Opinion
No. 73 M.D. 2011
01-04-2012
Donald Jennings, Petitioner v. Health Care Administrator Tretinick and Medical Director Harbick of S.C.I. Fayette, Dentists of Fayette and Rockview, Secretary Jeffery Beard of the Pennsylvania Department of Corrections, Superintendent Smeal, Doctor Long and Health Care Administrator Weaver of S.C.I. Smithfield, Blair Medical Center, Doctor Thomas of Blair Hospital, The Commonwealth of Pennsylvania And Those Acting In Concert Or Participation, Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge
This case was decided before Senior Judge Kelley's retirement on December 31, 2011.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Before this Court are the preliminary objections of Robert Tretinick (Tretinick), health care administrator at the State Correctional Institution at Fayette (SCI-Fayette); Dr. Dennis Tolner (Dr. Tolner), a dentist at SCI-Fayette; Brian V. Coleman (Coleman), Superintendent of SCI-Fayette; George Weaver (Weaver), former Health Care Administrator at the State Correctional Institution at Smithfield (SCI-Smithfield); Paul K. Smeal (Smeal), Superintendent of SCI- Smithfield; Jeffrey A. Beard (Beard), Secretary of the Pennsylvania Department of Corrections; and the Commonwealth of Pennsylvania (collectively, DOC) to Donald Jennings's (Jennings) petition for review in this Court's original jurisdiction. DOC represents all of the defendants in this matter.
Jennings does not organize his complaint by defendant and by cause of action but rather chronologically. He alleges that Tretinick and Weaver denied him necessary medical care. He further alleges that Tretinick improperly deducted and/or embezzled funds from Jennings's inmate account. He alleges that Smeal failed to answer pleadings and documents served on him. Dr. Tolner is neither listed in the original caption of the complaint nor in the complaint as a party. He does not make individual allegations against Dr. Tolner or Coleman or Beard.
Jennings is a DOC inmate. During the relevant time period, Jennings was incarcerated at SCI-Fayette, SCI-Smithfield, and the State Correctional Institution at Rockview (SCI-Rockview). On May 5, 2009, Jennings commenced this action in the Court of Common Pleas of Fayette County (common pleas court). In addition to DOC, Jennings also named the Blair Medical Center, Doctor Thomas of Blair Hospital, Dr. Long of SCI-Smithfield and Dr. Herbik of SCI-Fayette.
The common pleas court granted judgment of non pros in favor of Dr. Long and Dr. Herbik after Jennings failed to file a certificate of merit.
Jennings alleges:
8. On May 13, 2003, while on medical hold and receiving required treatment for cronic [sic] medical problems plaintiff [Jennings] was improperly transfered [sic] from the facility where he was located to S.C.I. Smithfield in retaliation for filing legitimate complaints against a staff member.
. . . .
15. Plaintiff [Jennings] was later transfered [sic] to Smithfield Hospital which is an area utilized for the torture, abuse and isolation of prisoners and where Medical and Security staff (who are closely related) work together to carry out and attempt to Justify the Unconstitutional actions conducted and approved by Supervisory staff. While sick and injured in an accident plaintiff [Jennings] was pulled off the bed and on to the floor of his hospital room, denied all medical care and was then dragged through the hospital to a Psychiatric Observation Unit per Order of Dr. Long and Lt. C. Grove who assured him that they were going to strap him down in restraints to teach him a lesson.
. . . .
18. Plaintiff [Jennings] was returned to Smithfield hospital where RN. B.J. removed his torn and bloody clothing, cleaned him and changed clothing while other staff took photos of uninjured and cleaned areas in an attempt to allege that there were no injuries and that no incident occurred. Since this assault and the abuse at Smithfield plaintiff [Jennings] has suffered severe pain and has been unable to walk on his own, throughout this time he was denied needed medical care per orders of Dr. Long and Medical Administrator Weaver.
. . . .
21. Plaintiff [Jennings] was assaulted, strapped down in restraints and internally and violently force fed at a time when he was consuming Diet meals and other nourishment on his own. The Court was informed and aware that plaintiff [Jennings] was assaulted and consuming nourishment on his own but failed to respond to or act on motions and went on to enter a calculated and erroneous order several days after the assault in an attempt to justify Unconstitutional deprivations, Torture and other abuses being conducted by Facility staff.
22. The Unconstitutional proceedings allegedly entered out of concern for plaintiffs [sic] [Jennings] 'health and overall well being' were then used to conduct and justify the following acts against him: Multiple violent assaults; strapped to restraint chairs excessively tight 8-10 hours a day for months to allegedly digest an 8 ounce drink that he had willingly consumed on his own; shocked with
electric thazer [sic] guns while strapped down in restraint chairs and while shackeled [sic] and pinned down by numerous defendants; placed in military strangle holds and choked while strapped down in restraints; confined to non disability equipped isolation cells for months while being denied showers for six months, all recreation and fresh air, use of a toilet, denial of food, nourishment and medical care, confiscation and destruction of Legal and personal property and mails, denied access to the Law Library, Legal Property, Family and the Courts. Plaintiff [Jennings] was consistently subjected to tortures, assaults, unconstitutional strip searches and other abuses which were video taped and documented throughout the Grievance and Disciplinary processes. It was requested throughout proceedings that all video and audio be preserved for this action.
. . . .
26. After months of torture and abuse and now suffering more pain, disability and illness plaintiff [Jennings] who entered Smithfield hospital walking and weighing 198 pounds was then transfered [sic] to Altoona hospital in a wheel chair [sic], unable to walk and weighing somewhere in the area of 120 pounds. At Altoona he was finally examined and treated by three Doctors one of who [sic] was again a Department of Corrections employee and a friend of Defendants Long and Weaver. At that time he was informed that he was suffering from cronic [sic] illness, spinal and other injuries which included: a buldgeing [sic] or damaged disk in his lower back which was leaning on nerves; two damaged disks on his upper spine which require a titanium plate to be fuesed [sic] on to his spine; a disease in the abdominal area; malnutrition; Nuropty [sic] or nerve and muscle damage in his legs caused by the abuse, medical negligence, unlawful isolation and being strapped to restraint chairs. Plaintiff [Jennings] also suffered from peptic ulcers and other cronic [sic] medical conditions which have continuously gone untreated due to Defendants Long and Weavers orders and negligence.
. . . .
38. On their pretence [sic] of health concerns Defendants again subjected Plaintiff [Jennings] to the following retaliation for six-seven months: multiple assaults,
strapped to restraint chairs and tortured; denied nourishment and feedings on weekends; left laying [sic] on the floor of a [sic] isolation cell handuffed [sic] all day; choked and shocked with electric thazer [sic] guns while restrained; denied access to Family, the Law Library and the courts; the illegal confiscation of Legal Mails and property; subjected to illegal and unconstitutional strip searches and abuse while restrained and numerous other abuses and violations which are outlined in withheld Civil complaints and the grievances and unanswered appeals that were filed.
. . . .
52. On 10/27/08, Plaintiff [Jennings] arrived at Fayette and was immediately approached and threatened by Defendant Tretnick [sic] who informed him that he spoke to his Friends Defendants Long, Weaver and Williams and that he would make sure that Plaintiff [Jennings] would receive no treatment at his facility. At that time Defendant Tretnick [sic] stated that he was having all medications and treatments canceled; that he was going to illegally deduct funds from Plaintiffs [sic] [Jennings] account or bill him for medical co Pays if he attempted to receive treatment for ongoing cronic [sic] conditions that he was going to strapp [sic] Plaintiff [Jennings] to restraint chairs and shove tubes in him. Tretnick [sic] in a belligerent manner went on to state that he did not want Plaintiff [Jennings] at his Facility and that he was going to show him how things work at Fayette. At that time Plaintiff [Jennings] was denied mandatory incoming medical evaluation and examination and Defendant Tretnick [sic] canceled all necessary medications, treatments and supplements without Plaintiff [Jennings] ever seeing a Doctor.
53. At that time Plaintiff [Jennings] was again held in a cell that was not handicapped equipped in violation of the American Disability Act [sic]. There he was informed by two inmates who were being transfered [sic] to Smithfield in place of Plaintiff [Jennings] that he had better be careful because Tretnick [sic] and Harbick [sic] had been making threats to other staff all day prior to his arrival. According to the other inmates Defendants discussed Plaintiffs [Jennings] medical conditions with
Capt. Leggett, Dep. Armel, other officers and around other inmates all day. They further stated that they did not want him at Fayette, that they were not going to treat him medically and that they would do something to keep him locked up or to have him transferred somewhere else. . . . Defendants Tretnick [sic] and Harbick [sic] then ordered staff to confiscate plaintiffs [Jennings] medical shoes, slippers, all food and the wheel chair [sic] cushioned seat that was proscribed due to infections and soars [sic] caused by the hard plastic seat.Complaint, May 5, 2009, Paragraph Nos. 8, 15, 18, 21-22, 26, 38 and 52-53 at 3-6, 8, and 11.
Jennings further alleges that he was denied all medical care and treatment at SCI-Fayette and was placed in an isolation cell that was not equipped to handle handicapped prisoners. He further alleges that he was denied all requests for medical assistance, medications and treatment. Jennings alleges that Tretinick told him that if he attempted to receive medical care at SCI-Fayette he would illegally deduct everything in his inmate account as medical copays. Jennings alleges he was denied needed medications and dietary supplements.
When he injured his back and head after he collapsed in his cell on November 6, 2008, Jennings alleges he was denied all medical care and treatment and had his wheelchair confiscated. He further alleges he was denied food and water and was forced to lie on a cell floor covered with feces and urine for four days. Jennings alleges that on November 15, 2008, he had severe internal bleeding which was not treated. Jennings further alleges that Tretinick embezzled funds from his inmate account.
Jennings seeks a preliminary injunction and a temporary restraining order that states that he will be provided with medications, treatment, and therapy previously prescribed for his chronic pain, injuries and medical conditions and that he be immediately examined by an impartial licensed medical practitioner who is not associated with DOC. He further seeks an order that DOC not be permitted to deny Jennings and those similarly situated medical care and that the individually named defendants no longer be allowed access to him or his medical records, that the named defendants discontinue retaliation and the falsification of his records, that the defendants respond to the numerous complaints by other chronically ill prisoners, and that the defendants provide him with dental care by a licensed dental practitioner, not associated with DOC.
Jennings further requests that all civil complaints illegally confiscated by DOC be returned to him or that DOC be required to pay all costs, fees and expenses necessary to reconstruct and replace all property and correct the injuries and damages caused by its actions.
Jennings also seeks all relief and damages requested in his civil complaints, grievance proceedings and disciplinary appeal proceedings, that DOC be ordered to present a response to all constitutional violations, appeals, and complaints that they have refused to answer, that they preserve and present all requested audio and videotaped evidence, pay attorney fees and costs, and any other relief as the court may deem just and proper. He also seeks leave to file three civil complaints which he was not permitted to file because certain officials allegedly confiscated the complaints.
On July 12, 2010, DOC preliminarily objected and alleged:
9. Plaintiff's [Jennings] Complaint is not a legally sufficient pleading under the Prison Litigation Reform Act because Defendants [DOC] are asserting the affirmative defense of the Statute of Limitations. Many of the alleged facts that gave rise to this claim involving retaliatory treatment, deliberate indifference to medical needs, threats, and harassment, and violations of the 1st, 4th, 8th and 14th Amendments purportedly occurred as early as May 13, 2003. The Complaint was not filed until May 5, 2009. . . .
. . . .
14. A civil rights claim pursuant to U.S.C. § 1983 requires the establishment of a violation of a federal constitutional or statutory law by the direct involvement of a state official. . . . .
15. Here, none of the named defendants were alleged to have been directly involved. Their liability under the civil rights statute may not be imposed vicariously. . . .
16. Accordingly, this Court could properly dismiss the civil rights claim under the PLRA [Prison Litigation Reform Act] (as either frivolous or failing to state a claim) on the basis that a prima facie civil rights case has not been stated.
17. The civil rights statute also requires the plaintiff to plead a violation of federal constitutional or federal statutory law. . . . If the complaint were construed to allege a violation of the Eighth Amendment which, inter alia, encompasses a 'failure to protect' claim, it was incumbent on Jennings to plead sufficient facts from which such a violation could be determined. Specifically, Jennings' [sic] was required to plead: that 'the [prison] official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists that he [or she] must also draw the inference. . . .
18. Accordingly, because the named Defendants are not the 'guarantors' of Jennings' safety. . . and because the complaint is devoid of sufficient facts to plead a viable 'failure to protect' Eighth Amendment claim, this Court may properly dismiss on this basis. . . .Department of Corrections, Preliminary Objection, July 12, 2010, Paragraph Nos. 9, 14-21, 25-27 at 5, 7-10.
. . . .
19. 'When an employee of a Commonwealth agency was acting within the scope of his or her duties, the Commonwealth employee is protected by sovereign immunity from the imposition of liability for intentional tort claims.'. . .
20. In order to strip a Commonwealth employee of sovereign immunity, Jennings was required to set forth factual allegations establishing that [1] the alleged act which caused injury was negligent; [2] damages would be recoverable under common law or statute but for the availability of the immunity defense; and [3] the act fits within one of the nine exceptions to sovereign immunity.
. . .
21. This Complaint fails to satisfy the above-stated standard.
. . . .
25. Jennings avers that several medical professionals, including Defendants Tretinik and Weaver withheld medical care for various alleged conditions.
26. Defendants Tretinik and Weaver are not medical providers, but served as Corrections Health Care Administrators (CHCA), as noted in Plaintiff's [Jennings] complaint.
27. Therefore, neither Defendant Tretinik nor Defendant Weaver can withhold medical treatment because it is not within their province to render medical care or diagnose a medical condition. (Emphasis in original).
J.C. Blair Hospital also preliminarily objects in the nature of a motion to dismiss based upon a lack of jurisdiction under the Pennsylvania Rules of Civil Procedure.
On October 25, 2010, the common pleas court heard oral argument on the preliminary objections with Jennings participating by means of teleconference. The common pleas court determined that the venue of Jennings's claims against J.C. Blair Hospital and/or its employees was not in Fayette County but was in Huntingdon County and transferred that portion of the case to the Court of Common Pleas of Huntingdon County. With respect to DOC, the common pleas court determined that the relief Jennings sought was in the nature of a writ of mandamus and that the action was within the original jurisdiction of this Court. The common pleas court transferred that portion of the case to this Court.
As a result of the transfer of that portion of the case to this Court, this Court must rule on DOC's preliminary objections. When considering preliminary objections this Court must consider as true all well-pleaded material facts set forth in the petitioner's petition and all reasonable inferences that may be drawn from those facts. Mulholland v. Pittsburgh National Bank, 405 Pa. 268, 271-272, 174 A.2d 861, 863 (1961). Preliminary objections should be sustained only in cases clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996).
DOC contends that Jennings's claims against Beard, Smeal, Coleman, Tretinik, Weaver, and Dr. Tolner should be dismissed for failure to allege personal involvement. DOC asserts that in a civil rights claim pursuant to 42 U.S.C. §1983 a state official must have direct involvement in the violation of constitutional or statutory law. Anelli v. Arrowhead Lakes Community Association, Inc., 689 A.2d 357 (Pa. Cmwlth. 1997). DOC further asserts that none of these named respondents are alleged to have been directly involved in any harm allegedly suffered by Jennings.
DOC preliminarily objects to Jennings's Complaint and asserts it should be dismissed under Section 6602(e)(2) of the Prison Litigation Reform Act (Act), 42 Pa.C.S. §6602(e)(2), which provides:
(e) Dismissal of litigation.—Notwithstanding any filing fee which has been paid, the court shall dismiss prison conditions litigation at any time, including prior to service on the defendant, if the court determines any of the following:
. . . .
(2) The prison conditions litigation is frivolous or malicious or fails to state a claim upon which relief may be granted or the defendant is entitled to assert a valid affirmative defense, including immunity, which, if asserted, would preclude the relief.
This Court has foregone the sequence of DOC's arguments.
Although DOC's preliminary objections are very general, this preliminary objection for lack of personal involvement states:
17. The civil rights statute also requires the plaintiff to plead a violation of federal constitutional or federal statutory law. . . . If the complaint were construed to allege a violation of the Eighth Amendment, which . . . encompasses a 'failure to protect' claim, it was incumbent on Jennings to plead sufficient facts from which a violation could be determined. Specifically, Jennings' [sic] was required to plead: that 'the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. . . .' Farmer v. Brennan, 511 U.S. 825, 835 (1994) . . . . (Footnote omitted).
18. Accordingly, because the named Defendants are not the 'guarantors of Jennings' safety . . . and because the complaint is devoid of sufficient facts to plead a viable 'failure to protect' Eighth Amendment claim, this Court
may properly dismiss on this basis. . . . (Citation omitted).DOC Preliminary Objections, Paragraph Nos. 17-18 at 7-8.
This Court agrees with DOC that the complaint is devoid of sufficient facts, or at least the facts as pled do not allege sufficiently succinct claims under our pleading requirements. DOC asserts that this Court may also sustain this preliminary objection as to Beard, Smeal, Coleman, Weaver, Tretinik, and Dr. Tolner and dismiss the Complaint for the same failures to comply with the rules of pleading. This Court agrees. These individuals comprise the remaining named defendants in the Complaint. Because Jennings's complaint is organized chronologically and because he fails to organize it according to each alleged cause of action against each defendant or defendants, the Complaint is dismissed in toto.
Because this Court sustains this preliminary objection and dismisses Jennings's Complaint, this Court need not address the remaining preliminary objections.
Rules 1020(a) and (d)(1) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. No. 1020(a) and (d)(1), provide:
Rule 1020. Pleading More Than One Cause of Action.
. . .
(a) The plaintiff may state in the complaint more than one cause of action cognizable in a civil action against the same defendant. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.
. . . .
(d)(1) If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be
joined in separate counts in the action against any such person.
In Commonwealth v. Parisi, 873 A.2d 3 (Pa. Cmwlth. 2005), this Court addressed the applicability of Rule 1020. In Parisi, the Attorney General of the Commonwealth of Pennsylvania filed a complaint in equity and alleged that different defendants violated the Unfair Trade Practices and Consumer Protection Law, the Truth in Lending Act, and Regulation Z during the construction, appraisal, sale, and mortgage of land and residential homes. Lisa Marie Gibson, d/b/a Lisa Marie's Appraisal Services, Stanley Cheslock, Kathleen Spitzfaden, NEPA Appraisal Services and Jenny Centrella preliminarily objected. Parisi, 873 A.2d at 5-6. Jenny Centrella preliminarily objected in the nature of a demurrer to Count I of the complaint in equity on the ground that there were no allegations of illegal activity on her part. This Court sustained this preliminary objection:
Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1 - 201-9.3.
15 U.S.C. §§ 1610-1693r.
12 C.F.R. §§226.1 - 226.36.
Our thorough review of Count I confirms that not one of the appraisals complained of were performed by Centrella. Although the Commonwealth argues that Centrella was a critical party to the remaining Defendants' scheme and that Count I serves to establish how all Defendants interacted with one another, we cannot ignore the simple fact that the Commonwealth has not alleged any illegal activity on Centrella's part in Count I. In order to be held accountable for the accusations contained in Count I, it must be alleged that Centrella participated in those actions.
The Rules of Civil Procedure allow a plaintiff to file more than one cause of action against the same defendant. Pa.R.C.P. No. 1020. Each claim, however,
must be presented in a self-sufficient separate count, which includes averments of facts pertaining to the particular claim and relief sought. . . .Parisi, 873 A.2d at 9.
Thus, contrary to the Commonwealth's assertions, the averments in Count II do not suffice to maintain a cause of action against Centrella in Count I. To require Centrella to answer the allegations of Count I, which does not allege any wrongdoing on her part, severely prejudices her ability to defend the action. (Citations omitted).
In Columbari v. Port Authority of Allegheny County, 951 A.2d 409 (Pa. Cmwlth. 2008), this Court addressed the applicability of Pa.R.C.P. No. 1020(d) in the context of preliminary objections in a condemnation action:
The primary purpose of this rule is to ensure that causes of action arising out of the same occurrence will be tried together and that judicial resources will not be wasted resolving the dispute in two separate actions. . . . Where a plaintiff pleads several causes of action arising out of one occurrence in a single count rather than in separate counts, the error is merely technical, and, thus, where there is no showing of prejudice to the opposing party, a court should permit an amendment to the complaint rather than dismiss it. . . . A party may amend a pleading at any time by leave of court, and the amended pleading may set forth a new cause of action; an amendment even may be made to conform a pleading to the evidence offered or admitted. Pa.R.C.P. No. 1033.Columbari, 951 A.2d at 414.
A review of Jennings's complaint reveals that his complaint does not conform to either Rule 1020(a) or (d). While this Court sustains DOC's preliminary objection, this Court grants Jennings leave to file an amended complaint within thirty days. Columbari. As in Parisi, each claim made by Jennings must be presented in a self-sufficient separate count, which includes averments of facts pertaining to the particular claim and relief sought. In other words, Jennings must set forth who the count is against, when the alleged event took place, where it took place, the facts that explain what happened, and why or how Jennings is entitled to relief.
As with the factual averments of the Complaint, the relief Jennings requests is not organized by count or cause of action. Not only must the causes of action be listed separately, but "[e]ach claim must be presented as a self-sufficient count that must include a statement of the facts relating to the particular claim and a demand for relief that relates to it." Standard Pennsylvania Practice 2d, §17.2. Therefore, in addition to the requirements set forth above concerning Pa.R.C.P. No. 1020(a) and (d), Jennings must also set forth the relief requested in each count.
Jennings requests the following relief:
Wherefore, Plaintiff [Jennings] prays that this Court issue an Order, Granting:Complaint at 18. --------
A. A Temporary Restraining Order or, in the alternative, a Preliminary Injunction requiring [sic]; that Plaintiff [Jennings] be provided with medications, treatment, therapy previously prescribed for his cronic [sic] pain, injuries and medical conditions, and that he be immediately examined and treated by an impartial Licensed Medical practitioner who specializes in Plaintiffs [sic] [Jennings] conditions and who is not an associate of Defendants Tretnick [sic], Harbick [sic] or other Defendants, and;
B. That Defendants Tretnick [sic], Harick [sic] and other Defendants not be allowed to continue denying Plaintiff [Jennings] and those similarly situated medical care, and, that they no longer be allowed access to Plaintiff [Jennings] or his medical records and discontinue further retaliation and the falsification of records, that they respond to the numerous complaints against them by other cronically [sic] ill and disabled prisoners, and, that the Court Order;
C. That Plaintiff [Jennings] immediately be provided with impartial Dental care and treatment by a Licensed Dental practitioner who is not associated with Defendants and that all damages and injuries caused by their negligence be repaired, Ordering;
D. That all Civil Complaints, Mails and property illegally confiscated and withheld by Defendants be returned, or, that Defendants be required to pay all costs, fees, expenses necessary to reconstruct and replace all property and correct some of the injuries and damages caused by their actions, further Ordering;
E. That all relief and damages requested in Civil complaints, Grievance proceedings, Disciplinary appeal proceedings against all Defendants be Granted and that they be ordered to present a response to all Constitutional Violations and appeals and that complaints that they have refused to answer within the required time limits, that they preserve and present all requested video and audio taped evidence listed throughout proceedings, pay attorney fees and costs necessary for taking this action, and for such other and further relief as this court may deem just and proper.
Accordingly, this Court dismisses Jennings's Complaint. Jennings is given leave to file an amended complaint which complies with the Pennsylvania Rules of Civil Procedure within thirty days from the date of this order. The complaint shall not contain any counts with respect to defendants who are either part of the action that was transferred to the Court of Common Pleas of Huntingdon County or the two doctors, Dr. Herbik and Dr. Long, who received a judgment of non pros in the common pleas court.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 4th day of January, 2012, upon consideration of Donald Jennings's pro se complaint and the preliminary objections to the complaint, this Court dismisses Donald Jennings's complaint without prejudice. This Court grants Donald Jennings leave to file an amended complaint which complies with the Pennsylvania Rules of Civil Procedure within thirty days of the date of this order. The amended complaint, should Donald Jennings file one, shall not contain counts pertaining to defendants who are part of the action which was transferred to the Court of Common Pleas of Huntingdon County or pertaining to Dr. Herbik and Dr. Long, who each received a judgment of non pros in the Court of Common Pleas of Fayette County.
/s/_________
BERNARD L. McGINLEY, Judge
The Eighth Amendment to the United States Constitution imposes duties on prison officials to provide humane conditions of confinement such that inmates receive adequate food, clothing, shelter, and medical care. Neely v. Department of Corrections, 838 A.2d 16 (Pa. Cmwlth. 2003).
DOC asserts that Jennings's allegations do not support a violation of the Eighth Amendment because even if believed the allegations do not establish that DOC was deliberately indifferent to his medical needs.
DOC next contends that Jennings's claims are barred by the statute of limitations. DOC next contends that Jennings' claims against various corrections respondents in Paragraph Nos. 52, 55, 61, and 65 fail to state a claim because Jennings alleges verbal harassment. Language and gestures that may be threatening by a corrections employee do not result in constitutional violations. Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973), cert. denied, 414 U.S. 1033 (1973).
Finally, DOC asserts that to the extent that Jennings's allegations of torture, abuse, and assault represent claims for intentional torts the claims should be dismissed on the basis of sovereign immunity because Jennings has failed to aver facts sufficient to establish that DOC has waived sovereign immunity with regard to his allegations. When an employee of a Commonwealth agency is acting within the scope of his or her duties, the Commonwealth employee is protected by sovereign immunity from the imposition of liability for intentional tort claims. Holt v. Pennsylvania Training Partnership Consortium, Inc., 694 A.2d 1134 (Pa. Cmwlth. 1997). Further, DOC enumerates the exceptions to sovereign immunity set forth in 42 Pa.C.S. §8522(b) for actions sounding in negligence and asserts that none of the exceptions apply.