NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

 :

AARON R. JOHNSON, :

 : Civil Action No. 11-3836 (RMB)

Plaintiff, :

 :

v. : O P I N I O N

 :

JOSEPH BONDISKEY, et al., :

 :

Defendants. :

 :

________________________________

APPEARANCES:

AARON R. JOHNSON, Plaintiff pro se 

4028-050 

U.S.P. Canaan 

P.O. Box 300 

Waymart, PA 18472 

BUMB, District Judge

Plaintiff, Aaron Johnson(“Plaintiff”), confined at United

States Penitentiary - Canaan in Waymart, Pennsylvania at the time

he submitted this complaint for filing, seeks to bring this action

in forma pauperis. Based on his affidavit of indigence, the Court

will grant Plaintiff's application to proceed in forma pauperis

(“IFP”) pursuant to 28 U.S.C. § 1915(a) (1998) and order the Clerk

of the Court to file the complaint.

At this time, the Court must review the complaint, pursuant to

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

should be dismissed as frivolous or malicious, for failure to state

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a claim upon which relief may be granted, or because it seeks

monetary relief from a defendant who is immune from such relief.

For the reasons set forth below, the Court concludes that the

complaint should proceed in part.

I. BACKGROUND

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

1983, against Defendants Joseph Bondiskey, Warden of the Gerard L.

Gormley Justice Facility1, and Corrections Officer Louis King.

In his first claim, Plaintiff alleges that when he was a

prisoner in the Gerard L. Gormley Justice Facility, while being

escorted to the top tier shower, he was handcuffed from behind by

Officer Louis King. While being handcuffed, he felt a pain in his

right leg, as if he had been kicked, and he fell down seven steel

steps. He was unconscious when he arrived at the hospital. When

he returned to the jail, he was informed by another inmate that

said inmate had seen Officer King kick Plaintiff down the stairs. 

Plaintiff suffered a “small disk protrusion paracentral to the

right L5-S1.” 

In his second claim, Plaintiff states only that he was “denied

medication for three weeks.” He states that his injury was “pain

and suffering, denying [him] medical attention, and pain

1

Plaintiff does not make any specific allegations against Defendant

Bondiskey. In fact, Defendant Bondiskey appears to only be referenced in the

caption and under the list of defendants. Therefore, as there are no specific

allegations against him and it is not apparent why he is named as a defendant

in this case, Defendant Bondiskey will be dismissed without prejudice as a

defendant. 

2

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medication.” 

Plaintiff seeks $800,687.00 in damages. 

II. DISCUSSION

A. Legal Standard

1. Standards for a Sua Sponte Dismissal

The Prison Litigation Reform Act, Pub.L. No. 104-134, §§

801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires a

district court to review a complaint in a civil action in which a

prisoner is proceeding in forma pauperis or seeks redress against

a governmental employee or entity. The Court is required to

identify cognizable claims and to sua sponte dismiss any claim that

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

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

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

This action is subject to sua sponte screening for dismissal under

both 28 U.S.C. §§ 1915(e)(2) (B) and 1915A, because Plaintiff is a

prisoner and is proceeding as an indigent.

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v.

Kerner, 404 U.S. 519, 520-21 (1972)); see also United States v.

Day, 969 F.2d 39, 42 (3d Cir. 1992). 

Recently, the Supreme Court refined the standard for summary

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dismissal of a complaint that fails to state a claim in Ashcroft v.

Iqbal, 129 S.Ct. 1937 (2009). The Court examined Rule 8(a)(2) of

the Federal Rules of Civil Procedure which provides that a

complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed.R.Civ.P.

8(a)(2). Citing its opinion in Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007) for the proposition that “[a] pleading that offers

‘labels and conclusions' or ‘a formulaic recitation of the elements

of a cause of action will not do,’” Iqbal, 129 S.Ct. at 1949

(quoting Twombly, 550 U.S. at 555), the Supreme Court held that, to

prevent a summary dismissal, a civil complaint must now allege

“sufficient factual matter” to show that the claim is facially

plausible. This then “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” 

See id. at 1948. The Supreme Court's ruling in Iqbal emphasizes

that a plaintiff must demonstrate that the allegations of his

complaint are plausible. See id. at 1949-50; see also Twombly, 505

U.S. at 555, & n. 3; Fowler v. UPMC Shadyside, 578 F.3d 203 (3d

Cir. 2009).

2. 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

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... 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).

B. Analysis

1. Excessive Force Claim

An excessive force claim may be a violation of either the

Eighth or Fourteenth Amendments. See Graham v. Connor, 490 U.S.

386, 392-394 (1989) (cases involving the use of force against

convicted individuals are examined under the Eighth Amendment's

proscription against cruel and unusual punishment, cases involving

the use of force against pretrial detainees are examined under the

Fourteenth Amendment). Here, it is not clear whether Plaintiff was

a convicted prisoner awaiting sentencing or a pretrial detainee at

the time of the alleged incident. As such, this Court will analyze

the excessive force claim under both the Eighth Amendment standard

and the due process standard under the Fourteenth Amendment.

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“The Eighth Amendment, in only three words, imposes the

constitutional limitation upon punishments, i.e., they cannot be

‘cruel and unusual.’” Rhodes v. Chapman, 452 U.S. 337, 345 (1981).

The Eighth Amendment prohibits conditions which involve the

unnecessary and wanton infliction of pain or are grossly

disproportionate to the severity of the crime warranting

imprisonment. Id. at 347. The cruel and unusual punishment

standard is not static, but is measured by “the evolving standards

of decency that mark the progress of a maturing society.” Id. at

346 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1956)). 

To state a claim under the Eighth Amendment, an inmate must

satisfy an objective element and a subjective element. Farmer v.

Brennan, 511 U.S. 825, 834 (1994). The objective element questions

whether the deprivation of a basic human need is sufficiently

serious; the subjective component asks whether the officials acted

with a sufficiently culpable state of mind. Wilson v. Seiter, 501

U.S. 294, 298 (1991). The objective component is contextual and

responsive to “contemporary standards of decency.” Hudson v.

McMillian, 503 U.S. 1, 8 (1992). The subjective component follows

from the principle that “only the unnecessary and wanton infliction

of pain implicates the Eighth Amendment.” See Farmer, 511 U.S. at

834 (quoting Wilson, 501 U.S. at 297 (internal quotation marks,

emphasis, and citations omitted)); Rhodes, 452 U.S. at 345.

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What is necessary to establish an unnecessary and wanton

infliction of pain varies also according to the nature of the

alleged constitutional violation. Hudson, 503 U.S. at 5. Where

the claim is one of excessive use of force, the core inquiry as to

the subjective component is that set out in Whitley v. Albers, 475

U.S. 312, 320-21 (1986) (citation omitted): “whether force was

applied in a good faith effort to maintain or restore discipline or

maliciously and sadistically for the very purpose of causing harm.”

(quoted in Hudson, 503 U.S. at 6.) “When prison officials

maliciously and sadistically use force to cause harm, contemporary

standards of decency always are violated.” Id. at 9. In such

cases, a prisoner may prevail on an Eighth Amendment claim even in

the absence of a serious injury, the objective component, so long

as there is some pain or injury and something more than de minimis

force is used. Id. at 9-10 (finding that blows which caused

bruises, swelling, loosened teeth, and a cracked dental plate were

not de minimis for Eighth Amendment purposes).

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

“maliciously and sadistically,” courts have identified several

factors, including the need for the use of force, the amount of

force used, the extent of injury inflicted, the extent of the

threat to others, and any efforts to temper the severity of force. 

Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley,

475 U.S. at 321). Thus, not all use of force is “excessive” or

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will necessarily give rise to a constitutional violation. See

Hudson, 503 U.S. at 9 (it is clear that not “every malevolent touch

by a prison guard gives rise to a federal cause of action”).

Therefore, “[n]ot every push or shove, even if it may later seem

unnecessary in the peace of a judge's chambers, violates a

prisoner's constitutional rights.” Id. at 9-10.

Here, Plaintiff alleges that he was assaulted by Officer King

with unnecessary force and intent to harm while Plaintiff was

handcuffed and restrained. Plaintiff further alleges that he

sustained bodily injury that required medical treatment.2

Therefore, based on the allegations in the Complaint, if true, it

would appear that Plaintiff has asserted facts that may be

sufficient to suggest that the officer exhibited malicious and

sadistic conduct intended to cause Plaintiff pain. Such conduct,

if true, is “repugnant to the conscience of mankind” absent

extraordinary circumstances necessary to justify that kind of

force. Hudson, 503 U.S. at 10.

To the extent that Plaintiff was a pretrial detainee at the

time the incident occurred, the standard to be applied in an

excessive force claim differs. A pre-trial detainee is protected

2 “[T]he Eighth Amendment analysis must be driven by the extent of the

force and the circumstances in which it is applied; not by the resulting

injuries.” Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir. 2002). Thus, the

pivotal inquiry in reviewing an excessive force claim is whether the force was

applied maliciously and sadistically to cause harm. Id. at 649; Brooks, 204

F.3d at 106. Otherwise, an inmate “could constitutionally be attacked for the

sole purpose of causing pain as long as the blows were inflicted in a manner

that resulted” in injuries that were de minimis. Id.

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by the Due Process Clause of the Fourteenth Amendment. See Bell v.

Wolfish, 441 U.S. 520, 535, n. 16, 545 (1979); City of Revere v.

Massachusetts General Hospital, 463 U.S. 239, 244 (1983); Fuentes

v. Wagner, 206 F.3d 335, 341 n. 7, 9 (3d Cir. 2000).

Analysis of whether a detainee or un-sentenced 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); 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....

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

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governmental action is punishment that may not

constitutionally be inflicted upon detainees qua

detainees....

Bell, 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.” Id.

at 540. Retribution and deterrence, however, are not legitimate

nonpunitive governmental objectives. Id. at 539 n. 20. Nor are

grossly exaggerated responses to genuine security considerations.

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

Under this standard, for purposes of surviving dismissal at

this preliminary stage, Plaintiff has adequately alleged that

Corrections Officer King used excessive force against him in

violation of his constitutional rights. The allegations may

support a claim that Plaintiff was viciously assaulted by the

defendant officer for no apparent reason other than to “punish”

him. There are no allegations that Plaintiff was himself attacking

or provoking the Defendant when he assaulted him. Under these

circumstances, if true, Plaintiff may be able to prove that

Defendant King’s actions were a grossly exaggerated response.

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Therefore, this Court finds that Plaintiff has alleged facts

sufficient to support an excessive force claim under either the

Eighth or Fourteenth Amendment, and this claim will be allowed to

proceed at this time. 

2. Denial of Medical Treatment Claim

With regard to his denial of medical treatment claim,

Plaintiff does not provide any facts or details. He does not

allege who was depriving him of medical treatment; nor does he

state for what condition he was denied medical treatment. In

short, Plaintiff provides no elaboration. Under Iqbal, the

unadorned allegations that Plaintiff was “denied medication for

three weeks” are “no more than conclusions [which] are not entitled

to the assumption of truth.” Iqbal at 1950. As Plaintiff makes no

non-conclusory factual allegations regarding what was done or not

done that violated Plaintiff's rights under § 1983, the denial of

medical treatment claim will be dismissed without prejudice for

failure to state a claim upon which relief may be granted.3

3

 Plaintiff may seek leave to amend his Complaint to allege facts to

show a valid denial of medical treatment claim. To the extent that Plaintiff

chooses to amend his Complaint to cure the deficiencies noted herein, pursuant

to Federal Rule of Civil Procedure 15, Plaintiff should note that when an

amended complaint is filed, the original complaint no longer performs any

function in the case and “cannot be utilized to cure defects in the amended

[complaint], unless the relevant portion is specifically incorporated in the

new [complaint].” 6 Wright, Miller & Kane, Federal Practice and Procedure §

1476 (2d ed. 1990) (footnotes omitted). An amended complaint may adopt some

or all of the allegations in the original complaint, but the identification of

the particular allegations to be adopted must be clear and explicit. Id. To

avoid confusion, the safer course is to file an amended complaint that is

complete in itself. Id.

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III. Conclusion

For the reasons stated above, Defendant Bondiskey will be

dismissed without prejudice as a defendant in the instant action. 

Plaintiff’s excessive force claim will be permitted to proceed and

Plaintiff’s denial of medical treatment claim will be dismissed

without prejudice. As also stated above, Plaintiff may seek leave

to amend his complaint. An appropriate order follows. 

s/Renée Marie Bumb 

RENÉE MARIE BUMB

UNITED STATES DISTRICT JUDGE

Dated: July 27, 2011

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