Cabrera v. Clark et al

Filing 10

MEMORANDUM AND ORDER: 1. Pltfs mtn to proceed ifp 2 is GRANTED.2. The claims against Dfts Clark, Giglio, Luong, Harris, Stevens, Snyder, Alvarez, Boot, and Hersh are DISMISSED for failure to state a claim uponwhich relief may be granted WITH leave to file an amended complaint, within (20) days of the date hereof.3. The claims against Dft Kelly are DISMISSED for failure to state a claim upon which relief may be granted WITHOUT leave to file an amended complaint.4. The court will defer service of the original complaint on Dft Smith for (20) days. If Pltf elects to file an amended complaint, it will supersede the original complaint and must be complete in all respects without reference to the original complaint.Signed by Honorable Sylvia H. Rambo on 3/22/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSE EMMANUEL ORTIZ
CABRERA,
Plaintiff
vs.
BRIAN S. CLARK,
et al.,
Defendants

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CIVIL NO. 1:16-CV-392

(Judge Rambo)

MEMORANDUM AND ORDER

Background
On March 4, 2016, Plaintiff Jose Emmanuel Ortiz
Cabrera, an inmate presently confined at the York County
Prison, York, Pennsylvania, filed a pro se civil rights
complaint pursuant to 42 U.S.C. § 1983 against ten
individual employed at the Adams County Prison, nine
“John or Jane Does”1 and a Pennsylvania State Trooper.
(Doc. 1.)

Along with his complaint, Cabrera submitted a

motion for leave to proceed in forma pauperis under 28
U.S.C. § 1915.
It is well-settled that the use of John/Jane Doe
defendants absent compelling reasons will not suffice
and the district court may dismiss such defendants if
plaintiff, after being granted a reasonable period of
discovery, fails to identify the defendants. Sheetz v.
Morning Call, 130 F.R.D. 34 (E.D. Pa. 1990).
1.

The complaint is a rambling, disjointed, vague
and confusing document which consists of 95 paragraphs.
(Id.)

It primarily sets forth six incidents of alleged

sexual abuse or harassment by prison guards and, after
Plaintiff reported those incidents, how the prison
officials and the Pennsylvania State Trooper responded
to Plaintiff’s allegations. (Id.)
The court will review the complaint pursuant to
the screening provisions of the Prison Litigation Reform
Act of 1995 and start this review by listing the named
defendants and then flesh out the allegations leveled
against them.

The ten individuals employed at Adams

County Prison are as follows: (1) Brian S. Clark,
Warden; (2) Michael Giglio, Deputy Warden of Security;
(3) Dzung Luong, Deputy Warden of Training; (4) Alyssa
Harris, Business Manager; (5) Robert Stevens, Director
of Treatment Services and Misconduct Hearing Examiner;
(6) Larry Snyder, (7) Jorge Alvarez, and (8) Joe Boot,
Lieutenants; and (9) Michael Smith and (10) Benjamin
Hersh, Correctional Officers. (Id. at 5, ¶¶ 5-14.) The
Pennsylvania State Trooper named as a defendant by
Plaintiff is George H. Kelly, Jr. (Id. at 6, ¶ 24.)
2

Plaintiff names three “Jane Does,” a Lieutenant,
Grievance Coordinator and Medical Supervisor; five “John
Doe,” Correctional Officers; and one “John Doe,”
Lieutenant.

(Id.

at 3-4, ¶¶ 15-23.)

At times it

appears that Plaintiff gives certain “John or Jane Doe”
defendants fictitious names and that the names given
some of the Defendants by Plaintiff are fictitious.
Plaintiff alleges that he commenced his
confinement at Adams County Prison on June 12, 2015,
after he was sentenced to serve three to twelve months
for a misdemeanor. (Id. at 6, ¶ 27.)

Plaintiff appears

to alleged that the first incident of sexual abuse
occurred on June 21, 2015, by two correctional officers
but he only names one of those officers, Defendant
Smith.2 (Id. at 6-7, ¶ 28 & at 9, ¶¶ 49-50.) Plaintiff
claims that Defendant Smith came into his cell and
“touched him inappropriately and commented ‘are you
ready for me[.]’” (Id. at 9, ¶ 50.)

Plaintiff claims

that Defendant Smith “about 7:30 to 9:45 am (sic) . . .

In describing this incident Plaintiff states that he
“reported a Correctional Officer who Plaintiff referred
to by the name Michael Smith.” (Id. at 9, ¶ 49.)

2.

3

put his hands on Plaintiff[’s] nipples and in a sexual
insinuation told Plaintiff ‘are you ready for me.’” Id.
Plaintiff further alleges that Defendant Smith grabbed
his genitals and attempted to kiss Plaintiff on the
mouth and that Plaintiff “noted . . . a strong
intoxicating odor coming from his mouth and person.” Id.
In describing the second incident of sexual
harassment Plaintiff refers to an individual by the name
of Atwood.3 Id. at 9, ¶ 51.

Immediately thereafter

apparently continuing with a description of the second
incident Plaintiff refers to a “John Doe(7)” and claims
the incident occurred on September 13, 2015 and the
guard “referenced (sic) to wanting to eat the Plaintiff
‘Butt’ and if the guard was allowed he would give
Plaintiff all the food he wanted to eat” and “they
should meet up outside the prison [because] they could
do things on the outside they can’t do inside the
prison.”

(Id. at 9-10, ¶¶ 52, 53.) Plaintiff makes no

allegations that “Atwood” or “John Doe (7)” engaged in

He refers to this individual by stating “[t]he
seco[n]d incident the Plaintiff referred to by the last
name Atwood.” (Doc. 1, at 9, ¶ 51.)

3.

4

any inappropriate touching only that they verbally
harassed him.
The third incident occurred on an unspecified
date and involved a correctional officer who Plaintiff
“referred to by the last name Coutorry.” (Id. at 10, ¶
57.) Plaintiff claims that this correctional officer
“notice[d] the Plaintiff had an ulcer on his mouth” and
“told him the ulcer was the result of performing a
sexual act.” (Id. at 10, ¶ 58.)

Plaintiff makes no

allegations that “Coutorry” engaged in any inappropriate
touching only that he verbally harassed him.
The fourth incident alleged by Plaintiff appears
to have occurred on the same day as the first incident.
(Id. at 10, ¶¶ 61-62.) Plaintiff alleges that on June
21, 2015, a “Defendant John Doe (6) called him
derogatory names and offensive words relating to sexual
[orientation] and race on several occasion[s]” but he
also indicates that the incident involved two
correctional officers “referred to by the last name
Shower and Ferry.” Id. Plaintiff makes no allegations
that “John Doe (6)” or correctional officers Shower and

5

Ferry engaged in any inappropriate touching only that
they verbally harassed him.4
The fifth incident alleged by Plaintiff occurred
on an unspecified date and involved Defendant Hersh.
(Id. at 10, ¶¶ 63-65.)5 Plaintiff alleges that Defendant
Hersh commented on his sexual orientation. Id.
Plaintiff then makes some vague and incoherent
allegations that Defendant Hersh planted contraband,
apparently in his cell, in retaliation for grievances he
filed.6 Id.

Plaintiff makes no allegations that

Neither Shower nor Ferry are named as defendants by
Plaintiff.

4.

Plaintiff states that the fifth incident involved “a
Correctional Officer who the Plaintiff referred to by
the name of Benjamin Hersh.”

5.

The allegations in toto, including grammatical and
spelling errors, in paragraph 65 are as follows:

6.

This particular Defendant Benjamin Hersh plant
contraband in Plaintiff cell in retaliation
Plaintiff Grievance against his continued
threats and obligated Plaintiff apologized with
him in order to talk to the Warden for
Plaintiff can see his family in a special
visit. Wish one was a lie just to confuse in
order to control Plaintiff, and scare Plaintiff
in order to stop the Grievances. He also
obligated Plaintiff to write a slip and a note
in peace of paper apologizing with the Warden,
(continued...)
6

Defendant Hersh engaged in any inappropriate touching
only that he verbally harassed him.
Finally, the sixth incident allegedly involved a
correctional officer “who Plaintiff referred to by the
last name Knaub.” (Id. at 11, ¶ 68.) Plaintiff alleges
that Knaub7 “threatened to write the Plaintiff up for
raping him (the guard) in the shower.” (Id. at 11, ¶
69.)
Plaintiff apparently filed multiple grievances
with prison officials relating to the alleged sexual
abuse and harassment as well as wrote letters to the
Pennsylvania State Police regarding the abuse and
harassment.

(Id. at 7, ¶ 31 & 10-11, ¶¶ 65-68.)

Plaintiff appears to allege that the grievances were
denied or ignored by prison officials.

6.

(...continued)

Deputy Warden, Business Manager, Director
Stevens and him at the end, and to apologize
with the other sexual depredator staff when
Plaintiff saw them. And he put it in a flowers
that Plaintiff just make for his Counselor of
Mental Health Mrs. Jen. He opened Plaintiff
cell and walks away with flowers.
7.

Knaub is not named as a defendant by Plaintiff.
7

During Plaintiff’s confinement at the Adams
County Prison he was allegedly issued several misconduct
reports. (Id. at 6, ¶ 28.)

Plaintiff claims that he

spent 6 months and 11 days in solitary confinement as
the result of disciplinary proceedings which were
instituted in retaliation for filing grievances. Id.
Plaintiffs claims that Defendant Stevens, acting
as a Hearing Examiner, found him guilty of the
misconduct reports and that with respect to some of the
reports there was no evidence to support the guilty
findings. (Id. at 7, ¶35.)

Plaintiff gives no details

regarding the misconduct charges.
The only allegations against Defendants Clark,
Giglio and Luong are with respect to ignoring or denying
grievances and acting unfavorably on appeals from
sanctions imposed by the Hearing Examiner. (Id. at 8,
¶39, 44, & at 11, 66-67.)
With respect Defendants Alvarez, Snyder and
Boot, Plaintiff in a conclusory fashion merely states
that they filed false misconduct reports in retaliation
for his filing grievances relating to the sexual abuse
and harassment. (Id. at 9, ¶ 46.)
8

As for Defendant Kelly, the State Trooper,
Plaintiff alleges that Trooper Kelly was assigned to
investigate his allegations and met with him in
November, 2015. (Id. at 7, ¶ 32.) Plaintiff alleges he
reported to Defendant Kelly the six incidents outlined
above and that some of the incidents were captured “on
the prison surveillance” system. (Id. at 7-8, ¶¶ 33-34,
40.)

Plaintiff claims that Trooper Kelly told him that

“he better stop the accusation[s] towards the
Correctional Officers or [Trooper Kelly] may find DNA in
Plaintiff girl (sic) and accuse Plaintiff of Rape.”
(Id. at 8, ¶ 41.)

Plaintiff further alleges that on

February 23, 2016, Trooper Kelly filed charges against
him for making false reports. (Id. at 11, ¶ 70.)
Plaintiff states that the charges were filed before a
District Justice in Adams County and that a preliminary
hearing is scheduled for March 30, 2016. Id.
As for Defendant Harris Plaintiff alleges
without providing any details that Defendant Harris, as
Business Manager of Adams County Prison, denied him a
proper medical diet, he was served cold meals and he
suffered allergies from the meals he was served during
9

his confinement at the Adams County Prison. (Id. at 12,
¶¶ 72-76.) Plaintiff also alleges that grievances he
filed relating to those conditions were denied by prison
officials, including Warden Clark. Id.
Plaintiff requests declaratory, injunctive and
monetary relief. With respect to monetary relief
Plaintiff requests compensatory and punitive damages.
The Prison Litigation Reform Act (the "PLRA"),
Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996)
imposed new obligations on prisoners who file suit in
federal court and wish to proceed in forma pauperis
under 28 U.S.C. § 1915, e.g., the full filing fee
ultimately must be paid (at least in a non-habeas suit).
Also, a new section was added which relates to screening
complaints in prisoner actions.8

8.

For the reasons

Section 1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall
dismiss the case at any time if the court
determines that (A) the allegation of poverty is
untrue; or (B) the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune
from such relief.
10

outlined below, all of Cabrera’s claims, other than with
respect to Defendant Smith, will be dismissed with leave
to file an amended complaint.

However, the court will

not direct service on Smith until Plaintiff has had an
opportunity to file an amended complaint.9
Discussion
When considering a complaint accompanied by a
motion to proceed in forma pauperis, a district court
may rule that process should not be issued if the
complaint is malicious, presents an indisputably
meritless legal theory, or is predicated on clearly
baseless factual contentions.

Neitzke v. Williams, 490

U.S. 319, 327-28 (1989); Wilson v. Rackmill, 878 F.2d
772, 774 (3d Cir. 1989).

Indisputably meritless legal

theories are those "in which either it is readily
apparent that the plaintiff's complaint lacks an
arguable basis in law or that the defendants are clearly

An amended complaint supersedes the original
complaint. If Plaintiff files an amended complaint it
should be complete in all respect without reference to
the original complaint.

9.

11

entitled to immunity from suit . . . ."

Roman v.

Jeffes, 904 F.2d 192, 194 (3d Cir. 1990) (quoting
Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir.
1990)).

The Supreme Court has recognized that "a

finding of factual frivolousness is appropriate when the
facts alleged rise to the level of the irrational or the
wholly incredible . . . ."

Denton v. Hernandez, 504

U.S. 25, 33 (1992); see also Roman, 904 F.2d at 194
(baseless factual contentions describe scenarios clearly
removed from reality).

The Third Circuit added that

"the plain meaning of 'frivolous' authorizes the
dismissal of in forma pauperis claims that . . . are of
little or no weight, value, or importance, not worthy of
serious consideration, or trivial."

Deutsch v. United

States, 67 F.3d 1080, 1083 (3d Cir. 1995).

It also has

been determined that "the frivolousness determination is
a discretionary one," and trial courts "are in the best
position" to determine when an indigent litigant's
complaint is appropriate for summary dismissal.
504 U.S. at 33.
12

Denton,

Even though a complaint is not frivolous it
still may be dismissed under the screening provision of
the PLRA if it fails to state a claim upon which relief
may be granted.

Fed.R.Civ.P. 12(b)(6) is the basis for

this type of dismissal.

Under Rule 12(b)(6), we 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.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir.2009) (quoting Phillips v. County of Allegheny, 515
F.3d 224, 231 (3d Cir.2008)).

While a complaint need

only contain “a short and plain statement of the claim,”
Fed.R.Civ.P. 8(a)(2), and detailed factual allegations
are not required, Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929
(2007), a complaint must plead “enough facts to state a
claim to relief that is plausible on its face.”

Id. at

570, 550 U.S. 544, 127 S.Ct. 1955 at 1974, 167 L.Ed.2d
929.

“The plausibility standard is not akin to a
13

‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted
unlawfully.”

Ashcroft v. Iqbal,___U.S.___, 129 S.Ct.

1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 556, 127 S.Ct. at 1965.) “[L]abels and
conclusions” are not enough, Twombly, 550 U.S. at 555,
127 S.Ct. at 1964-65, and a court

“‘is not bound to

accept as true a legal conclusion couched as a factual
allegation.’” Id., 127 S.Ct. at 1965 (quoted case
omitted).
In resolving the issue of whether a complaint
states a viable claim, we thus “conduct a two-part
analysis.” Fowler, supra, 578 F.3d at 210. First, we
separate the factual elements from the legal elements
and disregard the legal conclusions. Id. at 210-11.
Second, we “determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has
a “‘plausible claim for relief.’” Id. at 211 (quoted
case omitted).

14

A plaintiff, in order to state a viable § 1983
claim, must plead two essential elements:

1) that the

conduct complained of was committed by a person acting
under color of state law, and 2) that said conduct
deprived the plaintiff of a right, privilege, or
immunity secured by the Constitution or laws of the
United States.

Natale v. Camden County Corr. Facility,

318 F.3d 575, 580-581 (2003);

Groman v. Township of

Manalapan, 47 F.3d 628, 638 (3d Cir. 1995); Shaw by
Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir.
1990).
Moreover, in addressing whether a viable claim
has been stated against a defendant the court must
assess whether Plaintiff has sufficiently alleged
personal involvement of the defendant in the act which
he claims violated his rights.

Liability may not be

imposed under § 1983 on the traditional standards of
respondeat superior.

Capone v. Marinelli, 868 F.2d 102,

106 (3d Cir. 1989) (citing Hampton v. Holmesburg Prison
Officials, 546 F.2d 1017, 1082 (3d Cir. 1976)).
15

In

Capone, the court noted "that supervisory personnel are
only liable for the § 1983 violations of their
subordinates if they knew of, participated in or
acquiesced in such conduct."

868 F.2d at 106 n.7.

There are only two avenues for supervisory
liability. First, as mentioned above if the supervisor
knew of, participated in or acquiesced in the harmful
conduct, and second, if a supervisor established and
maintained a policy, custom or practice which directly
caused the constitutional harm. Id.; Santiago v.
Warminster Township, 629 F.3d 121, 129 (3d Cir. 2010);
A.M. ex rel. J.M.K. v. Luzerne County Juvenile Center,
372 F.3d 572, 586 (3d Cir. 2004).

However, with respect

to the second avenue of liability conclusory, vague and
speculative allegation of custom, policy or practice are
insufficient under Twombly and Iqbal. Id.
With respect to Defendants Clark, Giglio and
Luong, the court discerns no allegations in the
complaint that they were involved in any conduct which
violated Plaintiff’s constitutional rights. Their only
16

involvement was with respect to the handling of
Plaintiff’s grievances and appeals from disciplinary
proceedings.

Such involvement is insufficient as a

matter of law to render those defendants liable.

“[T]he

failure of a prison official to act favorably on an
inmate's grievance is not itself a constitutional
violation.”

Rauso v. Vaughn, Civil No. 96-6977, 2000 WL

873285, at *16 (E.D.Pa., June 26, 2000). See also
Overholt v. Unibase Data Entry, Inc., 221 F.3d 1335
(Table), 2000 WL 799760, at *3 (6th Cir.2000) (“The
defendants were not obligated to ‘properly’ respond to
Overholt's grievances because there is no inherent
constitutional right to an effective prison grievance
procedure. Hence, his allegations that the defendants
did not properly respond to his grievances simply do not
rise to the level of a constitutional violation.”)
(citations omitted); Mitchell v. Keane, 974 F.Supp. 332,
343 (S.D.N.Y.1997) (“it appears from the submissions
before the court that Mitchell filed grievances, had
them referred to a prison official, and received a
17

letter reporting that there was no evidence to
substantiate his complaints. Mitchell's dissatisfaction
with this response does not constitute a cause of
action.”);

Caldwell v. Beard, Civil No. 2:07-CV-727,

2008 WL 2887810, at *4 (W.D.Pa. July 23, 2008) (“Such a
premise for liability [i.e., for performing a role in
the grievance process] fails as a matter of law.”),
aff'd,--- Fed.Appx. ----, 2009 WL 1111545 (3d Cir. April
27, 2009); Caldwell v. Hall, Civil No. 97-8069, 2000 WL
343229, at *2 (E.D.Pa. March 31, 2000) (“The failure of
a prison official to act favorably on an inmate's
grievance is not itself a constitutional violation.”);
Orrs v. Comings, Civil No. 92-6442, 1993 WL 418361, at
*2 (E.D.Pa. Oct.13, 1993) (“But an allegation that a
defendant failed to act on a grievance or complaint does
not state a Section 1983 claim.”); Jefferson v. Wolfe,
Civil No. 04-44, 2006 WL 1947721, at *17 (W.D. Pa. July
11, 2006) (“These allegations [of denying grievances or
grievance appeals] are insufficient to establish such
Defendants' personal involvement in the challenged
18

conduct under Section 1983. See Watkins v. Horn, 1997 WL
566080 at * 4 (E.D.Pa..[sic] 1997) (concurrence in an
administrative appeal process is not sufficient to
establish personal involvement)”). Consequently,
Plaintiff’s claims against Clark, Giglio and Luong are
not viable and the complaint as it relates to them will
be dismissed with leave to file an amended complaint.
Pro se parties are accorded substantial
deference and liberality in federal court. Haines v.
Kerner, 404 U.S. 519 (1972); Hughes v. Rowe, 449 U.S. 5
(1980).

They are not, however, free to ignore the

Federal Rules of Civil Procedure.

Federal Rule of Civil

Procedure 8 requires that a complaint contain a short
and plain statement setting forth (1) the grounds upon
which the court's jurisdiction rests, (2) the claim
showing that the pleader is entitled to relief, and (3)
a demand for judgment for the relief sought by the
pleader.
Although there is not a heightened pleading
standard in § 1983 cases, a § 1983 complaint in order to
19

comply with Rule 8 must contain at least a modicum of
factual specificity, identifying the particular conduct
of the defendant that is alleged to have harmed the
plaintiff, so that the court can determine that the
complaint is not frivolous and a defendant has adequate
notice to frame an answer.

A civil rights complaint

complies with this standard if it alleges the conduct
violating the plaintiff's rights, the time and the place
of that conduct, and the identity of the responsible
officials.
Under even the most liberal construction, the
complaint as it relates to Defendants Harris, Stevens,
and Hersh is in violation of Rule 8 and fails to state a
claim on which relief may be granted.

It does not give

those defendants fair notice of what Plaintiff’s claims
are and the grounds upon which the claims rest.

There

are no factual allegations with respect to where and
when each defendant was involved in wrongdoing. Even
taking into account the fact that Plaintiff is
proceeding pro se, the complaint is not in conformity
20

with Rule 8 of the Federal Rules of Civil Procedure.
Accordingly, the complaint is subject to sua sponte
dismissal by the court.

Such dismissal will be ordered

with leave to file an amended complaint. See Ala’ Ad-Din
Bey v. U.S. Department of Justice, 457 Fed.Appx. 90, 91
(3d Cir. 2012)(quoting Salahudin v. Cuomo, 861 F.2d 40
(2d Cir. 1988)).
With respect to Defendants Snyder, Alvarez, and
Boot, Plaintiff appears to be attempting to set forth
retaliation claims for filing grievances.
A retaliation claim may be viable both under the
Due Process Clause of the Fourteenth Amendment as well
as the First Amendment. Rauser v. Horn, 241 F.3d 330,
333 (3d Cir. 2001); Smith v. Mensinger, 293 F.3d 641,
653 (3d Cir. 2002).

The elements of both types of

claims, however, are essentially the same. Id.
To establish a Section 1983 retaliation claim, a
plaintiff bears the burden of satisfying three elements.
First, a plaintiff must prove that he was engaged in a
constitutionally protected activity. Rauser v. Horn, 241
21

F.3d 330, 333 (3d Cir. 2001). Second, a prisoner must
demonstrate that he “suffered some ‘adverse action’ at
the hands of prison officials.” Id. (quoting

Allah v.

Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).

This

requirement is satisfied upon showing that “the action
‘was sufficient to deter a person of ordinary firmness
from exercising his First Amendment rights.’” Id.
(quoting Allah, 229 F.3d at 225). Third, a prisoner must
prove that “his constitutionally protected conduct was
‘a substantial or motivating factor’ in the decision to
discipline him” or take the adverse action. Id.
(quoting Mount Healthy Bd. of Educ. v. Doyle, 429 U.S.
274, 287 (1977).10
Plaintiff’s retaliation claims against Snyder,
Alvarez and Boot suffers from the same Rule 8 defects as

10. Under Smith v. Mensinger, filing a false misconduct
report is cognizable as a denial of due process when
the false misconduct charge is filed “for the sole
purpose of retaliating against an inmate for his/her
exercise of a constitutional right” such as his or her
right to file a grievance with state officials or a
lawsuit regarding prison conditions. 293 F.3d at 653654 (emphasis added).
22

the claims against Harris, Steven and Hersh.
Consequently, those claims will be dismissed with leave
to file an amended complaint.
Also, the claims against Trooper Kelly appear to
be based on a similar vein. The threatening statement by
Trooper Kelly is that if Plaintiff continued to make
allegations of sexual abuse and harassment against
correctional officers, he would plant evidence which
would incriminate Plaintiff in a sexual crime. Plaintiff
does not allege that this deterred him from filing
grievances or complaints regarding the alleged
harassment or abuse by correctional officers.

He

further does not alleged that Trooper Kelly followed
through with the alleged threat to plant evidence.
Instead, Plaintiff alleges that Trooper Kelly filed
criminal charges against him, i.e., Plaintiff falsely
reported a crime.

Plaintiff admits that a preliminary

hearing is scheduled before a state District Justice on

23

March 30, 2016.11

To arrive at this stage, a criminal

complaint had to be filed and an arrest warrant or
summons issued by a District Justice based on a finding
of probable cause that a crime had been committed. There
are no allegations from which it can be concluded that
Trooper Kelly took an adverse action against Plaintiff
because of grievances or complaints by Plaintiff that
corrections officers sexually abused him.

In light of

the above circumstances, including the pending criminal
proceedings, the court will dismiss the claims leveled
against Trooper Kelly. See Heck v. Humphrey, 512 U.S 477

The docket of Adams County Magisterial District 513-01 was accessed using The Unified Judicial System of
Pennsylvania Web Portal and reveals that on February
11, 2016, a criminal complaint was filed against
Plaintiff charging him with two counts of making false
reports under 18 Pa.C.S. § 4906(a) and (b)(1). Section
4906(a) states that “a person who knowingly gives false
information to any law enforcement officer with intent
to implicate another commits a misdemeanor of the
second degree.” Subsection (b)(1) states that “a person
commits a misdemeanor of the third degree if he []
reports to law enforcement authorities an offense or
other incident within their concern knowing that it did
not occur[.]” The date of the offenses was June 1,
2015, which is 11 days before Plaintiff was confined at
Adams County Prison.

11.

24

(1994);12 Smithson v. Rizzo, 2015 WL 1636143, at* 2-4, 12
(M.D.Pa. April 7, 2015)(“The final termination rule
announced in Heck also bars Plaintiff’s § 1983 claims
that have the effect of impugning the underlying [state]
criminal charges which are still pending against
Plaintiff.”).
Plaintiff, as outlined above, sets forth several
allegations of sexual harassment.

Other than with

respect to Defendant Smith where there are allegations
of inappropriate physical contact, the allegations do
not go beyond mere harassing words and such verbal
harassment is not actionable under § 1983. Johnson v.
Glick, 481 F.2d 1028, 1033 n.7 (2d Cir. 1973); Maclean

In Heck v. Humphrey, 512 U.S. 477 (1994), the
Supreme Court ruled that a constitutional cause of
action for damages does not accrue "for allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whole unlawfulness would
render a conviction or sentence invalid," until the
plaintiff proves that the "conviction or sentence has
been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized
to make such determination, or called into question by
a federal court's issuance of a writ of habeas corpus."
Id. at 486-87.

12.

25

v. Secor, 876 F. Supp. 695, 698-99 (E.D. Pa. 1995);
Murray v. Woodburn, 809 F. Supp. 383, 384 (E.D. Pa.
1993) ("Mean harassment . . . is insufficient to state a
constitutional deprivation."); Prisoners' Legal Ass'n v.
Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993) ("[V]erbal
harassment does not give rise to a constitutional
violation enforceable under § 1983.").
Mere threatening language and gestures of a
custodial officer do not, even if true, amount to
constitutional violations.

Fisher v. Woodson, 373 F.

Supp. 970, 973 (E.D. Va. 1973); see also Balliet v.
Whitmire, 626 F. Supp. 219, 228-29 (M.D. Pa.) ("[v]erbal
abuse is not a civil rights violation . . ."), aff'd,
800 F.2d 1130 (3d Cir. 1986) (Mem.).

A constitutional

claim based only on verbal threats will fail regardless
of whether it is asserted under the Eighth Amendment's
cruel and unusual punishment clause, see Prisoners'
Legal Ass'n, 822 F. Supp. at 189, or under the
Fourteenth Amendment's substantive due process clause,
see Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991).
26

Verbal harassment or threats, with some
reinforcing act accompanying them, however, may state a
constitutional claim.

For example, a viable claim has

been found if some action taken by the defendant
escalated the threat beyond mere words.

See Northington

v. Jackson, 973 F.2d 1518 (10th Cir. 1992) (guard put a
revolver to the inmate's head and threatened to shoot);
Douglas v. Marino, 684 F. Supp. 395 (D.N.J. 1988)
(involving a prison employee who threatened an inmate
with a knife). It has also been found that verbal
harassment can rise to a constitutional level in a
situation where fulfillment of the threat was
conditioned on the inmate's exercising some
constitutionally protected right.

Bieros v. Nicola, 860

F. Supp. 226, 233 (E.D. Pa. 1994); see also Prisoners'
Legal Ass'n, 822 F. Supp at 189; Murray, 809 F. Supp. at
384. Consequently, the claims against Defendant Smith
cannot be dismissed.
ACCORDINGLY, IT IS HEREBY ORDERED THAT:

27

1.

Plaintiff’s motion to proceed in forma

pampers (Doc. 2) is construed as a motion to proceed
without full prepayment of the filing fee and is
GRANTED.
2.

The claims against Defendants Clark, Giglio,

Luong, Harris, Stevens, Snyder, Alvarez, Boot,

and

Hersh are DISMISSED for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) with leave to file an amended
complaint, consistent with the background of this order,
within twenty (20) days of the date hereof.
3.

The claims against Defendant Kelly are

DISMISSED for failure to state a claim upon which relief
may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
without leave to file an amended complaint.13
4.

The court will defer service of the original

complaint on Defendant Smith for twenty (20) days.

If

Plaintiff elects to file an amended complaint, it will
In light of Heck it would be futile to allow
Plaintiff to file an amended complaint with respect to
Trooper Kelly.

13.

28

supersede the original complaint and must be complete in
all respects without reference to the original
complaint.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge

Dated: March 22, 2016

29