The opinion of the court was delivered by: Judge James M. Munley United States District Court
Before the court for disposition is Magistrate Judge J. Andrew Smyser's report and recommendation proposing that this court dismiss the instant case. Plaintiff Clifford Hunter filed objections to the report and recommendation. The matter is ripe for disposition.
At the time of the events in question, Plaintiff Clifford Hunter was an inmate at Allenwood Federal Corrections Institute. (Doc. 1 at 1). Plaintiff asserts that on or about March 4, 2011, while he and another inmate played a game of scrabble "he was struck in the back, head, and neck with an unknown odorous substance." (Doc. 11, Am. Compl. ¶ 1). A plumbing supervisor later identified the substance as a mixture of rust and pipe sediment from a "plumbing pipe system." (Id.)
Turning around, plaintiff observed Defendant Officer Cory Frantz fleeing from the area "with a shovel in hand." (Id.) Thus, he accuses Frantz of throwing the material at him. Plaintiff avers that the named defendants, Lieutenant Olshehski and Officer Dyer, failed to intervene and prevent the incident. (Id. ¶ 31). Plaintiff also asserts that the attack left him injured, though he does not detail the injury itself or the treatment he received. (See id. ¶ 25).
Plaintiff requested to see a lieutenant. An officer response team arrived and plaintiff informed the team and Defendant Lieutenant Olshefski of the incident. (Id. ¶ 1). Prison officials then took plaintiff to the special housing unit where they detained him and issued an incident report. (Id.) Plaintiff also alleges that Lieutenant Olshefski wrongly placed him in the Special Housing Unit, but pleads no specific facts as to what makes that confinement wrongful.
The plaintiff filed a pro se civil rights complaint pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).*fn1 (Doc. 1, Compl.) Magistrate Judge Smyser granted plaintiff's application for leave to proceed in forma pauperis. (Doc. 8, Order of Apr. 29, 2011). The court dismissed plaintiff's original claim for failure to state a claim and granted plaintiff leave to file an amended complaint with greater detail concerning the circumstances of the incident. (Id.) Plaintiff filed an amended complaint on June 1, 2011. (Doc. 11, Am. Compl.).
The amended complaint alleges two distinct claims. First, plaintiff brings a civil rights action for excessive force against Defendant Cory Frantz for the sum of $250,000. (Id.) Second, plaintiff brings another Bivens claim against all defendants jointly and severally for failure to intervene for the sum of $5,000 per day of plaintiff's imprisonment in the Special Housing Unit. (Id. at 6).
Magistrate Judge Smyser, acting pursuant 28 U.S.C. § 1915A, reviewed the amended complaint and issued a report and recommendation that this court dismiss plaintiff's claims. (Doc. 12). Plaintiff objects to the report and recommendation in its entirety. (Doc. 13).
Because plaintiff's claim arises under the Eighth Amendment of the United States Constitution and Bivens, this court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of all civil actions ...