NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

JOHN DIAZ, :

 : Civil Action No. 

Plaintiff, : 10-3932 (JBS)

 :

v. : O P I N I O N 

 :

CUMBERLAND COUNTY JAIL, :

 :

Defendant. :

_______________________________:

Simandle, District Judge:

Plaintiff John Diaz, an inmate confined at Camden County

Jail, Bridgeton, 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 1

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 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

 It is not immediately clear from the face of Plaintiff’s 1

submission whether he is a pretrial detainee or a convicted

individual. Therefore – out of abundance of caution – the Court

will presume, for the purpose of screening Plaintiff’s

allegations, that Plaintiff is a pretrial detainee. 

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granted, or because it seeks monetary relief from a defendant who

is immune from such relief.

I. BACKGROUND

Plaintiff named, as the sole Defendant in this action, the

Cumberland County Jail. See Docket Entry No. 1, at 1, 3. 

Plaintiff’s factual contentions are brief. He asserts that, on

two different days (specifically, on March 25, 2010, and on April

24, 2010), he was housed in cells that had “no running water.” 

See id. at 4 and 5 (repeating the same). He also asserts that

he: (a) “[was] deprived from [his] right to one hour recreation

per day”; (b) “[was] denied legal phone calls”; (c) “was denied

an opportunity to file a complaint by Internal Affairs”; and (d)

“[was] har[]assed by being placed all around the jail in

different locations because of bringing these issues to

[unspecified persons’] attention.” Id. at 5. Plaintiff

clarifies that he is seeking damages in the amount of $2 million

and, in addition, “pay[ment] for all upcoming legal fees

regarding this case,” in which he proceeds pro se. Id. at 6.

Plaintiff’s complaint arrived accompanied by his cover

letter, reading, “To whom it may concern: Please be advise[d]

that upon receiving this 1983 I John Diaz would like your

District Court to contact the Daily Journal located at [address]

and advise them of this matter so that it could be placed in

newspaper and brought to the attention of the public asap.” 

2

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Docket Entry No. 1-2 (underlining in original). In addition,

Plaintiff submitted numerous exhibits, indicating that: (a) on

the two days when Plaintiff was allegedly housed at the cell(s)

that had no running water, Plaintiff’s placement in those cells

was made in connection with Plaintiff’s disciplinary violations,

and the jail officials’ initiation of disciplinary proceedings

against him; (b) Plaintiff systemically attempted to file a

criminal complaint against a certain Carmen O’Cruz, apparently on

the grounds of Plaintiff’s belief that O’Cruz made “false

charges” that “put [Plaintiff] in jail”; and (c) Plaintiff filed

a grievance asserting that he was not “receiv[ing] legal phone

calls” (rather than being denied an opportunity to place such

calls). Docket Entry No. 2. Plaintiff's exhibits indicate that

every submission made to his jail officials included his

directive to “respond back asap” (or to “contact [Plaintiff]

asap”). See id. (underlining in original).

II. STANDARD OF REVIEW

 In determining the sufficiency of a complaint, the Court

must be mindful to construe the facts stated in the complaint

liberally in favor of the plaintiff. See Erickson v. Pardus, 551

U.S. 89 (2007); Haines v. Kerner, 404 U.S. 519 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Indeed, it is

long established that a court should “accept as true all of the

[factual] allegations in the complaint and reasonable inferences

3

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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). However, while a court will

accept well-pled allegations as true, it will not accept bald

assertions, unsupported conclusions, unwarranted inferences, or

sweeping legal conclusions cast in the form of factual

allegations. See id.

Addressing the clarifications as to the litigant's pleading

requirement stated in the United States Supreme Court in Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court of Appeals

for the Third Circuit provided the courts in this Circuit with

detailed and careful guidance as to what kind of allegations

qualify as pleadings sufficient to pass muster under the Rule 8

standard. See Phillips v. County of Allegheny, 515 F.3d 224,

230-34 (3d Cir. 2008). Specifically, the Court of Appeals

observed as follows:

“While a complaint . . . does not need detailed

factual allegations, a plaintiff's obligation [is] to

provide the 'grounds' of his 'entitle[ment] to relief'

[by stating] more than labels and conclusions, and a

formulaic recitation of the elements of a cause of

action . . . .” Twombly, 127 S. Ct. at 1964-65 . . .

Rule 8 “requires a 'showing,' rather than a blanket

assertion, of entitlement to relief.” Id. at 1965

n.3. . . . “[T]he threshold requirement of Rule

8(a)(2) [is] that the 'plain statement [must] possess

enough heft to 'sho[w] that the pleader is entitled to

relief.'” Id. at 1966. [Hence] “factual allegations

must be enough to raise a right to relief above the

speculative level.” Id. at 1965 & n.3. . . . [Indeed,

it is not] sufficient to allege mere elements of a

cause of action; instead “a complaint must allege

4

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facts suggestive of the proscribed conduct.” Id.

Id. at 230-34 (original brackets removed). 

This pleading standard was further refined by the United

States Supreme Court in its recent decision Ashcroft v. Iqbal,

129 S. Ct. 1937 (2009):

[In any civil action, t]he pleading standard . . .

demands more than an unadorned [“]the-defendantunlawfully-harmed-me[”] accusation. [Twombly, 550

U.S.] at 555 . . . . A pleading that offers “labels

and conclusions” or “a formulaic recitation of the

elements of a cause of action will not do.” [Id.] at

555. Nor does a complaint suffice if it tenders

“naked assertion[s]” devoid of “further factual

enhancement.” Id. at 557. . . . A claim has facial

plausibility [only] when the plaintiff pleads factual

content . . . . Id. at 556. [Moreover,] the

plausibility standard . . . asks for more than a sheer

possibility that a defendant has acted unlawfully. 

Id. [Indeed, even w]here a complaint pleads facts

that are “merely consistent with” a defendant's

liability, [the so-alleging complaint still] “stops

short of [showing] plausibility of 'entitlement to

relief.'” Id. at 557 (brackets omitted). [A

fortiori,] the tenet that a court must accept as true

all of the allegations contained in a complaint is

inapplicable to legal conclusions [or to t]hreadbare

recitals of the elements of a cause of action,

supported by mere conclusory statements [,i.e., by]

legal conclusion[s] couched as a factual allegation

[e.g.,] the plaintiffs' assertion of an unlawful

agreement [or] that [defendants] adopted a policy

“'because of,' not merely 'in spite of,' its adverse

effects upon an identifiable group.” . . . . [W]e do

not reject these bald allegations on the ground that

they are unrealistic or nonsensical. . . . It is the

conclusory nature of [these] allegations, rather than

their extravagantly fanciful nature, that disentitles

them to the presumption of truth. . . . [Finally,]

the question [of sufficiency of] pleadings does not

turn . . . the discovery process. Twombly, 550 U.S.]

at 559 . . . . [The plaintiff] is not entitled to

discovery [where the complaint alleges any of the

elements] “generally,” [i.e., as] a conclusory

5

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allegation [since] Rule 8 does not [allow] pleading

the bare elements of [the] cause of action [and]

affix[ing] the label “general allegation” [in hope to

develop facts through discovery].

Iqbal, 129 S. Ct. at 1949-54.

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. See West v. Atkins, 487 U.S. 42, 48

(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.

1994).

IV. DISCUSSION

A. CLAIMS AGAINST CUMBERLAND COUNTY JAIL

Here, Plaintiff names, as the sole Defendant in this action,

the Cumberland County Jail, but the jail is not an entity

cognizable as a “person” for the purposes of a § 1983 suit. See

6

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Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989);

Grabow v. Southern State Correctional Facility, 726 F. Supp. 537,

538-39 (D.N.J. 1989); see also Marsden v. Federal BOP, 856 F.

Supp. 832, 836 (S.D.N.Y. 1994). Therefore, Plaintiff’s

allegations against this Defendant must be dismissed, with

prejudice.

Since Plaintiff did not name any other defendant, the

Court’s prior finding, technically, concludes this Court’s

inquiry, and Plaintiff’s Complaint could be dismissed on this

sole ground. However, being mindful of Plaintiff’s status as pro

se litigant, the Court would allow Plaintiff an opportunity to

amend his pleading unless such an amendment would appear to be

futile. Accordingly, the Court will determine whether an

amendment identifying an individual defendant or defendants who

allegedly perpetrated the conduct alleged in the Complaint would

rise to the level of a violation of Plaintiff's constitutional

rights cognizable under 42 U.S.C. § 1983. If such an amendment

might state a claim, it will be permitted and this dismissal

would be without prejudice; otherwise, this dismissal would be

with prejudice as to such claims as cannot be cured by amendment.

B. CELLS WITHOUT RUNNING WATER, LACK OF RECREATIONAL HOUR

Here, Plaintiff’s Complaint alleges that – on two days (once

in March, and once in April of 2010) – Plaintiff was placed,

seemingly in connection with his disciplinary infractions, in

7

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certain cells that had no running water and, in addition, was

denied an opportunity to have “one hour of recreation.” 

Plaintiff opines that such conditions of his confinement violated

his constitutional rights. Plaintiff errs. 

Since “the due process rights of a [pretrial detainee] are

at least as great as the Eighth Amendment protections available

to a convicted prisoner,” Hubbard v. Taylor, 399 F.3d 150, 166

(3d Cir. 2005) (citation omitted), this Court will examine the

allegations under the standard set forth in Bell v. Wolfish, 441

U.S. 520 (1979), i.e., whether the conditions of confinement

amounted to punishment prior to an adjudication of guilt. See

Bell, 441 U.S. at 535 (the Due Process Clause of the Fourteenth

Amendment prohibits punishment of a pretrial detainee prior to an

adjudication of guilt in accordance with due process of law);

Hubbard, 399 F.3d at 166 (same). As the Supreme Court explained,

[I]f 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.

Bell, 441 U.S. at 539 (footnote and citation omitted).

The maintenance of security, internal order, and discipline

are essential goals which at times require “limitation or

retraction of . . . retained constitutional rights.” Id. at 546. 

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“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.” Id.

at 540. “In assessing whether the conditions are reasonably

related to the assigned purposes, [a court] must further inquire

as to whether these conditions cause [inmates] to endure [such]

genuine privations and hardship over an extended period of time[: 

since, if so,] the adverse conditions [might] become excessive in

relation to the purposes assigned to them.” Hubbard, 399 F.3d at

159 (quoting Union County Jail Inmates v. DiBuono, 713 F.2d 984,

992 (3d Cir. 1983)); accord Wilson v. Seiter, 501 U.S. 294, 298

(1991) (same as under the Eighth Amendment, the objective

component of the Fourteenth Amendment inquiry looks into whether

“the deprivation [was] sufficiently serious,” while the

subjective component asks whether “the officials act[ed] with a

sufficiently culpable state of mind”); Hutto v. Finney, 437 U.S.

678, 686-87 (1978) (emphasizing that “the length of confinement

[in unfavorable conditions] cannot be ignored in deciding whether

the confinement meets constitutional standards. A filthy,

overcrowded cell . . . might be tolerable for a few days [but

not] for weeks or months”).

9

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Here, Plaintiff asserts a deprivation in the form of being

placed, on two different days, in cells that had no running

water. He does not assert that he was denied access to running

water in public bathrooms, e.g., for hand and face washing, or

access to showers, or that he was denied drinking water or toilet

facilities. All he asserts is that the amenities in the cells

where he had to spend these two non-consecutive days were not up

to par. However, Plaintiff’s temporary dissatisfaction cannot

provide a basis for a constitutional claim and, therefore, his

disappointment with two separate days of lack of running water in

his cell cannot, as a matter of law, amount to a deprivation of

constitutional magnitude. See, e.g., Cary v. Rose, 902 F.2d 37

(7th Cir. 1990) (pretrial detainee’s conditions that included

frequent interruptions in running water did not violate the

detainee’s due process rights); Jackson v. Kane County, 2010 U.S.

Dist. LEXIS 6154, at *7 (N.D. Ill. Jan. 26, 2010) (“Drawing on

judicial experience and common sense, Iqbal, 129 S. Ct. at 1950,

the court finds that a lack of running water in a particular

prison cell block, though uncomfortable by itself, is not a

serious deprivation of a basic human need”); Davis v. Lancaster

County, 2007 U.S. Dist. LEXIS 69066, at *19-20 (D. Neb. Sept. 17,

2007) (dismissing detainee’s claims based on the fact that the

cell where he was placed for twenty-four hours lacked running

water, even though the entirety of the conditions made it

10

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impossible for that detainee to wash his body, even including his

hands before eating and, in addition, required him to use a

toilet “hole” in the floor rather than a toilet that flushed with

water); cf. Rivera v. Walker, 2008 U.S. Dist. LEXIS 88787, at *14

(S.D. Ill. June 9, 2008) (applying Eighth Amendment analysis to

conclude that, since “the lack of running water was a temporary

condition [because] Plaintiff was placed in [the cell without

running water in] August . . . and . . . transferred [out of that

cell in] October . . . , about six weeks later, [this time line

leads the court to conclude that,] although the situation was not

desirable, the lack of running water in his cell for about six

weeks . . . did not violate plaintiff's rights”). Since

Plaintiff’s allegations as to lack of running water in his cell

during two non-consecutive days cannot amount to a cognizable

claim, these allegations will be dismissed with prejudice.

Plaintiff’s allegations based on his inability to have a

daily hour of “recreation” fare no better. The Court of Appeals

explained that the inquiry into whether given conditions

constitute “punishment” must be made in light of the totality of

circumstances within an institution. See Hubbard, 399 F.3d at

160-61; Hubbard v. Taylor, 538 F.3d 229, 233-34 (3d Cir. 2008)

(finding claims based on overcrowding insufficient where the

“lack of space in individual cells is alleviated by the

availability of large common areas, or ‘dayrooms,’ [especially in

11

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light of the fact that] each dayroom contains a sink, tables,

chairs, and a television, and inmates are generally free to leave

their cells and access the dayroom between the hours of 8:30 a.m.

and 10:30 p.m.”). Therefore, to show a deprivation amounting to

a punishment imposed in violation of due process, the inmate

asserting insufficient recreation must state facts showing that

denial of recreation was such that it caused injury to the

inmate’s ability to control his/her muscular functions or

maintain his/her range of physical motions. See Cary, 902 F.2d

37 (where detainees alleged that they were denied adequate

exercise and recreation but admitted that they had room in their

cells and in the hallway to run in place or perform calisthenics,

their allegations could not amount to a constitutional claim

because, unless extreme and prolonged, lack of exercise could not

be equated to a medically-threatening situation); see also

Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. Ill. 1996)

(affirming dismissal of detainee’s claims because “[l]ack of

exercise may rise to a constitutional violation in extreme and

prolonged situations where movement is denied to the point that

the inmate's health is threatened”); Ellis v. Crowe, 2009 U.S.

Dist. LEXIS 125154, at *36 (E.D. La. Dec. 18, 2009) (detainee’s

claim should be dismissed if the facts he alleges do not show

that he was so deprived of recreation for a significant time

period to suffer a physical injury, such as muscle atrophy or

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loss of range of motion, as a result of the alleged limitations

on exercise).

Since, here, Plaintiff does not allege any physical injury

and merely bases his claims on his erroneous conclusion that he

should have been constitutionally entitled to an hour of

recreation per day, his allegations will be dismissed. Such

dismissal, however, will be without prejudice, and Plaintiff will

be allowed an opportunity to file an amended pleading: (a)

clarifying the exact period of time during which the alleged

denial of recreation took place; (b) detailing the exact

conditions of Plaintiff’s confinement by defining those

conditions that prevented any physical activity, as well as those

conditions that allowed some physical activity (such as place to

run in place or perform calisthenics); (c) explaining the nature

of the physical injury Plaintiff suffered as a result of the

alleged denial of recreation; and (d) naming the particular

defendant whose actions caused Plaintiff’s confinement without

ability to exercise. 

C. REQUEST TO FILE CRIMINAL COMPLAINT AGAINST O’CRUZ

Plaintiff’s allegations that his requests to file criminal

complaint against O’Cruz were unduly denied by “the Internal

Affairs” will similarly be dismissed because Plaintiff, being a

private citizen, may informally transmit his accusation about

some individual’s engagement in criminal activity (e.g., by means

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of a letter addressed to law enforcement authorities), but he

cannot file a complaint instigating criminal proceedings. 

A private plaintiff cannot force a criminal prosecution

because the “authority to initiate a criminal complaint rests

exclusively with state and federal prosecutors.” See Collyer v.

Darling, 98 F.3d 211, 222 (6th Cir. 1996); Mercer v. Lexington

Fayette Urban County Gov't., 52 F.3d 325 (6th Cir. 1995); Forney

v. Woodridge Hosp. & Johnson City Med. Ctr., 2005 U.S. Dist.

LEXIS 37257, at *6 (E.D. Tenn. Sept. 14, 2005); see also Savage

v. Arnold, 403 F. Supp. 172 (E.D. Pa. 1975) (stating that a

private party cannot, on his own, commence a criminal proceeding

for failure to meet to comply with the requirements of Rules 3

and 4 of the Rules of Criminal Procedure and citing United States

v. Blierley, 331 F. Supp. 1182 (W.D. Pa. 1971); Brown v. Duggan,

329 F. Supp. 207 (W.D. Pa. 1971); Spader v. Wilentz, 25 F.R.D.

492 (D.N.J), aff'd, 280 F.2d 422 (3d Cir.), cert. denied 364 U.S.

875 (1960)).

Since Plaintiff, a private citizen, is without authority to

file criminal charges, see United States v. Jarvis, 560 F.2d 494,

497 (2d Cir. 1977), his allegations that he was unduly denied an

opportunity to file a criminal complaint against O’Cruz is

facially without merit and will be dismissed with prejudice.

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D. LEGAL PHONE CALLS 

Here, Plaintiff asserts that he was deprived of an

opportunity to receive legal phone calls. See Docket Entry No.

2, at 8. This allegation suggests that a certain person was

trying to call Plaintiff in jail to discuss something “legal,”

but Plaintiff was not called to the phone. If so, Plaintiff’s

claims are facially without merit and should be dismissed.

However, construing Plaintiff’s allegations in light most

favorable to Plaintiff, the Court presumes –- for the purposes of

this Opinion only –- that Plaintiff attempted to allege that he

was denied an opportunity to place phone calls, and that these

phone calls were the calls to his legal counsel representing him

in an ongoing legal matter (e.g., in Plaintiff’s criminal

prosecution) or to an organization providing legal assistance to

inmates. So construed, Plaintiff’s allegations suggest an

access-to-the-courts claim.

The constitutional right of access to the courts is an

aspect of the First Amendment right to petition the government

for redress of grievances. See Bill Johnson's Restaurants, Inc.

v. NLRB, 461 U.S. 731, 741 (1983).2

 In addition, the constitutional guarantee of due process 2

of law has, as a corollary, the requirement that prisoners be

afforded access to the courts in order to challenge unlawful

convictions and to seek redress for violations of their

constitutional rights. See Procunier v. Martinez, 416 U.S. 396,

419 (1974), overruled on other grounds, Thornburgh v. Abbott, 490

U.S. 401, 413-14 (1989); see also Peterkin v. Jeffes, 855 F.2d

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Addressing the issue of inmates’ right of access to the

courts, the Supreme Court held that “the fundamental

constitutional right of access to the courts requires prison

authorities to assist inmates in the preparation and filing of

meaningful legal papers.” Bounds v. Smith, 430 U.S. 817, 828

(1977). The right of access to the courts is not, however,

unlimited. “The tools [that Bounds] requires to be provided are

those that the inmates need in order to attack their sentences,

directly or collaterally, and in order to challenge the

conditions of their confinement. Impairment of any other

litigating capacity is simply one of the incidental (and

perfectly constitutional) consequences of conviction and

incarceration.” Lewis v. Casey, 518 U.S. 343, 355 (1996)

(emphasis removed).

Moreover, a prisoner alleging a violation of his right of

access must show that prison officials caused him past or

imminent “actual injury” by hindering his efforts to pursue a

viable claim or defense directly or collaterally related to his

criminal prosecution or his conditions of their confinement. See

Lewis, 518 U.S. at 348-51, 354-55 (1996); Oliver v. Fauver, 118

F.3d 175, 177-78 (3d Cir. 1997); see also Salkeld v. Tennis, 248

Fed. App’x 341, 342 (3d Cir. 2007) (the injury requirement is not

1021, 1036 n.18 (3d Cir. 1988) (chronicling various

constitutional sources of the right of access to the courts).

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satisfied by just any type of frustrated legal claim). “He

might show, for example, that a complaint he prepared was

dismissed for failure to satisfy some technical requirement . . .

. Or that he had suffered arguably actionable harm that he

wished to bring before the courts, but was so stymied by

inadequacies of [his conditions of confinement] that he was

unable to file even a complaint.” Lewis, 518 U.S. at 351.

Consequently, in Christopher v. Harbury, 536 U.S. 403

(2002), the Supreme Court set forth specific criteria that a

court must consider in determining whether a plaintiff has

alleged a viable claim. The Supreme Court guided that, in order

to state a claim for denial of access to courts, the inmate must

assert fact showing each of the following three elements: (1) a

non-frivolous, underlying legal claim that the inmate was

pursuing in connection with his criminal prosecution or his

conditions of confinement; (2) the official acts successfully

frustrating that particular litigation in the sense that (3) an

actual loss of claim or defense resulted from such frustrative

actions hence giving a basis to grant remedy that may be awarded

as recompense but that is not otherwise available in the

frustrated suit. See id. at 415.

Here, Plaintiff’s allegations do not meet the Christopher

criteria. He makes no statement in the Complaint to show that he

sought to make these legal calls in connection with his criminal

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prosecution or in connection with his challenges to conditions of

his confinement. Similarly, no statement made in the Complaint

indicates that Plaintiff’s inability to place such legal phone

calls actually resulted in a loss of claim or defense with regard

to Plaintiff’s criminal prosecution or his prior conditions-ofconfinement challenges. Therefore, Plaintiff’s allegation will 3

be dismissed. Such dismissal, however, will be without

prejudice, and Plaintiff will be allowed an opportunity to cure

his pleadings by clarifying, in his amended complaint: (a) whom

Plaintiff was trying to reach by means of the legal phone calls

that Plaintiff requested (and, in addition, explaining whether

Plaintiff was availed to alternative means of communication with

that person, such as via in-person meetings or by mail); (b)

clarifying the nature of the legal matter(s) with regard to which

he was seeking to place such phone calls; (c) explaining the

nature of the exact claim(s) or defense(s) which Plaintiff

forfeited as a result of the alleged denial of his requests to

place legal phone calls; and (d) naming the particular defendant

who denied Plaintiff's these requests to place these legal calls.

E. RETALIATION

 Since, in the instant matter, Plaintiff’s allegations are 3

dismissed either: (a) without prejudice; or (b) with prejudice on

the grounds that the facts articulated by Plaintiff could not, as

a matter of law, amount to a claim upon which relief can be

granted, Plaintiff’s prosecution of the instant action cannot

serve as a basis for Plaintiff’s right of access claim.

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Finally, Plaintiff asserts that he was retaliated (by being

transferred from cell to cell with excessive frequency) for

complaining to unspecified jail officials about his

dissatisfaction with lack of running water, his desire for one

hour of “recreation,” his inability to file a criminal complaint

against O’Cruz and his inability to place legal calls. 

4

“Government actions, which standing alone, do not violate

the Constitution, may nonetheless be constitutional torts if

motivated in substantial part by a desire to punish an individual

for exercise of a constitutional right.” Allah v. Seiverling,

229 F.3d 220, 224-25 (3d Cir. 2000); Mitchell v. Horn, 318 F.3d

523, 530 (3d Cir. 2003). In order to state a prima facie case of

retaliation, a prisoner must assert facts demonstrating that: (1)

the conduct in which he was engaged was constitutionally

protected; (2) he suffered an adverse action at the hands of

prison officials; and (3) his constitutionally protected conduct

was a substantial or motivating factor in the prison officials’

 Although Plaintiff’s exhibits, see Docket Entry No. 2, 4

suggest that Plaintiff’s administrative complaints to jail

officials were limited to Plaintiff’s expression of his desire to

file a criminal complaint against O’Cruz and to receive

unspecified legal calls, the Court presumes – for the purposes of

this Opinion only – that Plaintiff’s use of the phrase “all these

issues” (see Docket Entry No. 1, at 5, utilizing the phrase for

the purposes of Plaintiff’s allegations that he was retaliated

for complaining about “all these issues”) was intended to operate

as an assertion that he was retaliated in response to his filing

of grievances about lack of running water and about limitations

on “recreation,” not just for the grievances about his inability

to file a criminal complaint or to “receive” legal phone calls. 

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decision to impose such adverse action. See Carter v. McGrady,

292 F.3d 152, 157-58 (3d Cir. 2002) (quoting Rauser v. Horn, 241

F.3d 330, 333 (3d Cir. 2001)). Moreover, to show an “adverse

action,” the inmate must assert facts demonstrating that

defendants' actions were of such nature that they were

“sufficient to deter a person of ordinary firmness from

exercising his [constitutional] rights.” Allah, 229 F.3d at 225.

Here, Plaintiff’s filing of grievances qualifies as

protected activity within the meaning of the First Amendment

(regardless of whether or not the jail officials’ denial of

accommodations that Plaintiff sought could amount to a

constitutional violation). Moreover, it is possible that

Plaintiff’s transfer from cell to cell was conducted with such

excessive frequency that the cumulative of these transfers

amounted to an adverse action. Cf. Scher v. Engelke, 943 F.2d 5

921 (8th Cir. 1991), cert. denied, 503 U.S. 952 (1992) (finding

harassment where prisoner's cell was searched ten times in

nineteen days, i.e., more frequently than on bi-daily basis); but

see Proudfoot v. Williams, 803 F. Supp. 1048 (E.D. Pa. 1992)

 Inmates have no Due Process liberty interest in being 5

assigned to a particular correctional institution, moreover to a

particular prison cell. Accord Wilkinson v. Austin, 545 U.S. 209

(2005) (the Constitution does not give rise to a liberty interest

in avoiding transfers to more adverse conditions of confinement);

see also Walker v. Hughes, 558 F.2d 1247, 1252 (6th Cir. 1977)

(“law . . . does not restrict the authority of prison officials

over the inmates as to placement in [different locales]”). 

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(three searches within fourteen days did not amount to a

constitutional violation when each search was made for a

legitimate purpose). Finally, it is possible that Plaintiff

might detail such time-line of events that it would suggest a

substantial connection between Plaintiff’s filings of grievances

and his transfers from cell to cell.

 Therefore, same as Plaintiff’s allegations asserting denial

of recreation and denial of legal phone calls, Plaintiff’s

retaliation claim will be dismissed without prejudice, and

Plaintiff will be allowed an opportunity to file an amended

complaint: (a) detailing the time-line of his submission of

administrative grievances which Plaintiff bona fide believes

triggered retaliatory actions; (b) specifying both the time-line

and frequency of those Plaintiff’s transfers from cell to cell

that Plaintiff bona fide believes were directed as a retaliatory

measure (i.e., without relation to Plaintiff’s disciplinary

proceedings and without connection to the jail’s housing needs

known to Plaintiff); and (c) naming the defendant who directed

such (unrelated to jail housing needs and legitimate disciplinary

purposes) transfers from cell to cell upon learning about

Plaintiff’s filings of administrative grievances.

V. CONCLUSION

For the foregoing reasons, the Court will grant Plaintiff's

application to file the Complaint without prepayment of the

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filing fee and will dismiss the Complaint. Such dismissal will

be with prejudice with regard to Defendant Cumberland County

Jail, and also with regard to Plaintiff’s claims asserting: (1)

undue denial of his request to file a criminal complaint; and (2)

violation of his due process rights by placing him on two days in

cells without running water. Plaintiff’s remaining claims

(asserting: (1) undue denial of recreation; (2) denial of legal

phone calls; and (3) retaliatory actions by jail officials) will

be dismissed without prejudice, and Plaintiff will be granted

leave to amend his claims to that effect in accordance with the

guidance provided to him in this Opinion.

An appropriate Order accompanies this Opinion.

s/ Jerome B. Simandle

JEROME B. SIMANDLE

U.S. District Judge

Dated: September 23, 2010

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