Mark Anthony Bendy, Sr. v. Ocean County Jail

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-1421
_____________
MARK ANTHONY BENDY, SR.,
Appellant
v.
OCEAN COUNTY JAIL; DEPARTMENT OF
CORRECTIONS MEDICAL FACILITY;
DR. SANTANGELO; THEODORE HUTLER, JR., Warden;
CLAYTON, C/O, OCJ; JOHN DOES, 1 through 9, OCJ
MCCAFFERY, SGT., OCJ; THATCH
ER, C/O, OCJ;
TONACHIO, C/O, OCJ
On Appeal from the United States District Court
for the District of New Jersey
No. 3:06-CV-02616-AET-JJH
District Judge: Honorable Anne E. Thompson
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 21, 2008
Before: BARRY, CHAGARES, Circuit Judges, and RESTANI, Judge.*
(Filed July 22, 2009)
OPINION OF THE COURT
* The Honorable Jane A. Restani, Chief Judge, U.S. Court of International Trade, sitting
by designation.

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CHAGARES, Circuit Judge.
Mark Anthony Bendy, Sr., at the time a pretrial detainee held at the Ocean County
Jail, filed an in forma pauperis civil rights action pursuant to 42 U.S.C. § 1983 in the
United States District Court for the District of New Jersey against numerous defendants,
including Dr. Donato Santangelo, Warden Theodore Hutler, Sergeant James McCafferey,
and seven unnamed prison officials (John Doe numbers 1-7), collectively the defendants.
The District Court dismissed Bendy’s amended pro se complaint for failure to state a
claim. Bendy argues that the District Court failed to address his claim for First
Amendment retaliation in connection with his filing of grievances and instituting legal
action against the Ocean County Jail. We disagree and will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly
summarize the essential facts.
In his amended complaint, Bendy alleged that, on May 25, 2006, he contracted an
eye infection, but was initially refused treatment in the prison medical facility because he
did not have money to pay for such treatment. Bendy further alleged that, over the next
eight days, he sent certified requests for medical treatment to John Doe numbers 1, 2, and
3, Captains at Ocean County Jail, and filed grievances complaining that he had not
received necessary treatment. On June 1, 2006, at approximately 8:30 a.m., Bendy was
seen by a prison nurse. Bendy alleged that he told the nurse that he planned to file a

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1In his original complaint, incorporated by reference into his amended complaint,
Bendy also alleged that, on June 1, 2006, he “informed them that I was suing the jail for
refusing medical attention for 8 days.” App. 13 (emphasis added). This comment
appears to have been made in a one-on-one conversation with a prison nurse– who is not
a party to this lawsuit– not to the defendants.
2 In his original complaint, Bendy alleged that his condition was contagious; in his
amended complaint, Bendy contended it was not.
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lawsuit based upon the prison’s failure to provide him with immediate medical treatment.1
Bendy subsequently was seen and treated for his eye infection by a prison doctor.
Bendy alleged that approximately two hours after being treated by medical staff,
John Doe number 4, a Captain at Ocean County Jail, made the decision to have Bendy
moved to a segregated medical area. Bendy alleged that, when he was moved, John Doe
numbers 5, 6, and 7, Corrections Officers at Ocean County Jail, “threatened [him] with
serious bodily injury and used abusive language toward [him].” Appendix (App.) 35.
Bendy further alleged that John Doe number 5 threw a shirt in his face and performed a
strip search and cavity search on him. Bendy further alleged that Sergeant McCafferey
ordered other prison officials to perform the cavity search, threatened Bendy with serious
bodily injury, and yelled at him with abusive and offensive language. App. 31. In
addition, during his six days in medical segregation, Bendy alleged he was confined to his
cell for all but fifteen minutes per day, where he did not have access to television, radio,
newspapers, books, or the law library. 2 Bendy alleged that when he inquired why he was
moved into a segregated area, the nurse informed him that he had been placed in medical
segregation “because you complained of not getting medical treatment,” and that he

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“shouldn’t have complained.” App. 13.
II.
The District Court reviewed Bendy’s original complaint to “identify cognizable
claims” or to dismiss the complaint or such portions thereof as are “frivolous” or “fail[ ]
to state a claim upon which relief may be granted.” 28 U.S.C. §1915A(b); see also 28
U.S.C. § 1915(e)(2). In a sua sponte opinion order, issued on June 28, 2006, the District
Court construed Bendy’s inadequate medical treatment claims as a challenge to the
conditions of his pretrial detention. The court reviewed whether those allegations
sufficiently stated a claim for “punishment prior to an adjudication of guilt.” App. 20-21.
The Court held that Bendy “alleged no facts indicating that he is being subjected to
punishment as a pretrial detainee,” and rather that Bendy was placed in the medical unit
to complete treatment. App. 22.
The District Court permitted Bendy to amend his complaint to include facts which
would indicate that his constitutional rights were violated. After Bendy amended his
complaint, the District Court issued a second sua sponte order dismissing Bendy’s
“medical care claims.” The District Court also dismissed what it construed as Bendy’s
claim for harassment under the Eighth Amendment, and a claim that he was denied access
to the courts. The Court permitted a retaliation claim against Warden Theodore Hutler
and Corrections Officer Joseph Thatcher based on a later incident, alleged to have taken
place in mid-July 2006, to proceed. In a January 8, 2007, Opinion and Order, the District
Court dismissed this retaliation claim alleged by Bendy against Hutler and Thatcher.

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Bendy does not appeal the District Court’s dismissal of that claim.
Bendy’s sole challenge on appeal is that his amended complaint made out a
cognizable claim for First Amendment retaliation against defendants based on the June
2006 events and that the District Court erred in failing to consider that claim.
III.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Bendy timely
appealed from the January 8, 2007, final order of the District Court disposing of this case.
That order is the final, appealable order for both claims disposed of in that order, as well
as all non-final orders and rulings previously issued by the District Court. See
Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3d Cir. 1990).
We exercise plenary review over a district court’s final order dismissing a
complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6)
and 28 U.S.C. §§ 1915(e) & 1915A. In doing so, “we take seriously our charge to
construe pro se complaints nonrestrictively.” Mitchell v. Horn, 318 F.3d 523, 530 (3d
Cir. 2003) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
In considering a motion to dismiss under Rule 12(b)(6), a court is required to
“‘accept all factual allegations as true, construe the complaint in the light most favorable
to the plaintiff, and determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief.’” Phillips v. County of Allegheny, 515 F.3d 224,
233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 375 n.7 (3d
Cir. 2002)); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007). “‘[S]tating. . .

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a claim requires a complaint with enough factual matter (taken as true) to suggest’ the
required element.” Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). In
other words, the “[f]actual allegations [of the complaint] must be enough to raise a right
to relief above the speculative level.” Id. (quoting Twobmbly, 550 U.S. at 555).
IV.
To proceed on a retaliation claim, a prisoner must allege facts sufficient to show
(1) that he engaged in constitutionally protected conduct; (2) an adverse action by prison
officials which is sufficient to deter a person of ordinary firmness from exercising his
constitutional rights; and (3) a causal link between the exercise of his constitutional rights
and the adverse action taken against him. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001); see also Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000).
Bendy argues that he engaged in constitutionally protected conduct when he filed
grievances with the prison and threatened a lawsuit to challenge the prison’s failure to
provide prompt medical treatment. App. 12, 13, 36. Arguably, Bendy has engaged in
conduct protected by the First Amendment by filing grievances about the medical care he
was receiving and by complaining to prison officials. See Mitchell, 318 F.3d at 530;
Allah, 229 F.3d at 225; Quinn v. Cunningham, 879 F. Supp. 25, 27-28 (E.D. Pa. 1995),
aff’d, 85 F.3d 612 (3d Cir. 1996). Nevertheless, we conclude that Bendy failed to allege
facts sufficient to show a “causal link” between any exercise of his constitutional rights
and the allegedly adverse actions of the defendants.
To state a claim for retaliatory treatment, “a complaint need only ‘allege a

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3By contrast, we note that, when Bendy intended to allege a claim of retaliation, he
did so explicitly. For example, in a claim not a subject of this appeal, Bendy alleged that
Corrections Officer Thatcher threatened to file a disciplinary charge against him if Bendy
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chronology of events from which retaliation may be inferred.’” Black v. Lane, 22 F.3d
1395, 1399 (7th Cir. 1994) (quoting Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987)).
Bendy failed to allege that defendants physically abused or assaulted him, threatened him,
or confined him in retaliation for his filing of grievances or taking other legal action.
Rather, he alleged that a number of defendants “did not respond to my grievance for
medical treatment” or “denied medical attention.” App. 29-31. As to certain other
defendants, Bendy set forth allegations of abusive language, threats of bodily injury, and
physical abuse. Bendy failed to allege a connection between any of these instances and
any filed grievances or other threatened legal action.
Bendy points to a temporal proximity between his conversation with a prison
nurse, in which he informed her of the grievances he had filed and the lawsuit he planned
to bring, and his subsequent transfer to medical segregation. Bendy further points to a
statement, allegedly made by the prison nurse, that he had been transferred because he
had “complained of not getting medical treatment,” and that he “shouldn’t have
complained.” App. 13. As the District Court reasoned, it appears from the facts alleged
“that Plaintiff suffered an ailment and was treated,” and that temporary segregation in the
medical unit was part of that treatment. App. 22-23. We conclude that Bendy has alleged
no facts indicating that the defendants retaliated against him for taking any
constitutionally protected actions.3

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filed a grievance against him, and that Thatcher followed through with this threat by
filing a disciplinary charge against Bendy and transferring him to a “segregated area of
the jail.” App. 36. The District Court found that Bendy alleged facts sufficient to state a
claim for retaliation as to only Thatcher and Hutler. App. 53-54. Bendy asserted no
objection in the District Court to this determination. In his opposition to Hutler and
Thatcher’s motion to dismiss the retaliation claim, Bendy stated, “[t]he disciplinary report
in question was a retaliation to my filing a grievance against defendant Thatcher,” and
thus “violat[ed] my constitutional rights.” Bendy made no such allegations against the
defendants at issue here. We reject any attempt to recast his allegations on appeal. See,
e.g., Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1037 (8th Cir. 2005) (stating that
“we have no interest in allowing Al-Zubaidy to recast his cause of action on appeal to
survive the district court’s dismissal.”).
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V.
For the foregoing reasons, we will affirm the judgment of the District Court in all
respects.

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