FERRANTI v. DIXON

Filing 34

OPINION. Signed by Judge Noel L. Hillman on 7/6/2016. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Plaintiff,
:
:
v.
:
:
JOSEPH DIXON,
:
:
Defendant.
:
___________________________________:
JACK FERRANTI,

Civ. No. 14-3331 (NLH)
OPINION

APPEARANCES:
Jack Ferranti, # 45299-053
FCI Allenwood-Low
P.O. Box 1000
White Deer, PA 17887
Plaintiff Pro se

HILLMAN, District Judge
Plaintiff Jack Ferranti, Plaintiff, an inmate currently
confined at Federal Correction Institution (“FCI”) Allenwood in
White Deer, Pennsylvania filed his Complaint (ECF No. 1) on May
27, 2014 alleging claims under Bivens v. Six Unknown Named
Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971) and paid the filing fee.
On October 26, 2015, Defendant filed a motion to dismiss.
(ECF No. 25).

On or about February 4, 2016, Plaintiff filed his

opposition (ECF No. 31) to Defendant’s motion, and also filed a
motion to amend the Complaint (ECF No. 32).

Defendant then

filed a response to Plaintiff’s motion to amend. (ECF No. 33).

The motions have been fully briefed and will be decided without
oral argument pursuant to Federal Rule of Civil Procedure 78.
For the reasons set forth below, Defendant’s motion to dismiss
will be GRANTED; and Plaintiff’s motion to amend will be DENIED
without prejudice.

I.

FACTUAL BACKGROUND

In his Complaint, Plaintiff asserts that a Unit Counselor
at FCI Fort Dix, Joseph Dixon, inquired about Plaintiff’s
participation in the Bureau of Prison’s (“BOP”) Inmate Financial
Responsibility Program (“IFRP”).

Plaintiff informed Unit

Counselor Dixon (hereinafter “Defendant”) that he “had a court
ordered stay as to the fine imposed in his case” which Plaintiff
contends that other federal institutions had honored. (Compl. 2,
ECF No. 1).

Defendant placed Plaintiff on IFRP Refusal Status

and instructed an officer at the Receiving and Discharge
Department to send Plaintiff’s “hobby craft material” to
Plaintiff’s son’s home address.

Plaintiff contends that there

is no provision in the BOP’s regulations which calls for removal
of a prisoner from participation in a hobby craft program when
said prisoner is on IFRP Refusal Status.
Plaintiff concedes that one of the restrictions which can
be imposed as a result of a prisoner’s IRFP Refusal Status is
being assigned the lowest housing status. (Compl. 3., ECF No.
2

1).

Plaintiff states that Defendant asked Plaintiff to show him

paperwork proving Plaintiff had a “bottom bunk pass.”

Plaintiff

previously had bottom bunk passes from two other federal
institutions where he had been incarcerated and Plaintiff was
assigned a bottom bunk upon his arrival to FCI Fort Dix.
Defendant instructed Plaintiff to “go to the Medical Department
and renew his bottom bunk pass by July 15, 2012.” (Id.).
Defendant further informed Plaintiff that, if he did not have a
renewed bottom bunk pass by July 15, 2012, Defendant would move
Plaintiff to a top bunk.
Plaintiff states that on July 13, 2012, he went to the
Medical Department to renew his bottom bunk pass.

However, he

was informed that he would need an appointment to see a doctor
before he could renew his pass.

Plaintiff then visited

Defendant’s supervisor, Unit Manager Whritenour, to discuss the
situation.

It is unclear from the Complaint what the result of

this discussion was.
On July 15, 2012, Plaintiff was unable to produce a renewed
bottom bunk pass and, as a result, Defendant indicated that he
intended to move Plaintiff to a top bunk.

Plaintiff told

Defendant that he didn’t see the need for reassignment given
that there were two vacant lower bunks in his living quarters.
Plaintiff states that Defendant became “loud and verbally

3

abusive” at this point, so Plaintiff walked out of Defendant’s
office and returned to his living quarters. (Id. at 4).
Plaintiff contends that Defendant followed Plaintiff to his
living quarters and continued to yell at Plaintiff.

Plaintiff

further contends that Defendant demanded to see Plaintiff’s
identification card, “crowded Plaintiff against his locker,” and
eventually instructed all other inmates in the room to get out.
(Id. at 5).

Defendant called for backup before pushing

Plaintiff backwards, bending him over a locker, and holding him
by his right arm.

Another officer then grabbed Plaintiff and

handcuffed him.
Plaintiff complained that Defendant had hurt his back.
Plaintiff was taken to the Medical Department where abrasions
were found on his back.

Plaintiff states that bruising was

still present ten days later.
As a result of this series of events, Plaintiff was “taken
to the Special Housing Unit and given an incident report for (1)
Assaulting any person; (2) refusing to obey an order and (3)
Insolence toward a staff member.” (Compl. 6, ECF No. 1).
Plaintiff asserts two causes of action. 1

1

First, he states

Although Plaintiff does not expressly state that he brings
these claims pursuant to Bivens, paragraph one of his Complaint
states, “[this is an action to redress the violation of
Plaintiff’s rights under the Constitution of the United States.
And the laws of the United States.” (Compl. 1, ECF No. 1).
Because Plaintiff has alleged a constitutional violation by
4

that Defendant violated 28 C.F.R. § 545.11 2 when he ordered that
Plaintiff’s hobby craft material be mailed to Plaintiff’s son.
Next, Plaintiff asserts a claim against Defendant for excessive
force.

Plaintiff seeks nominal damages in the amount of $1.00

and punitive damages in the amount of $50,000.

Plaintiff asks

the Court to declare Defendant’s actions in violation of 28
C.F.R. § 545.11, and he seeks attorneys’ fees and costs.
Defendant filed a motion to dismiss (ECF No. 25) and
asserts that both of Plaintiff’s causes of action must be
dismissed.

With respect to Plaintiff’s first cause of action,

which is based on Defendant’s alleged violation of 28 C.F.R. §
545.11, Defendant argues that the claim should be dismissed
because: (1) to the extent Plaintiff means to assert a cause of
action under § 545.11, § 545.11 does not create a private right
of action; (2) to the extent Plaintiff means to assert a cause
of action under Bivens based on Defendant’s alleged violation of
§ 545.11, § 545.11 may not serve as the basis for a Bivens
claim; and (3) to the extent Plaintiff means to assert a due
process violation, the loss of privileges does not trigger a

federal officials, the Court will presume that his claims are
filed under Bivens.
2

Plaintiff cites this regulation in his Complaint as “18 C.F.R.
§ 545.11.” (Compl. 6, ECF No. 1). However, the Inmate Financial
Responsibility Plan (“IRFP”) is codified at Title 28 of the Code
of Federal Regulations, sections 545.10 and 545.11.
5

constitutionally protected interest sufficient to establish a
cause of action under Bivens, and the availability of
administrative remedies precludes a claim under Bivens for loss
of property. (Motion 13-15, ECF No. 25-3).

As to Plaintiff’s

second claim, his excessive force claim, Defendant asserts that
this claim should be dismissed because the Complaint does not
allege a degree of force sufficient to establish an Eighth
Amendment violation. (Mot. at 16).
In his opposition to Defendant’s motion, Plaintiff argues,
first, that his pleadings are adequate to state a cause of
action. (Opposition 2, ECF No. 31).

Nevertheless, he requests

an opportunity to amend his Complaint to provide further
specificity (Opp’n at 3), and he filed a motion (Motion to
Amend, ECF No. 32) requesting permission to do so.

In his

opposition to Defendant’s motion, Plaintiff also elaborates on
his excessive force claim (Opp’n at 3-5), and on the injuries he
sustained (id. at 5-6).

In his motion to amend, he details the

specific changes he intends to make in an amended complaint and
he attached exhibits, including an affidavit and medical
records, which he requests this Court consider in ruling on the
motions (id. at 3); (Mot. to Am. 2, ECF No. 32).

6

II.

STANDARDS OF REVIEW

A. Actions Under Bivens
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court
held that a violation of the Fourth Amendment by a federal agent
acting under color of his authority gives rise to a cause of
action against that agent, individually, for damages.

The

Supreme Court has also implied damages remedies directly under
the Eighth Amendment, see Carlson v. Green, 446 U.S. 14, 100 S.
Ct. 1468, 64 L.Ed.2d 15 (1980), and the Fifth Amendment, see
Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L.Ed.2d 846
(1979).

But “the absence of statutory relief for a

constitutional violation does not necessarily mean that courts
should create a damages remedy against the officer responsible
for the violation.” Schreiber v. Mastrogiovanni, 214 F.3d 148,
152 (3d Cir. 2000) (citing Schweiker v. Chilicky, 487 U.S. 412,
108 S. Ct. 2460, 101 L.Ed.2d 370 (1988)).

Bivens actions are

simply the federal counterpart to § 1983 actions brought against
state officials who violate federal constitutional or statutory
rights. See Egervary v. Young, 366 F.3d 238, 246 (3d Cir. 2004),
cert. denied, 543 U.S. 1049, 125 S. Ct. 868, 160 L.Ed.2d 769
(2005).

Both are designed to provide redress for constitutional

violations.

Thus, while the two bodies of law are not

“precisely parallel”, there is a “general trend” to incorporate
7

§ 1983 law into Bivens suits. See Chin v. Bowen, 833 F.2d 21, 24
(2d Cir. 1987).
B. Standard for Amendment Under Rule 15
Rule 15 of the Federal Rules of Civil Procedure governs
amendments and supplementation of pleadings. FED. R. CIV. P. 15.
Rule 15(a) authorizes a party to amend his pleading once as a
matter of course within 21 days after serving it, or if the
pleading is one to which a responsive pleading is required, 21
days after service of the responsive pleading, or 21 days after
service of a dispositive motion under Rule 12, whichever is
earlier. FED. R. CIV. P. 15(a)(1)(A) and (B).

“In all other

cases, a party may amend its pleading only with the opposing
party's written consent, or the court's leave,” which courts are
to freely give “when justice so requires.” FED. R. CIV. P.
15(a)(2).
Consistent with the plain language of this rule, leave to
amend rests in the discretion of the court.

That discretion,

however, is governed by certain basic principles, which are
embodied in Rule 15.

Thus, while Rule 15 provides that leave to

amend should be freely given when justice so requires, the
district court still retains broad discretion to deny a motion
to amend. See Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d
Cir. 2008); Cureton v. National Collegiate Athletic Ass'n., 252
F.3d 267 (3d Cir. 2001).
8

“Among the grounds that could justify a denial of leave to
amend are undue delay, bad faith, dilatory motive, prejudice,
and futility.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000)
(quotations and citations omitted); see also Lutz v. Philips
Elecs. N. Am. Corp., 347 F. App'x 773, 777 (3d Cir. 2009)
(“Although leave to amend a complaint under Rule 15(a) should be
liberally granted, we have held that such leave should not be
permitted where an amendment to the complaint would be
futile.”).

“‘Futility’ means that the complaint, as amended,

would fail to state a claim upon which relief could be granted.”
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434
(3d Cir. 1997).

In assessing “futility,” courts apply the same

standard that governs a motion to dismiss under Rule 12(b)(6).
See Shane, 213 F.3d at 115.
C. Standard for Dismissal Under Rule 12(b)(6)
When considering a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), “courts must ‘accept all
factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under
any reasonable reading of the complaint, the plaintiff may be
entitled to relief.’” Fair Wind Sailing, Inc. v. Dempster, 764
F.3d 303, 308 (3d Cir. 2014) (quoting Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).

It is well settled

that a pleading is sufficient if it contains “a short and plain
9

statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2).

Under the liberal federal

pleading rules, it is not necessary to plead evidence, and it is
not necessary to plead all the facts that serve as a basis for
the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d
Cir. 1977).

However, “[a]lthough the Federal Rules of Civil

Procedure do not require a claimant to set forth an intricately
detailed description of the asserted basis for relief, they do
require that the pleadings give defendant fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.”
Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3,
104 S. Ct. 1723, 1725, 80 L. Ed. 2d 196 (1984) (quotation and
citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8, 127
S. Ct. 1955, 1969, 167 L. Ed. 2d 929 (2007) (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90
(1974)); see also Ashcroft v. Iqbal, 556 U.S. 662, 684, 129 S.
Ct. 1937, 1952, 173 L. Ed. 2d 868 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil
actions'....”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009) (“Iqbal ... provides the final nail-in-the-coffin for
10

the ‘no set of facts' standard that applied to federal
complaints before Twombly.”).
In reviewing a Rule 12(b)(6) motion, a court must only
consider the facts alleged in the pleadings, the documents
attached to or specifically referenced in the complaint if the
claims are based on those documents, and matters of judicial
notice. S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp.
Ltd., 181 F.3d 410, 426 (3d Cir. 1999); In re Bayside Prison
Litig., 190 F.Supp.2d 755, 760 (D.N.J. 2002); see also Winer
Family Trust v. Queen, 503 F.3d 319, 327 (3d Cir. 2007).

III. DISCUSSION
In this case, Plaintiff filed a brief in opposition as well
as a motion to amend in response to Defendant’s motion to
dismiss.

“Rule 15(a)(1)(B) makes clear that an amended

complaint is a permissible response to a Rule 12(b) motion.”
Hunter v. Dematic USA, No. 16-00872, 2016 WL 2904955, at *5
(D.N.J. May 18, 2016) (quotations and citations omitted).

Thus,

the Court will consider both Plaintiff’s opposition (ECF No.
31), and his motion to amend, which includes attachments and his
proposed amendments (ECF No. 32), when ruling on Defendant’s
motion to dismiss. See S. Cross Overseas Agencies, Inc., 181
F.3d at 426.
A. Claim alleging violation of 28 C.F.R. § 545.11
11

The Inmate Financial Responsibility Plan (“IRFP”) is
codified at Title 28 of the Code of Federal Regulations, Section
545.10 and 545.11.

Here, Plaintiff asserts a cause of action

based on his allegation that Defendant violated 28 C.F.R. §
545.11.

In his motion to dismiss, Defendant asserts that this

claim fails because because: (1) to the extent Plaintiff means
to assert a cause of action under § 545.11, § 545.11 does not
create a private right of action; (2) to the extent Plaintiff
means to assert a cause of action under Bivens based on
Defendant’s alleged violation of § 545.11, § 545.11 may not
serve as the basis for a Bivens claim; and (3) to the extent
Plaintiff means to assert a due process violation, the loss of
privileges does not trigger a constitutionally protected
interest sufficient to establish a cause of action under Bivens,
and the availability of administrative remedies precludes a
claim under Bivens for loss of property. (Motion 13-15, ECF No.
25-3).

Plaintiff does not respond to this argument in his

opposition, nor does he propose any amendments to his Complaint
in his motion to amend which relate to this claim.
1. No private cause of action under § 545.11
To the extent Plaintiff means to bring a private cause of
action based on Defendant’s alleged violation of § 545.11, such
a claim must be dismissed.

As Defendant asserts, a prison

regulation does not explicitly create a private cause of action.
12

See McCrudden v. United States, No. 14-3532, 2016 WL 1259965, at
*4 (D.N.J. Mar. 31, 2016) (citing Mercy Catholic Med. Ctr. v.
Thompson, 380 F.3d 142, 154 (3d Cir. 2004)) (holding that
“violating an agency’s internal policies does not create a
private cause of action”); Sheils v. Bucks Cty. Domestic
Relations Section, 921 F. Supp. 2d 396, 416 (E.D. Pa. 2013)
(dismissing plaintiff’s claim because the prison “regulation and
its enabling statute do not create an implied right of action”);
Schick v. Apker, No. 07-5775, 2009 WL 2016933, at *7 (S.D.N.Y.
Mar. 5, 2009), report and recommendation adopted in part, No.
07-5775, 2009 WL 2016926 (S.D.N.Y. July 10, 2009) (collecting
cases); Jennings v. Fed. Bureau of Prisons, No. 4:CV-03-2408,
2005 WL 2130096, at *8 (M.D. Pa. Sept. 2, 2005) (citing Bonano
v. E. Caribbean Airline Corp., 365 F.3d 81, 84 (1st Cir. 2004))
(holding that a prison regulation “does not provide for a
private right of action and there is no indication that Congress
intended it to create an implied private right of action”).
Accordingly, to the extent Plaintiff means to assert a
private cause of action based on § 545.11, such a claim will be
dismissed with prejudice.
2. No Bivens claim based on violation of § 545.11
To the extent Plaintiff means to assert a cause of action
under Bivens based on Defendant’s alleged violation of § 545.11,
such a claim must likewise be dismissed.
13

As an initial matter,

the Court notes that, “generally, ‘a violation of a prison
regulation cannot amount to a wrong of constitutional magnitude
within the meaning of Bivens.’” Barnes v. Broyles, No. CV 13-737
(NLH), 2016 WL 155037, at *5 (D.N.J. Jan. 12, 2016) (quoting
Carter v. United States, No. 14-4741, 2014 WL 4388607, at *4 n.9
(D.N.J. Sept. 5, 2014) (collecting cases)). see also Kates v.
Packer, No. 3:13-CV-1525, 2016 WL 1221736, at *5 (M.D. Pa. Mar.
29, 2016) (quoting Gibson v. Fed. Bureau of Prisons, 121 F.
App'x 549, 551 (5th Cir. 2004)) (“A violation of a prison
regulation without more does not state a constitutional
violation.”).
Further, to state a claim under Bivens, a claimant must
show: (1) a deprivation of a right secured by the Constitution
and laws of the United States; and (2) that the deprivation of
the right was caused by an official 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 Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S. Ct. 515, 518,
151 L. Ed. 2d 456 (2001).
14

In this case, Plaintiff did not specifically identify any
constitutional violation which resulted from Defendant’s alleged
violation of § 545.11.

Nevertheless, in construing Plaintiff’s

Complaint liberally, as this Court must, this Court construes
the Complaint as alleging a due process violation.
Specifically, Plaintiff alleges he was deprived of his property
interest in his hobby craft material without due process of law.
For the reasons discussed in the following section, however,
Plaintiff’s due process claim also fails.
3. No due process violation
Convicted and sentenced prisoners retain the protections of
the Due Process Clause of the Fifth and Fourteenth Amendments
that the government may not deprive them of life, liberty, or
property without due process of law.” Wilson v. Hollingsworth,
No. 15-0076, 2015 WL 333314, at *5 (D.N.J. Jan. 23, 2015)
(citing Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963,
41 L.Ed.2d 935 (1974); Haines v. Kerner, 404 U.S. 519, 92 S. Ct.
594, 30 L.Ed.2d 652 (1972)).

In order to determine whether a

due process violation has occurred, the Court must first
determine whether a protected liberty interest exists. See
Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132
L.Ed.2d 418 (1995).
With respect to § 545.11, IFRP statute, the Third Circuit
stated:
15

While being in the “IFRP Refuse” category denies a
prisoner certain privileges, it does not result in the
imposition of discipline that would trigger a
constitutionally protected interest. See 28 C.F.R.
545.11(d) (listing the privileges denied to prisoners
for refusing to participate in the IFRP); see also
Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293,
132 L.Ed.2d 418 (1995) (liberty interests created by
prison regulations are limited to instances where such
regulations impose atypical and significant hardship
on an inmate in relation to the ordinary incidents of
prison life).
Duronio v. Gonzales, 293 F. App'x 155, 157 (3d Cir. 2008); see
also Edwards v. Lewis, No. 06-5044 RBK, 2007 WL 1035029, at *5
(D.N.J. Mar. 30, 2007) (collecting cases) (“Consistently, due
process challenges to the IFRP have been rejected by most
courts.”).
Thus, ordinarily, a sanction imposed under § 545.11 would
not implicate a constitutionally protected interest, and would
fail to state a due process claim under Bivens.

Here, however,

Plaintiff alleges that Defendant implemented a punishment
outside the scope of IFRP statute.

Thus, because the sanction

imposed in this case does implicate a constitutionally protected
interest — Plaintiff’s property interest in his hobby craft
material — Plaintiff’s claim cannot be summarily dismissed as a
due process challenge to the IFRP.
Nevertheless, Plaintiff’s claim fails because it is based
on the deprivation of property and, “[w]here an adequate postdeprivation remedy is available to the prisoner, the requirement

16

of procedural due process is met.” Douglas v. Martinez, 530 F.
App'x 136, 137 (3d Cir. 2013) (citing Hudson v. Palmer, 468 U.S.
517, 531, 104 S. Ct. 3194, 3203, 82 L. Ed. 2d 393 (1984)).
Specifically, the BOP’s Administrative Remedy Program and the
Federal Tort Claims Act qualify as adequate post-deprivation
remedy systems. See Bowens v. U.S. Dep't of Justice, 415 F.
App'x 340, 344 (3d Cir.2011) (per curiam); Oleson v. Bureau of
Prisons, No. 09-5706, 2012 WL 6697274, at *8 (D.N.J. Dec. 21,
2012).

Plaintiff does not allege that he could not avail

himself of these post-deprivation remedy systems to seek return
of his property.

Therefore, his due process claim will be

dismissed without prejudice. See, e.g., Douglas, 530 F. App'x at
137 (holding that plaintiff could not sustain a valid due
process claim for loss of hobby craft material because prison
grievance system provided an adequate post-deprivation remedy);
Roudabush v. Bittinger, No. 15-3185, 2015 WL 4616869, at *7
(D.N.J. July 31, 2015) (dismissing without prejudice plaintiff’s
due process claim based on defendants’ alleged seizure of his
personal items).
B. Excessive Force Claims
The Eighth Amendment prohibits prison officials from
unnecessarily and wantonly inflicting pain in a manner that
offends contemporary standards of decency. See Hudson v.
McMillian, 503 U.S. 1, 8, 112 S. Ct. 995, 117 L.Ed.2d 156
17

(1992).

When reviewing Eighth Amendment excessive force claims,

courts must determine whether the “force was applied in a goodfaith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Id. at 7.

Whether the force

applied was excessive requires the examination of 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) (quoting
Whitley v. Albers, 475 U.S. 312, 321, 106 S. Ct. 1078, 89
L.Ed.2d 251 (1986)).
Although the extent of an inmate’s injury is relevant to an
Eighth Amendment analysis, “there is no fixed minimum quantum of
injury that a prisoner must prove that he suffered through
objective or independent evidence in order to state a claim for
wanton and excessive force.” Id. at 104.

Thus, the inquiry must

focus on the extent of the force and the circumstances in which
it is applied, not on the resulting injuries. Id. at 108; see
also Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir. 2002).
However, the Eighth Amendment does not protect against a de
minimis use of physical force, so long as it “is not of a sort

18

‘repugnant to the conscience of mankind.’” Brooks, 204 F.3d at
107 (quoting Hudson, 503 U.S. at 9–10).
1. Analysis
In his motion to dismiss, Defendant asserts that Plaintiff
has alleged only a de minimis use of physical force in his
Complaint and, thus, has failed to allege an Eighth Amendment
violation. (Mot. 16-20, ECF No. 25).

In response, Plaintiff

asserts simply that “excessive force applied to any human being,
inmate or not, when that person is not presenting any indication
of violence defies the very intent of the Eighth Amendment.”
(Opp’n 4, ECF No. 31).

However, as set forth above, de minimus

use of force, so long as it is not “repugnant to the conscience
of mankind,” does not rise to the level of an Eighth Amendment
violation. See Brooks, 204 F.3d at 107.
In this case, the extent of the force used, as alleged by
Plaintiff in his initial Complaint, is that “Defendant rushed
Plaintiff and pushed him backwards and bent him over the locker
holding him by his right arm.” (Compl. 5, ECF No. 1).

In an

affidavit — which Plaintiff attaches to his opposition and
intends to include in his amended complaint — Plaintiff states,
“I was assaulted by Dixon; he pushed me back into the lockers.”
(Affidavit 3, ECF No. 31-1).

Plaintiff does not elaborate

further on the force used in his opposition, nor does he propose
additional factual allegations in his motion to amend.
19

Accordingly, and for the reasons explained below, the Court
finds that Plaintiff has alleged only de minimus force.
In determining whether the force alleged by Plaintiff
constitutes excessive force, this Court is guided by Third
Circuit case law addressing similar conduct.

For example, the

Third Circuit has determined that an inmate who alleged that a
corrections officer pushed him and punched him in the back had
alleged only de minimus force. See Taylor v. Sanders, 536 F.
App'x 200, 202 (3d Cir. 2013).

Likewise, allegations that a

defendant knocked books out of an inmate’s hands, then slammed
the inmate to the ground and handcuffed him were deemed to
describe only de minimus force. See Washam v. Klopotoski, 403 F.
App'x 636, 637 (3d Cir. 2010); see also Carson v. Mulvihill, 488
F. App'x 554, 562 (3d Cir. 2012) (finding that plaintiff who
alleged that defendant pushed his wheelchair rapidly and harshly
through his cell door, causing him to fall sharply onto his bed,
had not alleged a constitutional violation).

Accordingly, even

accepting the factual allegations of the Complaint as true, as
this Court must, relevant case law suggests that Plaintiff’s
allegations — that he was pushed and held — amount only to de
minimus use of force. 3

3

The Court notes that the cases cited above were ruled upon at
the summary judgment stage. Nevertheless, the holdings are
instructive for determining whether Plaintiff in this case has
alleged something more than de minimus force. Furthermore, in
20

Further, the injuries alleged in the Complaint also suggest
that only a de minimus amount of force was used.

Specifically,

Plaintiff alleges that he had abrasions on his back which lasted
for ten days. (Compl. 5, ECF No. 1).

In his opposition,

Plaintiff describes his injuries in more detail and indicates
that he experienced “acute pain from abrasions and impact to the
upper back, left shoulder, and left flank areas of his body.”
(Opp’n 5-6, ECF No. 31).

Plaintiff further claims that “weeks

following the incident, [he] lacked full mobility without
experiencing acute pain to the injured areas.” (Id. at 6).
However, Plaintiff attaches his medical records to his motion to
amend; and he specifically requests that the Court consider
these documents when ruling on the motion to dismiss. (Id. at
3).

Because they are attached and explicitly referenced in

Plaintiff’s motion to amend, the Court will consider these
documents when ruling on the pending motions. See S. Cross
Overseas Agencies, Inc., 181 F.3d at 426.

several of these cases, the Third Circuit accepted the
plaintiffs’ allegations as true — as it would under a motion to
dismiss standard — and specifically held that the allegations of
the complaints alleged only a de minimus force. See, e.g.,
Taylor, 536 F. App'x at 202 (“We agree with the District Court's
conclusion that the force Taylor alleged was de minimis, was not
repugnant to the conscience, and therefore did not amount to a
constitutional violation.”) (emphasis added); Carson, 488 F.
App'x at 562 (“Because Carson has alleged, at most, a malevolent
shove by Nilson, we find no Due Process violation.”) (emphasis
added).
21

The medical records confirm that Plaintiff had an “abrasion
to his upper back area, across the back side of his shoulder and
left flank area.” (Clinical Encounter 6, Pl.’s Ex. B, July 15,
2012, ECF No. 31-1).

However, the record also indicates that

Plaintiff’s “[l]eft shoulder [wa]s normal with full range of
motion . . . .” (Id.).

Additionally, the Court notes that

Plaintiff was not provided any treatment beyond the examination
itself, i.e., he did not receive any pain medications or
bandages.

Finally, Plaintiff’s follow-up radiology report,

dated July 25, 2012, showed “negative” findings and conclusions.
(Radiology Report 8, Pl.’s Ex. C, ECF No. 31-1).

Thus, the

facts alleged in the pleadings, in the proposed amendments to
the pleadings, and the documents attached to, and specifically
referenced in, the Complaint suggest that Plaintiff’s injuries
were de minimus as well.
The Court is mindful that “the absence of significant
resulting injury is not a per se reason for dismissing a claim
based on alleged wanton and unnecessary use of force against a
prisoner.” Brooks, 204 F.3d at 108.

Nevertheless, “the extent

of an injury provides a means of assessing the legitimacy and
scope of the force[.]” Id.

Here, Plaintiff’s de minimus

injuries — which consist of abrasions that did not require
treatment — reinforce the notion that a de minimus amount of
force was utilized.
22

Having concluded that Plaintiff has alleged only a de
minimus force, the Court finally notes that the allegations of
the Complaint and proposed amended complaint do not describe a
use of force which is “repugnant to the conscience of mankind.”
Brooks, 204 F.3d at 107 (quoting Hudson, 503 U.S. at 9–10).
Plaintiff concedes that the parties were involved in a “verbal
altercation” to which Defendant responded by “restrain[ing]
Plaintiff[.]” (Opp’n 4, ECF No. 31).

Plaintiff further admits

that Defendant was yelling at him so, Plaintiff “started
hollering back at [Defendant].” (Affidavit 3, ECF No. 31-1).
Given that the parties were engaged in what Plaintiff describes
as a “shouting match” (Opp’n 5, ECF No. 31), the de minimus use
of force described in the Complaint — which Plaintiff explains
was used to restrain and handcuff him — is not “repugnant to the
conscience of mankind” so as to amount to a claim for a
constitutional violation. See also Hudson, 503 U.S. at 11
(holding that “the constitutional touchstone is whether
punishment is cruel and unusual”).
For these reasons, the Court finds that the allegations of
the Complaint, and the changes proposed in Plaintiff’s motion to
amend, do not adequately plead a claim for excessive force.
Accordingly, the claim will be dismissed. See, e.g., Campbell v.
Gibb, No. 10-6584, 2011 WL 2669965, at *1 (D.N.J. July 7, 2011)
(dismissing sua sponte plaintiff’s excessive force claim for
23

failure to state a claim where plaintiff alleged that defendant
“violently jerked plaintiff up off the ground and threw him onto
the medical cart” and “forcefully threw plaintiff onto an office
chair”).

IV.

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss
pursuant to Rule 12(b)(6) will be GRANTED and Plaintiff’s claims
will be dismissed without prejudice.

Additionally, as set forth

above, the Court has considered the Complaint, Plaintiff’s
motion to amend, and his proposed amendments to the Complaint in
conducting its Rule 12(b)(6) analysis.

Because both Complaint

and the proposed amendments fail to state a claim upon which
relief can be granted, Plaintiff’s motion to amend will be
DENIED. See Lutz, 347 F. App'x at 777 (holding that leave to
amend should not be granted where amendment would be futile);
see also Shane, 213 F.3d at 115 (applying Rule 12(b)(6) analysis
when assessing futility).

This denial will be without prejudice

to Plaintiff filing, within 45 days, a motion to re-open

24

accompanied by a proposed amended complaint 4 which addresses the
deficiencies noted in this Opinion.
An appropriate Order will be entered.

__s/ Noel L. Hillman______
NOEL L. HILLMAN
United States District Judge

Dated: July 6, 2016
At Camden, New Jersey

4

Plaintiff should note that when an amended complaint is filed,
it supersedes the original and renders it of no legal effect,
unless the amended complaint specifically refers to or adopts
the earlier pleading. See West Run Student Housing Associates,
LLC v. Huntington National Bank, 712 F.3d 165, 171 (3d Cir.
2013)(collecting cases); see also 6 CHARLES ALAN WRIGHT ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1476 (3d ed. 2008). To avoid
confusion, the safer practice is to submit an amended complaint
that is complete in itself. Id.
25