed prisoner’s

notification of threats from another inmate, followed by an

assault, is not a deprivation of constitutional rights); see also

Schwartz v. County of Montgomery, 843 F.Supp. 962 (E.D. Pa.),

aff’d, 37 F.3d 1488 (3d Cir. 1994) (stating that corrections

officers’ failure to observe institutional policies regarding the

supervision of dangerous inmates constitutes negligence, which

cannot support a § 1983 action for violation of the Eighth or

Fourteenth Amendments). Because negligence is not actionable

under § 1983 as a constitutional violation, Plaintiff’s failureto-protect claim will be dismissed for failure to state a claim.

D. Eighth Amendment Medical-Care Claim

Plaintiff alleges that Sgts. Richards and Jilla refused to

get him medical care after the beating.

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The Eighth Amendment proscription against cruel and unusual

punishment requires that prison officials provide inmates with

adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103-04

(1976). 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, the allegations of the Complaint are sufficient to

permit an Eighth Amendment claim for denial of medical care to

proceed as against Sgts. Richards and Jilla.

E. Failure to Supervise Claim

Plaintiff alleges that Karen Balicki, Commissioner George

Hayman, and Hearing Officers Z. Maguire and L. Jantz failed to

adequately train and/or supervise employees under their control.

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Where a need for “more or different training ... is so

obvious, and the inadequacy so likely to result in constitutional

violations, that the failure to train ... can fairly be said to

represent official policy,” City of Canton v. Harris, 489 U.S.

378, 390 (1989), and that failure to train “actually causes

injury,” a supervisor may be held liable, Id.

In addition, in resolving the issue of supervisory

liability,

the focus must be on adequacy of the training

program in relation to the tasks the particular

officers must perform. That a particular officer

may be unsatisfactorily trained will not alone

suffice to fasten liability on the [supervisor],

for the officer’s shortcomings may have resulted

from factors other than a faulty training program. 

... Neither will it suffice to prove that an

injury or accident could have been avoided if an

officer had had better or more training ... . 

Moreover, for liability to attach ... the

identified deficiency in a city’s training program

must be closely related to the ultimate injury.

Id. at 390-91.

Here, Plaintiff alleges nothing more than a vague and

generalized allegation that corrections officers have assaulted

prisoners in the past, coupled with allegations that a particular

group of corrections officers caused him injury, plainly

insufficient allegations upon which to base liability for failure

to train or supervise. Accordingly, Plaintiff’s failure to train

claim must be dismissed for failure to state a claim.

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F. Request for Appointment of Counsel

Plaintiff requests that this Court appoint counsel to

represent him in this matter.

Indigent persons raising civil rights claims have no

absolute constitutional right to counsel. Parham v. Johnson, 126

F.3d 454, 456-57 (3d Cir. 1997). In determining whether to

appoint counsel, a court should consider several factors:

As a preliminary matter, the plaintiff’s claim must

have some merit in fact and law. ... If the district

court determines that the plaintiff’s claim has some

merit, then the district court should consider the

following factors:

(1) the plaintiff’s ability to present his or her

own case;

(2) the complexity of the legal issues;

(3) the degree to which factual investigation will

be necessary and the ability of the plaintiff to pursue

such investigation;

(4) the amount a case is likely to turn on

credibility determinations;

(5) whether the case will require the testimony of

expert witnesses; 

(6) whether the plaintiff can attain and afford

counsel on his own behalf.

[Tabron v. Grace, 6 F.3d 147, 155-56, 157 n.5 (3d Cir.

1993), cert. denied, 510 U.S. 1196 (1994).] This list

of factors is not exhaustive, but instead should serve

as a guide post for the district courts.

Correspondingly, courts should exercise care in

appointing counsel because volunteer lawyer time is a

precious commodity and should not be wasted on

frivolous cases. Id. at 157.

Parham, 126 F.3d at 457-58.

Analysis of these factors reveals that appointment of

counsel is not appropriate at this time. As a preliminary

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matter, Plaintiff has presented colorable claims of

constitutional violations sufficient to avoid dismissal at this

preliminary stage. It is clear from his Complaint, however, that

Plaintiff is well able to set forth the facts and legal theories

of his claims.

In addition, apart from asserting his indigency, Plaintiff

has made no effort to set forth facts bringing his request within

the parameters set forth in Parham. It does not appear that any

expert witnesses will be necessary, nor do the legal issues

appear complex. It is too soon to determine what issues will

arise with respect to fact investigation or credibility issues. 

Therefore, this Court will deny the request for appointment of

counsel, without prejudice to Plaintiff or this Court revisiting

this issue at a later date should circumstances warrant.

V. CONCLUSION

For the reasons set forth above, certain harassment,

excessive force, and medical-care claims will be permitted to

proceed, as set forth above and in the accompanying Order. All

other claims 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, for failure to state a claim. However, because it is

conceivable that Plaintiff may be able to supplement his pleading

with facts sufficient to overcome some of the deficiencies

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discussed herein, the Court will grant Plaintiff leave to file an

amended complaint.2

 

An appropriate order follows.

s/Renée Marie Bumb 

Renée Marie Bumb

United States District Judge

Dated: December 12, 2011 

2

 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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