ARUANNO v. GREEN et al

Filing 13

OPINION. Signed by Judge Jose L. Linares on 6/22/11. (dc, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOSEPH ARUANNO,
Plaintiff,
v.
OFFICER GREEN, et al.,
Defendants.

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Civil No. 09-1542 (JLL)

OPINION

APPEARANCES:
JOSEPH ARUANNO, #363
Special Treatment Unit- Annex
P.O. Box #CN905
Avenel, NJ 07001
LINARES, District Judge:
Joseph Aruanno, who is civilly committed under the New Jersey Sexually Violent
Predator Act, filed a Complaint without prepayment of fees pursuant to 28 U.S.C. § 1915. This
Court dismissed the Complaint for failure to state a claim upon which relief may be granted,
without prejudice to the filing of an amended complaint stating a cognizable claim under 42
U.S.C. § 1983. Plaintiff thereafter filed an Amended Complaint consisting of a five-page
narrative. (Docket Entry #11.) This Court has screened the Amended Complaint for dismissal,
as required by 28 U.S.C. § 1915(e)(2)(B), and will dismiss the Amended Complaint because it
fails to correct the deficiencies in the Complaint. This Court will give Plaintiff one final
opportunity to assert facts stating a cognizable claim under the standard of Ashcroft v. Iqbal, 129
S. Ct. 1937 (2009). See Gasoline Sales, Inc. v. Aero Oil Co., 39 F. 3d 70, 74 (3d Cir. 1994)

(where plaintiff is not seeking claims that were not known about earlier but to modify allegations
in hopes of remedying factual deficiencies in prior pleadings, “three attempts at a proper pleading
is enough”).
I. BACKGROUND
Plaintiff has been civilly committed as a sexually violent predator since 2004. As
explained by the Third Circuit Court of Appeals,
[i]n 1994, while in Florida, he exposed himself to two adolescent
girls as they were walking home from school and engaged in lewd
conduct in their presence. As a result of this incident, Aruanno
pled guilty to second-degree lewd conduct, and was sentenced to
ten years’ probation. Just two years later, in 1996, Aruanno
sexually molested an eight-year-old girl who had been playing on
the front steps of her house in Wildwood, New Jersey. A jury
convicted Aruanno of second-degree sexual assault, and he was
sentenced to ten years in prison, and disqualification from parole
for five years. The Appellate Division of the New Jersey Superior
Court affirmed the conviction and sentence. The New Jersey
Supreme Court denied certification. State v. Aruanno, 793 A. 2d
716 (N.J. 2002) (table op.).
In April 2004, while Aruanno was still serving his prison sentence,
the State of New Jersey . . . filed a petition to involuntarily commit
Aruanno pursuant to the New Jersey Sexually Violent Predator Act
(“SVPA), N.J.S.A. § 30:4-27.24 et seq. . . . .
At the commitment hearing, the State presented the testimony of
Dr. Vivian Shnaidman . . . . Dr. Shnaidman testified that Aruanno
was a chronic paranoid schizophrenic, but her diagnosis explicitly
ruled out diagnoses of exhibitionism and pedophilia. Nevertheless,
Dr. Shnaidman opined that Aruanno’s schizophrenia, when
combined with his previous violent conduct, created a “very high”
risk of future violence. In particular, because Aruanno refused to
take psychotropic medication to treat his schizophrenia, he would
continue to suffer from psychotic delusions which would render
sex offender treatment useless. According to Dr. Shnaidman,
Aruanno would have serious difficulty controlling his sexually

2

predatory behavior without undergoing treatment for his
schizophrenia . . . .
Aruanno testified on his own behalf at the hearing. He denied
committing either the Florida or the New Jersey offense, and
testified that he believed the State had filed the commitment
petition in retribution for his decision to go to trial for the New
Jersey offense, rather than accepting a deal to plead guilty . . . .
The state court found that Aruanno suffered from a mental
abnormality which created “substantial, significant, severe
difficulty controlling his sexually violent behavior,” and granted
the State’s petition for involuntary commitment. Aruanno
appealed the order, and the Appellate Division affirmed. In re
Civil Commitment of J.A., 2007 WL 609284 (N.J. Super. Ct. App.
Div. 2007).
Aruanno v. Hayman, C.A. No. 09-3499 slip op., pp. 2-4 (3d Cir. May 27, 2010).
In 2009, the Appellate Division of the New Jersey Superior Court reversed the Law
Division’s May 3, 2007, order denying post-conviction relief on the New Jersey conviction,
vacated the judgment, and remanded the case.1 See State v. Aruanno, 2009 WL 1046033 (N.J.
Super. Ct. App. Div. April 21, 2009), certif. denied, 199 N.J. 543 (2009) (table).
Since his detention in New Jersey, Mr. Aruanno has filed 28 civil cases in this Court, and
27 appeals in the United States Court of Appeals for the Third Circuit.
The original Complaint in this matter named as defendants Officer Green, Steve Johnson
and Cindy Sweeney. Plaintiff asserted the following facts:
All defendants are denying proper access to the yard to minimize
my exposure to the indoor smoking. And for speaking up against
staff who smoke indoors I have been retaliated against which
includes being assaulted and locked in a room full of smoke.

1

This Court has not been able to determine through online research the outcome of the

remand.
3

Please see attached complaint and statement in support of
complaint.
(Docket entry #1 at p. 6.)
Plaintiff further asserted that Administrator Steve Johnson violated his constitutional
rights as follows: “Mr. Johnson is allowing smoking indoors exposing me to environmental
smoke (ETS) which poses an unreasonable risk of harm contrary to the 14th amend. and the 8th
amendments cruel and unusual punishment.” (Docket entry #1 at p. 5.) Plaintiff states that he
sought administrative relief by “rais[ing] the issue at community meetings and submitt[ing]
institutional remedy forms, etc.” (Id.) Attached to the form complaint was a two-page signed
document which stated:
This civil complaint, or lawsuit, is about being subjected to
second-hand cigarette smoke from March-1999 until present.
During that time I have been forced to share rooms with other
persons who smoke, most of them chain-smoke, as well as being
subjected to second-hand smoke of staff members who also smoke
indoors in total defiance of the law and my rights, health and
safety, etc...
During this time I have brought it to the attention of all of the
defendants I have named as well as many other staff members and
the only result was being threatened and assaulted. I had brought
to their attention the fact that I have never smoked and that being
subjected to cigarette smoke makes it hard for me to breath[e], and
that the policy of the institutions is that they are non-smoking.
What has le[d] to the submission of this lawsuit is that I had
submitted another institutional grievance about the smoking for
which shortly after on April-9-07 I was moved from a room that I
had been in and did not smell like smoke to the room right next
door that smelled like cigar smoke. I had brought this to the
attention of the officer who told me to move, Officer Green, and he
said he did not care. I then asked to see the nurse and the Lt. for
which he said Lt. Kent told him to move me and I was not going to
4

see either. I then requested to see the Administrator and he said
Mr. Lagana had instructed them to do so. This event also ended in
being threatened and excessive force . . . .
I submit this complaint as a retaliation complaint because the NJ
Department of Corrections constantly threatens my life and
retaliates with violence for my filing complaints in reply to the
criminal conduct they engage in for which this occurred shortly
after I complained about an incident to the NJ DOC that has since
become Federal case #08-305 in the District Court of NJ.
(Docket entry #1 at pp. 8-9.)
This Court dismissed the original Complaint for failure to state a claim as follows:
Plaintiff, a civilly committed sexually violent predator,
brings this Complaint under § 1983 against Officer Green,
Administrator Steve Johnson and Cindy Sweeney. Although they
are not listed in the caption or body of the Complaint, Plaintiff also
lists the following persons in the attachment to the Complaint: Lt.
Robert Kent, Officer Clements, Administrator Paul Lagana, then
Commissioner George W. Hayman, then Public Advocate Ron
Chen, then DHS Commissioner Kevin Ryan, Director Merrill
Main, Christine Todd Wittman, James McGreevey, Richard Codey
and Jon Corzine. Even construing the Complaint liberally, see
Erickson v. Pardus, 551 U.S. 89 (2007), the Court finds that
Plaintiff has failed to adequately state a § 1983 claim against the
defendants . . . .
Here, Plaintiff generally asserts that defendants denied access to
the yard, that he has “been forced” to share rooms with patients and
unspecified staff members who smoked cigarettes, that he “brought
it to the attention of all of the defendants I have named,” and that
he was “assaulted” and otherwise retaliated against for
complaining and filing a lawsuit. (CM/ECF No. 1 at 6, 8).
Because the Complaint makes no specific, non-conclusory, factual
allegations regarding Cindy Sweeney, Officer Clements, George
W. Hayman, Ron Chen, Kevin Ryan, Merrill Main, Christine Todd
Wittman, James McGreevey, Richard Codey and Jon Corzine, the
Complaint against these defendants will be dismissed.
With respect to the other defendants . . . , the Court finds that,
although the body of the Complaint mentions Steve Johnson,
5

Officer Green, Lt. Kent and Paul Lagana by name, the additional
factual assertions against these defendants are conclusory or too
nebulous to “nudge” Plaintiff’s claims of deliberate indifference
“across the line from conceivable to plausible,” as required by the
Iqbal standard. Iqbal, 129 S. Ct. at 1951. In his Complaint,
Plaintiff alleges that Steve Johnson “is allowing smoking indoors
exposing me to environmental smoke (ETS) which poses an
unreasonable risk of harm,” and that Plaintiff “raised the issue at
community meetings and submitted institutional remedy forms.”
(Docket entry #1 at p. 5.) The allegations regarding Johnson are
similar to and precisely the sort of pleading the Supreme Court
shunned in Iqbal. Plaintiff generally alleged that the was exposed
to an “unreasonable risk of harm” he does not provide specific
factual allegations to support this claim. Additionally, while he
generally alleges that he complained of the smoking, he does not
allege that he made any complaints to Johnson. Therefore, the
Court finds that the allegations currently pled fail to state a
plausible claim against Johnson.
As to defendants Green, Kent, and Lagana, Plaintiff pleads that in
April 2007, Plaintiff had a conversation with Officer Green in
which Plaintiff complained about being moved to a room (next to
Plaintiff’s prior room ) which was unsatisfactory to Plaintiff
because the new room smelled of cigar smoke. When Green
allegedly responded that “he did not care” (Docket entry #1 at p.
8), Plaintiff asked to see the nurse, the lieutenant and the
administrator. Green allegedly denied Plaintiff’s requests and told
Plaintiff that Plaintiff had been moved to the room pursuant to
instructions from Lagana and Kent. Plaintiff asserts that “[t]his
event also ended in being threatened and excessive force.” (Id.)
Here, the allegation is merely that he was exposed to the old smell
of smoke. Additionally, he does not even explain how long the
room smelled of cigar smoke, how long he was housed in this
room, and whether he suffered any ill effects from being housed in
this room. Such allegations do not support a claim against these
individuals that he was “exposed to unreasonably high levels of
ETS.” See Helling, 509 U.S. at 35 (emphasis added).
With respect to the allegations that Plaintiff was threatened and
subjected to excessive force, Plaintiff does not plead who made the
threats and what the threats were or who assaulted him and how.
Therefore, the claims against these individuals are also dismissed
for failure to state a claim upon which relief may be granted.
6

(Docket Entry #8, pp. 4-7.)
The Amended Complaint consists of a five-page narrative without numbered paragraphs.
Excluding Plaintiff’s legal arguments and citations, Plaintiff states in the Amended Complaint:
And proving they are fully aware some staff members give “extra
duty” to those caught smoking indoors, but some staff members,
prisoners/patients, feel as though it is their right to smoke where
ever and when ever and they will do as they want. Which becomes
hypocricy [sic] at its best. And which includes some defendants in
this case who openly smoke indoors.
And compounding this problem is that this is the only mental
health facility in the state that sells cigarettes, cigars, etc. . . . And
PROVING the fact that there is smoking indoors by the
prisoners/patients the yard access is only 3 ½ hours in the morning;
2 ½ hours in the afternoon, for which there is no yard after dinner
for about 6 months of the year, which would only be an additional
3 hours; which equals only 6 hours a day of yard access where the
rest of the day smokers are forced to smoke indoors at a rate of
about 3 cigarettes per hour . . . . And if you factor in that most
patients go to group in the morning then work in the afternoon
some people cannot get outside during the week. And for which
common sense shows how much smoking is conducted indoors
which becomes the “EXPOSED TO UNREASONABLY HIGH
LEVELS” standard in, “HELLING,” 509 U.S. . . . .
Also on page 5 you mention defendants Cindy Sweeney, George
Hayman, Ronald Chen, Kevin Ryan, Merrill Main, Christine
Wittman, James McGreevey, Richard Codey, Jon Corzine, Steven
Johnson, Officer Green, Lt. Kent, and Paul Lagana for which the
previous Governors Wittman, Codey, and McGreevey had been
informed by JA over the years which is submitted as proof of a
pattern of such conduct with no concern and for which since they
are out of the 2 year filing limitation JA does not object to them
being dismissed from this case.
As to defendant Superintendent Cindy Sweeney she was informed
of the smoking problem by JA and others at monthly community
meetings, institutional remedy forms, letters through the mail,
other lawsuits. etc., which is also the case with Superintendent Paul

7

Lagana and Lt. Kent. For which they REFUSE to remedy or even
acknowledge . . . .
Also on page 6 you address Officer Green and the move. First, we
will say clearly by denying JA an opportunity to see the nurse
“VIOLATED CLEARLY ESTABLISHED LAW” . . . .
You mention “HOW LONG” was JA in that room which was
about one year. For which as we know those carcinogens last for
years on the walls, ceilings, clothes, etc., so the “OLD” smoke has
lasting deadly effects.
And on page 6 you ask whether JA “SUFFERED AND ILL
EFFECTS FROM BEING HOUSED IN THAT ROOM” for which
in general we are forced to sit next to people talking on the phone
smoking; eating meals in the dayroom smoking; even smoking in
the small yard which is not much better, until it blows away unlike
indoors, unless nobody goes to the yard which once again during
those times JA was denied access by ALL defendants despite
asking for such relief. And more directly YES, while moving his
property into that room JA suffered nausea, chest pains, difficulty
breathing including a restriction in the throat, etc....
And when JA complained to the relief Officer, defendant Clemens,
he said “F*** YOU, TOO BAD” and for which when JA then
attempted to go to medical when the door was opened for insulin
shots for diabetics after Clemens said NO JA was grabbed by
Clemens and taken to his room where Clemens punched JA in the
head and said “IF YOU WRITE THIS UP I WILL KILL YOU”
then locked JA in that room for the night which then made the
headache he got while unpacking even worse. And for which we
need to make clear 2 issues. First, this case is not about that
excessive force but focuses on the smoking issue. And second
though JA did complain to medical, `where he was given
medication, and the DOC Administration DOC basically said
“CLEMENS IS A COMPETENT PROFESSIONAL AND
WOULD NOT DO THAT” for which he then went home and shot
himself in the head killing himself proving not only the lack of
concern or understanding, by both DOC and the mental health
staff, but these people don’t care who they kill and we ask that the
next one not be JA by a slow and painful death that should be
avoided such as cancer by second hand smoke . . . .

8

In closing it is clear that any amount of second hand smoke is
unreasonable and harmful according to common sense . . . . For
which JA has saw many defendants smoking indoors such as
Clemens, Kent, Green, Lagana, as well as many others not named
in the suit . . .
Finally, it also must be stated that as JA was locked in his room
writing defendant Clemens also made clear if he was “FILING A
LAWSUIT IT WOULD BE THE LAST THING YOU DO”
making clear staff are fully aware that JA has no problem
addressing such violations to the courts . . .
(Docket Entry #11, pp. 1-5.)
II. STANDARD FOR DISMISSAL
The Prison Litigation Reform Act (?PLRA”), Pub. L. No. 104-134, §§ 801-810, 110 Stat.
1321-66 to 1321-77 (April 26, 1996), requires a District Court to screen a complaint in a civil
action in which a plaintiff is proceeding in forma pauperis and to sua sponte dismiss any claim if
the Court determines that it is frivolous, malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. See 28
U.S.C. § 1915(e)(2)(B).
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), hammered the “final nail-in-the-coffin” for the
“no set of facts” standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),2 which was
previously applied to determine if a federal complaint stated a claim. See Fowler v. UPMC
Shadyside, 578 F.3d 203 (3d Cir. 2009). The pleading standard under Rule 8 was refined by the

2

The Conley court held that a district court was permitted to dismiss a complaint for
failure to state a claim only if “it appear[ed] beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. at
45-46.
9

United States Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 129 S. Ct. 1937 (2009), where the Supreme Court clarified as follows:
Two working principles underlie our decision in Twombly. First,
the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice . . . . Rule 8 marks a
notable and generous departure from the hyper-technical, codepleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.
Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss. Determining 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. But where 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 “show[n]”“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because
they are no more than conclusions, are not entitled to the
assumption of truth. While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Iqbal, 129 S. Ct. at 1949 -1950 (citations omitted).
Since Iqbal, the Third Circuit has required district courts to conduct a three-part analysis
when reviewing a complaint for dismissal for failure to state a claim:
To determine the sufficiency of a complaint under the [Iqbal]
pleading regime . . . , a court must take three steps: First, the court
must “tak[e] note of the elements a plaintiff must plead to state a
claim.” Iqbal, 129 S. Ct. at 1947. Second, the court should
identify allegations that, “because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at
1950. Finally, “where there are well-pleaded factual allegations, a
10

court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.” Id.
Santiago v. Warminster Tp., 629 F. 3d 121, 130 (3d Cir. 2010) (footnote omitted).
The Court is mindful that the sufficiency of this pro se pleading must be construed
liberally in favor of the plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89 (2007).

11

III. DISCUSSION
A. Elements of Claim
A court’s initial task is to “tak[e] note of the elements [Plaintiff] must plead” in order to
state a claim of liability under 42 U.S.C. § 1983. See Iqbal, 129 S Ct. at 1947-48. Section 1983
provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . . . subjects,
or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
42 U.S.C. § 1983.
To recover under 42 U.S.C. § 1983, a plaintiff must show two elements: (1) a person
deprived him or caused him to be deprived of a right secured by the Constitution or laws of the
United States, and (2) the deprivation was done under color of state law. See West v. Atkins,
487 U.S. 42, 48 (1988).
To state a claim based on involuntary exposure to environmental tobacco smoke (“ETS”),
plaintiff must show (1) “he himself is being exposed to unreasonably high levels of ETS,”
Helling v. McKinney, 509 U.S. 25, 35 (1993); (2) “the risk of which he complains is not one that
today’s society chooses to tolerate,” id. at 36; and (3) defendant-official was deliberately
indifferent to the serious risk to Plaintiff’s future health from such exposure.3 See Helling, 509
3

Because Plaintiff is civilly committed, his ETS claim is under the Due Process Clause of
the Fourteenth Amendment. See Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982). However,
Eighth Amendment standards are applicable to his claim. See Rivera v. Marcoantonio, 153 Fed.
App’x 857, 859 n. 1 (3d Cir. 2005); Inmates of Allegheny County Jail v. Pierce, 612 F. 2d 754,
(continued...)
12

U.S. at 35-36; Ford v. Mercer County Correctional Center, 171 Fed. App’x 416 (3d Cir. 2006);
Atkinson v. Taylor, 316 F. 3d 257, 262 (3d Cir. 2003). As to deliberate indifference, “a prison
official cannot be found liable . . . for denying an inmate humane conditions of confinement
unless the official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.” Atkinson, 316 F. 3d at 262
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
As to the objective component of the ETS claim, Plaintiff asserts that some defendants
(Kent, Green, Lagana) have at some unspecified time smoked indoors, that patients have been
exposed to smoking in the dayroom, small yard, and telephone room, and that some patients feel
as if they have a right to smoke. However, Plaintiff does not assert facts showing that “he
himself is being exposed to unreasonably high levels of ETS,” which facts are required to satisfy
the objective element of the ETS claim. Helling, 509 U.S. at 35. Plaintiff merely alleges that he
occupied a room for one unspecified year that smelled of stale cigar smoke and that on one
occasion, when he moved into this room (on an unspecified date), he suffered nausea, chest pains
and difficulty breathing. Under these circumstances, Plaintiff has not asserted facts establishing
the objective component. 4

3

(...continued)
762 (3d Cir. 1979).
4

Compare Helling v. McKinney, 509 U.S. 25, 35 (1993) (holding that bunking with a
cell mate who smoked five packs of cigarettes per day exposed inmate to an unreasonable risk of
future harm); Atkinson v. Taylor, 316 F. 3d 257, 259 (3d Cir. 2003) (a prisoner who claimed that
he shared a cell with constant smokers for many months satisfied objective component);
Alvarado v. Litscher, 267 F. 3d 648, 653 (7th Cir. 2001) (prisoner asserted that ETS exacerbated
(continued...)
13

Nor does Plaintiff assert facts substantiating how each defendant was deliberately
indifferent to a risk to Plaintiff’s health from his exposure to ETS. The Supreme Court has
rejected a reading of the Constitution that “would allow liability to be imposed on prison officials
solely because of the presence of objectively inhumane prison conditions.” Farmer, 511 U.S. at
838. “[A] prison official cannot be found liable . . . for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Id. 837. Plaintiff
alleges that “defendant Superintendent Cindy Sweeney she was informed of the smoking
problem by JA and others at monthly community meetings, institutional remedy forms, letters
through the mail, other lawsuits. etc., which is also the case with Superintendent Paul Lagana and
Lt. Kent. For which they REFUSE to remedy or even acknowledge.” (Docket Entry #11, p. 2.)
However, Plaintiff alleges no facts showing when each defendant became aware that Plaintiff
was being exposed to unreasonably high levels of ETS. Nor does he allege facts showing that
each defendant responded unreasonably after becoming aware. See Farmer, 511 U.S. at 843
4

(...continued)
severe chronic asthma); Whitley v. Hunt, 158 F. 3d 882, 887-88 (5th Cir. 1998) (prison doctor
issued report noting that prisoner required non-smoking quarters), overruled on othe grounds by
Booth v. Churner, 532 U.S. 731, 735 (2001) with Rivera v. Marcoantonio, 153 Fed. App’x 857
(3d Cir. 2005) (complaint of improper ventilation and imperfect enforcement of no-smoking
policy failed to state claim where plaintiff could escape ETS exposure by going to his cell);
Griffin v. DeRosa, 153 Fed. App’x 851 (3d Cir. 2005) (allegations that restrooms in prison do
not have ventilation and plaintiff has been exposed to ETS in the restrooms for 20 months fails to
satisfy objective component); Richardon v. Spurlock, 260 F. 3d 495, 498 (5th Cir. 2001) (sitting
near smokers sometimes is not an unreasonable exposure to ETS); Pryor-El v. Kelly, 892 F.
Supp. 261, 267 (D.D.C. 1995) where plaintiff alleged “only that various unnamed inmates and
prison officials smoke in the TV room, games room, and the letter writing room, allegations did
not satisfy objective component).
14

(“[P]rison officials who actually knew of a substantial risk to inmate health or safety may be
found free from liability if they responded reasonably to the risk, even if the harm ultimately was
not averted”). For example, Plaintiff does not describe when the community meetings occurred,
what was said at the community meetings by the patients and by each defendant, what was stated
in any remedy forms or letters, when the remedy forms/letters were sent, who received the
remedy forms, what rules the institution had regarding smoking, what he asked each defendant to
do in response to the risk, and what the nature of the response of each defendant was to each
complaint. Accordingly, this Court finds that the Amended Complaint does not assert enough
specific, non-conclusory, facts to substantiate the conclusion that each, or any, defendant was
deliberately indifferent to the health risk to Plaintiff posed by exposure to ETS. Because the
Amended Complaint fails to “contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face,” Iqbal, 129 S. Ct. at 1949, this Court will dismiss the
Amended Complaint for failure to state a claim upon which relief may be granted.
Because Plaintiff is a civilly committed pro se litigant, this Court will give him a third
and final opportunity to file a second amended complaint, which in and of itself states a
cognizable § 1983 under Helling. Given that Plaintiff has persisted in making vague allegations
and unsubstantiated conclusion, this Court will provide the following additional guidance. A
statement of facts is similar to a newspaper article. Facts simply and specifically state who did
what to whom, and when and where it was done. For example, the Supreme Court has explained
that “[t]erms like ‘conspiracy,’ or even ‘agreement,’ are border-line: they might well be
sufficient in conjunction with a more specific allegation - for example, identifying a written
agreement or even a basis for inferring a tacit agreement, . . . but a court is not required to accept
15

such terms as a sufficient basis for a complaint.” Twombly, 550 U.S. at 557 (citations and
internal quotation marks omitted).5 If Plaintiff elects to file a second and final amended
complaint, this Court suggests that he fill in all the blanks on a § 1983 form complaint (avoid
“see attached”), as the form is designed to elicit facts, list the defendants, state which defendant
did what (and when and where) in numbered paragraphs that are in chronological order, and that
Plaintiff avoid use of vague and general language, such as stating that defendants knew or
defendants were deliberately indifferent. Also, the second amended complaint must be complete
on its face.6

5

See, e.g., Holmes v. Gates, 403 Fed. App’x 670 (3d Cir. 2010) (allegations that,
“[t]hroughout her employment, [she] has complained about mismanagement, malfeasance, and
racially discriminatory practices by management officials,” which has led to “racially
discriminatory and retaliatory practices [being employed] against her,” that these “practices have
kept her stagnant in her career despite her qualifications and efforts to advance,” and that
defendants “creat[ed] a hostile[,] offensive and abusive work environment through the abusive
working conditions, repeated and bogus disciplinary suggested actions, lies and deceit . . .” are
too conclusory to state a claim under Iqbal); Mayercheck v. Judges of Pennsylvania Supreme
Court, 395 Fed. App’x 839 (3d Cir. 2010) (“Mayerchek’s assertions that they conspired with the
other judicial defendants are mere conclusory allegations”); Bob v. Kuo, 387 Fed. App’x 134 (3d
Cir. 2010) (“There is nothing in the complaint’s specific allegations from which we can plausibly
infer that the defendants were deliberately indifferent to Bob’s serious medical needs”); Laffey v.
Plousis, 364 Fed. App’x 791, 794 (3d Cir. 2010) (“Laffey alleged no facts which would establish
a causal link between his suspension or demotion and the actions of any individual [defendant]”).
6

This Court will not try to piece together the allegations in the Complaint, Amended
Complaint, and second amended complaint, like a puzzle. Once an amended complaint is filed,
the original complaint no longer performs any function in the case and cannot generally be
utilized to cure defects in the amended complaint. See 6 Wright, Miller & Kane, Federal Practice
and Procedure: Civil 2d § 1476 (1990).
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IV. CONCLUSION
For the reasons set forth above, the Court dismisses the Amended Complaint, without
prejudice to the filing of a final amended complaint. The Court will enter an appropriate Order.

/s/ Jose L. Linares
JOSE L. LINARES, U.S.D.J.
Dated: June 22, 2011

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