ROUDABUSH v. BITENER et al

Filing 9

OPINION FILED. Signed by Judge Renee Marie Bumb on 7/31/15. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
NOT FOR PUBLICATION

James L. Roudabush, Jr.
Plaintiff,
v.
Lt. Bittinger et al.,
Defendants.
_____________________________

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CIV. ACTION NO. 15-3185(RMB)
OPINION

RENÉE MARIE BUMB, U.S. District Judge
I.

BACKGROUND
On June 12, 2015, this Court terminated Plaintiff’s civil

rights action because he failed to submit a certified prisoner
trust account statement with his application to proceed without
prepayment of fees (in forma pauperis or “IFP” application).
(Order, ECF No. 7.) Plaintiff was instructed that if he sought to
reopen

this

case

by

correcting

the

deficiency

in

his

IFP

application, he should address whether he could be afforded IFP

1

status under the three strikes provision of the Prisoner Litigation
Reform Act (“PLRA”). 28 U.S.C. § 1915(g).
II.

IFP APPLICATION
Plaintiff

filed a new IFP application on July 1, 2015,

together with an affidavit explaining that his requests for a
certified

copy

of

his

prison

trust

account

statement

were

repeatedly refused by prison staff. (ECF No. 8.) Plaintiff also
alleged that he is eligible for IFP status despite the three
strikes provision of the PLRA because his complaint states that
his life is in danger. (ECF No. 8 at 6.)
Alternatively, Plaintiff asserted that he does not have three
strikes. He

contended that

Civil Action No.

11cv980,

in the

District of New Jersey, should only count as one strike under 28
U.S.C. § 1915(g) because the appeal was dismissed for failure to
prosecute. (Id.) Plaintiff also asserted that Civil Action No.
05cv691, in the Western District of Virginia, was a habeas action,
not a civil rights complaint. (Id.) Accordingly, he concluded that
he does not have three strikes.
The Court, however, finds that Plaintiff has three strikes
under the PLRA. One strike occurred in Civil Action No. 11cv980,

2

where this Court dismissed all defendants for failure to state a
claim upon which relief may be granted. (See ECF No. 7 at 3.)
Another strike occurred in Civil Action No. 11cv7444(RMB) when
this Court dismissed the complaint on August 16, 2012. (Id.); see
Hagan v. Rogers, 570 F.3d 146, 151 (3d Cir. 2009) (“dismissal with
leave to amend will be treated as a final order if the Plaintiff
has

elected

to

stand

upon

the

original

complaint”)

(quoting

Frederico v. Home Depot, 507 F.3d 188, 192 (3d Cir. 2007)).
Plaintiff also received a strike in Civil Action No. 12-29
(NLH), 2012 WL 4033725, (D.N.J. Sept. 12, 2012) when the court
dismissed the complaint for failure to state a claim.1 Finally,
although Plaintiff filed Civil Action No. 05-691 as a habeas
petition in the Western District of Virginia, the court determined
that the case was properly construed as an action under 28 U.S.C.
§ 1983, and dismissed the complaint for failure to state a claim.
Roudabush v. Johnson, No. Civ. A. 705CV00691, 2006 WL 270020 (W.D.
Va. Feb. 3, 2006).

Plaintiff’s appeal was dismissed for lack of prosecution on
September 11, 2013. (3d Cir. 12-3855).
1

3

A prisoner with three strikes may proceed in forma pauperis
when he alleges that he is in imminent danger of serious physical
injury. 28 U.S.C. § 1915(g). When the allegations in Plaintiff’s
Complaint regarding his age, history of blood pressure problems,
chest and left arm pain, and his episode of passing out on February
21, 2015, are accepted as true at this stage of the litigation,
Plaintiff has sufficiently pled that he is in imminent danger of
serious

physical

injury

because

he

had

not

received

medical

evaluation at the time of filing the complaint.
The Court will, therefore, grant Plaintiff’s IFP application
despite his three strikes, and despite his inability to obtain a
certified copy of his prison trust account statement after making
multiple requests. Prison officials will begin to deduct partial
payments of the filing fee, until it is paid, from Plaintiff’s
prison trust account, in accordance with 28 U.S.C. § 1915(b)(1)
and (2), regardless of the outcome of this proceeding.
Defendants have not yet been served with
complaint.

They

have

not,

therefore,

had

an

a

summons and

opportunity

to

challenge Plaintiff’s claim of imminent danger of serious physical
injury.

"If

the

defendant,

after

service,

challenges

the

allegations of imminent danger, the district court must then
4

determine whether the plaintiff's allegation of imminent danger is
credible . . . ." Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997)
(reversed on other grounds). "In resolving a contested issue of
imminent danger, the district court may rely upon evidence supplied
by sworn affidavits or depositions, or, alternatively, may hold a
hearing." Id.
A PACER2 search reveals that Plaintiff has had ninety federal
district court cases since the 1980s, and approximately thirty
appeals. Plaintiff filed four new civil rights actions in this
Court after filing the present case. 3 In one of those cases,
Roudabush v. McKool, 15cv4233(RMB) (D.N.J.), Plaintiff alleged
extremely similar facts to those alleged in the present complaint,
although against different defendants and occurring approximately
nine months earlier. In both cases, Plaintiff alleged he suffered

PACER [Public Access to Court Electronic Records] is available
at https://www.pacer.gov/findcase.html
3 See Roudabush v. McKool, 15cv4233(RMB) (D.N.J. June 9, 2015);
Roudabush v. Dynan, 15cv4234(RMB) (D.N.J. June 9, 2015);
Roudabush v. Reyes, 15cv5521(RMB) (D.N.J. July 9, 2015); In re
James Lester Roudabush, 15-5550(RMB) (D.N.J. July 15, 2015).
Although the latter case is labeled as a “Petition for Writ of
Prohibition” it appears to be a Bivens action for injunctive
relief enjoining defendants from interfering with Roudabush’s
hunger strike.
2

5

chest and arm pain after an officer refused to allow him to attend
church services, and Plaintiff passed out in segregation later
that day, all the while being denied medical attention.
In a more recent filing,4 in a complaint which is entitled
“Complaint for Imminent Serious Injury/Death,” Plaintiff alleged
he was in segregation again, and he was being denied adequate
medical attention for his high blood pressure and episodes of
passing out, which put his life in danger.
If Defendants challenge Plaintiff’s allegation in the present
complaint of imminent danger of serious physical injury, they
should submit a response, within ten days of entry of this Order,
including such affidavits and supporting documentation. Supporting
documentation includes, but is not limited to, any medical records
showing Plaintiff has been evaluated for the episodes of passing
out and chest and arm pain, as alleged in the Complaint. The Court
will then schedule and hold a hearing, by videoconference, to make
a

4

credibility

determination

of

Plaintiff’s

claim

of

imminent

See Roudabush v. Reyes, 15cv5521(RMB) (D.N.J. July 9, 2015).

6

danger. If the Court finds Plaintiff’s claim is not credible, this
Court will vacate the Order granting Plaintiff’s IFP application.
Given Plaintiff’s three strikes, his litigious history, and
the likelihood that Plaintiff will continue to allege his high
blood pressure places him in imminent danger of serious physical
injury, the Court intends to proceed on future in forma pauperis
applications by Plaintiff in a similar manner, but the Court will
likely make future credibility findings, if necessary, based on
the written submissions of the parties, without holding a hearing.
III. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND § 1915A.
At this time, the Court must review the complaint pursuant to
28 U.S.C. § 1915(e)(2)(B) and § 1915A, to determine whether it
should be dismissed as frivolous or malicious, for failure to state
a claim upon which relief may be granted, or because it seeks
monetary relief from a defendant who is immune from suit.
Plaintiff,

a

federal

prisoner

confined

at

FCI-Fort

Dix,

brings his constitutional claims under Bivens v. Six Unknown Agents
of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (holding
Fourth Amendment violation by a federal agent acting under color
of his authority gives rise to a cause of action for damages); but

7

see Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“[b]ecause implied
causes of action are disfavored, the Court has been reluctant to
extend Bivens liability ‘to any new context or new category of
defendants.’” (quoting Correctional Services Corp. v. Malesko, 534
U.S. 61, 68 (2001)).
There are eleven defendants named in the Complaint. (Compl,
ECF No. 1 at 1.) Plaintiff alleged the following, accepted as true
for the purpose of this screening only. In January 2015, all
defendants

met

and

conspired,

orchestrated

by

Lieutenant

Bittinger, to lock Plaintiff in isolation as retaliation for
sending written complaints to the warden about C.O. Koeppen, C.O.
Ferme and C.O. Grant. (Id. at 2.)
On February 21, 2015, at approximately 12:40 p.m., Plaintiff
asked C.O. T. Jones (“Jones”) if he could go to church services,
and Jones said no. (Id.) Plaintiff asked Jones to call for medical
attention because Plaintiff was having left-sided chest, neck, and
arm pain and headache, and Jones refused. (Id.) Plaintiff asked to
see a lieutenant, and Jones refused. (Id.) Jones then wrote a false
disciplinary report against Plaintiff, containing two charges.
(Id.

at

3.)

The

report

was

based

discrimination. (Id.)
8

on

retaliation

and

racial

Jones, who is black, asked a black inmate to mop the floor,
and he refused. (Id.) Jones did not write a disciplinary report
against the black inmate. (Id.) Plaintiff stated, “[t]he write-up
was for not mopping the floor –not my job- another inmate’s job
that was doing it.” (Id. at 5.)
Jones took Plaintiff to Lieutenant Marchanello’s office and
questioned

Plaintiff

about

his

citizenship

status

and

about

“political dissent comments on my outgoing mail envelopes.” (Id.
at

3-4.)

Marchanello

spoke

to

Plaintiff

solely

about

his

citizenship status and his writings on envelopes. (Id. at 4.)
Lieutenant Marchanello ordered Lieutenant “John Doe” and C.O.
Miletto to search Plaintiff’s locker. (Id.) Lieutenant “Doe” and
Lieutenant Miletto searched Plaintiff’s locker and seized his
legal papers and other property, stating he could not have these
things because he sued a federal judge. (Id.) “Then they placed me
in isolation.” (Id.)
Plaintiff alleged “[i]nmates are not placed in isolation Prehearing for a Category 3 Write-up, and Jones and Lt. Bittinger
ordered it anyway.” (Id. at 5.) Additionally, “inmates’ lockers
are not searched for a Category 3 charge unless connected to the
write-up.” (Id.) Plaintiff’s write-up was for not mopping the
9

floor, which was not his job. (Id.) The write-up was an excuse to
get Plaintiff’s legal papers from his locker, and then they used
the excuse of Plaintiff suing a federal judge to lock him up. (Id.)
Plaintiff asked C.O. Sanchez, C.O. Ferme, C.O. Miletto and
Lieutenant “John Doe” for medical attention between 12:40 p.m. and
11:59 p.m. on February 21, 2015, but he was not provided medical
attention for three days as of the time he wrote the Complaint.
(Id. at 6.) Plaintiff is 66-years-old and has a history of blood
pressure problems. (Id.)5
At 9:00 p.m. on February 21, 2015, Plaintiff passed out in
his cell, and Lieutenant Lampey left him lying there without
calling for medical attention. (Id.) Physician Assistant Altieri
refused to check Plaintiff, stating there was nothing wrong with
him.

(Id.)

Lieutenants

Bittinger

and

Marchanello

instructed

Altieri not to see Plaintiff, in retaliation for his lawsuits
against Fort Dix staff. (Id.) Lampey and others made jokes about

Plaintiff asserted he is suffering Elder Abuse in violation of
state and federal law, but he did not identify any specific laws.
(ECF No. 8 at 6.) If Plaintiff wishes to bring a specific claim
for violation of a state or federal law, other than the
constitutional claims he asserted here, he should file an amended
complaint and identify the laws that were violated.
5

10

Plaintiff dying. (Id. at 7.) On February 24, 2015, Plaintiff
notified the assistant warden, a nurse, and a U.S. Public Health
Service Worker that he still had not received medical treatment.
(Id.)
Plaintiff alleged violation of his First, Eighth, Sixth,
Ninth and Fourteenth Amendment rights. (Id. at 7.)6 Plaintiff seeks
money damages, and injunctive relief regarding protection of his
legal work, release from isolation, ordering medical treatment for
all requesting inmates, and ordering Defendants to allow inmates
to go to church. (Id. at 8.)
A.

STANDARD FOR SUA SPONTE DISMISSAL

Plaintiff is proceeding in forma pauperis in this civil
action. Therefore, this Court must review the complaint and sua
sponte dismiss any claim that is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief, pursuant

Plaintiff also asserted that certain of defendants’ actions
violated Federal Bureau of Prison regulations, but he did not
identify the specific regulations that were violated. (ECF No. 1
at 2-4.)
6

11

to 28 U.S.C. § 1915(e)(2)(B). The Court must liberally construe
the complaint in Plaintiff’s favor because he is proceeding pro
se. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). The Court must
also “accept as true all of the allegations in the complaint and
all reasonable inferences that can be drawn therefrom, and view
them in the light most favorable to the plaintiff.” Morse v. Lower
Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court
need not, however, credit a pro se plaintiff's “bald assertions”
or “legal conclusions.” Id.
In Ashcroft v. Iqbal, the Supreme Court revisited the standard
for summary dismissal of a complaint that fails to state a claim
upon which relief may be granted. 556 U.S. 662 (2009). The Court
examined

the

pleading

standard

under

Federal

Rule

of

Civil

Procedure 8(a)(2), noting that a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Id. at 677. However, “[a] pleading that offers
‘labels and conclusions' or ‘a formulaic recitation of the elements
of a cause of action will not do.’” Id. at 678 (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
A complaint must be dismissed for failure to state a claim if
it does not state a plausible claim for relief. Id. “Determining
12

whether a complaint states a plausible claim for relief will ...
be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id. at 679
(citations
allegations,

omitted).
a

court

“When

there

should

assume

are

well-pleaded

their

veracity

factual
and

then

determine whether they plausibly give rise to an entitlement to
relief.” Id. Finally, a court should not dismiss a complaint with
prejudice for failure to state a claim without granting leave to
amend, unless it finds bad faith, undue delay, prejudice or
futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110–
111 (3d Cir. 2002).
B.

ANALYSIS

Plaintiff has not alleged how his Sixth7,

7

The Sixth Amendment to the U.S. Constitution provides:
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the
accusation; to be confronted with the
witnesses against him; to have compulsory
process for obtaining witnesses in his
13

Ninth8 or Fourteenth Amendment9 rights have been violated. Even
liberally construing the Complaint, the Court does not find any
cognizable

claims

under

the

Sixth,

Ninth

and

Fourteenth

Amendments. Those claims will be dismissed with prejudice.
1.

First Amendment Free Exercise Claim

Plaintiff alleged Defendant Jones refused Plaintiff’s request
to go to church services on February 21, 2015. These allegations
are insufficient to state a claim of violation of the Free Exercise
Clause of the First Amendment. See Dehart v. Horn, 227 F.3d 47, 51
(3d Cir. 2000) (“The mere assertion of a religious belief does not
automatically trigger First Amendment protections.”) Plaintiff has
not alleged that he had a “seriously held” religious belief that

favor, and to have the Assistance of Counsel
for his defence.
The Ninth Amendment to the U.S. Constitution provides, “[t]he
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.”
8

“[T]he Fourteenth Amendment only applies to actions of the
states and not to the federal government.” Brown v. Philip
Morris, Inc., 250 F.3d 789, 800 (3d Cir. 2001). Accordingly, the
Court will treat Plaintiff’s Due Process and Equal Protection
claims against federal employees as arising under the Fifth
Amendment.
9

14

was violated when he was not allowed to attend church services on
February 21, 2015. See Daly v. Lappin, 555 F. App’x 161, 164 (3d
Cir. 2014) (quoting Africa v. Pennsylvania, 662 F.2d 1025, 1029–
30 (3d Cir. 1981)); see also Garraway v. Lappin, 490 F. App’x 440,
443 (3d Cir. 2012) (applying four-factor test of Turner v. Safely,
482 U.S. 78 (1987)). This claim will be dismissed without prejudice
because Plaintiff may be able to plead additional facts to state
a cognizable claim.
2.
Plaintiff

First Amendment Retaliation Claims
raised

a

First

Amendment

retaliation

claim,

alleging all defendants conspired to lock him in isolation as
retaliation for his written complaints to the warden against
correctional officers. (Compl., ECF No. 1 at 2.) “Government
actions, which standing alone do not violate the Constitution, may
nonetheless be constitutional torts if motivated in substantial
part by a desire to punish an individual for exercise of a
constitutional right.” Mitchell v. Horn, 318 F.3d 523, 530 (3d
Cir. 2003) (quoting Allah v. Seiverling, 229 F.3d 220, 224–25 (3d
Cir. 2000) (quoting Thaddeus–X v. Blatter, 175 F.3d 378, 386 (6th
Cir. 1999) (en banc)).

15

A prisoner alleging retaliation must show (1)
constitutionally protected conduct, (2) an
adverse
action
by
prison
officials
“
‘sufficient to deter a person of ordinary
firmness from exercising his [constitutional]
rights,’ ” and (3) “a causal link between the
exercise of his constitutional rights and the
adverse action taken against him.” Rauser v.
Horn, 241 F.3d 330, 333 (3d Cir. 2001)
(quoting Allah, 229 F.3d at 225) (alteration
in original).
Mitchell, 318 F.3d at 530.
Plaintiff alleged that all defendants met in January 2015 and
conspired

to

complaints

retaliate

and

civil

against

cases

Plaintiff

against

for

filing

correctional

written

officers

by

writing a false disciplinary report against him and by placing him
in

isolation.

According

to

Plaintiff,

the

opportunity

for

defendants to follow through on their conspiracy presented itself
on

February

21,

2015,

when

Lieutenant

Jones

wrote

a

false

disciplinary report.
Writing a false disciplinary report, leading to confinement
in isolation, is an adverse action that would deter a person of
ordinary

firmness

from

exercising

his

constitutional

rights.

Mitchell, 318 F.3d at 530 (false charge of misconduct resulting in
disciplinary confinement stated a claim for retaliation under the

16

First Amendment). However, to allege a constitutional violation,
a

prisoner

must

allege

facts

supporting

each

individual

defendant’s personal involvement in the violation. Evancho v.
Fisher,

423

F.3d

347,

353

(3d

Cir.

2005)

(“[an

individual

government] defendant in a civil rights action must have personal
involvement

in

the

alleged

wrongdoing”)

(quoting

Rode

v.

Dellarciprete, 845 F.2d 1195, 1207 (3d 1988)).
Here, Plaintiff alleged personal involvement by Jones because
he wrote the false disciplinary report, and by Bittinger because
he ordered that Plaintiff be placed in isolation. Retaliation
claims

against

the

remaining

defendants

regarding

the

false

disciplinary report will be dismissed without prejudice due to
lack of allegations regarding their personal involvement.
Plaintiff

also

alleged

that

Lieutenants

Bittinger

and

Marchanello instructed Physician Assistant Altieri not to see
Plaintiff when he passed out on February 21, 2015, and this was
done in retaliation for his lawsuits against Fort Dix staff.
Refusal of necessary medical treatment is an adverse action that
would deter a person of ordinary firmness from the exercise of his
constitutional rights. See Frazier v. Daniels, Civ. Action No. 09–
3612, 2010 WL 2040763, at *10 (E.D. Pa. May 20, 2010) (a delay in
17

medical treatment is a sufficient adverse action to state a
retaliation

claim).

The

facts

alleged,

accepted

as

true

for

screening purposes, are also sufficient to state a First Amendment
retaliation claim against Defendants Bittinger and Marchanello.
3.

Fifth Amendment Due Process Claims

The Court construes Plaintiff’s Fourteenth Amendment claims
regarding deficiencies in his prison disciplinary proceeding as
arising under the Fifth Amendment, because Plaintiff is a federal
prisoner. See supra note 5; Bloom v. State of Il., 391 U.S. 194,
195 (“[t]he Fifth and Fourteenth Amendments forbid both the Federal
Government and the States from depriving any person of ‘life,
liberty, or property, without due process of law.’”) Plaintiff
complained that he did not receive a hearing before he was placed
in isolation for a Category 3 write-up.
protections

that

attach

to

a

prison

Minimum due process

disciplinary

proceeding

include:
(1) advance written notice of the disciplinary
charges; (2) an opportunity, when consistent
with institutional safety and correctional
goals,
to
call
witnesses
and
present
documentary evidence in his defense; and (3)
a written statement by the factfinder of the

18

evidence relied on and the reasons for the
disciplinary action.
Stanko v. Obama, 434 F. App’x 63, 66 (3d Cir. 2011) (quoting
Superintendent v. Hill, 472 U.S. 445, 454 (1985)). “To the extent
that regulations exceed what due process requires, a prisoner still
is entitled to reversal of a sanction to the extent that he can
show actual prejudice to the interests the regulation is designed
to protect.” Von Kahl v. Brennan, 855 F.Supp. 1413, 1421 (M.D. Pa.
1994); Bullard v. Schism, 449 F. App’x 232, 235 (3d Cir. 2011)
(per curiam) (petitioner could not show that due process was
violated

by

non-compliance

with

regulation

where

minimum

due

process requirements of Wolff were met, and inmate did not show
prejudice to the rights to be protected by the regulation.)
Plaintiff did not identify the regulation requiring a prehearing on a Category 3 write-up, nor did he establish prejudice
based on the right such a regulation was intended to protect.10

Additionally, Plaintiff did not identify any of the
regulations that he alleged Defendants violated, nor did he
identify the interest any such regulation was designed to
protect.
10

19

Therefore,

the

Court

will

dismiss

Plaintiff’s

procedural

due

process claims without prejudice.
The Court also construes Plaintiff’s claim that defendants
violated federal law by seizing his legal papers and other personal
items from his locker as a violation of his substantive due process
interest in his property. “Deprivation of inmate property by prison
officials does not give rise to cognizable due process claim if
the

prisoner

has

an

adequate

post-deprivation

state

remedy.”

Crosby v. Piazza, 465 F. App’x 168, 172 (3d Cir. 2012) (citing
Hudson v. Palmer, 468 U.S. 517, 533 (1984)). The Federal Bureau of
Prisons (“BOP”) Administrative Remedy Program qualifies as an
adequate post-deprivation remedy system. Bowens v. U.S. Dep’t of
Justice, 415 F. App’x 340, 344 (3d Cir. 2011) (per curiam).
Plaintiff did not allege that he could not avail himself of the
BOP Administrative Remedy Program to seek return of his property.
Therefore, his substantive due process claims will be dismissed
without prejudice.
4.

Fifth Amendment Equal Protection Claim

Plaintiff alleged racial discrimination by Lieutenant Jones
because he wrote Plaintiff a disciplinary report for refusing to

20

mop, but he did not write a disciplinary report against a black
inmate who refused to mop. The Court construes this as an equal
protection claim arising under the Fifth Amendment. See Washington
v. Davis, 426 U.S. 229, 239 (1976) (“the Due Process Clause of the
Fifth Amendment contains an equal protection component prohibiting
the

United

States

from

invidiously

discriminating

between

individuals or groups.”) Plaintiff has adequately pled an Equal
Protection claim at the pleading stage. See Phillips v. County of
Allegheny, 515 F.3d 224, 244 (3d Cir. 2008) (“an allegation of an
equal protection violation still must contain a claim that a
plaintiff

has

been

treated

differently

from

others

who

are

similarly situated.”)
5.

Eighth Amendment Inadequate Medical Care Claims

To state an inadequate medical care claim under the Eighth
Amendment’s proscription against cruel and unusual punishment, an
inmate must allege facts showing that each defendant’s conduct
constituted “unnecessary and wanton infliction of pain” or that
each

defendant

was

deliberately

indifferent

to

the

inmate’s

serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976).
“A medical need is “serious,” in satisfaction of the second prong

21

of the Estelle test, if it is “one that has been diagnosed by a
physician as requiring treatment or one that is so obvious that a
lay person would easily recognize the necessity for a doctor’s
attention.” Monmouth County Corr. Inst. Inmates v. Lanzaro, 834
F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp.
456, 458 (D.N.J. 1979), aff’d, 649 F.3d 860 (3d Cir. 1981)).
Plaintiff alleged Defendant Jones refused to get medical
attention for Plaintiff when he complained of left-sided chest,
neck and arm pain, and headache. These symptoms, particularly for
a 66-year-old inmate, so obviously require evaluation that a lay
person would recognize the need for medical attention. See Whooten
v. Bussanich, 248 F. App’x 324, 326-27 (3d Cir. 2007) (per curiam)
(deliberate indifference standard is met where prison officials
deny access to a physician capable of evaluating the need for
treatment) (citing Monmouth v. Lanzaro, 834 F.2d 326, 346-47 (3d
Cir. 1987) and Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir.
1993)). Thus, Plaintiff stated an Eighth Amendment claim against
Jones.
Plaintiff further alleged that he asked Defendants Sanchez,
Ferme, Miletto and Lieutenant “John Doe” for medical attention on
February 21, 2015, and they refused. The Court will infer from the
22

Complaint that Plaintiff told these defendants he had high blood
pressure, and he was having left-sided chest, neck and arm pain.
Therefore, Plaintiff’s allegations against these defendants are
also sufficient to state an Eighth Amendment claim for deliberate
indifference.
Plaintiff

alleged

Lieutenants

Bittinger

and

Marchanello

instructed Physician Assistant Altieri not to see Plaintiff, and
this was part of the scheme to retaliate against Plaintiff for
filing lawsuits and complaints against staff. Inferring from the
allegations in the Complaint that Bittinger and Marchanello were
aware of Plaintiff’s symptoms of chest and arm pain, and his later
episode

of

passing

out

on

February

21,

2015,

Plaintiff

has

sufficiently pled a claim of deliberate indifference to his serious
medical needs against Marchanello and Bittinger.
Plaintiff also alleged Physician Assistant Altieri refused to
check him, and said there was nothing wrong with him. (Id.)
Inferring from the Complaint that Bittinger and Marchanello told
Altieri about Plaintiff’s claimed symptoms, and that Altieri then
refused to check Plaintiff because Bittinger and Marchanello told
him

not

to,

Plaintiff

has

sufficiently

indifference claim against Altieri.
23

stated

a

deliberate

Plaintiff

alleged

Lieutenant

Lampey

violated

his

Eighth

Amendment rights when Plaintiff passed out in his cell on February
21, 2015, and Lampey left him lying there without calling for
medical attention. Passing out on the floor more than briefly is
a condition obvious to a lay person as requiring medical attention.
The allegations are sufficient to state an Eighth Amendment claim
against Defendant Lampey.
IV.

CONCLUSION
For the reasons described above, in the accompanying Order

the Court will grant Plaintiff’s IFP application, despite his three
strikes

under

28

U.S.C.

§

1915(g).

If

Defendants

challenge

Plaintiff’s allegation that, when he filed the complaint on April
14, 2015, he was in imminent danger of serious physical injury,
they shall file a response in support of such challenge, as
described above. The Court will then set a hearing date, to be
held by videoconference, regarding the credibility of Plaintiff’s
allegation of imminent danger pursuant to 28 U.S.C. § 1915(g).
Alternatively, if Defendants do not challenge Plaintiff’s
allegation of imminent danger, they shall so notify the Court
within ten days, and the Court will set a deadline for filing a

24

Answer

to

the

Complaint,

pursuant

to

Federal

Rule

of

Civil

Procedure 12(a)(1). The claims against Defendants Koeppen and will
be

dismissed

without

prejudice,

pursuant

to

28

U.S.C.

§

1915(e)(2)(B) and 1915A, for failure to state a claim upon which
relief may be granted.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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