Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-2009

Jerry Lindsey v. Paul M. O'Conner
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4579




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Recommended Citation
"Jerry Lindsey v. Paul M. O'Conner" (2009). 2009 Decisions. Paper 1369.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1369


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DLD-159                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 08-4579


                               JERRY S. LINDSEY,
                                               Appellant

                                         v.

    PAUL M. O'CONNOR; DONALD L. KELCHNER; SERGEANT LUCAS;
    CORRECTIONAL OFFICER O'LEARY; CORRECTIONAL OFFICER
         SIMSON; AND CORRECTIONAL OFFICER TOMSON


                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                       (D.C. Civil Action No. 08-cv-1683)
                  District Judge: Honorable James F. McClure


      Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
      or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 April 16, 2009

              Before: BARRY, AMBRO and SMITH, Circuit Judges

                           (Opinion filed: May 13, 2009)




                                    OPINION


PER CURIAM

    Jerry Lindsey, a pro se prisoner currently housed at SCI-Graterford, appeals from
the District Court’s dismissal of his complaint pursuant to 28 U.S.C. § 1915(e). For the

reasons set forth below, we will summarily affirm. See I.O.P. 10.6.

                                         I.

      Lindsey commenced an action under 42 U.S.C. § 1983 against Paul M. O'Connor,

Director of the Pennsylvania Department of Corrections (“DOC”), and the following

officials at Lindsey’s prior place of confinement, SCI-Camp Hill: Superintendent Donald

L. Kelchner; Sergeant Lucas; and Correctional Officers O'Leary, Simson, and Tomson.

Lindsey claimed that Defendants violated his civil rights on various occasions during his

confinement at SCI-Camp Hill.

      According to Lindsey’s complaint, he was transferred to R Block at SCI-Camp

Hill on March 3, 2008. Following his arrival at R Block, he had a verbal exchange with

Defendant Tomson, which resulted in Tomson confiscating his identification card. On

March 5, 2008, Lindsey claimed that he was subjected to verbal harassment by Defendant

O’Leary. O’Leary allegedly “called into” Lindsey’s prison cell suggesting that Lindsey

was sexually attracted to his cell mate. The next day, Lindsey’s cell mate was removed.

      On March 6, 2008, Defendant Tomson allegedly told Lindsey that because he no

longer had a cell mate, the harassment was “just beginning.” The following day, Lindsey

claimed that Defendants Lucas, O’Leary, Tomson and Simson came to his cell, and

Defendant Lucas grabbed him and threatened him with his fist. The following morning,

according to Lindsey, he was denied breakfast at Lucas’ request.



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      Lindsey filed a § 1983 action seeking declaratory and injunctive relief as well as

compensatory and punitive damages. The District Court granted Lindsey’s motion to

proceed in forma pauperis but later dismissed his complaint pursuant to 28 U.S.C. §

1915(e)(2)(B)(i). Lindsey filed a timely appeal.

                                          II.

      We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See Tourscher

v. McCullough, 

, 240 (3d Cir. 1999). After a careful review of the record,

we conclude that the appeal presents “no substantial question” under Third Circuit LAR

27.4 and I.O.P. 10.6. We will therefore summarily affirm the District Court's order on the

grounds that Lindsey’s claims were not viable.

                                         III.

      The District Court correctly determined that Lindsey’s complaint was subject to

dismissal under 28 U.S.C. § 1915(e)(2)(B)(i). As an initial matter, Defendants O’Connor

and Kelcher were not appropriate Defendants in the action, as there was no allegation

they were involved in the events which gave rise to Lindsey’s claim. Civil rights claims

cannot be premised on a theory of respondeat superior. See Rode v. Dellarciprete, 

, 1207 (3d Cir. 1988).

      The District Court also correctly concluded that Lindsey’s claim against

Defendants Lucas, O’Leary, Tomson and Simson regarding their alleged verbal abuse of

him did not present a viable claim under § 1983. Verbal harassment of a prisoner,



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although distasteful, does not violate the Eighth Amendment. See, e.g., McBride v. Deer,

, 1291 n.3 (10th Cir. 2001).

       The District Court also properly dismissed Lindsey’s other Eighth Amendment

claims against Defendant Lucas. As mentioned above, Lindsey claimed that Lucas

grabbed him and threatened him when he was outside of his cell on March 7, 2008. He

did not claim that he suffered any injury as a result. The following day, Lindsey claimed

that Lucas denied him breakfast. The District Court correctly determined that Lucas’s

alleged grabbing of Lindsey did not constitute a violation of the Eighth Amendment’s

cruel and unusual punishment provision. The Eighth Amendment does not protect an

inmate against an objectively de minimis use of force. See Smith v. Mensinger, 

, 648 (3d Cir. 2002).

       Lindsey’s other claim against Lucas – that he denied him food on one occasion in

violation of the Eighth Amendment – also fails. The purported deprivation of a single

meal is not of such magnitude as to rise to the level of a constitutional violation. See

Robles v. Coughlin, 

, 15 (2d Cir. 1983) (only a substantial deprivation of food

to a prisoner sets forth a viable Eighth Amendment claim).

       Finally, the District Court properly dismissed Lindsey’s claim that Defendant

Tomson impermissibly confiscated his identification card. To the extent this was a due

process claim, it was flawed. A prisoner's cause of action based on unauthorized

deprivation of property by a state actor is not actionable under § 1983 unless there is no



                                              4
adequate post-deprivation remedy available. See Parratt v. Taylor, 

, 542

(1981). As noted by the District Court, Pennsylvania law provided an adequate remedy in

Lindsey’s case. Furthermore, we perceive no other constitutional ground that his

allegation implicated.

       For the foregoing reasons, we conclude that there is no substantial question

presented by this appeal. Accordingly, we will summarily affirm the District Court’s

dismissal of Lindsey’s complaint. See Third Cir. LAR 27.4; I.O.P. 10.6.




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