DAVIS v. CUMBERLAND COUNTY DEPARTMENT OF CORRECTIONS et al

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 10/2/13. (dd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RONNIE DAVIS,
Plaintiff,
v.
CUMBERLAND COUNTY DEPARTMENT
OF CORRECTIONS et al.,
Defendants.
RONNIE DAVIS,
Plaintiff,
v.
WARDEN BALICKI et al.,
Defendants.
RONNIE DAVIS,
Plaintiff,
v.
GENEAN DOYLE,
Defendant.
RONNIE DAVIS,
Plaintiff,
v.
REBECCA HANNAH,
Defendant.

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Civil Action No. 13-3028 (RMB)

OPINION
APPLIES TO ALL ACTIONS

Civil Action No. 13-3791 (RMB)

Civil Action No. 13-3792 (RMB)

Civil Action No. 13-3793 (RMB)

. . . continued

. . . continued
RONNIE DAVIS,
Plaintiff,
v.
JEANNINE WILTSEY,
Defendant.
RONNIE DAVIS,
Plaintiff,
v.
FRANK GREEN et al.,
Defendants.
RONNIE DAVIS,
Plaintiff,
v.
OFFICER ARMSTRONG et al.,
Defendants.
RONNIE DAVIS,
Plaintiff,
v.
SGT. WRONYON et al.,
Defendants.

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Civil Action No. 13-3794 (RMB)

Civil Action No. 13-3795 (RMB)

Civil Action No. 13-3796 (RMB)

Civil Action No. 13-3797 (RMB)

. . . continued

Page 2

. . . continued
RONNIE DAVIS,
Plaintiff,
v.
RICH BROWN,
Defendant.
RONNIE DAVIS,
Plaintiff,
v.
OFFICER MACCORI,
Defendant.
RONNIE DAVIS,
Plaintiff,
v.
MOSSES REOS,
Defendant.
RONNIE DAVIS,
Plaintiff,
v.
SGT. ORTIZ,
Defendants.

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Civil Action No. 13-4233 (RMB)

Civil Action No. 13-4234 (RMB)

Civil Action No. 13-4235 (RMB)

Civil Action No. 13-4236 (RMB)

. . . continued

Page 3

. . . continued
RONNIE DAVIS,
Plaintiff,
v.
OFFICER VOHLAND,
Defendant.
RONNIE DAVIS,
Plaintiff,
v.
CORIZON HEALTHCARE et al.,
Defendants.
RONNIE DAVIS,
Plaintiff,
v.
CORIZON HEALTHCARE et al.,
Defendants.
RONNIE DAVIS,
Plaintiff,
v.
CORIZON HEALTHCARE et al.,
Defendants.

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Civil Action No. 13-4237 (RMB)

Civil Action No. 13-4606 (RMB)

Civil Action No. 13-4610 (RMB)

Civil Action No. 13-5365 (RMB)

OPINION
APPLIES TO ALL ACTIONS
BUMB, District Judge:

Page 4

These matters come before the Court upon the Clerk’s receipt
of Plaintiff’s sixteen complaints accompanied by his applications
to proceed in these actions in forma pauperis (“IFP”), with two
of those applications, that is, the first and last ones, being
complete.

See Davis v. Cumberland County Dep’t Corr., Civ Action

No. 13-3028, ECF No. 1-1; Davis v. Horizon Healthcare, Civ.
Action No. 13-5365, ECF No. 1-1.

In light of these two IFP

applications and the absence of three disqualifying “strikes,”
the Court will direct filing of twelve of Plaintiff’s complaints
and assessment of the applicable filing fees in connection with
each such filing.

See 28 U.S.C. § 1915(b); see also Hairston v.

Gronolsky, 348 F. App’x 716 (3d Cir. 2009) (a prisoner's legal
obligation to prepay his filing fee or to duly obtain in forma
pauperis status in connection with commencement of a legal action
is automatically incurred by the very act of the litigant
initiating a legal action) (relying on Hall v. Stone, 170 F.3d
706, 707 (7th Cir. 1999)).

With regard to the remaining four

matters (where Plaintiff raised claims virtually duplicative of
those raised in Plaintiff’s other above-captioned actions), the
Court will direct administrative termination of those matters,
without filing of the complaints and without assessment of the
filing fee in connection with any of those duplicative actions.1
1

Compare Izquierdo v. State, 2013 U.S. App. LEXIS 15533, at
*2-3 and n.1 (3d Cir. July 25, 2013), stating:
Page 5

The power of a federal court to [administratively
terminate duplicative matters and, thus,] prevent
duplicative litigation is intended “to foster judicial
economy and the ‘comprehensive disposition of
litigation,’” Curtis v. Citibank, N.A., 226 F.3d 133,
138 (2d Cir. 2000) (quoting Kerotest Manufacturing Co.
v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183
(1952)), and “to protect parties from ‘the vexation of
concurrent litigation over the same subject matter.’”
Id. (quoting Adam v. Jacobs, 950 F.2d 89, 93 (2d Cir.
1991)).
Porter v. NationsCredit Consumer Disc. Co., 2003 Bankr. LEXIS
933, at *33 (Bankr. E.D. Pa. 2003); see also Papotto v. Hartford
Life & Accident Ins. Co., U.S. App. LEXIS 19660, at *26 (3d Cir.
N.J. Sept. 26, 2013) (“administrative closings do not end the
proceeding.

Rather, they are a practical tool used by courts to

prune overgrown dockets and are particularly useful in
circumstances in which a case, though not dead, is likely to
remain moribund”) (citation, ellipses and internal quotation
marks omitted).

[T]he District Court abused its discretion [when it
declined to direct assessment of filing fee because the
plaintiff’s claims appeared potentially without merit].
In this Circuit, leave to proceed IFP is determined
solely on the basis of indigence. [See Deutsch v.
United States, 67 F.3d 1080,] 1084 n.5 [(3d Cir.
1995)]. If a plaintiff is unable to pay the filing
fee, leave to proceed IFP should be granted [and
assessment of fee directed]. [See] id. [Once] leave is
granted, the District Court . . . may decide whether to
dismiss the complaint under 28 U.S.C. § 1915(e)(2).
[See] id. What a District Court . . . may not do . . .
is deny leave to proceed IFP on the basis of
non-financial considerations [unless the litigant is an
abusive filer, as in Deutsch, 67 F.3d at 1084 n.5].
See Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976).
Page 6

Furthermore, since the Prison Litigation Reform Act of 1995
obligates this Court to engage in sua sponte screening when a
prisoner files a civil complaint seeking redress from a
governmental entity, officer, or an employee of a government
entity, see 28 U.S.C. §1915A(a), each of Plaintiff’s nonduplicative pleading will be screened, under § 1915A, as detailed
below.

The Court must determine if Plaintiff’s challenges

sufficiently state a claim sufficient under Rule 8(a) or if they
are “frivolous, malicious, or fail to state a claim upon which
relief may be granted.”
I.

28 U.S.C. §1915A(b)(1).

STANDARD OF REVIEW AT THE SUA SPONTE SCREENING STAGE
In determining the sufficiency of a pro se complaint, the

Court must construe it liberally.

See Erickson v. Pardus, 551

U.S. 89, 93-94 (2007); Haines v. Kerner, 404 U.S. 519, 520-21
(1972); see also United States v. Day, 969 F.2d 39, 42 (3d Cir.
1992).

The Court need not, however, credit a pro se plaintiff’s

“bald assertions” or “legal conclusions.”

Id.

Thus, the Court

must first “take note of the elements a plaintiff must plead to
state a claim.”

Ashcroft v. Iqbal, 556 U.S. 662, 675

(2009).

The Court must then accept as true all of a plaintiff’s
well-pleaded factual allegations.
578 F.3d

203,

210-11 (3d

See Fowler v. UPMC Shadyside,

Cir. 2009).

The Court, however,

must disregard any conclusory allegations proffered in the
complaint.

See id.

For example, the Court should ignore legal

Page 7

conclusions or factually unsupported accusations which merely
state that

“the-defendant-unlawfully-harmed-me.”

Iqbal, 556

U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)).

Once the well-pleaded facts have been distilled and

the conclusory allegations are fully factored out, the Court must
determine whether these well-pled facts “are sufficient to show
that plaintiff has a ‘plausible claim for relief.’” Fowler, 578
F.3d at 211 (quoting Iqbal, 556 U.S. at 679).

Determining

plausibility is a “context-specific task which requires the
reviewing court to draw on its judicial experience and common
sense.”

Iqbal, 556 U.S. at 679.

‘probability

Plausibility “is not akin to

a

requirement,’” rather, “it asks for more than a

sheer possibility that a defendant has acted unlawfully.”
678 (quoting Twombly, 550 U.S. at 545).

Id. at

Therefore, even well-

pled facts which only suggest the “mere possibility

of

misconduct” fail to show that the plaintiff is entitled to
relief.2

Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at

679).

2

However, before conclusively dismissing a complaint for
failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must grant the
plaintiff leave to amend the complaint unless amendment would be
futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114
(3d Cir. 2002); see also Foman v. Davis, 371 U.S. 178, 182 (1962)
(leave to amend the pleadings is, generally, freely given).
Page 8

II.

FACTUAL ALLEGATIONS
A.

April 2013 Submission

Plaintiff’s first pleading in the series of complaints was
filed on April 24, 2013.

See Davis v. Cumberland County Dep’t

Corr. (“Cumberland County”), Civ. Action No. 13-3028, ECF No. 1,
at 3.

It named the following individuals and group of

individuals as defendants: (a) Warden Balicki (“Balicki”); (b)
Officer Maccori (“Maccori”); (c) Officer Vohland (“Vohland”); (d)
Officer Brown (“Brown”); (e) unspecified “medical nursing staff
and doctors”; (f) Frank Green (“Green”), an inmate; (g) Moses
Reos (“Reos”), also an inmate; and (h) another inmate, whose
first name was Jason (“Jason”).

Id. at 6-7.

The complaint

asserted that, on November 5, 2012, Plaintiff was assaulted by
Green, Reos and Jason and, as a result of that attack, suffered a
broken jaw and broken nose, injuries to his eye and neck, and
lacerations on his face.

See id. at 11.

Plaintiff stated that

he received medical treatment for his injuries, including a
surgery; he also averred that the attack could have been arranged
by Vohland but offered no supporting facts.

See id. at 11-12.

Plaintiff also asserted unspecified “abuse and cruelty [by]
medical nursing staff” Id. at 12.

In addition, he alleged that:

(a) on January 1, 2013, Maccori “push[ed Plaintiff] and shoved
[Plaintiff’s] face roughly into a steel door . . . causing [the]
wires in [Plaintiff’s] mouth to bust apart,” id.; (b) during
Page 9

“[t]he first week of March 2013, . . . Brown . . . threaten[ed
Plaintiff] with [future] bodily harm,” id.; and (c) Balicki did
not take action when Plaintiff filed an administrative request to
“press charges.”
B.

Id.

June 20, 2013 Submissions

On June 20, 2013, Plaintiff commenced seven more civil
matters.

See Davis v. Balicki (“Balicki”), Civ. Action No. 13-

3791; Davis v. Doyle, Civ. Action No. 13-3792; Davis v. Hannah,
Civ. Action No. 13-3793; Davis v. Wiltsey (“Wiltsey”), Civ.
Action No. 13-3794; Davis v. Green, Civ. Action No. 13-3795;
Davis v. Armstrong (“Armstrong”), Civ. Action No. 13-3796; and
Davis v. Wronyon (“Wronyon”), Civ. Action No. 13-3797.
1.

The Balicki Action

The Balicki complaint named fourteen individuals and one
entity as defendants, namely, Balicki,3 Maccori, Vohland, Brown,
Green, Reos and Jason, as well as Officer Armstrong
(“Armstrong”), Sergeant Wronyon (“Wronyon”), Officer Ortiz
(“Ortiz”), Lieutenant Fauconniere (“Fauconniere”), nurse Doyle
(“Doyle”), nurse Wiltsey (“Wiltsey”), nurse Hannah (“Hannah”) and
“Horizon Healthcare,” i.e., the employer of Doyle, Wiltsey and
Hannah (as well as of other medical staff rendering services at
Plaintiff’s place of confinement).

See Davis v. Balicki, Civ.

3

That pleading clarified that Plaintiff based all his
claims against Balicki on Balicki’s status as the warden. See
Davis v. Balicki, Civ. Action No. 13-3791, ECF No. 2, at 2.
Page 10

Action No. 13-3791, ECF No. 2, at 1.

The Balicki pleading re-

alleged that Plaintiff was attacked by Green, Reos and Jason on
November 5, 2012, see id., ECF No. 1, at 3; it also alleged that
certain unspecified officers were liable to him because they were
not at their duty stations during the attack. See id. at 4.

The

pleading re-confirmed that Plaintiff was examined and treated by
medical staff after the attack; it also elaborated on the postattack events by stating that Plaintiff was scheduled for a
surgery and, after the surgery, placed in an infirmary where he
received pain reducing medication.

See id.

In addition, the Balicki pleading reiterated that, on
January 1, 2013, Maccori “push[ed Plaintiff] and shoved [his]
face,” and that event necessitated additional surgery, which was
duly rendered.

Id. at 5.

Plaintiff also alleged that, on a

later date, Maccori “harassed” him by expletive language.

Id.

Then, backtracking to October 2012, the Balicki complaint
alleged that Vohland must have “threatened [Plaintiff] with
[future] bodily harm” when Vohland allegedly stated that he would
“f–-k [Plaintiff] up and go [on] top [of Plaintiff]”; Plaintiff
clarified that this statement demonstrated that the November 5,
2012, attack had to be arranged for by Vohland who, Plaintiff
speculated, must have compensated Green, Reos and Jason with

Page 11

cigars and controlled substances for their promise to assault
Plaintiff.4

Id.

Plaintiff then alleged that during March and May of 2013:
(a) Brown must have “threaten[ed Plaintiff] with serious bodily
harm” when Brown allegedly stated that he would “see” that
Plaintiff is assaulted again by inmates upon Plaintiff’s return
from the infirmary to the general prison population; and (b)
Armstrong, too, “threaten[ed Plaintiff] with serious bodily harm”
when Armstrong, allegedly, used expletives and stated that he
would “break [Plaintiff’s] jaw and f–-k [Plaintiff] up.”

Id. at

6.
The Balicki complaint closed with Plaintiff’s unspecified
assertions of “abuse, cruelty and harass[]ment” by Doyle, Wiltsey
and Hannah, and with a statement that he suffered “major
treatment delays” for unspecified “serious medical needs.”
at 7-8.5

Id.

His legal claim based on these facts asserted

“negligence” and “breach of duty” by Defendants.

Id. at 11.

4

Plaintiff bases that speculations on his assertion that, a
few weeks before the attack, he: (a) witnessed Vohland’s “full
hand contact” with Green; and, shortly thereafter, (b) observed
Green, Reos and Jason smoking “marijuana and black [and] mild
cigars.” Balicki, Civ. Action No. 13-3791, ECF No. 1, at 6.
5

In addition, Plaintiff speculated that he must have
suffered an exposure to “100% germs” which, Plaintiff believes,
would “cause [him] disease [so severe that he would be on a]
hospice line to heart.” Davis v. Balicki, Civ. Action No. 133791, ECF No. 1, at 8. Plaintiff’s amended pleading filed in
this matter, totaling 65 pages, merely provided the Court with
names of Defendants. See id., ECF. No. 3.
Page 12

2.

The Doyle, Hannah and Wiltsey Actions

Plaintiff’s complaint filed in Davis v. Doyle (“Doyle”),
Civ. Action No. 13-3792, asserted that Doyle, a nurse, violated
Plaintiff’s rights because she contacted the surgeon who operated
Plaintiff and, while not holding a doctor’s license herself,
recommended that a surgeon not extend Plaintiff’s antibiotic
treatment beyond a certain date (and the surgeon agreed with that
recommendation).

The pleading in Davis v. Hannah (“Hannah”),

Civ. Action No. 13-3793, asserted that Hannah, also a nurse,
violated Plaintiff’s rights by being “disrespectful” and acting
“cruel,” since she “refuse[d] to give [Plaintiff an unspecified]
medical treatment.”

Id. at 4.6

Plaintiff’s Wiltsey complaint

asserted that Wiltsey, also a nurse, violated his rights by “very
abusive cruelty,” namely, by placing Plaintiff in a locked room
during his transfer from surgery to the infirmary.7

Davis v.

Wiltsey, Civ. Action No. 13-3794, ECF No. 1, at 4.
3.

The Green, Armstrong and Wronyon Actions

6

In addition, Plaintiff asserts that Hannah “locked
[Plaintiff] up with a [peripherally inserted central catheter,
known as a PICC, inserted in Plaintiff’s] heart . . . when [he]
was out to be move[d] . . . from the infirmary after surgery.”
Davis v. Doyle, Civ. Action No. 13-3792, ECF No. 1, at 4.
7

Plaintiff developed an opinion that the room where he was
placed en route to the infirmary had to be infested by “germs,”
and the “germs” infested Plaintiff’s heart through the PICC line.
Page 13

Plaintiff’s complaint in Davis v. Green (“Green”), Civ.
Action No. 13-3795, reiterates Plaintiff’s claims against his
alleged attackers, i.e., inmates Green, Reos and Jason.
ECF No. 1.

See id.,

The complaint in Armstrong reiterates Plaintiff’s

claim that Armstrong used expletives while threatening
Plaintiff’s with future harm.8

See Davis v. Armstrong, Civ.

Action No. 13-3796, ECF No. 1.

Finally, Plaintiff’s pleading in

Wronyon alleges that Wronyon and Ortiz were attorneys who
violated Plaintiff’s rights by not pursuing legal charges against
the correctional facility where Plaintiff was confined (or
against the officers employed at that facility, or the inmates
who attacked Plaintiff).

See Wronyon, Civ. Action No. 13-3797,

ECF No. 1, at 4.
C.

July 2013 Submissions
1.

Early July 2013 Submissions

Three weeks after commencing the above-detailed seven
actions, Plaintiff submitted five more civil complaints.

See

Davis v. Brown, Civ. Action No. 13-4233; Davis v. Maccori, Civ.
Action No. 13-4234; Davis v. Reos, Civ. Action No. 13-4235; Davis
v. Ortiz, Civ. Action No. 13-4236; and Davis v. Vohland, Civ.

8

Plaintiff’s amended pleading filed in that matter totaled
65 pages but it did not elaborate on Plaintiff’s facts; rather,
it merely provided the Court with names of Defendants. See Davis
v. Armstrong, Civ. Action No. 13-3792, ECF No. 3.
Page 14

Action No. 13-4237.

The pleadings in these matters reiterated

the already familiar claims.

Specifically:

In Davis v. Brown, Civ. Action No. 13-4233, Plaintiff
reiterated his allegations that Brown threatened him with future
In Davis v. Maccori, Civ. Action No. 13-4234, Plaintiff

harm.

reasserted that Maccori pushed him and “shoved” Plaintiff’s face
into a door, causing Plaintiff’s post-surgical injuries to open.9
In Davis v. Reos, Civ. Action No. 13-4235, Plaintiff re-alleged
that Reos was one of the inmates who attacked him on November 5,
In Davis v. Ortiz, Civ. Action No. 13-4236, Plaintiff

2012.

repeated his allegations that Ortiz violated his rights by not
commencing a penal proceeding against the officers and against
his attackers.

Finally, in Davis v. Vohland, Civ. Action No. 13-

4236, Plaintiff reiterated that Vohland threatened “to f--k
Plaintiff” and elaborated on his deducement that Vohland must
have orchestrated the November 5, 2012, attack by stating that, a
few weeks prior to the attack, Vohland transferred Plaintiff from
a certain unit in the prison to another unit within the facility,
i.e., seemingly the unit where Plaintiff’s then-future attackers
had been housed and where the attack eventually occurred.10

9

Plaintiff’s amended pleading, totaling 65 pages, merely
provided the Court with names of defendants, without adding any
factual allegations. See Davis v. Maccori, Civ. Action No. 134234, ECF No. 2.
10

While all Plaintiff’s later-filed complaints kept largely
reiterating and detailing Plaintiff’s claims against Defendants
Page 15

2.

Late July 2013 Submissions

Plaintiff’s next two pleadings, submitted three weeks after
he commenced the above-detailed five actions, challenged the
medical care Plaintiff received during April and July of 2013.
See Davis v. Corizon Healthcare (“Horizon-I”),11 Civ. Action No.
13-4606; and Davis v. Corizon Healthcare (“Horizon-II”), Civ.
Action No. 13-4610.
The Horizon-I complaint asserted that, in April 2013,
Plaintiff noticed scar-like marks on the right side of his chest
and complained of the same to a certain nurse named Mickey, who
reported Plaintiff’s condition to Doyle.
1, at 3.

See Horizon-I, ECF No.

Doyle: (a) directed laboratory testing of Plaintiff’s

scar-like tissue; and, when it tested positive to Methicillinresistant Staphylococcus aureus (“MRSA”), a highly contagious
type of staph bacteria, (b) directed Plaintiff’s quarantine and
10-to-14-day antibiotic treatment.

See id. at 3-4.

Plaintiff,

however, asserting that MRSA caused him to “suffer[] severe an[d]
extreme . . . emotional distress,” id. at 4, and, therefore,
named Balicki and Doyle as defendants in Horizon-I, alleging that
they violated his rights during his MRSA treatment because the

named in his first two submissions, Plaintiff made only a single
reference to Fauconniere, who was named as a defendant in
Balicki.
11

The Court presumes that Plaintiff’s reference to “Corizon
Health Care” was meant to be a reference to “Horizon Healthcare.”
Page 16

disease left twenty scars on his body.

Id. at 4-6.

In addition,

reflecting on the medical treatment of his post-November 5, 2012,
injuries, Plaintiff asserted that Doyle violated his rights
because the oral surgery took place not immediately but a few
(i.e., five or ten) days after the attack. See id. at 4.12
The pleading filed in Horizon-II named, as Defendants,
Horizon Healthcare, Balicki, Doyle, Wiltsey and one other nurse,
Simmons (“Simmons”).

See Horizon-II, ECF No. 1, at 1-2.

This

complaint asserted that, on July 20, 2013, having insomnia and
feeling depressed, Plaintiff self-qualified his sleeplessness and
emotions as a “mental health problem” and asked Simmons for
medications to treat that problem.

See id. at 2-4 (clarifying

that Plaintiff was unable to sleep because the sound of a door
opening and closing prevented him from falling asleep).

Having

his request declined by Simmons, Plaintiff asserted that Simmons’
response was “very abusive” to Plaintiff; he also added that

12

Plaintiff’s amended pleading filed in that matter added
another defendant, Dr. Dghetto (“Dghetto”). See Horizon-I, ECF
No. 2, at 4. The amended pleading reflected on the events other
than Plaintiff’s April 2013 MSRA infection or his November 2012,
post-attack treatment. See, generally, ECF No. 2. Rather, the
amended complaint focused on the events of July 2013, when
Plaintiff developed concerns about the outcome of his post-attack
surgery and requested to be sent for an MRI but had that request
denied by Dghetto. That denial was conveyed to Plaintiff by a
certain Dr. Wynn (“Wynn”). See id. at 4. The amended pleading,
correspondingly, named Dghetto and Wynn, as well as Doyle and
Balicki, as defendants clarifying that Doyle and Balicki were
named as defendants because of Balicki’s position as warden and
Doyle’s position as the head nurse at the facility.
Page 17

Wiltsey must have violated his rights when she requested prison
officers to remove Plaintiff from the premises of the prison’s
medical department.13

Id. at 3.

The complaint closed with Plaintiff’s opinion that Simmons
and Wiltsey’s actions had to be qualified as “physical and mental
threats” against Plaintiff.
D.

Id. at 5.

September 2013 Submissions

Finally, on September 9, 2013, the Clerk received one more
civil complaint from Plaintiff, i.e., his sixteenth submission.
See Davis v. Corizon Healthcare, Civ. Action No. 13-5365, ECF No.
1 (RMB) (“Horizon-III”).

That complaint named, as Defendants,

Horizon Healthcare, Dghetto and Doyle, see id. at 3, and
asserted, again, that Dghetto and Doyle declined Plaintiff’s
request for MRI and that Doyle also denied Plaintiff “medical
treatment for [his] special medical need,” i.e., for Plaintiff’s
self-diagnosed mental problem.

Id. at 4.

In addition, Plaintiff

asserted that: (a) Dghetto violated his rights when Dghetto
disagreed with Plaintiff’s opinion that he needed additional

13

The allegations in the Horizon-II complaint indicate that
Plaintiff was offered certain medications but did not wish to
swallow the pills whole and insisted on having them crushed into
powder prior to consumption. See Horizon-II, ECF No. 1, at 3-4.
Plaintiff’s insistence on having the pills crushed and his
refusal to consume the pills whole, together with his refusal to
leave the premises of the medical department, caused Wiltsey to
request officers’ assistance in her efforts to remove Plaintiff
from the medical department premises. See id.
Page 18

surgery; and (b) unspecified doctors and nurses violated his
rights because they acted with “major abuse and cruelty.”
E.

Id.14.

Grouping of Allegations

The above-detailed allegations could be put into twenty
groups:
1.

Allegations Against Horizon Healthcare

Horizon was named as a defendant in the Balicki, Horizon-I,
Horizon-II and Horizon-III actions.

Plaintiff’s allegations did

not provide the Court with any facts implicating Horizon itself;
rather, all Plaintiff’s references to Horizon stem from it being
the employer of the medical staff at Plaintiff’s prison facility.

14

An attachment to that complaint added Balicki and Wynn as
Defendants and stated that Balicki was named because of her
warden position, while Wynn was named simply because he was
employed at the facility. The attachment also alleged that Doyle
scheduled Plaintiff for two treatments, one by an oral surgeon
and another by an oral dentist, and that Doyle informed Plaintiff
of this fact on July 15, 2013. See Horizon-III, ECF No. 1, at 8.
Although the attachment is silent about the dates of these
scheduled treatments, Plaintiff asserted that Dghetto must have
refused to send Plaintiff for an oral or dental treatment simply
because these treatments had not taken place yet, and Plaintiff
was still having the original surgical wires in his mouth. See
id. In conjunction with that assertion, Plaintiff alleged that
Dghetto, Wynn and Doyle must have violated his rights because
they did not send him for an unspecified “special need medical
treatment.” See id. at 8-9. Furthermore, Plaintiff asserted that
his rights were violated because his administrative grievances
were left without response, see id. at 9; he also stated that his
First Amendment rights were violated by a retaliation through
“threat[s] . . . with physical violence.” See id. Plaintiff did
not specify who threatened him, when and in which terms; however,
his allegations made is sufficiently clear that, as of now, no
harm had happen to Plaintiff and no retaliatory action had taken
place.
Page 19

2.

Allegations Against Balicki

Balicki, the warden, was named as a defendant in Cumberland
County, Balicki, Horizon-I, Horizon-II and Horizon-III.

The bulk

of Plaintiff’s allegations against her stem from her position as
the warden; his reference to Balicki’s own “action” is limited to
the claims that she did not “press charges” (presumably, against
the prison officers and inmates) when Plaintiff requested so, and
that she did not respond to his administrative grievances.
3.

Allegations Against Maccori

Plaintiff’s challenges against Maccori are based on the
allegation that, on January 1, 2013, Maccori pushed Plaintiff
with such a force that Plaintiff’s post-surgical stitches opened
and, thus, necessitated another surgery.

These allegations are

raised in the Cumberland County, Balicki and Maccori actions.
4.

Allegations Against Vohland

Plaintiff’s challenges against Vohland are two-fold.

First,

Plaintiff asserted that, in October 2012, Vohland threatened him
by stating that he would “f--k [Plaintiff] up and go [on] top” of
him.

Second, Plaintiff alleges that, a few weeks prior to the

November 5, 2012, Vohland: (a) directed Plaintiff’s transfer from
one unit to another unit of the prison facility; and (b) had a
hand contact with one of Plaintiff’s then-future attackers and,
shortly thereafter, Plaintiff observed his then-future attackers
smoking cigars and marijuana.

Plaintiff speculated that Vohland
Page 20

must have arranged for the November 5, 2012, attack, by “hiring”
Green, Reos, and Jason to harm Plaintiff, and that Vohland must
have “paid” these inmates for their promise to attack Plaintiff
with controlled substances and cigars.

Those claims are

scattered throughout the pleadings submitted in Balicki and
Vohland.
5.

Allegations Against Brown

The allegations against Brown are stated in the Cumberland
County, Balicki and Brown actions, where Plaintiff asserted that
Brown threatened him with future harm when Brown stated that he
would “see” that Plaintiff gets assaulted by inmates upon
Plaintiff’s return to the general prison population.

Plaintiff’s

submissions made thereafter make it sufficiently clear that no
such attack has taken place.
6.

Allegations Against Green

Plaintiff’s allegations against Green, i.e., one of
Plaintiff’s alleged attackers, focus on the November 5, 2012,
attack.

These allegations are raised in the Cumberland County,

Balicki and Green actions.
7.

Allegations Against Reos

Plaintiff’s allegations against Reos, another alleged
attacker, focus on the November 5, 2012, attack and are raised in
the Cumberland County, Balicki and Reos matters.
8.

Allegations Against Jason
Page 21

Plaintiff’s allegations against Jason, the third alleged
attacker, are raised in Cumberland County and Balicki.
9.

Allegations Against Wronyon

Plaintiff’s allegations against Wronyon stem from his belief
that Wronyon was an attorney and, in Plaintiff’s opinion, he was
entitled to demand Wronyon’s commencement of criminal proceedings
against Plaintiff’s correctional facility, its staff and
Plaintiff’s attackers.

These allegations are raised in the

Balicki and Wronyon matters.
10.

Allegations Against Ortiz

Plaintiff’s claims against Ortiz, identical to those raised
against Wronyon, are raised in the Balicki and Ortiz actions.
11.

Allegations Against Fauconniere

While Plaintiff named Fauconniere as a defendant in the
Balicki action, the Court’s examination of Plaintiff’s pleadings
failed to locate any factual allegations implicating Fauconniere.
12.

Allegations Against Doyle

Plaintiff’s allegations against Doyle appear seven-fold.
First, Plaintiff asserted that Doyle was liable to him for the
actions or statements of the doctors and nurses employed at the
facility because Doyle was the head nurse.

Second, Plaintiff

asserted that Doyle violated his rights when she recommended
Plaintiff’s surgeon not to extend an antibiotic treatment past a
certain date.

Third, Plaintiff opined that Doyle violated his
Page 22

rights when she authorized Plaintiff’s placement into a certain
locked room during Plaintiff’s transition from surgery to the
infirmary.

Fourth, Plaintiff alleged that Doyle violated his

rights during the treatment of Plaintiff’s MSRA infection because
Plaintiff had that infection, and the infection left scars on his
body.

Fifth, Plaintiff asserted that Doyle violated his rights

because he suffered “major treatment delays” for his November 5,
2012, injuries, i.e., because he had to wait either five or ten
days for his post-attack oral surgery.

Sixth, Plaintiff

maintained that Doyle unduly denied treatment to Plaintiff’s
self-diagnosed mental problem.

Lastly, Plaintiff asserted that

Doyle violated his rights because, on July 15, 2013, she informed
Plaintiff that she scheduled Plaintiff’s treatments by an oral
surgeon and oral dentist, but no such treatments had taken place
by September 3, 2013, and Plaintiff still had the original postsurgical wiring in his mouth.

This panoply of allegations is

scattered throughout the pleadings submitted in the Balicki,
Doyle, Horizon-I and Horizon-III actions.
13.

Allegations Against Wiltsey

Plaintiff’s challenges against Wiltsey are three-fold.

In

the Balicki action, Plaintiff asserted, without a clarification,
that Wiltsey was “abusive” during the treatment of his November
5, 2012, injuries.

In the Wiltsey action, he clarified that

Wiltsey violated his rights when she placed him in a certain room

Page 23

during Plaintiff’s transition from surgery to the infirmary.
Finally, in the Horizon-II action, Plaintiff alleged that Wiltsey
violated his rights when she: (a) refused to crush certain pills
into powder upon Plaintiff’s statement that he preferred to
consume crushed, rather than whole, pills; and (b) called for
officers’ assistance when Plaintiff kept insisting on having his
pills crushed and refused to leave the medical department.
14.

Allegations Against Hannah

Plaintiff’s allegations against Hannah are two-fold in the
sense that, in the Balicki action, Plaintiff also alleged,
without elaborating, that Hannah was “abusive” and “harassed” him
during the treatment of his November 5, 2012, injuries, while in
his Hannah action, Plaintiff stated that Hannah acted “cruel” and
was “disrespectful” to him by declining to provide Plaintiff with
a certain unspecified medical treatment.
15.

Allegations Against Armstrong

Plaintiff’s allegations raised in Armstrong elaborate on the
ones raised in the Balicki action.

These two groups of

challenges are based on Armstrong’s alleged statement to
Plaintiff that he would “break [Plaintiff’s] jaw and f--k
[Plaintiff] up.”
16.

Allegations Against Dghetto

Plaintiff’s claims against Dghetto are raised in the amended
pleading submitted in the Horizon-I action and in the complaint
Page 24

submitted in Horizon-III.

Those challenges assert that Dghetto

violated Plaintiff’s rights when he ignored Plaintiff’s
conclusion that his neck was insufficiently healing and declined
Plaintiff’s request to order MRI testing.

In addition, Plaintiff

speculated that Dghetto must have obstructed his treatments by an
oral surgeon and oral dentist since Doyle informed Plaintiff that
such treatments were scheduled but the treatments had not yet
taken place.
17.

Allegations Against Wynn

Plaintiff’s claims against Wynn are also raised in the
amended pleading submitted in Horizon-I and the complaint
submitted in Horizon-III; these claims assert that Wynn violated
Plaintiff’s rights by: (a) conveying to Plaintiff’s Dghetto’s
conclusion that no MRI testing was needed; and (b) simply being
employed at Plaintiff’s prison facility.
18.

Allegations Against Simmons

Plaintiff’s challenges against Simmons, raised in the
Horizon-II action, ensue from: (a) Plaintiff’s deducement that
his insomnia and depression should qualify as a “mental health
problem” and should be treated with medications; (b) Plaintiff’s
request to Simmons for such medications; and (c) her refusal to
dispense a medication for treatment of Plaintiff’s self-diagnosed
condition.
19.

Allegations Against Unspecified Medical Staff
Page 25

In addition to the foregoing claims against specified
Defendants, Plaintiff’s Cumberland County and Horizon-III
complaints contain an assertion that unspecified “medical nursing
staff” showed “abuse and cruelty” to Plaintiff.
20.

Residual Allegations and References

Finally, Plaintiff’s complaint submitted in Cumberland
County contains references to unspecified prison officers, as
well as a reference to the Cumberland County Department of
Corrections (“DOC”) and Cumberland County Jail (“Jail”).

While

the reference to prison officers appears substantively identical
to Plaintiff’s claim raised in Balicki (that unspecified prison
officers violated his rights by being away from their duty posts
at the time when he was attacked), the references to the DOC and
Jail were, seemingly, made without any connection to any facts,
i.e., merely as a designation of the place of natural Defendants’
employ (or as the place of Plaintiff’s attackers’ confinement).
III. LEGAL ANALYSIS: RULES 18 AND 20
A.

Requirements of Rules 18 and 20

Rule 20 of the Federal Rules of Civil Procedure governs the
joinder of defendants, while Rule 18 governs the joinder of
claims.

See Fed. R. Civ. P. 18(a), 20(a)(2).

Specifically, Rule

20 provides that “[p]ersons . . . may be joined in one action as
defendants if . . . any right to relief is . . . arising out of
the same transaction, occurrence, or series of transactions.”
Page 26

Fed. R. Civ. P. 20(a)(2)(A).

Rule 18, in turn, provides that

“[a] party asserting a claim . . . may join . . . as many claims
as it has against an opposing party,” Fed. R. Civ. P. 18(a), and
Wright and Miller’s treatise on federal civil procedure explains
that, where multiple defendants are named, the analysis under
Rule 20 precedes that under Rule 18.

See Charles Allen Wright,

Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure
Civil 3d §1655; see also United States v. Mississippi, 380 U.S.
128, 143 (1965); Ross v. Meagan, 638 F. 2d 646, 650 n.5 (3d Cir.
1981), overruled on other grounds by, Neitzke v. Williams, 490
U.S. 319, 328 (1989) (joinder of defendants is not permitted by
Rule 20 unless both commonality and same transaction requirements
are satisfied).

Consequently, a civil plaintiff may not name

more than one defendant in his original or even amended complaint
unless one claim against each additional defendant is
transactionally related to the claim against the first defendant
and involves a common question of law or fact.
P. 20(a)(2).

See Fed. R. Civ.

Importantly here, claims by incarcerated

individuals are not exempt from the reach of Rules 18 and 20.
See George v. Smith, 507 F. 3d 605, 607 (7th Cir. 2007) (“A
scattershot complaint that would be rejected if filed by a free
person . . . should be rejected if filed by a prisoner”).
B.

Scattershot and Duplicative Complaints

Page 27

Two of Plaintiff’s actions are prohibited under Rules 18 and
20, see Cumberland County, ECF No. 1 and Balicki, ECF No. 1,
because the pleadings raised scattershot challenges against
different Defendants involved in unrelated transactions.

For

example, Plaintiff raises claims based on the November 5, 2012,
attack on the medical treatments spanning ten months, and threats
with different future harms, a declination to “press charges,” as
well as retaliatory challenges. See id.
Generally, both complaints are subject to dismissal with
leave to replead in accordance with Rules 18 and 20.

However,

Plaintiff did already so replead when he submitted his other
complaints focusing on the actions of individual Defendants or
asserting single sets of transactions.

Moreover, comparing

Plaintiff’s claims raised in Cumberland County and Balicki, the
Court finds these matters duplicative, because the challenges
raised in Balicki offer merely an elaboration on the assertions
raised in Cumberland County.

The Court, thus, will direct the

Clerk to terminate Cumberland County as duplicative of Balicki.15

15

The sole aspect in which the Cumberland County pleading is
broader than that submitted in Balicki is Plaintiff’s reference
to the DOC and Jail, terms Plaintiff used interchangeably.
However, since these references are stripped of any facts, the
Court presumes that these entities, technically designated as
“Defendants,” were not intended to be named as the parties liable
in connection with Plaintiff’s claims. Thus, these references
are not an obstacle to finding Cumberland County duplicative of
Balicki. Importantly, Plaintiff cannot be prejudiced by the
finding of duplicativeness, since neither the DOC no Jail is a
“person” amenable to § 1983 suit. See Will v. Mich. Dep’t of
Page 28

Furthermore, a comparison of the Balicki challenges to the
allegations raised in other actions shows that Plaintiff’s
Balicki claims – except for: (a) unelaborated reference to
Fauconniere; (b) the allegation that certain unspecified prison
officers violated Plaintiff’s rights by being absent from their
duty posts during the attack; and (c) claims against Jason, the
third attacking inmate – were already detailed in Plaintiff’s
other complaints.

Thus, the Court will: (1) construe Plaintiff’s

unelaborated reference to Fauconniere as an allegation related to
his claims that unspecified officers were liable to him for their
absence from their duty posts during the attack; and (2) read
that allegation as transactionally related, under Rule 20, to
Plaintiff’s claims against Green, Reos and Jason.

So read, the

Balicki complaint is duplicative of the Green and Reos pleadings.
In addition, Plaintiff’s allegations in Horizon-III appear
substantively indistinguishable from those raised in Horizon-I.
Thus, the Court finds Horizon-I duplicative of Horizon-III.16

State Police, 491 U.S. 58, 71 (1989;) Pettaway v. SCI Albion, 487
F. App’x 766, 768 (3d Cir. 2012); Russell v. City Of Phila., 428
F. App’x 174 (3d Cir. 2011); Powell v. Cook County Jail, 814 F.
Supp. 757, 758 (N.D. Ill. 1993); McCoy v. Chesapeake Correctional
Center, 788 F. Supp. 890, 893-894 (E.D. Va. 1992).
16

Correspondingly, Plaintiff’s submission of pleadings in
four actions, i.e., Cumberland County, Green, Reos and HorizonIII will not result in assessment of filing fees. All other
matters would be subject to a $350 assessment, each.
Page 29

Finally, the Court will read Plaintiff’s scattered claims
against Horizon and remaining natural Defendants as allegations
assertable, under Rule 18 (or under Rules 18 and 20, jointly), in
Plaintiff’s actions where such entity or person was named as the
first Defendant (or as allegations assertable in those matters
where Plaintiff submitted a pleading, and that pleading was the
sole complaint where such Defendant was named).
Therefore, to screen Plaintiff’s challenges, the Court will
first examine Plaintiff’s assertions by the type of claim, and
second, apply this analysis to each individual Defendant.
IV.

LEGAL ANALYSIS: ASSERTED CLAIMS
A.

Types of Claims

Assessed in toto, Plaintiff’s allegations could roughly be
subdivided into eight groups, namely: (1) claims based on one’s
supervisory capacity or employer status; (2) claims asserting
denial of medical care; (3) challenges asserting “disrespect,”
resort to expletive language and other verbal “harassment”; (4)
challenges alleging failure to commence a criminal proceeding or
to respond to an administrative grievance; (5) challenges against
the inmates who attacked Plaintiff; (6) failure-to-protect claims
(some rooted in the officers’ alleged absence from their duty
stations, while others rooted in the alleged orchestration of the
attack); (7) excessive force claims; and (8) residual claims,
such as allegations of future harm, that Plaintiff has been
Page 30

retaliated against and that his grievances were not left without
response.

The Court will examine each in turn.17
1.

Respondeat Superior Claims

Here, Plaintiff’s allegations against Horizon, Balicki and
Doyle are based, either largely or in their entirety, on the
facts that: (a) Horizon employs the medical personnel servicing
Plaintiff’s correctional facility; (b) Balicki is the warden of
that facility; and (c) Doyle is the head nurse at the facility.
However, Plaintiff's § 1983 claims cannot be based on one’s
position or on the fact of being the employing entity, even if
the position is supervisory or the employer has control over its
employees.

This is so because employers and supervisors cannot

be held liable for the actions of their subordinates unless the
litigant asserts facts showing these employers’ or supervisors’
personal involvement in the alleged wrongs.

See Iqbal, 556 U.S.

at 676 (“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior").

Therefore, Plaintiff’s purely respondeat

superior claims will be dismissed.18
2.

Claims Asserting Denial of Medical Care

17

See also the attachment (provided at the conclusion of
this Opinion) for a brief summary of Plaintiff’s claims.
18

Analogously, Plaintiff’s claims against Wynn based on the
fact that Wynn was employed at the facility where Plaintiff was
housed fail to state a cognizable claim since these allegations
do not show Wynn’s involvement in any wrong.
Page 31

Plaintiff’s claims against Wynn, Doyle,

Dghetto, Wiltsey,

Hannah and Simmons suggest Eighth Amendment medical care claims.
To state such a claim, Plaintiff must assert facts showing: “(I)
a serious medical need, and (ii) acts or omissions by prison
officials that indicate deliberate indifference to that need.”
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir.
2003); see also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999).

A serious medical need is one that has been diagnosed by

a physician as requiring treatment, or one that is so obvious
that even a layperson would recognize the need for a doctor’s
attention.

See Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987). In addition, “if ‘unnecessary
and wanton infliction of pain’ results as a consequence of denial
or delay in the provision of adequate medical care, the medical
need is of the serious nature contemplated by the Eighth
Amendment.”

Id. (quoting Estelle v. Gamble, 429 U.S. 97, 103

(1976)); see also Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.
2004) (relying on White v. Napoleon, 897 F.2d 103, 109 (3d Cir.
1990)); Durmer v. O’Carroll, 991 F.2d 64, 68 (3d Cir. 1993).
That being said, an inmate’s disagreement with medical
professionals “as to the proper medical treatment” does not
support an Eighth Amendment violation.
346.

See Lanzaro, 834 F.2d at

Likewise, a claim that a doctor or medical practitioner was

negligent does not rise to the level of an Eighth Amendment

Page 32

violation.

See Estelle, 429 U.S. at 106.

Accordingly, a

“medical decision not to order an X-ray, or like measures, does
not represent cruel and unusual punishment.
medical malpractice.”

At most it is

Estelle, 429 U.S. at 107.

Analogously, a

medical practitioner’s disagreement with another medical
practitioner’s professional judgment or with the inmate’s selfdiagnosis or the inmate’s opinion as to the needed treatment is
not actionable.

See Napoleon, 897 F.2d at 110; see also Gatewood

v. Hendrick, 368 F.2d 179 (3d Cir. 1966), cert. denied, 386 U.S.
925 (1967) (prisoner who did not claim that he was denied any
medical care but rather that he received only inadequate medical
care, and gave no indication that he sustained serious physical
injury as result of alleged inadequate treatment, failed to state
claim for relief); accord Alsina-Ortiz v. Laboy, 400 F.3d 77 (1st
Cir. 2005) (a doctor’s failure to respond to certain request for
services by the inmate, in context of the doctor’s continued and
regular services, did not deprive the inmate of any meaningful
treatment); Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996) (a
prison medical staff’s refusal to “dispense bromides for the
sniffles or minor aches and pains or a tiny scratch or a mild
headache or minor fatigue . . . does not violate the
Constitution”); Williams v. Williams, 2006 U.S. Dist. LEXIS 15008
(S.D. Ohio Mar. 31, 2006) (mild pains do not amount to a “severe
medical need”); Ford v. Lane, 714 F. Supp. 310 (N.D. Ill. 1989)

Page 33

(“The question whether an X-ray – or any additional diagnostic
techniques or forms of treatment – is indicated is a classic
example of a matter for medical judgment.

A medical decision not

to order an X-ray, or like measures, does not represent cruel and
unusual punishment”); cf. Jones v. Lockhart, 484 F.2d 1192 (8th
Cir. 1973) (allegations of mere differences of opinion over
matters of medical judgment fail to state a claim); Hyde v.
McGinnis, 429 F.2d 864 (2d Cir. 1970) (a difference of opinion
between physician and patient cannot sustain a claim under §
1983); Hutchinson v. Civitella, 2003 U.S. Dist. LEXIS 15417
(S.D.N.Y. Sept. 4, 2003) (nausea,

dizziness, light-headedness

and emotional distress cannot support a constitutional claim);
Universal Calvary Church v. City of New York, 2000 U.S. Dist.
LEXIS 15153 (S.D.N.Y. Oct. 13, 2000) (insomnia does not qualify
as a “serious injury”); Goff v. Bechtold, 632 F. Supp. 697 (S.D.
W. Va. 1986) (denial of preferred course of treatment does not
infringe constitutional rights).

Hence, allegations of brief

delays in treatment, denial of treatment to not-serious medical
conditions, denial of preferred treatment or tests, negligent or
unsuccessful medical treatment, medical malpractice, etc., cannot
support a claim of constitutional magnitude and, thus, cannot
give rise to a viable § 1983 cause of action.

Correspondingly,

to the extent Plaintiff’s claims raised challenges plagued by
such deficiencies, these challenges will be dismissed.

Page 34

3.

Verbal Harassment and Treats of Future Harm

Plaintiff’s challenges against Doyle, Wiltsey, Hannah and
Simmons allege that these Defendants “harassed” Plaintiff
verbally or were not as respectful to Plaintiff as he would have
preferred, while Plaintiff’s claims against Vohland, Brown and
Armstrong assert that these officers utilized expletives when
they verbally threatened Plaintiff with future harm.
Acts of verbal harassment, however, while reprehensible,
cannot qualify as violations of the Eighth Amendment.

See

Stepney v. Gilliard, 2005 U.S. Dist. LEXIS 31889, at *19 (D.N.J.
Dec. 8, 2005) (“[V]erbal harassment and taunting is neither
‘sufficiently serious’ nor ‘an unnecessary and wanton infliction
of pain’ under the common meaning of those terms.

‘Verbal

harassment or profanity alone . . . no matter how inappropriate,
unprofessional, or reprehensible it might seem,’ does not
constitute the violation of any federally protected right and
therefore is not actionable under [Section] 1983") (quoting
Shabazz v. Pico, 994 F. Supp. 460, 474 (S.D.N. Y. 1998)); see
also Robinson v. Taylor, 2005 U.S. Dist. LEXIS 20951, at *8-9 (D.
Del. Sept. 26, 2005) (“[M]ere verbal harassment does not give
rise to a constitutional violation[; even if it is] inexcusable
and offensive, [it] do[es] not establish liability under section
1983”) (citations omitted); Abuhouran v. Acker, 2005 U.S. Dist
LEXIS 12864, at *15 (E.D. Pa. June 29, 2005) (“It is well

Page 35

established . . . that . . . verbal harassment . . . do[es] not
state a constitutional claim”) (citing Dewalt v. Carter, 224 F.3d
607, 612 (7th Cir. 1999); Williams v. Bramer, 180 F.3d 699, 706
(5th Cir. 1999); Maclean v. Secor, 876 F. Supp. 695, 698 (E.D.
Pa. 1995)); accord Prisoners' Legal Ass’n v. Roberson, 822 F.
Supp. 185, 187-89 (D.N.J. 1993).

Simply put, “[t]he Constitution

protects rights and freedoms, but it does not enshrine a code of
personal civility.”

Hogan v. Twp. of Haddon, 2006 U.S. Dist.

LEXIS 87200, at *34 (D.N.J. 2006), aff’d, 278 F. App’x 98, 103
(3d Cir. 2008).
Claims based on the statements qualifying as threats of
future harm are, by definition, speculative and, thus, not
cognizable in a § 1983 action.

“Speculation as to what might or

might not happen in the future” cannot serve as a basis for a
valid claim.

Dawson v. Frias, 2010 U.S. Dist. LEXIS 30513 at *8

(D.N.J. Mar. 30, 2010).

This is so even if the threats are

expressed in expletive or unethical terms.

See Collins v. Cundy,

603 F.2d 825 (10th Cir. 1979) (dismissing a prisoner’s claim that
a prison officer laughed at the prisoner and threatened to hang
him).

Therefore, to the extent Plaintiff’s challenges are based

on rude language, disrespectful statements, resort to expletives
or threats of future harm, these claims will be dismissed.
4.

Request to “Press Charges”

Page 36

Plaintiff’s challenges against Wronyon, Ortiz and Balicki
assert that they violated Plaintiff’s rights by not instituting
criminal proceedings against other officers or against the
inmates who attacked Plaintiff.

However, Plaintiff is without a

right to demand or force a criminal prosecution because the
“authority to initiate a criminal complaint rests exclusively
with state and federal prosecutors.”

Marinari v. Trump Plaza

Hotel & Casino, 2012 U.S. Dist. LEXIS 80011, at **18 (D.N.J. June
8, 2012) (quoting Collyer v. Darling, 98 F.3d 211, 222 (6th Cir.
1996); see also Savage v. Arnold, 403 F. Supp. 172 (E.D. Pa.
1975) (stating a private party cannot, on his own, commence a
criminal proceeding 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); and 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)); accord United States v. Jarvis, 560 F.2d 494, 497 (2d
Cir. 1977); Pokalsky v. SEPTA, 2002 U.S. Dist. LEXIS 16175 (E.D.
Pa. Aug. 28, 2002).

This Court is without authority to do so on

Plaintiff's behalf.
It is well established that private citizens can
neither bring a direct criminal action against another
person nor can they petition the federal courts to
compel the criminal prosecution of another person. See
Maine v. Taylor, 477 U.S. 131, 137 (1986); Heckler v.
Chaney, 470 U.S. 821, 832 (1985); Leeke v. Timmerman,
454 U.S. 83, 86-87 (1981); United States v. General
Dynamics Corp., 828 F.2d 1356, 1366 (9th Cir. 1987).
Accordingly, the district court [is obligated to]

Page 37

refus[e] fil[ing] criminal charges or . . . compel[ing]
prosecution based on those charges.
Ellen v. Stamm, 1991 U.S. App. LEXIS 30558 (9th Cir. 1991), cert.
denied sub nom, Montalvo v. Stamm, 506 U.S. 1047 (1993).
Hence, Plaintiff’s claims asserting that his rights were
violated by a failure to commence a criminal proceeding will be
dismissed.
5.

Claims Against Other Inmates

Plaintiff’s challenges against inmates Green, Reos and Jason
ensue from their alleged November 5, 2012, attack on Plaintiff.
However, to recover against a defendant under 42 U.S.C. § 1983,
Plaintiff must establish that the defendant acted under “color of
[state] law” to deprive him of a right secured by the federal
Constitution or laws, see Groman v. Twp. of Manalapan, 47 F.3d
628, 633 (3d Cir. 1995) because Section 1983 does not create
substantive rights.

Rather, Section 1983 provides an avenue of

recovery for the deprivation of established federal
constitutional and statutory rights.

See Kneipp v. Tedder, 95

F.3d 1199, 1204 (3d Cir. 1996); Groman, 47 F.3d at 633; see also
West v. Atkins, 487 U.S. 42, 48 (1988); Gruenke v. Seip, 225 F.3d
290, 298 (3d Cir. 2000) (citing Baker v. McCollan, 443 U.S. 137,
144 n.3 (1979)); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56
(3d Cir. 1994).

The “color of state law analysis can be

difficult, but is grounded in a basic and clear requirement,
‘that the defendant in a § 1983 action have exercised power
Page 38

possessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law.’”
Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995)
(quoting West v. Atkins, 487 U.S. 42, 49 (1988).

“A private

action is not converted into one under color of state law merely
by some tenuous connection to [the state or a state facility or
state employee].

The issue is not whether the state was involved

in some way in the relevant events, but whether the action taken
can be fairly attributed to the state itself.”

Groman, 47 F.3d

at 638-39.19
An inmate’s attack on another inmate cannot be attributed to
the state in order to qualify the attacker as a state actor.

See

Ketchum v. County of Alameda, 811 F.2d 1243 (9th Cir. 1987) (rape
of woman by inmate did not constitute state action);

Miller v.

Twomey, 479 F.2d 701 (7th Cir. 1973) (since the assaulting inmate
was not granted authority enabling him to harm plaintiff, the
assault did not qualify as a state action; it was a common law
tort, not a violation of § 1983); Curry v. Lundy, 314 F. Supp.
344 (E.D. Pa. 1970) (claims that two other inmates conspired to
destroy the plaintiff’s property must be dismissed for failure to
meet the color of law requirement); Simmons v. Maslysnky, 45

19

For instance, where bondsmen act upon a delegation of the
authority of police, the activities of these bondsmen become so
closely intertwined with those of police officers that an implied
state action could be read in the bondsmen’s activities. See,
e.g., Jackson v. Pantazes, 810 F.2d 426, 430 (4th Cir. 1987).
Page 39

F.R.D. 127 (D. Pa. 1968) (claims that plaintiff was stabbed by
another prisoner after prison officials housed the attacker where
he could injure plaintiff, was dismissed for failure to meet the
color of law requirement).20
6.

Failure-to-Protect Claims

Here, Plaintiff’s failure-to-protect challenges are twofold.

On one hand, Plaintiff asserts that unidentified officers

violated Plaintiff’s rights by being absent from their duty posts
during the November 5, 2012, attack.

On the other hand, he

claimed that Vohland violated his rights by arranging the attack.
To state a claim for failure to protect from inmate
violence, Plaintiff must allege facts showing that: (a) he was
incarcerated under conditions posing a substantial risk of harm;
(b) the official was deliberately indifferent to that substantial
risk of harm; and (c) the official’s deliberate indifference
caused the harm.

See Farmer v. Brennan, 511 U.S. 825, 833

(1994); Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012).
Deliberate indifference in this context is a subjective
standard: “the prison official-defendant must actually
have known or been aware of the excessive risk to
inmate safety.” Beers-Capitol [v. Whetzel], 256 F.3d
20

To the extent Plaintiff’s assertions against Green, Reos
and Jason could be read as a claim that they acted upon Vohland’s
request, such reading cannot cure the deficiencies of Plaintiff’s
position since Plaintiff’s allegations as to the connection
between Vohland and the inmates are speculative at best and,
paramount here, Vohland’s actions did not supply the attack with
an imprimatur of the state action, since Vohland could neither
authorize nor “delegate” any attack upon Plaintiff.
Page 40

120, 125 [(3d Cir. 2001)]. It is not sufficient that
the official should have known of the risk. [See id.]
at 133. A plaintiff can, however, prove an official’s
actual knowledge of a substantial risk to his safety
[by stating facts showing] that the risk was obvious."
Id.
Bistrian, 696 F.3d at 367;21 see also id. at 369 (“We acknowledge
that when inmates claim they are in danger, they confront prison
officials with an arduous task.

Prisoners may feign their fear

of physical harm simply to manipulate a transfer, in the hope,
for example, of obtaining more desirable living arrangements”)
(quotation marks and brackets omitted).
Where the allegations fail to offer the facts showing that
the prison officials were aware of a specific – rather than a
generic, vague or speculative – risk of harm, or where the
officers were not present during the attack and, therefore, could
not have intervened, the allegations fail to state a claim.
Knox v. Doe, 487 F. App’x 725 (3d Cir. 2012).

See

A fortiori, the

allegations are insufficient if the officers are both unaware of
the potential danger and have no opportunity to intervene.

21

See

Analogously, a plaintiff may state a failure-to-protect
claim if he pleads the facts showing that the officers witnessed
the attack but failed to intervene and protect the plaintiff from
the harm being inflicted. Accord Smith v. Mensinger, 293 F.3d
641, 650-51 (3d Cir. 2002)(an officer who fails to intervene when
other officers were beating an inmate is liable if the officer
had “a realistic and reasonable opportunity to intervene” and
“simply refused to do so”); compare Bistrian, 696 F.3d at 372
(the claim that “Officer . . . was deliberately indifferent
because he intervened only after several minutes of continued
pummeling” fails to state a claim) (brackets and quotation marks
omitted).
Page 41

id.; see also Bistrian, 696 F.3d at 367-68 and 371-72 (noting
that “[p]rison officials . . . escape liability [if they] were .
. . unaware of a danger, or [if] they knew [about it] but
believed (albeit unsoundly) that the risk . . . was insubstantial
[or if they] actually knew of [that] risk to inmate [and]
responded reasonably to the risk, even if the harm ultimately was
not averted,” and holding that, where the plaintiff was locked in
a prison yard together with an inmate known for his systemic
violence against other prisoners and who attacked the plaintiff,
the prison officers were insufficiently aware of the danger to be
liable for the plaintiff’s injuries).

Therefore, Plaintiff’s

claims asserting that certain officers violated his rights by
being absent from their duty stations and, thus, having no
ability to intervene, will be dismissed as facially meritless.
The facts showing an officer’s direct or indirect
participation in the attack could state a viable claim.

“[A]

plaintiff can . . . prove [such participation in the attack] ‘in
the usual ways, including inference from circumstantial
evidence.’”
at 842).

Bistrian, 696 F.3d at 367 (quoting Farmer, 511 U.S.

However, the plaintiff must assert such “circumstantial

evidence” that plausibly – rather than merely possibly, even
speculatively – connect the officer to the alleged wrong and show
such participation.

See Iqbal, 556 U.S. at 679.

“Where a

complaint pleads facts that are ‘merely consistent with’ a

Page 42

defendant’s liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to relief.’”

Id.

(quoting Twombly, 550 U.S. at 557); accord Bristol v. Settle, 457
F. App’x 202 (3d Cir. 2012) (where the plaintiff alleged that the
prison officer told him, after the plaintiff was attacked by
other inmates, that the officer orchestrated that attack, the
plaintiff’s allegations based on this post-attack statement did
not lend sufficient credence to his claims).

Plaintiff’s failure

-to- protect claims thus fail.
7.

Excessive Force Challenges

Plaintiff’s allegations against Maccori implicate the Eighth
Amendment protections against excessive force.

The landmark

Supreme Court case in the Eighth Amendment excessive force area
is Hudson v. McMillian, 503 U.S. 1 (1992).

The Hudson Court held

that “whenever prison officials stand accused of using excessive
physical force in violation of the Cruel and Unusual Punishments
Clause, the core judicial inquiry is . . . whether force was
applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm.”

Id. at 6-7.

In

doing so, the Court jettisoned the traditional objective prong
inquiry for establishing an Eighth Amendment claim.

See id. at

22-23 (Thomas, J., dissenting) (“Ascertaining prison officials’
state of mind . . . is the only relevant inquiry in deciding
whether such cases involve cruel and unusual punishment”); Brooks

Page 43

v. Kyler, 204 F.3d 102, 108 (3d Cir. 2000) (“In Hudson, the Court
distinguished between prisoner conditions-of-confinement and
medical-deprivation claims, on the one hand, and wanton use of
unnecessary force claims on the other”).

Consequently, the Court

must examine, subjectively, “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.” Whitley v.
Albers, 475 U.S. 312, 320-21 (1986) (citation omitted).22
Notably, not all use of force is “excessive” under the
Eighth Amendment and will rise to the level of a constitutional
violation.

To determine whether force was used in “good faith”

or “maliciously and sadistically,” the courts have identified

22

However, a de minimis use of force is not repugnant to
human decency and cannot state an Eighth Amendment claim of
excessive force. See, e.g., Hudson, 503 U.S. at 9-10. This is
not to say that a fact-finder would disregard the extent of the
injuries suffered. As the Supreme Court observed:
Under the Whitley approach, the extent of injury
suffered by an inmate is one factor that may suggest
“whether the use of force could plausibly have been
thought necessary” in a particular situation, “or
instead evinced such wantonness with respect to the
unjustified infliction of harm as is tantamount to a
knowing willingness that it occur.” In determining
whether the use of force was wanton and unnecessary, it
may also be proper to evaluate the need for application
of force, the relationship between that need and the
amount of force used, the threat “reasonably perceived
by the responsible officials,” and “any efforts made to
temper the severity of a forceful response.” The
absence of serious injury is therefore relevant to the
Eighth Amendment inquiry, but does not end it.
Hudson, 503 U.S. at 7 (citations omitted).
Page 44

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; (4) the extent of injury inflicted; (5) 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.
102, 106 (3d Cir. 2000).

See Brooks v. Kyler, 204 F.3d

Guided by those factors, the Court will

assess whether Plaintiff’s challenges against Maccori state a
challenge meeting the plausibility test detailed in Iqbal.
8.

Residual Challenges

Finally, Plaintiff’s allegations against unspecified
defendants make references to: (a) future harm Plaintiff fears he
might suffer; (b) Plaintiff’s beliefs that he is being retaliated
against; and (c) Plaintiff’s disappointment with the fact that
his administrative grievances were left unanswered.

These

allegations fail to state a cognizable claim.
It is well established that "[p]risoners are not
constitutionally entitled to a grievance procedure and the state
creation of such a procedure does not create any federal
constitutional rights," Wilson v. Horn, 971 F. Supp. 943, 947
(E.D. Pa. 1997), and a failure to respond to an inmate’s
grievances “does not violate his rights to due process and is not
actionable.”

Stringer v. Bureau of Prisons, 145 F. App’x 751,

Page 45

753 (3d Cir. 2005) (citing Antonelli v. Sheahan, 81 F.3d 1422,
1430 (7th Cir. 1996)).

Thus,

Plaintiff’s assertion that his

grievances were not replied to is facially without merit.
Plaintiff’s challenges based on his speculative fear of
future harm are equally deficient.

See McCray v. Holmes, 2012

U.S. Dist. LEXIS 152603, at *17 (D.N.J. Oct. 23, 2012) (noting
that such “allegations, being challenges to a wholly speculative
development, fail to state a cognizable claim” and citing Salyer
Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719,
731 (1973) for the observation that legal “adjudication cannot
rest on any such ‘house that Jack built’ foundation”).
Plaintiff’s contention that his health and/or life
might be in danger if Plaintiff is [he is placed in a
certain] location is not viable. At present, Plaintiff
has not suffered an injury [he guesses he might suffer
in the future]. Any claim not articulated in present
terms is unripe since it fails to make factual
assertions and, thus, is highly speculative. See Kirby
v. Siegelman, 195 F.3d 1285 (11th Cir. 1999) (spelling
out that a 42 U.S.C. § 1983 claim by a prisoner about
his post-release condition cannot be deemed ripe for
adjudication where the prisoner was not yet released
and, thus, not yet suffered any injury).
Rouse v. Pauliilo, 2006 U.S. Dist. LEXIS 17225, at *9-10 (D.N.J.
Apr. 5, 2006).23
Lastly, Plaintiff’s speculations that he might be retaliated
against analogously fail to state a viable claim.

23

No statement made in Plaintiff’s sixteen complaints, three
amended complaints and numerous attachments to these pleadings
offers facts indicating that Plaintiff is in imminent danger.
Page 46

To state a claim under Section 1983 for violation of First
Amendment rights, a plaintiff must plead the facts showing: (a)
constitutionally protected conduct; (b) retaliatory action
sufficient to deter a person of ordinary firmness from exercising
his constitutional rights; and (c) a causal link between the
constitutionally protected conduct and the retaliatory action.24
While Plaintiff maintains that his commencement of civil
actions caused retaliation, the undisputed time-line of the
relevant events shows that the November 5, 2012, attack and all
alleged threats took place long before Plaintiff commenced even
his first legal action.

Thus, Plaintiff’s First Amendment

challenges are necessarily deficient for failure to establish a
causal link.
B.

Plaintiff’s Challenges Analyzed by Defendant

As the foregoing illustrates, the bulk of Plaintiff’s claims
are without merit and subject to dismissal with prejudice; only a
handful of his allegations warrants leave to amend.

First,

allegations against Horizon are deficient being based solely on
the respondeat superior theory.

Moreover, these allegations,

being voluminous and detailed, indicate that Plaintiff has no

24

See Thomas v. Independence Twp., 463 F.3d 285, 296 (3d
Cir. 2006). The court typically decides the first element as a
matter of law. See Model Civ. Jury Instr. 3d Cir. 7.4 (2011).
Similarly, the Court need not instruct the jury regarding the
second element where the element is not in dispute. See id. cmt.
Page 47

facts implicating Horizon personally in any wrong.

Thus, the

deficiency of these challenges cannot be cured by re-pleading.
Second, the claims against Balicki are analogously deficient
being based only on the theory of respondeat superior.

Moreover,

the two allegations that could be construed as Plaintiff’s
attempt to implicate Balicki personally (i.e., the claims that
Plaintiff’s administrative grievances were not replied to and
that no criminal proceeding was commenced against the prison
officers or the inmates who attacked Plaintiff) are not
cognizable in § 1983 review.

Since Plaintiff’s references to

Balicki are as numerous as they are devoid of facts suggesting a
plausible claim, it is apparent that Plaintiff cannot cure the
deficiencies of his allegations by re-pleading.

Thus,

Plaintiff’s claims against Balicki will be dismissed with
prejudice.
Plaintiff’s claims against Maccori are also insufficient,
since Plaintiff: (a) asserted that Maccori pushed him with a
force that caused Plaintiff’s face to hit the door, thus caused
opening of the stitches in Plaintiff’s mouth; but (b) Plaintiff
did not provide this Court with any facts shedding light on the
circumstances of that incident and allowing this Court to
intelligently analyze whether Maccori applied force to Plaintiff

Page 48

in a good-faith effort to maintain discipline or maliciously.
See Hudson, 503 U.S. at 6-7.25
Because Plaintiff’s allegations did not allege sufficient
factual content to “nudg[e] his claim . . . across the line from
conceivable to plausible,” they fail to meet the pleading
requirements of Rule 8.

Iqbal, 556 U.S. at 683 (citations and

quotation marks omitted).

However, the Court cannot rule out

that, being granted an opportunity to clarify his challenges,
Plaintiff might be able to assert facts stating a plausible
excessive force claim.

Thus, Plaintiff’s allegations against

Maccori will be dismissed without prejudice.
Plaintiff’s allegations against Vohland are also deficient
because they are wholly speculative as pled.

Indeed, while

Plaintiff’s asserted that, a few weeks before the attack: (a) he
was transferred by Vohland to the prison wing where his thenfuture attackers were housed; and (b) after that transfer, he
witnessed a “hand contact” between Vohland and Green, and upon a
short passage of time, observed Green, Reos and Jason smoking
marijuana and cigars, these facts fail to meet the requirements

25

Plaintiff’s allegations against Wiltsey suggest that,
while visiting the medical department on one occasion, Plaintiff
refused to stop his insistence on having his pills crushed into
powder, thus necessitating the officers’ assistance with
resolution of that incident and his removal from the medical
department. His allegations against Maccori suggest that the
January 1, 2013, incident also took place at the medical
department and indicate that Maccori might have been summoned by
the medical personnel who requested Maccori’s assistance.
Page 49

of Rule 8, as clarified in Iqbal.26

See Iqbal, 556 U.S. at 679

(“[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 shown – that the pleader is entitled to
relief”) (citation and internal quotation marks omitted).
Moreover, since Plaintiff’s allegations against Vohland are
extensive and elaborated upon in numerous Plaintiff’s pleadings,
it appears unlikely that Plaintiff would be able to cure the
deficiency of his claims by re-pleading.

However, granted the

gravity of these allegations, the Court finds that leave to amend
Plaintiff’s claims would not contradict the guidance provided by
the Supreme Court in Foman and the Court of Appeals in Grayson.
Therefore, out of an abundance of caution, the Court will dismiss
Plaintiff’s claims against Vohland without prejudice.27

26

The logic of Plaintiff’s assertions is also not entirely
clear to this Court since: (a) a “hand contact” between Vohland
and Green is not indicative of any “payment;” (b) there would be
little reason for Vohland to wait for Plaintiff’s actual transfer
to the unit where Green, Reos and Jason were housed to “pay”
these inmates for attacking Plaintiff, and (c) there would be
little reason for Green, Reos and Jason to wait a few weeks if
they actually agreed to carry it out. See Iqbal, 556 U.S. at 679
(determining whether the allegations in a complaint are
“plausible” “requires the reviewing court to draw on its judicial
experience and common sense”); cf. Thornton v. Micrografx, 878 F.
Supp. 931, 938 (N.D. Tex. 1995) (“The court refuses to leave its
common sense at the courthouse steps”).
27

Plaintiff’s claims against Fauconniere will, too, be
dismissed. To the extent Plaintiff referred to Fauconniere on
the basis of Fauconniere’s employ at the correctional facility or
Fauconniere’s supervisory lieutenant position, or his absence
from the duty post during the attack, such claims would be
Page 50

In contrast, the allegations against Brown and Armstrong
will be dismissed with prejudice since Plaintiff’s facts, as pled
originally and elaborated upon in Plaintiff’s later submissions,
unambiguously indicated that these claims are based solely on
Brown and Armstrong’s resort to expletives and speculative
threats of harm that has never materialized.28

Since these

claims had been sufficiently detailed in Plaintiff’s numerous
pleadings, granting him leave to amend these challenges would be
futile.

Thus, these claims will be dismissed with prejudice.

Analogously, Plaintiff’s allegations against Green, Reos and
Jason will be dismissed with prejudice as deficient for failure
to show color of law, and Plaintiff’s re-pleading of these
challenges cannot cure this core deficiency.
Plaintiff’s allegations against Wronyon and Ortiz, based
solely on Plaintiff’s displeasure with Wronyon and Ortiz’s
decision not to commence a criminal proceeding, are facially
deficient.

Since Plaintiff has no right to demand commencement

dismissed with prejudice as wholly meritless. However, in the
event Plaintiff has facts plausibly showing that Fauconniere was
personally involved in the November 5, 2012, attack, by
recruiting Plaintiff’s attackers, Plaintiff would be allowed an
opportunity to state these facts in his amended pleading.
28

Plaintiff’s submissions indicate that he returned to the
prison general population but no harm has happened to him since
that return. Moreover, Plaintiff offers no facts suggesting that
he is in actual and imminent danger of any injury.
Page 51

of any criminal proceeding, his challenges fail to state a viable
claim and warrant no leave to amend.
Furthermore, Plaintiff’s allegations against Doyle, while
various and numerous, shall be dismissed with prejudice because
these extensive challenges make it abundantly clear that Doyle
has not violated Plaintiff’s constitutional rights.

To start,

Doyle’s supervisory status or her employ at the facility cannot
lend support to any Plaintiff’s challenge: without asserting
Doyle’s personal involvement in an alleged wrong, Plaintiff
cannot even begin mounting a viable claim.

Next, while Plaintiff

is of the opinion that Doyle violated his rights when, being a
nurse rather than a doctor, she recommended Plaintiff’s surgeon
not to extend Plaintiff’s antibiotic treatment past a certain
date, Plaintiff errs.

Doyle’s expression of her disagreement

with the surgeon’s initial treatment plans (or her success in
convincing the surgeon that her position was correct, or Doyle’s
coming to a medical conclusion that Plaintiff’s treatment should
be altered) cannot state a claim of constitutional magnitude; at
most, Plaintiff’s allegations suggest a medical malpractice
challenge not cognizable in a Section 1983 review.
Furthermore, Doyle’s directive to place Plaintiff in a
certain locked room while he was en route from the hospital to
the infirmary cannot support a viable claim since Plaintiff
indicated that: (a) his was having his PICC line and medications

Page 52

administered during the period when he was in the room; and (b)
his displeasure with the fact that the room was locked or not as
sanitized as he would have preferred support a viable challenge.
In the same vein, while the Court is mindful of Plaintiff’s
disappointment with the facts that he contracted MSRA, and that
the infection left scars on his chest, Plaintiff’s challenges
unambiguously show that Doyle promptly reacted to Plaintiff’s
ailment, swiftly directed testing of the scar tissue and an
antibiotic treatment of the disease, and duly quarantined
Plaintiff.

Thus, these assertions also fail to allege any

cognizable wrong or to even hint at a denial of medical care.
Moreover, Plaintiff’s later-developed allegations that he
suffered “major delays” with the medical treatment of his
November 5, 2012, injuries (which allegations, the Court notes,
are at odds with Plaintiff’s assertions made in his first two
complaints) are facially deficient since the fact that Plaintiff
had to wait either five or ten days for his surgery, even if
true, cannot support a viable denial-of-medical-care challenge
because nothing in Plaintiff’s allegations suggests that he was
left without medical attention during that interim, or that his
injuries were so life-threatening to require immediate surgery.29
See McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)(“[T]he

29

Plaintiff himself cannot recall if he waited five or ten

days.
Page 53

length of delay that is tolerable depends on the seriousness of
the condition and the ease of providing treatment”); see also
Parrish v. Aramark Foods, Inc., 2012 U.S. Dist. LEXIS 46787, at
21-22 (D.N.J. Apr. 2, 2012) (“Plaintiff alleges that he was
immediately evaluated by a nurse and that he saw a dentist [for a
dental surgery] eleven days [later].

. . .

Although the nurse

may not have been overtly sympathetic, there is nothing in the
facts alleged to suggest that she did not arrange for appropriate
care.

[Since] Plaintiff saw a dentist [for the surgery] eleven

days after the injury, [he] fails to state a claim”); RiosSalinas v. Lopez De LaSalle, 2011 U.S. Dist. LEXIS 124936 (D.N.J.
Oct. 28, 2011) (where Plaintiff suffered a broken bone and had to
wait six days for a surgery while being under continuous medical
supervision and given Tylenol to control the pain, his claim
failed to meet the Eighth Amendment standard).
In addition, to the extent Plaintiff strived to state a
claim based on Doyle’s medical finding that his insomnia and
depression did not qualify as a “mental illness” necessitating
treatment with medications, Plaintiff’s self-diagnosis or selfrendered conclusion as to how he should have been treated cannot
support a viable claim.

At most, Plaintiff’s disagreement with

Doyle’s medical findings could hint at a medical malpractice
claim not cognizable in Section 1983 review.

Page 54

Finally, Plaintiff failed to assert any wrong on the part of
Doyle when he alleged that, on July 15, 2013, she informed him
that she scheduled Plaintiff’s treatments by an oral surgeon and
oral dentist.

The fact that no such treatments had taken place

by September 3, 2013, cannot implicate Doyle in any wrong, since
Plaintiff asserted no facts suggesting, even remotely, that Doyle
took any action delaying, cancelling or otherwise obstructing his
treatments (which she herself scheduled).30

Thus, Plaintiff’s

challenges are wholly without merit.31
In sum, while Plaintiff’s factual allegations against Doyle
are extensive and well-detailed, they verify that, regardless of
the various ailments and injuries Plaintiff suffered, Doyle was
never deliberately indifferent of his medical needs.

Therefore,

Plaintiff’s challenges will be dismissed with prejudice.
Much like Plaintiff’s challenges against Doyle, Plaintiff’s
allegations against other nurses, that is, Wiltsey, Hannah and
Simmons, fail to state or even hint at a viable claim; rather,
these allegations unambiguously indicate that Plaintiff has no

30

Plaintiff’s allegations suggest his opinion that Dghetto
could be responsible for the delay.
31

Moreover, Plaintiff indicated that the treatments at issue
were intended to remove the wiring and stitches in his mouth.
However, no fact asserted by Plaintiff suggests that these wires
and stitches present such a “serious medical need” that he cannot
wait with their removal. I.e., Plaintiff merely pled his
impatience and displeasure, but these emotions – no matter how
sincere – cannot support a viable constitutional claim.
Page 55

facts to support his conclusion that these nurses violated his
rights.

This is so because a medical practitioner’s decision not

to crush pills into powder for an inmate’s consumption, or that
practitioner’s placement of an inmate in a locked room where the
inmate is provided with both medications and medical supervision,
or a practitioner’s refusal to provide an inmate with medications
for his self-diagnosed “mental illness,” or that practitioner’s
utilization of a less-than-comforting style of interactions
cannot support a claim of constitutional magnitude.

Since

Plaintiff’s repeated and elaborated upon his challenges against
the nurses, his allegations indicate, with abundance, that he has
no facts to support a viable claim.

Thus, his claims against

Wiltsey, Hannah and Simmons will be dismissed with prejudice.32
The foregoing leaves the Court with Plaintiff’s claims
against Wynn, Dghetto and Plaintiff’s residual allegations as to
unspecified defendants.

Because Plaintiff’s claims against Wynn

32

Construing Plaintiff’s claims against Doyle, Wiltsey,
Hannah and Simmons as elaborations on his vague assertion that
unspecified “medical nursing staff” showed “abuse and cruelty” to
Plaintiff, the Court will dismiss these vague assertions for
effectively the same reasons. If anything, Plaintiff’s
systemically repeated, unelaborated self-serving statements that
the nurses subjected him to “extreme abuse” and “extreme cruelty”
present the very type of the allegations the Supreme Court
directed the screening courts to ignore. See Iqbal, 556 U.S. at
678 (A complaint must contain “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. A pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’ Nor does a complaint
suffice if it tenders ‘naked assertions’ devoid of ‘further
factual enhancement’”) (citations and original brackets omitted).
Page 56

are based solely on the fact of Wynn’s employ at the facility and
on Wynn being the person who had to convey Dghetto’s decisions to
Plaintiff, these allegations will be dismissed for failure to
assert any wrong.

Moreover, because Plaintiff already stated his

allegations against Wynn twice but failed to hint at any fact
supporting a viable claim, these allegations will be dismissed
with prejudice.
Plaintiff’s claims against Dghetto fare no better, as the
bulk of these challenges had already been repeated twice but
failed to allege anything short of Plaintiff’s disagreement with
Dghetto’s medical conclusions (that Plaintiff neck was healing
sufficiently, and no MRI testing of the neck was needed).

Even

if Plaintiff disagreed with Dghetto’s medical findings, his
position may, at most, support a medical malpractice claim but
not a challenge of constitutional magnitude.

Thus, Plaintiff’s

allegations based on the alleged denial of MRI testing and
Dghetto’s medical conclusions will be dismissed with prejudice.
That being said, the Court is mindful of Plaintiff’s latest,
albeit unelaborated upon, statement that Dghetto might have
cancelled, delayed or otherwise obstructed Plaintiff’s treatments
by an oral surgeon and oral dentist (that Doyle had scheduled).
While Plaintiff’s Horizon-III complaint encompassing this
unelaborated-upon statement is insufficient, the Court cannot
rule out that Plaintiff might be able to assert facts showing

Page 57

Dghetto’s actual obstruction of Plaintiff’s treatments.

See

Napoleon, 897 F.2d at 110 (denying or delaying a prescribed
medical treatment for non-medical reasons violate the Eighth
Amendment).

Thus, it seam prudent to grant Plaintiff a narrowly-

tailored leave to amend with regard to this claim.
Lastly, Plaintiff’s residual claims (based on lack of
response to his grievances, alleged retaliation and speculative
future harm) will be dismissed with prejudice, being deficient
for the substantive reasons already detailed and not amenable to
cure by re-pleading.
V.

CONCLUSION
For the foregoing reasons, four of Plaintiff’s actions will

be terminated, as duplicative, without assessment of the filing
fee.

The complaints submitted in Plaintiff’s twelve remaining

actions will be filed, and the Clerk will be directed to assess
the applicable filing fee in connection with each original
pleading submitted in those actions.
Plaintiff’s challenges will be dismissed.

His allegations

against Maccori and Vohland, as well as one of his claims against
Dghetto, will be dismissed without prejudice.

The remainder of

Plaintiff’s challenges will be dismissed with prejudice, and the
Court will direct the Clerk to terminate all Defendants other
than Maccori, Vohland and Dghetto.

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In light of Plaintiff’s prolific litigation efforts (and his
tendency to raise duplicative challenges in the pleadings
submitted in different actions), and being mindful of the
substantial financial responsibility Plaintiff’s submissions have
already imposed upon him, the Court will direct Plaintiff to
verify, in all his future actions, Plaintiff’s intention to
commence a new proceeding, his willingness to undertake the
financial responsibility for each such new action and his bona
fide belief that the claims he raises in a new pleading are
neither duplicative of the claims already raised in his prior
actions nor invalid in light of the guidance provided to him in
this Opinion.

An appropriate Order follows.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: October 2, 2013

Page 59

ATTACHMENT –
A BRIEF SUMMARY OF PLAINTIFF’S ACTIONS AND CLAIMS
Index
13-3028

13-3791

13-3792
13-3793

13-3794

13-3795
13-3796
13-3797
13-4233
13-4234

Defendants
Balicki, Maccori,
Vohland, Brown,
Unspecified Medical
Nursing Staff and
Doctors, Green, Reos
and Jason

Allegations as to
Attack by Green, Reos and
Jason;
Vohland arranging the attack;
Unspecified abuse and cruelty
by medical staff;
Maccori pushing Plaintiff;
Brown threatening Plaintiff;
Balicki not pressing charges;
No response to grievances
Attack by Green, Reos and
Balicki, Maccori,
Vohland, Brown, Green, Jason;
Reos, Jason,
Vohland arranging the attack;
Maccori pushing Plaintiff;
Armstrong, Wronyon,
Ortiz, Fauconniere,
Brown threatening Plaintiff;
Doyle, Wiltsey, Hannah Armstrong threatening
and Horizon Healthcare Plaintiff;
Unspecified officers’ absence
from the duty posts during the
attack;
Unspecified abuse, cruelty and
harassment by Doyle, Wiltsey
and Hannah;
response to grievances
Doyle
Doyle recommendations to
Plaintiff’s surgeon
Hannah
Unspecified abuse and cruelty
and placing Plaintiff in a
locked room en route from the
place of surgery to the
infirmary
Wiltsey
Unspecified abuse and cruelty
and placing Plaintiff in a
locked room en route from the
place of surgery to the
infirmary
Green
Attack by Green, Reos and
Jason
Armstrong
Armstrong threatening
Plaintiff by using expletives
Wronyon
Wronyon not pressing charges
Brown
Brown threatening Plaintiff
Maccori
Maccori pushing Plaintiff

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13-4235

Reos

13-4236
13-4236

Ortiz
Vohland

13-4606

Horizon Healthcare,
Balicki, Doyle,
Dghetto and Wynn

13-4610

Horizon Healthcare,
Balicki, Doyle,
Wiltsey and Simmons

13-5365

Horizon Healthcare,
Dghetto and Doyle

Attack by Green, Reos and
Jason
Ortiz not pressing charges
Vohland threatening Plaintiff
by using expletives, Vohland
transferring Plaintiff to the
place where the attack
eventually occurred
Treatment of MRSA that left
scars on Plaintiff’s chest;
The fact that the oral surgery
took place 5 to 10 days after
the attack;
Denial of request for MRI;
Conveyance of that denial
Denial of medication for selfdiagnosed “mental illness”;
Refusal to crush pills;
Unspecified “physical and
mental threats”
Denial of request for MRI;
Denial of medication for selfdiagnosed “mental illness”;
Disagreement with Plaintiff’s
self-evaluation of his
recovery;
Unspecified “major abuse and
cruelty”;
Delay in scheduled treatment

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