Tunsil

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BARRETT TUNSIL, : Civil No. 1:25-CV-00879

:

Plaintiff, :

:

v. :

:

CORRECTIONAL OFFICER TAYLOR, :

et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Presently before the court is Plaintiff Barrett Tunsil’s amended complaint

bringing constitutional claims pursuant to 42 U.S.C. § 1983 and criminal claims

against five defendants. (Doc. 11.) Plaintiff is a self-represented litigant currently

housed at the State Correctional Institution in Houtzdale, Pennsylvania (“SCI-

Houtzdale”). Plaintiff has also filed a motion for recusal, two motions for

injunctive relief, and a motion for appointment of counsel. (Docs. 16, 18, 20, 22.)

The court will screen the amended complaint pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii), dismiss the amended complaint with prejudice for failing to state

a claim upon which relief may be granted, deny the pending motions as moot, and

close the case.

BACKGROUND

On May 19, 19, 2025, the court received and docketed Plaintiff’s complaint

raising constitutional claims pursuant to 42 U.S.C. § 1983. (Doc. 1.) This

complaint named the following five defendants: (1) Correctional Officer Taylor

(“Taylor”); (2) Correctional Officer Morgan (“Morgan”); (3) Superintendent

Booher (“Booher”); (4) Secretary Laurel Harry (“Harry”); and (5) Sergeant Koch

(“Koch”). (Doc. 1, pp. 3–4.)1 In that complaint, Plaintiff alleged that Defendants

Taylor and Morgan verbally harassed and threatened him over the intercom after

he inquired as to why he did not receive a Christmas bag. (Doc. 1, pp. 4–5.) These

verbal statements were allegedly racially and sexually derogatory. (Id.) Plaintiff

further alleged that he immediately attempted to alert Defendant Koch and non-

party Quist regarding the conduct of Defendants Taylor and Morgan. (Id., p. 5.)

Plaintiff stated that Defendant Koch and non-party Quist then failed to intervene,

report, or investigate his Prison Rape Elimination Action (“PREA”) allegation.

(Id.) Based on these allegations, Plaintiff attempted to bring claims under the

Fourth, Fifth, Sixth, and Fourteenth Amendments. (Id., p. 6.)

On July 7, 2025, the court screened the complaint pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) and dismissed the complaint for failing to state a claim upon

which relief may be granted. (Docs. 9, 10.) Specifically, the court found that

Plaintiff did not allege personal involvement as to Defendants Booher and Harry,

that the alleged verbal harassment did not rise to the level of an Eighth

Amendment violation, and that PREA did not provide a basis for a private right of

1 For ease of reference, the court uses the page numbers from the CM/ECF header.

action. (Doc. 9.) However, the court granted Plaintiff leave to cure these pleading

defects by amending his complaint. (Doc. 10.)

On August 8, 2025, the court received and docketed Plaintiff’s amended

complaint. (Doc. 11.) The amended complaint names the following five

defendants: (1) Taylor; (2) Morgan; (3) Ms. Quist (“Quist”), B-A Unit Manager;

(4) Harry; and (5) Booher. (Id., pp. 2–3.) Plaintiff alleges that while incarcerated

at SCI-Benner on December 13, 2024, he notified Defendant Taylor through the

intercom system that Defendant Taylor had passed his cell on two separate

occasions and did not give Plaintiff his Christmas Bag. (Id., p. 4.) Plaintiff alleges

that he then heard Defendant Morgan “scream/yell through the inter-com system

that ‘C/O Taylor said he looked right in your eyes when he gave you a FUCKING

bag.’ I could hear C/O Taylor in the background screaming/yelling/cursing at me

claiming he gave me a ‘FUCKING bag!’” (Id.) He also alleges that Defendants

Taylor and Morgan stated “I’m gonna FUCK you in your ass, Tunsil,” “I’m gonna

make you suck my dick, Tunsil,” and other racially and sexually derogatory

phrases. (Id.) Based on these alleged facts, Plaintiff attempts to bring criminal

charges against Defendants. (Id, p. 5.) Plaintiff also states that “the

constitutionally rights, as limited as they may be, does not allow the PA-DOC et al.

Defendants/Respondents, et al. to indiscriminately abuse cripple, sever injure,

maim, kill, and/or murder me to silence me/patient/PREA victim.” (Id.)

Following the amended complaint, Plaintiff filed a motion for recusal, a

motion for protection from abuse, a motion to appoint counsel, and a motion for an

injunction. (Docs. 16, 18, 20, 22.) The court will screen the amended complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), dismiss the amended complaint with

prejudice because Plaintiff did not cure the pleading defects previously identified

by the court, and deny the pending motions as moot.

JURISDICTION AND VENUE

The court has jurisdiction over Plaintiff’s action pursuant to 28 U.S.C. §

1331, which allows a district court to exercise subject matter jurisdiction in civil

cases arising under the Constitution, laws, or treaties of the United States. Venue

is proper in this district because the alleged acts and omissions giving rise to the

claims occurred at SCI-Benner Township in Northumberland County,

Pennsylvania, which is located within this district. See 28 U.S.C. § 118(b).

STANDARD

Under 28 U.S.C. § 1915(e)(2)(B)(ii), a court “shall dismiss” an in forma

pauperis case “at any time if the court determines that . . . the action . . . fails to

state a claim upon which relief may be granted[.]” The legal standard for

dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915 is

identical to the legal standard used when ruling on Fed. R. Civ. P. 12(b)(6) motions

to dismiss. See Grayson v. Mayview State Hosp., 293 F.3d 103, 109-10 & n.11 (3d

Cir. 2002).

In order “[t]o survive a motion to dismiss, 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 Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556).

Under Rule 12(b)(6), the court must accept all well pleaded allegations as

true and construe all reasonable inferences in favor of the nonmoving party. Doe

v. Univ. of the Scis., 961 F.3d 203, 208 (3d Cir. 2020). The pleadings of self-

represented plaintiffs are held to a less stringent standard than formal pleadings

drafted by attorneys and are to be liberally construed. See Erickson v. Pardus, 551

U.S. 89, 94 (2007); Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d. Cir. 2011). Self-

represented litigants are to be granted leave to file a curative amended complaint

even when a plaintiff does not seek leave to amend, unless such an amendment

would be inequitable or futile. See Phillips v. Cnty. of Allegheny, 515 F.3d 224,

245 (3d Cir. 2008).

DISCUSSION

A. The Amended Complaint Will Be Dismissed With Prejudice.

1. Defendants Booher, Harry, and Quist

Plaintiff brings claims against Defendants Booher, Harry, and Quist, yet

does not name them in the factual allegations of the complaint. (Doc. 11.)

While Plaintiff does not provide a source for his cause of action, he makes a

vague reference to constitutional claims. (Doc. 11, p. 5.) Such claims would fall

under 42 U.S.C. § 1983. To state a claim under 42 U.S.C. § 1983, a plaintiff must

meet two threshold requirements. He must allege: 1) that the alleged misconduct

was committed by a person acting under color of state law; and 2) that as a result,

he was deprived of rights, privileges, or immunities secured by the Constitution or

laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). It is also well

established that “[a] defendant in a civil rights action must have personal

involvement in the alleged wrongs to be liable, and cannot be held responsible for

a constitutional violation which he or she neither participated in nor approved.”

See Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007).

Here, Plaintiff did not allege any personal involvement on the part of

Defendants Booher, Harry, and Quist. (Doc. 11.) He only listed them as

Defendants in the beginning of the complaint and identifies them by their

supervisory positions. Supervisory liability under § 1983 utilizes the same standard

as municipal liability. See Carter v. City of Philadelphia,181 F.3d 339, 356 (3d

Cir. 1999). A supervisor will only be liable for the acts of a subordinate if he

fosters a policy or custom that amounts to deliberate indifference towards an

individual’s constitutional rights. See Id. at 357. To establish supervisory liability,

a plaintiff must show that (1) a superior officer failed to employ a specific

supervisory practice; (2) the existing custom created an unreasonable risk of injury

in the absence of the specified supervisory practice; (3) the supervisor was aware

that the risk existed; (4) the supervisor was indifferent to the risk; and (5) the

underlying violation resulted from the failure to employ the supervisory practice.

Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2005) (citing Sample v.

Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)).

Plaintiff makes no such claims regarding Defendants Booher, Harry, or

Quist in the complaint. Therefore, any claims against them will be dismissed.

Plaintiff was made aware of the need to allege personal involvement on the part of

all defendants in the court’s memorandum and order dismissing the original

complaint. (Docs. 9, 10.) Despite the opportunity to cure this pleading defect, the

defect persists. As such, the court finds that allowing Plaintiff further leave to

amend his complaint would be futile, and the court will dismiss the claims against

these Defendants with prejudice.

2. Verbal Threats and Harassment

Plaintiff’s claims against all Defendants are premised on the alleged verbal

threats and harassment of Defendants Taylor and Morgan. (Doc. 11, p. 4.)

It is well-settled that the use of words, no matter how violent, is not

actionable under 42 U.S.C. § 1983. See Marten v. Hunt, 479 Fed.Appx. 436 (3d

Cir. 2012); Lewis v. Wetzel, 153 F.Supp.3d 678 (M.D. Pa. 2015); see also Harris v.

Ferguson, 3:16-cv-1965, 2017 WL 3611752, at *4–5 (M.D. Pa. Aug. 22, 2017)

(granting summary judgment to defendants on § 1983 claims regarding verbal

sexual harassment because the record did not show that plaintiff suffered injury or

damage); Maclean v. Secor, 876 F. Supp. 695, 698–99 (E.D. Pa. 1995) (“It is well

established that verbal harassment or threats will not . . . without some reinforcing

act accompanying them, state a constitutional claim.”).

Nothing in Plaintiff’s amended complaint indicates he suffered any physical

injury or damage, nor is there any allegation of some reinforcing act accompanying

the statements. (Doc. 11.) Therefore, all claims are dismissed. Again, Plaintiff

was made aware of this pleading defect in the court’s memorandum and order

dismissing the original complaint. (Docs. 9, 10.) Despite this notice, Plaintiff did

not remedy this pleading defect in his amended complaint. (Doc. 11.) Therefore,

the court finds that allowing Plaintiff further leave to amend would be futile and

will dismiss these claims with prejudice.

3. PREA Claim

To the extent that Plaintiff attempts raise a claim pursuant to PREA, this

claim will also be dismissed with prejudice. PREA does not provide a private right

of action, and Plaintiff is, therefore, prohibited from asserting a claim pursuant to

PREA. Harris, 2017 WL 3611752, at *5 citing Washington v. Folino, 2013 WL

998013, at *4 (W.D. Pa. Feb. 28, 2013) (holding that violations of the Prison Rape

Elimination Act do not create a private cause of action) and Nestor v. Dir. of NE.

Region Bureau of Prisons, 2012 WL 6691791, at *3 (D.N.J. Dec. 20, 2012)

(granting summary judgment to defendants on the plaintiff’s attempt to recover

under PREA). Consequently, any claim Plaintiff may be attempting to bring under

PREA in the amended complaint will be dismissed with prejudice.

4. Criminal Claims

Plaintiff alleges that Defendants committed crimes against him. (Doc. 11, p.

5.) However, private citizens lack standing to initiate criminal proceedings.

United States v. Wegeler, 941 F.3d 665, 668 (3d Cir. 2019) (citing Linda R.S. v.

Richard D., 410 U.S. 614, 619 (1973). Therefore, any attempts to raise criminal

actions against Defendants in this civil complaint will be dismissed with prejudice.

B. The Pending Motions Will Be Denied.

Plaintiff also filed a motion for recusal, a motion for protection from abuse,

a motion to appoint counsel, and a motion for injunctive relief. (Docs. 16, 18, 20,

22.) Considering there is no operative complaint in the matter, and the claims

raised in the amended complaint will be dismissed with prejudice, the court will

deny these pending motions as moot. See Fulton v. City of Philadelphia, 922 F.3d

140, 152 (3d Cir. 2019) reversed on other grounds by 141 S. Ct. 1868 (U.S. 2021)

(finding that in order to succeed in a motion for injunctive relief, a moving party

must establish, among other factors, that he has a reasonable likelihood of success

on the merits); see also Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)

(representation by counsel may be appropriate after a finding that the plaintiff’s

case has arguable merit in fact and law).

CONCLUSION

As set forth above, Plaintiff’s amended complaint fails to state a claim upon

which relief may be granted, and his complaint must be dismissed under 28 U.S.C.

§ 1915(e)(2)(B)(ii). Because the court has determined that further leave to amend

would be futile, the dismissal will be with prejudice.

The court will also deny Plaintiff’s pending motions as moot.

An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Judge

Middle District of Pennsylvania

Dated: December 4, 2025