MCDANIEL v. ZICKEFOOSE et al

Filing 3

OPINION. Signed by Judge Robert B. Kugler on 5/19/2014. (nz, )n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TERENCE McDANIEL,
Plaintiff,

Civ. No. 13-6583 (RBK) (AMD)
OPINION

v.

DONNA ZICKEFOOSE, et al.
Defendants.

ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Plaintiff is a federal prisoner currently incarcerated at F.C.I. Allenwood in White Deer,
Pennsylvania. He is proceeding pro se with a civil rights complaint filed pursuant to Bivens v.
Six Unknown Agents of Fed. Bureau ofNarcotics, 403 U.S. 388 (1971). Plaintiffs application to

proceed in forma pauperis will be granted based on the information provided therein. Thus, the
Clerk will be ordered to file the complaint.
At this time, the Court must review the complaint to determine whether it should be
dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted,
or because it seeks monetary relief from a defendant who is immune from suit. For the following
reasons the complaint will be permitted to proceed in part.
II.

BACKGROUND

The allegations of the complaint will be construed as true for purposes of this screening.
Plaintiff names three defendants in his complaint: (1) Donna Zickefoose - Warden F.C.I. Fort
Dix; (2) Joseph Hawtin - Correctional Officer; and (3) Physician's Assistant Wilks. Plaintiff
was previously incarcerated at F.C.I. Fort Dix in Fort Dix, New Jersey. On November 17, 2011,

plaintiff was awoken by Correctional Officer Joseph Hawtin in his cell. Hawtin ordered
plaintiffs cellmate to leave but ordered plaintiff to stand against the wall.
Hawtin then conducted a pat-frisk search of plaintiff. He then turned plaintiff around,
poked him in the chest and demanded to know where plaintiff had stashed a cellphone. Plaintiff
responded that he had no cellphone and requested to go into the common area. Hawtin then
pushed plaintiff in the chest causing him to fall backwards into the locker.
Plaintiff then turned to exit the cell but was tripped by Hawtin from

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Hawtin then

slammed the door continuously on plaintiffs leg as he was on the ground. Plaintiff then got up
and was in severe pain as blood began to run down his leg.
Responding officers then arrived and Hawtin instructed them to "cut that guy off who's
bleeding all over the place." Plaintiff was then placed in restraints by the officers. Physician
Assistant Wilks was one of the responding officers and after observing the blood, took a T-shirt
and tied it around plaintiffs leg to control the bleeding.
Plaintiff alleges that Hawtin is liable under an excessive force theory, Wilks is liable for
deliberate indifference and Zickefoose is liable for being legally responsible for the welfare of
plaintiff. He requests monetary damages against the defendants.

III.

ST AND ARD OF REVIEW

A. Standard for Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 132166 to 1321-77 (Apr. 26, 1996) ("PLRA"), district courts must review complaints in those civil
actions in which a prisoner is proceeding informa pauperis, see 28 U.S.C. § 1915(e)(2)(B),
seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a
claim with respect to prison conditions, see 28 U.S.C. § 1997e. The PLRA directs district courts

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to sua sponte dismiss any claim that is frivolous, is 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.
According to the Supreme Court's decision in Iqbal, "a pleading that offers 'labels or
conclusions' or 'a formulaic recitation of the elements of a cause of action will not do."' 556
U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua

sponte screening for failure to state a claim 1, the complaint must allege "sufficient factual
matter" to show that the claim is facially plausible. Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (citation omitted). "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir.
2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while prose pleadings are liberally
construed, "pro se litigants still must allege sufficient facts in their complaints to support a
claim." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted)
(emphasis added).
B. Bivens Actions

Bivens is the federal counterpart to 42 U.S.C. § 1983. See Walker v. Zenk, 323 F. App'x
144, 145 n. 1 (3d Cir. 2009) (per curiam) (citing Egervary v. Young, 366 F.3d 238, 246 (3d Cir.
2004)). In order to state a claim under Bivens, a plaintiff must allege: (1) a deprivation of a right
secured by the Constitution or laws of the United States; and (2) that the deprivation of the right
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"The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6)." Schreane v. Seana, 506 F. App'x 120, 122 (3d Cir. 2012) (per
curiam) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F.
App'x 230, 232 (3d Cir. 2012) (per curiam) (discussing 28 U.S.C. § 1997e(c)(l)); Courteau v.
United States, 287 F. App'x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
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was caused by a person acting under color of federal law. See Couden v. Duffy, 446 F.3d 483,
491 (3d Cir. 2006) (stating that under Section 1983 "an individual may bring suit for damages
against any person who, acting under color of state law, deprives another individual of any
rights, privileges, or immunities secured by the United States Constitution or federal law," and
that Bivens held that a parallel right exists against federal officials); see also Collins v. F.B.l,
No. 10-3470, 2011 WL 1627025, at *6 (D.N.J. Apr. 28, 2011) ("The Third Circuit has
recognized that Bivens actions are simply the federal counterpart to § 1983 claims brought
against state officials' and thus the analysis established under one type of claim is applicable
under the other.") (internal quotation marks and citations omitted).

IV.

DISCUSSION

A. Claim Against Joseph Hawtin

Plaintiff is asserting an excessive force claim against Hawtin. For a prisoner to state an
Eighth Amendment claim for the excessive use of force by a prison official, he must show that
the force was not applied in a good-faith effort to maintain or restore discipline, but that it was
maliciously and sadistically used to cause harm. See Hudson v. McMillian, 503 U.S. 1, 7 (1992).
In determining whether a correctional officer has used excessive
force in violation of the Eighth Amendment, courts look to several
factors including: (1) the need for the application of force; (2) the
relationship between the need and the amount of force that was
used; (3) the extent of injury inflicted; (4) the extent of the threat to
the safety of staff and inmates, as reasonably perceived by
responsible officials on the basis of the facts known to them; and
(5) any efforts made to temper the severity of a forceful response.

Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (internal quotation marks and citation
omitted).
The complaint states an excessive force claim against Hawtin. Indeed, the complaint
alleges that Hawtin, pushed, then tripped and then slammed the door on plaintiff's leg all
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purportedly without any provocation from plaintiff. Based on the allegations as set forth in the
complaint, this claim will be permitted to proceed past screening.
B. Claim Against Wilks
Plaintiff is also asserting a deliberate indifference to his serious medical needs claim
against Physician Assistant Wilks. To state such a claim under the Eighth Amendment:
a prisoner must demonstrate "(l) that defendants were deliberately
indifferent to [his] medical needs and (2) that those needs were
serious." Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Deliberate indifference requires proof that the official "knows of
and disregards an excessive risk to inmate health or safety."
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir.
2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
We have found deliberate indifference where a prison official:
"(l) knows of a prisoner's need for medical treatment but
intentionally refuses to provide it; (2) delays necessary medical
treatment based on a nonmedical reason; or (3) prevents a prisoner
from receiving needed or recommended treatment." Rouse, 182
F.3d at 197. Deference is given to prison medical authorities in the
diagnosis and treatment of patients, and courts "disavow any
attempt to second-guess the propriety or adequacy of a particular
course of treatment. .. (which) remains a question of sound
professional judgment." Inmates ofAllegheny Cnty. Jail v. Pierce,
612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551
F.2d 44, 48 (4th Cir. 1977)). Allegations of negligent treatment or
medical malpractice do not trigger constitutional protections.
Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
Pierce v. Pitkins, 520 F. App'x 64, 66 (3d Cir. 2013) (per curiam). The Third Circuit has also

noted that deliberate indifference can be found "where the prison official persists in a course of
treatment in the face of resultant pain and risk of permanent injury." See McCluskey v. Vincent,
505 F. App'x 199, 202 (3d Cir. 2012) (internal quotation marks and citation omitted). "A
medical need is serious if it 'has been diagnosed by a physician as requiring treatment,' or if it 'is
so obvious that a lay person would easily recognize the necessity for a doctor's attention."' See
Mitchell v. Beard, 492 F. App'x 230, 236 (3d Cir. 2012) (per curiam) (quoting Atkinson v.

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Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003) (quoting Monmouth Cnty. Inst. Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987))).
Plaintiff fails to state a deliberate indifference claim against Wilks. Indeed, the only
allegation in the complaint against Wilks is that upon seeing that plaintiff was bleeding, he took
a T-shirt and tied it around plaintiffs leg to control the bleeding. Thus, in effect, Wilks was
attempting to treat plaintiffs injury. Such allegations against Wilks fail to state that he was
deliberately indifferent to plaintiffs serious medical needs. Accordingly, the claim against
Wilks will be dismissed without prejudice for failure to state a claim upon which relief can be
granted.
C. Claim Against Donna Zickefoose
Finally, plaintiff claims that Zickefoose, as warden of F.C.I. Fort Dix, was legally
responsible for the welfare of plaintiff while he was incarcerated at F .C.I. Fort Dix. Thus,
plaintiff is attempting to assert that Zickefoose is liable based on a respondeat superior theory of
liability.
"In order for liability to attach under [Bivens], a plaintiff must show that a defendant was
personally involved in the deprivation of his federal rights." Fears v. Beard, 532 F. App'x 78,
81 (3d Cir. 2013) (per curiam) (citing Rode v. Dellaciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).
"[L]iability cannot be predicated solely on the operation of respondeat superior. Personal
involvement can be shown through allegations of personal direction or of actual knowledge and
acquiescence." Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citation omitted). In this
case, plaintiffs allegations against Zickefoose are solely based on a respondeat superior theory
in her capacity as warden at F.C.I. Fort Dix. This is typically insufficient to state a Bivens claim
against her. Plaintiff fails to allege any personal involvement or actual knowledge and

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acquiescence on the part of Zickefoose. Therefore, the claim against Zickefoose will be
dismissed without prejudice for failure to state a claim upon which relief can be granted.

V.

CONCLUSION

For the foregoing reasons, the complaint will be permitted to proceed in part. An
appropriate order will be entered.

DATED:

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ROBERT B. KUGLER
United States District Judge

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