The opinion of the court was delivered by: Robert B. Kugler United States District Judge
MEMORANDUM OPINION & ORDER
1. Plaintiff Joseph Smalley ("Plaintiff"), an inmate confined at Atlantic County Justice Facility, seeks to bring this action in forma pauperis, pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. See Docket Entry No. 1. Based on his affidavit of indigence and the absence of three qualifying dismissals within 28 U.S.C. § 1915(g), the Court will grant Plaintiff's application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court to file the complaint.
2. Plaintiff named, as Defendants in this action, warden Shawn Thomas and unspecified number of unspecified officers (whom the Court presumes to be employed at Plaintiff's place of confinement). See id. at 1 and 3. Plaintiff's pleading did not clarify how, specifically, the warden and unidentified officers were involved in the alleged violation of Plaintiff's constitutional rights. See generally, Docket Entry No. 1. Plaintiff merely asserted that he "was in lock down out for [his] hour when [he] look[ed] up [at an]other inmate [who, the Court presumes, was placed in the same cell, and -- at that moment -- this inmate] was attacking [Plaintiff, consequently] sending [Plaintiff] to the hospital w[h]ere [Plaintiff] got 5 staples in [his] head [and] this happen[ed] around [the] end of [D]ecember 2008 [or at the] begin[ning of] January 2009."*fn1 Id. at 4. Plaintiff seeks $2.5 million in unspecified damages, $5 million in punitive damages and, in addition, $2.5 million for "pain and suffering," seemingly distinguishing these damages from those designated as unspecified damages. See id. at 5.
3. For the reasons detailed below, Plaintiff's allegations, as drafted, fail to state a cognizable claim. This Court must dismiss, at the earliest practicable time, those in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e) (2); 28 U.S.C. § 1915A; 42 U.S.C. § 1997e. In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. See Haines v. Kerner, 404 U.S. 519, 520-21; United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must "accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). However, when assessing the sufficiency of any civil complaint, a court must distinguish factual contentions -- which allege behavior on the part of the defendant that, if true, would satisfy one or more elements of the claim asserted -- and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
4. The holding of Iqbal, while applicable to all types of civil claims, is particularly relevant to allegations based solely on supervisory liability: a litigant does not state a cognizable claim if he asserts nothing but a claim based on the respondeat superior theory. See Iqbal, 129 S.Ct. at 1949-54; Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "'A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior.'" Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Personal involvement can be asserted through allegations of specific facts showing that a defendant directed, had actual knowledge of, or acquiesced in, the deprivation of a plaintiff's constitutional rights.*fn2 See id.; Monell, 436 U.S. at 694-95 (1978); cf. Advanta Corp. Sec. Litig., 180 F.3d 525, 534 (3d Cir. 1999) (quoting DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990), for the observation that a pleading must indicate "'the who, what, when, where, and how: the first paragraph of any newspaper story").
5. Here, Plaintiff's pleading makes it abundantly clear that Plaintiff named his warden as Defendant solely on the grounds of the doctrine of respondeat superior, since no statement made in the complaint suggests, even vaguely, that the warden either directed Plaintiff's placement in the cell with the inmate who allegedly assaulted him or promulgated any rules or policies on the basis of which Plaintiff's placement in the cell with his alleged assailant was executed. Since no statement made in the complaint suggests that Plaintiff might be able to cure this shortcoming by filing an amended pleading, Plaintiff's claims against his warden will be dismissed with prejudice.
6. Moreover, Plaintiff's claims against the unnamed officers must similarly be dismissed. However, for the reasons detailed below and out of abundance of caution, the Court will dismiss these claims without prejudice, and will allow Plaintiff an opportunity to amend his pleading accordingly.
7. The Court of Appeals recently stressed that: The Eighth Amendment imposes "a duty on prison officials to take reasonable measures to protect prisoners from violence at the hands of other prisoners." Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (citations and internal quotations omitted). To establish a failure to protect claim, an inmate must demonstrate that: (1) he is "incarcerated under conditions posing a substantial risk of serious harm;" and (2) the prison official acted with "deliberate indifference" to his health and safety. Farmer [v. Brennan,], 511 U.S. [825,] 834 [(1994)]. "The official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware." Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001).
Glazewski v. Corzine, 2010 U.S. App. LEXIS 13510, at *8 (3d Cir. July 1, 2010) (original brackets removed).
8. Here, Plaintiff does not allege any facts suggesting that the unspecified officers named as Defendants were actually aware of the existence of the excessive risk as to Plaintiff being attacked by another inmate; indeed, it appears that even Plaintiff himself was completely unaware of the danger until the very moment when he looked up at his attacker -- a split second prior to the alleged assault. See generally, docket Entry No. 1. Therefore, as drafted, Plaintiff's allegations fail to state a cognizable claim.
9. However, the Court cannot rule out the possibility that Plaintiff, being given an opportunity to amend his pleading, might specify (by name or otherwise) the identities of the particular Defendants whom Plaintiff bona fide believes to be liable for his injuries,*fn3 and in addition, might state facts showing that these particular Defendants were actually aware of the existence of the excessive risk to Plaintiff's health or life when they placed Plaintiff in the cell with his alleged assailant. Therefore, the Court finds it prudent and in the interest of justice to provide Plaintiff with an opportunity to detail his claims to that effect.
IT IS, therefore,on this 19th day of July , 2010,
ORDERED that Plaintiff's application to proceed in forma pauperis is hereby granted, and the Clerk shall file the Complaint without prepayment ...