McKinney v. Cucinella

• Decision Date: 02 June 2016
• Docket Number: Civ. No. 15-7442 (KM) (MAH)
• Parties: IVAN G. MCKINNEY, Plaintiff, v. NURSE CUCINELLA, et al. Defendants.
• Court: U.S. District Court — District of New Jersey

IVAN G. MCKINNEY, Plaintiff, v. NURSE CUCINELLA, et al. Defendants.

Civ. No. 15-7442 (KM) (MAH)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

June 2, 2016

NOT FOR PUBLICATION

OPINION

KEVIN MCNULTY, U.S.D.J.

I. INTRODUCTION

The plaintiff, Ivan G. McKinney, is a state prisoner currently incarcerated at the New Jersey State Prison in Trenton, New Jersey. He is proceeding pro se with a civil rights compliant filed pursuant to 42 U.S.C. § 1983. This complaint (ECF no. 1) had its origin in a "motion to amend," which sought to add unrelated claims to another action, one of five that Mr. McKinney has pending. Dated May 25, 2015, it was filed on June 29, 2015, in civil action 14-3564 (ECF no. 10). I required that the additional claims be filed in this, a separate action. See ECF no. 2.

Mr. McKinney has now filed an application to proceed in forma pauperis, which will be granted. The Clerk will be ordered to file the complaint.

This Court must now review the complaint (ECF no. 1) pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915 A to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from suit. For the reasons set forth below, the complaint will be permitted to proceed in part.

II. BACKGROUND

The allegations of this civil rights complaint are construed as true for purposes of this Opinion. Mr. McKinney names a plethora of defendants and different claims in his complaint. Almost all seem to involve events at the New Jersey State Prison, where he is currently incarcerated. The allegations of the complaint are as follows:

1. Officer Broskie assaulted Mr. McKinney on May 27, 2013 using excessive force causing a left wrist injury.

2. Nurse Cucinella deliberately withheld medication on May 27, 2013 for a chronic situation in retaliation for complaints against the medical department.

3. Officer Adcock refused to give Mr. McKinney toilet paper while he was in detention from May 28, 2013 until June 2, 2013. Officer Adcock also refused to allow Mr. McKinney to shower for seventy-two hours. Mr. McKinney also asked Officer Adcock to show him to medical because he was in pain, yet did not see medical for seventeen days.

4. Sergeant/Ms. Peel subjected Mr. McKinney to false imprisonment and false arrest on May 28, 2013 in retaliation for the incident with Officer Broskie. Upon leaving "the hole" on June 2, 2013, Mr. McKinney told her he feared retaliation from Broskie, but Sgt. Peel, who promised to speak to Broskie, never did, and Broskie retaliated when he got back to the unit.

5. On June 6, 2013, Nurse Zisa showed Officer Lazar Mr. McKinney's slip regarding a medical appointment. This behavior was deliberately indifferent and retaliatory because Officer Lazar harassed Mr. McKinney after that.

6. On June 6, 2013, Officer Lazar harassed and retaliated against Mr. McKinney because he complained about his injury that was caused by his colleague, Officer Broskie.

7. From May 27, 2013 until June 14, 2013, John and Jane Does refused to give Mr. McKinney medical attention for seventeen days for his injured left wrist.

8. Nurse Creamer refused to render medical attention on Mr. McKinney's injured left wrist after she told him she was told not to treat him or else she would be fired.

9. Officer Sevino and Officer John Doe assaulted Mr. McKinney on July 25, 2013 when they slammed his head into an elevator.

10. Officer Broskie retaliated against Mr. McKinney on June 2, 2013 by refusing to give him recreation time and made him wait three hours for a mattress. Additionally, Mr. McKinney could not call his son for his birthday.

11. From February 2, 2013 until August 1, 2013, Lieutenant Accacios, Sergeant Torre, Warden Biggott, Captain Davies and Sgt. Peel subjected Mr. McKinney to cruel and unusual punishment when he was in his cell for thirty-one hours straight from Tuesdays to Wednesdays during this period.

III. LEGAL STANDARDS

A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his constitutional rights. Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

Thus, to state a claim for relief under § 1983, a plaintiff must allege first, the violation of a right secured by the Constitution or laws of the United States, and second, that the alleged deprivation was committed or caused by a person acting under color of state law. See Harvey v. Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v. Atkins, 487 U.S. 42, 48 (1988).

Under the Prison Litigation Reform Act, Pub.L. 104-134, §§ 801-810,110 Stat. 1321-66 to 1321-77 (Apr. 26, 1996) ("PLRA"), district courts must review complaints in those civil actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district courts to sua sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B).

"The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)." Schreane v. Seana, 506 F. App'x 120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App'x 230, 232 (3d Cir. 2012) (discussing 42 U.S.C. § 1997e(c)(l)); Courteau v. United States, 287 F. App'x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)). That standard is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), as explicated by the United States Court of Appeals for the Third Circuit. To survive the court's screening for failure to state a claim, the complaint must allege 'sufficient factual matter' to show that the claim is facially plausible. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3dCir. 2009) (citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). "[A] pleading that offers 'labels or conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

Pro se pleadings, as always, will be liberally construed. See Haines v. Kerner, 404 U.S. 519 (1972). Nevertheless, "pro se litigants still must allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted) (emphasis added).

IV. DISCUSSION

A. Officer Broskie

Mr. McKinney's first allegation is that, on May 27, 2013, Officer Broskie used excessive force on him and hurt his left wrist. For a prisoner to state an Eighth Amendment claim for the excessive use of force by a prison official, he must show that the force was not applied in a good-faith effort to maintain or restore discipline, but that it was maliciously and sadistically used to cause harm. See Hudson v. McMillian, 503 U.S. 1, 7 (1992).

In determining whether a correctional officer has used excessive force in violation of the Eighth Amendment, courts look to several factors including: (1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them; and (5) any efforts made to temper the severity of a forceful response.

Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (internal quotation marks and citation omitted). Mr. McKinney's allegations against Officer Broskie fail to state an excessive forceclaim. He does not allege the circumstances which led Officer Broskie to use force against him. He does not allegate that the force was applied maliciously and sadistically, and not applied in a good faith effort to maintain or restore discipline. Therefore, this claim will be dismissed without prejudice for failure to state a claim upon which relief may be granted.

After the May 27, 2013 incident, Mr. McKinney alleges that he was released from "the hole" on June 2, 2013. He claims that Officer Broskie then refused to give him his recreation time and that he waited three hours for a mattress. Furthermore, he states he was not allowed to call his son on his birthday.

One court has summarized the standards applicable to a lack-of-recreation claim thus:

There is no question that meaningful recreation 'is extremely important to the psychological and physical well-being of the inmates.'" Peterkin v. Jeffes, 855 F.2d 1021, 1031 (3d Cir. 1988), quoting Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979). Nonetheless, "although exercise is 'one of

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