# PUMBA v. Madrid

> District Court, E.D. Pennsylvania · April 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10403236

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** April 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10403236

## How later opinions describe it (automated extraction)

- affirming district court’s dismissal of failure to intervene claim against prison officer who did not intervene in alleged sexual assault because “the alleged violation was over before” prison officer’s assistance was sought

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

OSVALDO PUMBA, :
:
Plaintiff, : CIVIL ACTION NO. 22-134
:
v. :
:
LEHIGH COUNTY JAIL :
ADMINISTRATION, ROBERT :
MCFADDEN, SAL MADRID, DARREN :
MCFADDEN, DREW KALINASKI, :
JANIN DONATTE, DILLYN MIJEVIC, :
HORNE, TARALYNA GONZALEZ, and :
AMANDA MEAD VOLPE, :
:
Defendants. :

MEMORANDUM OPINION

Smith, J. April 29, 2022
The pro se plaintiff, a convicted and sentenced prisoner in a county jail, has sought leave
to proceed in forma pauperis in an action under 42 U.S.C. § 1983 against various defendants
associated with the jail. He alleges that one of the defendants, a correctional officer at the jail,
violated his Eighth and Fourteenth Amendment rights when he sexually harassed and sexually
assaulted him while he was showering. He also asserts that because he called for help during the
assault, this correctional officer deprived him of the meals already in his cell and did not allow
him another meal until the following day at noon.
Regarding his other claims, the plaintiff asserts that another correctional officer handcuffed
him and assaulted him on a different date. He also alleges that another correctional officer failed
to get him medical attention when he asked for it after he suffered injuries during the assault. He
further alleges that he complained about the assaults to other individuals at the jail, but nothing
was done regarding his complaints.
After reviewing the in forma pauperis application and screening the complaint, the court
will permit the plaintiff leave to proceed in forma pauperis. The court will also allow the plaintiff’s
claims for violations of his Eighth Amendment rights relating to the assaults and his deliberate
indifference claim for the failure to get him medical aid to proceed, but the court will dismiss all

other claims in the complaint without prejudice. The court will provide the plaintiff with the
opportunity to fix the claims dismissed without prejudice by filing an amended complaint.
Alternatively, the plaintiff may inform the court that he intends to proceed with only those claims
that have passed statutory screening.
I. ALLEGATIONS AND PROCEDURAL HISTORY
On January 10, 2022, the clerk of court docketed an application for leave to proceed in
forma pauperis and a complaint filed by the pro se plaintiff, Osvaldo Pumba (“Pumba”). See Doc.
No. 1, 2. On January 28, 2022, this court denied the in forma pauperis application without
prejudice to Pumba refiling a new application along with a prisoner trust fund account statement
as required by 28 U.S.C. § 1915(a)(2). See Jan. 28, 2022 Order at 2–3, 7, Doc. No. 4.1 Pumba

complied with the court’s order by filing a new application for leave to proceed in forma pauperis
(the “IFP Application”) and a prisoner trust fund account statement, both of which the clerk of
court docketed on February 7, 2022. See Doc. Nos. 5, 6.
In the complaint, Pumba has identified the following defendants: (1) the Lehigh County
Jail Administration; (2) Robert McFadden, “Deputy Warden of Security” (“Deputy McFadden”);
(3) correctional officer Sal Madrid (“C.O. Madrid”); (4) Darren McFadden, “Warden of Security”

1 Pumba has also filed five other complaints in this court. See Pumba v. Lehigh Cnty. Jail, et al., Civ. A. No. 21-5585,
Doc. No. 2; Pumba v. Madrid, et al., Civ. A. No. 21-5639, Doc. No. 2; Pumba v. Lehigh Cnty. Jail Admin., et al., Civ.
A. No. 22-137, Doc. No. 2; Pumba v. Lehigh Cnty. Jail Admin., et al., Civ. A. No. 22-179, Doc. No. 2; Pumba v.
Maldonado, et al., Civ. A. No. 22-476, Doc. No. 3. This order also addressed Pumba’s in forma pauperis applications
in four of those cases.
(“Warden McFadden”); (5) Sergeant Drew Kalinaski (“Sergeant Kalinaski”); (6) Janine Donate,
Director of Lehigh County Jail (“Director Donate”);2 (7) correctional officer Dillyn Mujevic
(“C.O. Mujevic”); (8) Sergeant Taralyna Gonzalez (“Sergeant Gonzalez”); (9) Sergeant Amanda
Mead Volpe (“Sergeant Volpe”); and (10) correctional officer Horne (“C.O. Horne”). See Compl.

at ECF pp. 1, 2, Doc. No. 2. All the named defendants are associated with the Lehigh County Jail,
the location where Pumba, a convicted and sentenced inmate, allegedly had his constitutional
rights violated on two occasions in 2021. See id. at ECF pp. 4–5.
The first occasion allegedly occurred on May 21, 2021. See id. at ECF pp. 4, 5. On this
date, Pumba alleges that he was showering when C.O. Mujevic opened his shower curtain to stare
at him. See id. at ECF p. 4. C.O. Mujevic then made sexually explicit comments, such as “[i]f I
come to the shower where you at I don’t know if I am going to be taken [sic] or given [sic] it.” Id.
C.O. Mujevic then stared at Pumba’s penis and made additional comments about it. See id. C.O.
Mujevic proceeded to grab Pumba’s penis and “touch[] [him] in improper ways intentionally or
knowingly caus[ing] sexual abuse and sexual harassment.”3 Id. at ECF p. 5. Pumba then screamed

for help, and when he did, C.O. Mujevic threatened to throw away Pumba’s food. See id.
Later that day, C.O. Mujevic and C.O. Horne allegedly went to Pumba’s cell to throw away
his lunch and dinner.4 See id. at ECF p. 4. Pumba did not receive another meal until noon on the
following day. See id. Pumba notified Sergeant Gonzalez and Sergeant Volpe about the incident
with C.O. Mujevic and that he was deprived of his meals. See id. Sergeant Gonzalez and Sergeant

2 Pumba misspelled Director Donate’s name in the complaint. See Compl. at ECF p. 1, Doc. No. 2. The court will use
the correct spelling of the Director’s last name.
3 Pumba asserts that C.O. Mujevic violated the Lehigh County Jail’s policy of “zero tolerance” for sexual abuse and
sexual harassment. See Compl. at ECF p. 5.
4 Pumba states that “[h]e has done this act multiple times,” although it is unclear to the court to whom Pumba is
referring as the prior sentence mentions C.O. Mujevic and C.O. Horne and what “act” was done multiple times, even
though it is quite possible Pumba is referring to the throwing away of his food. See Compl. at ECF p. 4.
Volpe allegedly told Pumba that they would report the incident, but they did not. See id. at ECF
pp. 4, 5.
The second occasion described in the complaint occurred on October 29, 2021. See id. at
ECF p. 5. On this date, Pumba asserts that C.O. Madrid assaulted him. See id. Pumba alleges that,

while handcuffed, C.O. Madrid slammed him to the floor, which caused Pumba to suffer a
fractured ankle and bloody wrist. See id. Later that evening, Pumba asked Sergeant Kalinaski for
medical assistance, but Sergeant Kalinaski refused to call the nurses. See id. Pumba allegedly also
notified Warden McFadden and Director Donate; however, “nothing was done.” Id.
Based on the allegations surrounding these two incidents, Pumba asserts claims under 42
U.S.C. § 1983 based on violations of his Eighth and Fourteenth Amendment rights.5 See id. He
seeks $1 million in damages. See id.
II. DISCUSSION
A. The IFP Application
Regarding applications to proceed in forma pauperis,

any court of the United States may authorize the commencement, prosecution or
defense of any suit, action or proceeding, civil or criminal, or appeal therein,
without prepayment of fees or security therefor, by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses that the
person is unable to pay such fees or give security therefor.

28 U.S.C. § 1915(a)(1). This statute
“is designed to ensure that indigent litigants have meaningful access to the federal
courts.” Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338
(1989). Specifically, Congress enacted the statute to ensure that administrative
court costs and filing fees, both of which must be paid by everyone else who files
a lawsuit, would not prevent indigent persons from pursuing meaningful litigation.
Deutsch[ v. United States, 67 F.3d 1080, 1084 (3d Cir. 1995)]. Toward this end, §
1915(a) allows a litigant to commence a civil or criminal action in federal court in

5 Although the complaint mentions the Fourteenth Amendment, the Eighth Amendment is the applicable provision
here because Pumba is a convicted and sentenced inmate. See Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005).
Nothing in the complaint suggests a basis for a claim under the Fourteenth Amendment.
[sic] forma pauperis by filing in good faith an affidavit stating, among other things,
that he is unable to pay the costs of the lawsuit. Neitzke, 490 U.S. at 324, 109 S.Ct.
1827.

Douris v. Middletown Twp., 293 F. App’x 130, 131–32 (3d Cir. 2008) (per curiam) (footnote
omitted).
The litigant seeking to proceed in forma pauperis must establish that the litigant is unable
to pay the costs of suit. See Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir.
1989) (“Section 1915 provides that, in order for a court to grant in forma pauperis status, the
litigant seeking such status must establish that he is unable to pay the costs of his suit.”). “In this
Circuit, leave to proceed in forma pauperis is based on a showing of indigence. [The court must]
review the affiant’s financial statement, and, if convinced that he or she is unable to pay the court
costs and filing fees, the court will grant leave to proceed in forma pauperis.” Deutsch, 67 F.3d at
1084 n.5 (internal citations omitted).
Here, after reviewing the IFP Application, it appears that Pumba is unable to prepay the
fees to commence this civil action. Therefore, the court will grant him leave to proceed in forma
pauperis.6
B. Standard of Review – Screening of Complaint Under 28 U.S.C. § 1915
Because the court has granted Pumba leave to proceed in forma pauperis, the court must
engage in the second part of the two-part analysis and examine whether the complaint is frivolous,
malicious, fails to state a claim upon which relief can be granted, or asserts a claim against a
defendant immune from monetary relief. See 28 U.S.C. § 1915(e)(2)(B)(i)–(iii) (providing that
“[n]otwithstanding 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-- . . . (B) the action or appeal—(i) is

6 As Pumba is a prisoner, he must fully pay the filing fee in installments due to the Prison Litigation Reform Act. See
28 U.S.C. § 1915(b).
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”). A complaint is frivolous
under section 1915(e)(2)(B)(i) if it “lacks an arguable basis either in law or fact,” Neitzke, 490
U.S. at 325, and is legally baseless if it is “based on an indisputably meritless legal theory.”

Deutsch, 67 F.3d at 1085. As for whether a complaint is malicious,
[a] court that considers whether an action is malicious must, in accordance with the
definition of the term “malicious,” engage in a subjective inquiry into the litigant’s
motivations at the time of the filing of the lawsuit to determine whether the action
is an attempt to vex, injure or harass the defendant.

Id. at 1086. “[A] district court may dismiss a complaint as malicious if it is plainly abusive of the
judicial process or merely repeats pending or previously litigated claims.” Brodzki v. CBS Sports,
Civ. No. 11-841, 2012 WL 125281, at *1 (D. Del. Jan. 13, 2012).
Concerning the analysis under section 1915(e)(2)(B)(ii), the standard for dismissing a
complaint for failure to state a claim pursuant to this subsection is identical to the legal standard
used when ruling on motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Rule 12(b)(6) standard to
dismissal for failure to state claim under section 1915(e)(2)(B)). Thus, to survive dismissal, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The plaintiff’s factual allegations “must be enough to raise
a right to relief above the speculative level.” Twombly, 550 U.S. at 556 (citation omitted).
In addressing whether a pro se plaintiff’s complaint fails to state a claim, the court must
liberally construe the allegations set forth in the complaint. See Shorter v. United States, No. 20-
2554, 2021 WL 3891552, at *5 (3d Cir. Sept. 1, 2021) (“At this early stage of the litigation, we
accept the facts alleged [in the pro se] complaint as true, draw all reasonable inferences in [the pro
se plaintiff’s] favor, and ask only whether that complaint, liberally construed, . . . contains facts
sufficient to state a plausible . . . claim.” (citation, internal quotation marks, and all original
alterations omitted)); Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (“We construe Vogt’s pro se
filings liberally. This means we remain flexible, especially ‘when dealing with imprisoned pro se

litigants’ like Vogt.” (internal citations omitted) (quoting Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 244–45 (3d Cir. 2013))); Higgs v. Att’y Gen., 655 F.3d 333, 339–40 (3d Cir. 2011)
(explaining that “when presented with a pro se litigant, we have a special obligation to construe
his complaint liberally” (citation and internal quotation marks omitted)). Yet, conclusory
allegations will not suffice. See Iqbal, 556 U.S. at 678 (“A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” (quoting
Twombly, 550 U.S. at 555)).
Additionally, when construing a pro se plaintiff’s complaint, the court will “‘apply the
relevant legal principle even when the complaint has failed to name it.’” Vogt, 8 F.4th at 185
(quoting Mala, 704 F.3d at 244). However, pro se litigants “‘cannot flout procedural rules—they

must abide by the same rules that apply to all other litigants.’” Id. (quoting Mala, 704 F.3d at 245).
C. Analysis
Pumba is seeking relief in this case under 42 U.S.C. § 1983. This statute provides in
pertinent part as follows:
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[.]

42 U.S.C. § 1983. When attempting to establish a claim under section 1983, a plaintiff must allege
and prove that a “person” deprived the plaintiff of a constitutional right while acting under color
of state law. See West v. Atkins, 487 U.S. 42, 49 (1988) (“To state a claim under § 1983, a plaintiff
must allege the violation of a right secured by the Constitution and laws of the United States, and
must show that the alleged deprivation was committed by a person acting under color of state
law.”).

1. Claims Against the Lehigh County Jail Administration
Pumba names the “Lehigh County Jail Administration” as a defendant. It is unfortunately
unclear to the court who the Lehigh County Jail Administration is and why Pumba names it as a
defendant in this case. Pumba does not include any specific allegations in the complaint that would
explain the personal involvement of this defendant in the events giving rise to his claims. See Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (explaining that, to be liable, “[a] defendant
in a civil rights action must have personal involvement in the alleged wrongs”).
In addition, the absence of any specific allegations about the Lehigh County Jail
Administration warrants dismissal of this defendant under Rule 8 of the Federal Rules of Civil
Procedure. Rule 8 requires pleadings to contain “a short and plain statement” showing that the

plaintiff is entitled to relief. Fed. R. Civ. P. 8(a)(2); see Garrett v. Wexford Health, 938 F.3d 69,
92 (3d Cir. 2019) (“Under Rule 8(a)(2), a complaint need only contain ‘a short and plain statement
of the claim showing that the pleader is entitled to relief.’” (quoting Fed. R. Civ. P. 8(a)(2)));
Travaline v. U.S. Supreme Ct., 424 F. App’x 78, 79 (3d Cir. 2011) (per curiam) (“Rule 8 of the
Federal Rules of Civil Procedure requires that a complaint contain ‘a short and plain statement of
the claim showing that the pleader is entitled to relief,’ and ‘a demand for the relief sought.’”
(quoting Fed. R. Civ. P. 8(a)(2), (3))). To determine whether a pleading satisfies Rule 8’s “plain”
statement requirement, the court should “ask whether, liberally construed, a pleading ‘identifies
discrete defendants and the actions taken by these defendants’ in regard to the plaintiff’s claims.”
Garrett, 938 F.3d at 93 (citation omitted). The paramount consideration for the court is whether
“a pro se complaint’s language . . . presents cognizable legal claims to which a defendant can
respond on the merits.” Id. at 94 (citations omitted). Since Pumba has failed to allege any facts
about the Lehigh County Jail Administration’s involvement in his alleged constitutional harm, he

has failed to state plausible claims against it. Accordingly, the court will dismiss without prejudice
Pumba’s claims against the Lehigh County Jail Administration.
2. Sexual Abuse Claim Against C.O. Mujevic
The court understands Pumba to be asserting an Eighth Amendment claim for sexual abuse
and harassment against C.O. Mujevic. Sexual abuse and harassment violate an inmate’s rights
under the Eighth Amendment, which prohibits cruel and unusual punishment. See U.S. Const.
amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”); Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018) (“Today, we
join numerous sister Circuits in holding that prison sexual abuse can violate the Constitution.”
(citations omitted)). Claims for sexual abuse and harassment are evaluated similarly to excessive

force claims in that the prisoner must allege facts plausibly establishing both objective and
subjective components. See id. at 475 (“[W]e conclude that the test will turn on an analysis of a
subjective and an objective component. That is, the incident must be objectively, sufficiently
intolerable and cruel, capable of causing harm, and the official must have a culpable state of
mind.”). Regarding the subjective component, the court “consider[s] whether the official had a
legitimate penological purpose or if he or she acted ‘maliciously and sadistically for the very
purpose of causing harm.’” Id. (quoting Whitley v. Albers, 475 U.S. 312, 320–21 (1986)).
Concerning the objective component, the court considers whether the defendant’s action is
“repugnant to the conscience of mankind” or whether it is “sufficiently serious or severe.” Id. at
475, 477 (citations omitted). Also, “not . . . every malevolent touch by a prison guard gives rise to
a federal cause of action.” Id. (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)).
Here, Pumba states a plausible cause of action under the Eighth Amendment for sexual
abuse against C.O. Mujevic. Pumba alleges that Mujevic stared at Pumba in the shower, made

sexual statements to him, grabbed Pumba’s penis, and then threatened to withhold food from
Pumba when Pumba called for help. See Compl. at ECF pp. 4, 5. These alleged facts plausibly
state both the objective and subjective components of a sexual abuse claim. Therefore, the court
will permit Pumba to proceed on his sexual abuse claim against C.O. Mujevic.7
3. Deprivation-of-Food Claims Against C.O. Mujevic and C.O. Horne
Pumba alleges that he was deprived of three consecutive meals in violation of the Eighth
Amendment. In general, “[t]o determine whether prison officials have violated the Eighth
Amendment, [courts] apply a two-prong test: (1) the deprivation must be ‘objectively, sufficiently
serious; a prison official’s act or omission must result in the denial of the minimal civilized
measure of life’s necessities’; and (2) the prison official must have been ‘deliberate[ly]

indifferen[t] to inmate health or safety.’” Porter v. Pa. Dep’t of Corr., 974 F.3d 431, 441 (3d Cir.
2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Regarding the first prong,
necessities include food, clothing, shelter, medical care, and reasonable safety. See Tillman v.
Lebanon Cnty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000) (“[W]hen the government takes a
person into custody against his or her will, it assumes responsibility for satisfying basic human

7 Although the court will permit the sexual abuse and harassment claim against C.O. Mujevic to proceed, the claim is
based on facts that are alleged to violate the Eighth Amendment. Pumba may not base his claims on C.O. Mujevic’s
alleged violation of the Lehigh County Jail handbook because a prison official’s failure to abide by prison policy does
not constitute an independent basis for a constitutional claim. See Bowman v. Wetzel, Civ. A. No. 2:20-cv-135, 2020
WL 3258946, at *6 (W.D. Pa. June 16, 2020) (“As many courts have held, corrections officials cannot be held liable
for failing to conform to procedures outlined in inmate handbooks and other internal prison procedures.”); see also
Laufgas v. Speziale, Civ. A. No. 04-cv-1697 (PGS), 2006 WL 2528009, at *9 (D.N.J. Aug. 31, 2006) (“[A] prison’s
departure from the policies and procedures outlined in the facility’s handbook does not, in and of itself, amount to a
constitutional violation actionable under § 1983.”).
needs such as food, clothing, shelter, medical care, and reasonable safety.” (citing DeShaney v.
Winnebago Co. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989))). As for the second prong, a
prison official is not deliberately indifferent “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.” Farmer, 511 U.S. at 837.
“Under the Eighth Amendment, prisoners are entitled to a nutritionally adequate diet.”
Tapp v. Proto, 718 F. Supp. 2d 598, 621 (E.D. Pa.), aff’d 404 F. App’x 563 (3d Cir. 2010). To
allege that a defendant unconstitutionally deprived them of food, a prisoner must allege “both an
objective component (that the deprivation was sufficiently serious) and a subjective component
(that the officials acted with a sufficiently culpable state of mind).” Duran v. Merline, 923 F. Supp.
2d 702, 720 (D.N.J. 2013) (citing Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007)). Whether
the deprivation of food is objectively serious for purposes of establishing a constitutional violation
“depends on the amount and duration of the deprivation.” Id. at 720 (quoting Berry v. Brady, 192

F.3d 504, 507 (5th Cir. 1999)). Compare Lindsey v. O’Connor, 327 F. App’x 319, 321 (3d Cir.
2009) (“The purported deprivation of a single meal is not of such magnitude as to rise to the level
of a constitutional violation.”), with Cooper v. Sheriff, Lubbock Cnty., Tex., 929 F.2d 1078, 1083
(5th Cir. 1991) (finding that failure to fee a prisoner for twelve days violated the Eighth
Amendment). “[O]nly a substantial deprivation of food to a prisoner” states a viable Eighth
Amendment claim. Rieco v. Moran, 633 F. App’x 76, 78 (3d Cir. 2015) (per curiam) (quoting
Lindsey, 327 F. App’x at 321).
In this case, Pumba alleges that on May 21, 2021, C.O. Mujevic and C.O. Horne “went to
[his] cell to thrown [his] lunch [and] dinner away.” Compl. at ECF p. 4. He further alleges that he
was not provided with another meal until noon the following day. See id. While these allegations
are almost sufficient, they lack the necessary detail to push Pumba’s claim past the threshold for
plausibility. For instance, Pumba does not state whether he had eaten any part of the lunch and
dinner that was removed from his cell. He also does not state whether he was deprived of food

completely, such as food he could have purchased from a commissary. He further fails to allege
how long he was deprived food in general, and if he was harmed by the deprivation. Thus, Pumba’s
allegations as pleaded are insufficiently serious to state a plausible Eighth Amendment claim. See
Zanders v. Ferko, 439 F. App’x 158, 160 (3d Cir. 2011) (per curiam) (concluding that “the alleged
deprivation of three meals over two days [to a diabetic inmate] fails to rise to the level of a
constitutional violation”); Garrett v. Gonzalez, 588 F. App’x 692 (9th Cir. 2014) (affirming district
court’s dismissal of Eighth Amendment claim where pro se plaintiff failed to allege sufficient facts
showing that deprivation of three consecutive meals “resulted in any pain or injury to his health”
(citations omitted)); Adderly v. Harry, Civ. No. 3:CV-13-1465, 2015 WL 5016501, at *4 (M.D.
Pa. Aug. 21, 2015) (concluding that deprivation of lunch for one day and breakfast and lunch the

following day failed to state plausible Eighth Amendment claim). Therefore, the court will dismiss
without prejudice Pumba’s deprivation-of-food claims against C.O. Mujevic and C.O. Horne.
4. Claims Against Sergeant Gonzalez and Sergeant Volpe
Pumba does not specify the basis for his claims against Sergeant Gonzalez and Sergeant
Volpe. Instead, Pumba merely alleges that he notified them about C.O. Mujevic’s assault and that
his meals were taken from him, but that they “ignored” him and “refused” to report the incidents.
See Compl. at ECF p. 5. Thus, it appears that he is claiming, if anything, that these defendants
violated his constitutional rights by failing to properly investigate his complaint or process his
grievance. If this is in fact Pumba’s claim against these defendants, he has failed to state a plausible
claim because a failure to investigate an inmate’s complaint or process a grievance does not give
rise to an independent constitutional violation. See Woods v. First Corr. Med. Inc., 446 F. App’x
400, 403 (3d Cir. 2011) (per curiam) (“[B]ecause a prisoner has no free-standing constitutional
right to an effective grievance process, see Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991), . . .

based upon his perception that [the defendant] ignored and/or failed to properly investigate his
grievances.”); Graw v. Fantasky, 68 F. App’x 378, 383 (3d Cir. 2003) (“[A]n allegation of a failure
to investigate, without another recognizable constitutional right, is not sufficient to sustain a
section 1983 claim.” (quoting DeShaney, 489 U.S. at 195–96)).
Furthermore, Sergeant Gonzalez and Sergeant Volpe’s alleged failure to address Pumba’s
complaints does not provide a basis for concluding that they were personally involved in the
underlying events that give rise to Pumba’s constitutional claims. See Folk v. Prime Care Med.,
741 F. App’x 47, 51 (3d Cir. 2018) (per curiam) (“Although some of these defendants were
apparently involved in responding to some of Folk’s prison grievances, there are no allegations
linking them to the underlying incidents and thus no basis for liability based on those later

grievance reviews.”); Curtis v. Wetzel, 763 F. App’x 259, 263 (3d Cir. 2019) (“The District Court
properly determined that Defendants [Superintendent] Wenerowicz, Lewis, and Shaylor – who
participated only in the denial of Curtis’ grievances – lacked the requisite personal involvement
[in the conduct at issue].”). Pumba has also not alleged that these defendants maintained an
unconstitutional policy or custom or knowingly acquiesced in their subordinates’ unconstitutional
conduct so as to state a claim based on a theory of supervisory liability.8 See Barkes v. First Corr.

8 If a plaintiff seeks to hold a supervisor liable for the unconstitutional acts by subordinates, there are two theories of
supervisory liability: (1) “Individual defendants who are policymakers may be liable under § 1983 if it is shown that
such defendants, with deliberate indifference to the consequences, established and maintained a policy, practice or
custom which directly caused [the] constitutional harm[;]” and (2) “[A] supervisor may be personally liable under §
1983 if he or she participated in violating the plaintiff’s rights, directed others to violate them, or, as the person in
charge, had knowledge of and acquiesced in his subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv.
Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citation omitted). Generalized allegations that a supervisory defendant is
Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014) (explaining requirements for supervisory liability in
section 1983 claim), rev’d on other grounds by Taylor v. Barkes, 135 S. Ct. 2042 (2015).
As a final note, the court has considered whether Pumba is asserting that Sergeant Gonzalez
and Sergeant Volpe failed to intervene and protect him against C.O. Mujevic. To the extent Pumba

is asserting such a claim, it is also implausible.
A correctional officer’s failure to intervene can serve as a basis for Eighth Amendment
liability under section 1983 if the officer “has a reasonable opportunity to intervene and simply
failed to do so.” Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). Nonetheless, “an officer is
only liable if there is a realistic and reasonable opportunity to intervene.” Id. at 651.
Here, Pumba does not allege facts showing that Sergeant Gonzalez and Sergeant Volpe
had a reasonable opportunity to intervene and stop C.O. Mujevic’s alleged sexual misconduct.
Instead, it appears Pumba reported the incident to these two sergeants after the fact. Thus, he has
failed to state a claim based on a failure to intervene. See Ricks, 891 F.3d at 479 (affirming district
court’s dismissal of failure to intervene claim against prison officer who did not intervene in

alleged sexual assault because “the alleged violation was over before” prison officer’s assistance
was sought).
In sum, Pumba has not alleged a plausible basis for any claim under section 1983 against
Sergeant Gonzalez and Sergeant Volpe. Accordingly, the court will dismiss any claims Pumba has
asserted against them.

“in charge of” or “responsible for” an office or facility are insufficient to allege personal involvement in an underlying
constitutional violation. See Saisi v. Murray, 822 F. App’x 47, 48 (3d Cir. 2020) (per curiam) (“Saisi asserted that
some defendants were in charge of agencies that allowed this to happen, and that liability stemmed merely from
defendants’ ‘belief’ that their conduct would be ‘tolerated.’ However, a director cannot be held liable ‘simply because
of his position as the head of the [agency].’” (quoting Evancho v. Fisher, 423 F.3d 347, 354 (3d Cir. 2005))).
5. Excessive Force Claim Against C.O. Madrid
Pumba alleges that when he was handcuffed on October 29, 2021, C.O. Madrid slammed
him to the floor, causing him to suffer a fractured ankle and a bloody wrist. See Compl. at ECF p.
5. The court understands these allegations as showing that Pumba is asserting an excessive force

claim under the Eighth Amendment against C.O. Madrid.
The Eighth Amendment prohibits prison officials from unnecessarily and wantonly
inflicting pain in a manner that offends contemporary standards of decency. See Hudson v.
McMillian, 503 U.S. 1, 8 (1992) (“The objective component of an Eighth Amendment claim is
therefore contextual and responsive to ‘contemporary standards of decency.’” (quoting Estelle v.
Gamble, 429 U.S. 97, 102 (1976))). When screening an Eighth Amendment excessive force claim
under section 1915, the court asks whether the prisoner has plausibly alleged that the force was
applied “maliciously and sadistically to cause harm” rather than “in a good-faith effort to maintain
or restore discipline.” Jackson v. Bueno, Civ. A. No. 20-687, 2020 WL 2847925, at *3 (E.D. Pa.
June 2, 2020) (quoting Hudson, 503 U.S. at 7)). Further,

[t]he factors used to determine whether the force applied was excessive include: (1)
the need for the application of force; (2) the relationship between the need and the
amount of force that was used; (3) the extent of injury inflicted; (4) the extent of
the threat to the safety of staff and inmates, as reasonably perceived by responsible
officials on the basis of the facts known to them; and (5) any efforts made to temper
the severity of a forceful response. Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir.
2000) (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). Although the extent
of an inmate’s injuries is relevant to an Eighth Amendment analysis, “there is no
fixed minimum quantum of injury that a prisoner must prove that he suffered
through objective or independent evidence in order to state a claim for wanton and
excessive force.” Id. at 104. Thus, the inquiry must be driven by the extent of the
force and the circumstances in which it is applied, not by the resulting injuries. Id.
at 108; see also Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir. 2002). The Eighth
Amendment does not protect against a de minimis use of physical force, so long as
it is not of a sort “repugnant to the conscience of mankind.” Brooks, 204 F.3d at
107 (quoting Hudson, 503 U.S. at 9-10).

Id.
In this case, Pumba has stated a plausible excessive force claim under the Eighth
Amendment against C.O. Madrid. Therefore, the court will direct that this claim proceed and that
service is effected so that C.O. Madrid may file a responsive pleading.
6. Deliberate Indifference Claim Against Sergeant Kalinaski
Pumba alleges that Sergeant Kalinaski refused him medical treatment for the fractured
ankle and bloody wrist he suffered during the incident with C.O. Madrid. To state a constitutional
claim based on the failure to provide medical treatment, a prisoner must allege facts indicating that
prison officials were deliberately indifferent to his serious medical needs. Farmer, 511 U.S. at 835.
A prison official is not deliberately indifferent “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. at 837.
A plaintiff properly alleges deliberate indifference “where the prison official (1) knows of
a prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays necessary
medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed
or recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). “A
medical need is serious, . . . 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 Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.
1987) (internal quotation marks omitted). A serious medical need exists where “failure to treat can
be expected to lead to substantial and unnecessary suffering.” Colburn v. Upper Darby Twp., 946
F.2d 1017, 1023 (3d Cir. 1991).
Here, Pumba has included sufficient allegations to support a plausible deliberate
indifference claim against Sergeant Kalinaski. Liberally construing the complaint in Pumba’s
favor, as the court is required to do at this stage in the case, Pumba’s need for medical treatment
was obvious and Sergeant Kalinaski simply refused to call the nurses despite Pumba’s request.

Thus, Pumba will be permitted to proceed on his deliberate indifference claim against Sergeant
Kalinaski.
7. Claims Against Director Donate, Deputy McFadden, and Warden McFadden
Pumba also appears to be attempting to assert section 1983 claims against Director Donate,
Deputy McFadden, and Warden McFadden. See Compl. at ECF pp. 1, 2. Yet, he fails to clearly
state the basis for his claims against these defendants. In this regard, there are no allegations at all
about Deputy McFadden and no grievances involving him are attached to the complaint. As for
Warden McFadden, Pumba merely alleges that he “wrote to him” about C.O. Madrid’s “assault[]”
but “nothing was done.”9 Id. at ECF p. 5; Doc. No. 2-1 at ECF p. 3. Regarding Director Donate,
Pumba alleges that he notified her about C.O. Madrid’s “assault[]” so that she could “address the
situation” but she “denied” his request.10

As already noted, individuals must have personal involvement in the unconstitutional
conduct to be liable. See Rode, 845 F.2d at 1207. Pumba has failed to allege that Director Donate,
Warden McFadden, or Deputy McFadden were personally involved in his alleged constitutional
harm. Generalized allegations that a supervisory defendant is “in charge of” or “responsible for”

9 The court understands Pumba to be referring to Warden McFadden’s November 4, 2021 response to his grievance,
wherein he states, “[y]our request slip has been received and will be reviewed. Any inappropriate actions by staff will
be addressed. We need you to follow staff’s direction and follow facility rules.” Doc. No. 2-1 at ECF p. 3.
10 None of the grievances and grievance responses attached to the complaint involve Director Donate. See Doc. No.
2-1 at ECF pp. 1–3.
an office or facility are insufficient to allege personal involvement in an underlying constitutional
violation. See Saisi, 822 F. App’x at 48.
Pumba has also failed to allege a basis for supervisory liability against these defendants.
He has not alleged that these defendants acted “with deliberate indifference to the consequences,

established and maintained a policy, practice or custom which directly caused [the] constitutional
harm.” Barkes, 766 F.3d at 316 (alteration in original) (quoting A.M., 372 F.3d at 586). He further
has not alleged that the defendants “participated in violating [his] rights, directed others to violate
them, or, as the person in charge, had knowledge of and acquiesced in the subordinate’s
unconstitutional conduct.” Id.
To the extent that Pumba’s claims against Director Donate and Warden McFadden are
based on their alleged failure to respond adequately to grievances he filed, the claims are also
implausible. As noted above, a prison official’s involvement in the grievance process, alone, is not
actionable under section 1983. See Folk, 741 F. App’x at 51; Curtis, 763 F. App’x at 263.
Moreover, since there is no right to a grievance process, Pumba cannot state an independent claim

based on the handling of his grievances. See Woods, 446 F. App’x at 403. Accordingly, the court
will dismiss Pumba’s claims against Director Donate, Warden McFadden, and Deputy McFadden.
III. CONCLUSION
For the foregoing reasons, the court will grant the IFP Application and will dismiss the
following claims without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii): (1) the claims against the
Lehigh County Jail Administration; (2) the deprivation-of-food claims against C.O. Mujevic and
C.O. Horne; (3) the claims against Sergeant Gonzalez and Sergeant Volpe; and (4) his claims
against Director Donate, Warden McFadden, and Deputy McFadden. Pumba’s sexual abuse claim
against C.O. Mujevic, his excessive force claim against C.O. Madrid, and his deliberate
indifference claim against Sergeant Kalinaski pass statutory screening and will be served for a
responsive pleading. As for the claims the court is dismissing without prejudice, because the court
cannot say at this time that Pumba cannot cure the defects in these claims, the court will grant
Pumba the option of filing an amended complaint to attempt to cure the defects in those claims or
advise the court that he seeks to proceed only on the claims that have passed statutory screening.11

The court will enter a separate order.12

BY THE COURT:

/s/ Edward G. Smith
EDWARD G. SMITH, J.

11 A district court should generally provide a pro se plaintiff with leave to amend unless amending would be inequitable
or futile. See Grayson v. Mayview St. Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (stating general rule). Also, “in civil
rights cases district courts must offer amendment—irrespective of whether it is requested—when dismissing a case
for failure to state a claim unless doing so would be inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007).
12 This order will provide further instruction about Pumba’s options for proceeding.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10403236. Public record. Not legal advice.