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April 27, 1988

Lamont Douglas, Plaintiff
Richard Marino, Capt. Parson, Sgt. Saul, Velma Fuentes, and Dr. Ray, Defendants

The opinion of the court was delivered by: GERRY


 This is an action brought pursuant to § 1983 of the Civil Rights Act of 1871. Plaintiff Lamont Douglas is an inmate at the Leesburg State Prison in New Jersey ("Leesburg"). On October 27, 1987, he filed a complaint in this court alleging an assault by one of the prison's employees. From the body of the complaint and the various attachments to it plaintiff appears to make his case as follows.

 On August 11, 1987, plaintiff was apparently working in the prison's kitchen. While doing so, he alleges that defendant Richard Mariano, an Institutional Trade Instructor at Leesburg, told him to leave the area because Mariano wanted to cut up some celery. Plaintiff contends that he told Mariano that the latter need not do so, as there were four workers in the "sandwich room" who would accomplish this task. At that point, according to the plaintiff, Mariano swore at him, pulled out a butcher knife, and threatened to kill him. Plaintiff states that Mariano then told him to come into the storage room where Mariano "would really fuck me up."

 At that point, Douglas contends he reported the incident to a corrections officer Fish or Fisher. A meeting of some sort is said to have been set up in an attempt to resolve the problem, but it is unclear whether it ever took place. Plaintiff contends, however, that defendant Saul, a corrections officer, did try to get him to sign something stating that Douglas would not pursue the matter. Douglas further states that defendant Velma Fuentes, a social worker who worked at the prison, was ordered to give defendant Parsons, a corrections officer, false information about what had allegedly happened between Douglas and Mariano. Parsons is also said to have ordered "Dr. Ray", apparently a psychiatrist at Leesburg, to examine Douglas.

 Plaintiff seeks relief in the form of monetary compensation for the "mental damages" he allegedly suffered as a result of Mariano's threat. He also seeks to have Mariano relieved from his position at Leesburg. All defendants now move the court for an order dismissing plaintiff's complaint for failure to state a claim upon which relief can be granted, under Fed. R. Civ. P. 12(b)(6). We will consider the motion without opposition, as the plaintiff has failed to submit any despite a letter from the court explaining the possible consequences of his failure to do so.


 Plaintiff Douglas does not indicate anywhere in the complaint which of his federal rights he is claiming have been violated. He does, however, recite certain New Jersey statutes which he feels apply to this matter. As is clear from its wording, § 1983 of the Civil Rights Act is applicable only to violations of federal law. Plaintiff's omission does not, however, necessitate dismissal of the complaint on a Rule 12(b)(6) motion, since the liberality allowed in modern pleading precludes a dismissal as long as what is pled would permit recovery under any theory of law. When a pro se litigant is involved, the pleading requirements are even less strict. See, e.g., Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), reh'g denied, 429 U.S. 1066, 50 L. Ed. 2d 785, 97 S. Ct. 798 (1977). We must decide, then, whether plaintiff's complaint can give rise to a § 1983 cause of action.

 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.

 All of the defendants are employees of Leesburg State Prison, and are described in plaintiff's complaint as acting in the course of their official duties during the incident in question. Accordingly, they appear to have been acting under the color of New Jersey law, thus meeting that requirement for a § 1983 claim.

 The gravamen of a civil rights complaint, however, is a deprivation of federal constitutional or statutory rights. Douglas' complaint, as noted, does not specify which of these rights he claims were violated by the defendants. A generous reading of his allegations finds only two possible predicates for his suit. One is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. The other arises from the due process clause of the Fourteenth Amendment to the United States Constitution.

 It is well established that intentionally placing a prison inmate in fear for his life inflicts suffering so as to amount to unconstitutional punishment, if the threat of physical harm is made to discourage a prisoner from seeking judicial relief, or in retaliation for so doing. See, e.g., Hudspeth v. Figgins, 584 F.2d 1345, 1348 (4th Cir. 1978), cert. denied, 441 U.S. 913, 60 L. Ed. 2d 386, 99 S. Ct. 2013 (1979). Such acts on the part of state employees have also been held to constitute due process violations. See, e.g., Burton v. Livingston, 791 F.2d 97, 100-101 (8th Cir. 1986); Gaut v. Sunn, 792 F.2d 874, 875 (9th Cir. 1986). From these cases we can safely conclude that a violation of the Eighth and/or Fourteenth Amendments can be made out for the purposes of a § 1983 claim without actual force having been used against the plaintiff. What is missing in the instant case, however, is any allegation that defendant Mariano's threat to kill the plaintiff was in any way related to the latter's pursuit of judicial relief.

 The lack of this factor leads us to another well-established proposition, viz., that mere threatening language and gestures of custodial personnel do not amount to constitutional violations. See, e.g., McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983), cert. denied, 464 U.S. 998, 78 L. Ed. 2d 691, 104 S. Ct. 499 (1983); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979). We find, however, that what plaintiff here alleges is not simply the ...

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