                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2005

Dubois v. Vargas
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1647




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Dubois v. Vargas" (2005). 2005 Decisions. Paper 568.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/568


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
BPS-349                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                            ________________

                                  NO. 05-1647
                               ________________

                               PASCAL J. DUBOIS,
                                        Appellant


                                         v.

  SANDRA VARGAS, Health Adm; CORRECTIONAL MEDICAL SERVICES, C.M.S.;
       MIDDLESEX COUNTY ADULT CORRECTION CENTER, MCACC
              ____________________________________

                 On Appeal From the United States District Court
                          For the District of New Jersey
                          (D.C. Civ. No. 2:04-cv-01351)
                  District Judge: Honorable William G. Bassler
                 _______________________________________


          Submitted For Consideration of Appellant’s Motions Pursuant to
              3rd Cir. LAR Misc. 107.2 and 28 U.S.C. § 1915(a) and
             For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                August 25, 2005

   Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES

                            (Filed: September 7, 2005)


                           _______________________

                                   OPINION
                           _______________________

PER CURIAM
       Pro se litigant Pascal Dubois, an inmate in New Jersey state prison, filed an action

pursuant to 42 U.S.C. § 1983 against Sandra Vargas, Correctional Medical Services

(“C.M.S.”) and Middlesex County Adult Correctional Center (“MCACC”), in which he

alleged that defendants had violated his civil and constitutional rights by placing a

defamatory statement in his medical transfer file while he was a pre-trial detainee. Upon

granting his motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a), the

District Court ordered that the Complaint be filed and then sua sponte dismissed the

Complaint with prejudice for failure to state a claim upon which relief may be granted as

required by 28 U.S.C. § 1915(e)(2)(B)(ii).

       Dubois timely filed a notice of appeal, but failed to pay the required fees or apply

to proceed in this Court in forma pauperis. The appeal was then dismissed for failure to

timely prosecute pursuant to LAR 3.3 and LAR Misc. 107.1(a). Believing that the appeal

had been dismissed for failure to file a brief, Dubois submitted a brief and requested that

the appeal be reinstated. Upon request, Dubois then filed a completed application to

proceed in forma pauperis. Because Dubois’s appeal was originally closed for failure to

pay fees or to apply to proceed in forma pauperis, and because his in forma pauperis

application is now complete and demonstrates that he has no appreciable assets, both his

motion to reopen the appeal and motion to proceed in forma pauperis are granted.

However, his appeal will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Having granted



                                              2
Dubois leave to proceed in forma pauperis on appeal, we must now determine whether

Dubois’s appeal should be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).

An appeal may be dismissed as frivolous if it has no arguable basis in law or fact.

Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1831-32, 104 L. Ed. 2d 338

(1989). The District Court dismissed Dubois’s Complaint for failure to state a claim on

which relief may be granted. For such a dismissal, it must be clear as a matter of law that

“‘no relief could be granted under any set of facts that could be proved consistent with the

allegations.’” Id. at 327, 109 S. Ct. at 1832 (quoting Hishon v. King & Spalding, 467 U.S.

69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984)). In reaching this determination,

the District Court is obliged to accept the truth of all factual allegations set forth in the

complaint and all reasonable inferences that can be drawn from them. Nami v. Fauver, 82

F.3d 63, 65 (3d Cir. 1996). The complaint may not be dismissed with prejudice if it can

be cured by amendment. Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

       According to Dubois’s Complaint, prior to his transfer from MCACC to the

Central Reception and Assignment Facility (“C.R.A.F.”), defendant Sandra Vargas, who

is employed by defendant C.M.S. as a health administrator, wrote in his medical transfer

file “MANIPULATIVE IMPULSIVE PREVIOUS SUICIDE ATTEMPTS.” Upon

Dubois’s arrival at C.R.A.F., Licensed Practical Nurse Alyce Richardson conducted a

four hour intake screen at which she wrote in Dubois’s file “MANIPULATIVE

IMPULSIVE PREVIOUS SUICIDE ATTEMPTS PER TRANSFER SHEET INMATE



                                               3
DENIES ALL OF IT.” (At. Br., Ex. D.) Only a copy of the intake form completed at

C.R.A.F. is included in the record. It is not clear whether Dubois has actually seen a copy

of the form allegedly filled out by Vargas. Based on her screening, Nurse Richardson

referred Dubois to the Mental Health Department.

       According to Dubois, after his arrival at C.R.A.F.,

       Correctional Officer Carter retaliated against him by threatening to put a
       shank in him, by subjecting him to cruel and unusual punishment, and by
       repeating what defendant Vargas had written in his medical transfer sheet,
       moving Plaintiff to a top bunk even though he had documentation for a
       lower bunk due to his permanent back injury, and moving him from his cell
       to the worst cell in C.R.A.F., which had no hot water, a leaking faucet and a
       toilet that flooded his cell and destroyed his legal documents for his pending
       cases and his appeal. In addition to the fact that Officer Carter also falsely
       accused Plaintiff Dubois to be suicidal, based on defendant Vargas’ false
       and malicious written statements, which the psychologist/psychiatrist at
       C.R.A.F. cleared him of.

Complaint ¶ 5. It is not clear from the record whether Correctional Officer Carter ever

saw Dubois’s medical file. However, Dubois has provided as an exhibit to his appellate

brief a referral form filled out by Carter on September 20, 2003 requesting a mental

health evaluation for Dubois based on depression, aggressive behavior, anxious unusual

behavior and “crazy speech.” (At. Br., Ex. E.) Carter made no mention of the notation at

issue in this case in the referral form.

       As the District Court explained, Dubois’s claims against C.M.S. and MCACC lack

merit because liability under 42 U.S.C. § 1983 cannot be based solely upon the doctrine

of respondeat superior. See Natale v. Camden County Corr. Facility, 318 F.3d 575, 583



                                             4
(2003). In order to establish liability on the part of C.M.S. or MCACC, Dubois would

have to present evidence that Vargas’s actions were the result of some relevant

organizational policy or custom, the implementation of which resulted in a violation of

Dubois’s constitutional rights. Id. at 583-84. As Dubois has not articulated any such

policy or custom, his claims against C.M.S. and MCACC properly were dismissed.

       With respect to Dubois’s claims against Vargas, Dubois has failed to articulate a

constitutional right which has been violated so as to support his section 1983 claim. In

order to state an actionable claim under 42 U.S.C. § 1983, a plaintiff alleging injury to his

liberty interest in his reputation must allege that he has suffered an additional deprivation

of a constitutional right in connection with the injury. Kelly v. Borough of Sayreville,

107 F.3d 1073, 1077-78 (3d Cir. 1997); see also Paul v. Davis, 424 U.S. 693, 712, 96 S.

Ct. 1155, 1166, 47 L. Ed. 2d 405 (1976) (claim for violation of federal constitutional

rights cannot be based solely on state law defamation claim).

       Dubois argues that Correctional Officer Carter’s actions amounted to cruel and

unusual punishment and that they occurred as a result of Vargas’s statement.1 However,

the additional injury to the plaintiff must emanate “from some further action by the

defendant in addition to the defamation.” Aversa v. United States, 99 F.3d 1200, 1216

(1st Cir. 1996); see also Siegert v. Gilley, 500 U.S. 226, 234, 111 S. Ct. 1789, 1794, 114



   1
       We note that, due to Dubois’s status (according to his Complaint) as a pretrial
detainee, his claims, if any, would be cognizable under the due process clause rather than
the Eighth Amendment.

                                              5
L. Ed. 2d 277 (1991). As Dubois does not allege that Vargas herself took any action

against him that would constitute a due process violation, and as his allegations against

C.O. Carter cannot be used to support his claim against Vargas, Dubois has not

established a due process violation to support his § 1983 claim against Vargas.

       Dubois has not alleged the violation of any other constitutional or statutory right

effected by Vargas’s alleged defamation.2 Because Dubois has failed to state a claim

against Vargas under 42 U.S.C. § 1983, and because we believe he could not amend his

Complaint to do so, we conclude that the District Court properly dismissed the Complaint

pursuant to 28 U.S.C. § 1915(e).

       Finally, in his appellate brief, Dubois argues that the District Court should not

have dismissed his claim of defamation under New Jersey law. (At. Br. 6-7.) However,

Dubois failed to raise such a claim in his Complaint. In any event, the District Court

would likely have declined to exercise supplemental jurisdiction over such a claim under




   2
        In Appellant’s brief, he claims for the first time that Vargas’s alleged notation in
his medical transfer file was made in retaliation for his filing of a civil complaint against
her for the denial of medical care. (At. Br. 7.) The First Amendment does guarantee
prisoners access to the courts. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (citing
Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002)). A prisoner alleging retaliation in
violation of his civil rights must show (i) that he engaged in constitutionally protected
conduct; (ii) that an adverse action was taken by prison officials “‘sufficient to deter a
person of ordinary firmness from exercising his [constitutional] rights’” and (iii) that
there was a causal relationship between the two. Rauser v. Horn, 241 F.3d 330, 333 (3d
Cir. 2001) (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). As Dubois
has failed to satisfy the second and third prongs of this test, his Complaint cannot be read
to state a claim of retaliation.

                                              6
the circumstances. See 28 U.S.C. § 1367(c)(3) (granting district court discretion to

decline to exercise supplemental jurisdiction over state law claim if district court has

dismissed all claims over which it had original jurisdiction); see also Growth Horizons,

Inc. v. Delaware County, Pennsylvania, 983 F.2d 1277, 1284-85 (3d Cir. 1993) (decision

to dismiss dependent claim based on point in litigation when primary claim is dismissed

and other surrounding circumstances). Of course, as this claim has not been raised or

addressed in the District Court, Dubois remains free to pursue it in state court should he

so choose.

       Accordingly, the motions to reopen and to proceed in forma pauperis are granted

and the appeal will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).




                                              7
