Opinion
Civil Action No. 01-6038.
August 15, 2002
MEMORANDUM
Plaintiff has filed a 35-page, 210-paragraph complaint against 10 individual defendants. Six of them, Reid, Washington, Boyd, LeFebvre (incorrectly spelled Lefeavre in the complaint), Arroyo and Vaughn are employees of the Pennsylvania Department of Corrections (DOC); two, Weeks and Arthur, are employees of Greater Philadelphia Urban Affairs Coalition (GPUAC); and the remaining two, Safford and Korn, are employees of Luzerne Treatment Center, Philadelphia, Pennsylvania.
The six DOC defendants as well as Weeks and Arthur have filed motions to dismiss. The court will address the motion of the DOC defendants. First, the complaint itself does not specifically set forth a basis for federal jurisdiction. The four counts of the complaint are:
(1) Defamation — Libel, Slander against Washington, Reid, Boyd (DOC), Weeks (GPUAC), and Safford and Korn;
(2) Trespass — Misfeasance, Malfeasance and Nonfeasance against all defendants except LeFebvre;
(3) Negligence, Gross Negligence, Actionable Negligence and Negligence Per Se against all 10 defendants; and
(4) Breach of Duty against all 10 defendants.
Nevertheless, defendants Weeks and Arthur sought removal from state court essentially because the allegations set forth in the complaint fall within the ambit of civil rights litigation under federal statutes. Non-moving defendants Safford and Korn consented to the removal as did the DOC defendants without waiving Eleventh Amendment immunity.
The DOC defendants' motion, then, encompasses not only the four state law claims as set forth above, but any constitutional claims that may be implied from the complaint. The complaint contains three paragraphs which could implicate the Eighth Amendment. They are:
56. On 1/11/01, as a direct or proximate cause of defendants Bernard Weeks, Brenda Safford, Mark Korn, Ron Washington and Gladys Reid acts or omissions plaintiff was awakened from his sleep at approximately 12:30 a.m., to find a loaded weapon (shotgun) in his face, handcuffed, and then forced to walk barefooted throughout the Luzerne Treatment Center, at gun-point, in plain view while dressed only in his underwear. Taken to a bathroom, stripped naked at gun-point and forced to submit to a complete body search, to include "genitals and anal cavity." Forced to be transported for approximately 45 minutes handcuffed and shackled in "freezing" winter temperatures, barefooted, while dressed only in his underwear. Forced to walk a distance of approximately 100 yards, barefoot throughout the Graterford State Correctional Institution, from the front Sally Port entrance to the Inmate Assessment Unit, in plain view while still dressed in only his underwear.
57. On 1/11/01, defendant Gladys Reid failed to:
A. Transport plaintiff's medication to treat a well known and thoroughly document physical disability, to which plaintiff suffers severe pain and loss of physical mobility; and
B. Transport plaintiff from the Luzerne Treatment Center to S.C.I. — Graterford, wearing proper clothing and footwear in accordance with the policies, procedures and professional ethics of the Pa. Dept. of Corrections.
58. On 1/11/01 at approximately 1:30 a.m., plaintiff was then subjected to a second strip search to include genitals and body anal.
First, plaintiff does not allege that any DOC defendants were personally involved in the actions set forth in paragraph 56, 57 or 58. Second, Weeks and Arthur, unlike all other defendants, were not alleged to have acted under color of state law. There is no basis for federal jurisdiction, then, other than perhaps, plaintiff's attempted ADA claim. But the complaint falls far short of alleging an ADA claim. As far as retaliation is concerned, the plaintiff does not state that he ever actually filed an ADA claim. Moreover, plaintiff fails to identify in his complaint any disability under which he may suffer. He does in his response to the motion claim that he has rheumatoid arthritis but has never plead this in his complaint.
He does suggest that Reid failed to transport his medications but this does not support an Eighth Amendment violation. There is no contention that he was denied access to medical care.
In a response filed by plaintiff on July 19, 2002 (Docket No. 33), he seems to argue that the retaliation has something to do with removing the case to this court, which of course, makes no sense.
Plaintiff is accusing all defendants of violation of Pennsylvania criminal laws for which there is no private right of action. (Counts 1 and 2). He also alleges in Counts 3 and 4 causes of action based on negligence and breach of duty.
The DOC defendants (in their individual capacities) who were acting within the scope of their duties at all times according to the complaint are immune from suits based upon those actions, subject to exceptions not applicable in this case. In their official capacities, suit is barred against the DOC defendants by the Eleventh Amendment.
As far as Counts 3 and 4 against Weeks and Arthur are concerned, the complaint falls short of pleading requirements. If plaintiff wishes to continue this complaint against Weeks and Arthur, he is given permission to file an amended complaint as to Weeks and Arthur within twenty (20) days hereof.
Plaintiff is reminded of Rule 8 of the Federal Rules of Civil Procedure which provides in pertinent part:
(a) Claims for Relief. A Pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.
(e) Pleading to be Concise and Direct; Consistency.
(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.
The remaining defendants, Safford and Korn, have filed an answer to plaintiff's complaint. With regard to those defendants, a scheduling order will be entered hereafter.
An order follows.
ORDER
AND NOW, this 15th day of August, 2002, it is hereby ORDERED that the motion to dismiss of the DOC defendants Gladys Reid, Ron Washington, James Boyd, Allan LeFebvre (incorrectly spelled Lefeavre in the complaint), Manuel Arroyo and Donald T. Vaughn (Docket No. 10) is GRANTED, and plaintiff's complaint against them is DISMISSED.
IT IS FURTHER ORDERED that the motion to dismiss of Bernard Weeks and Jennifer Arthur (Docket No. 12) is GRANTED as follows: Counts 1 and 2 are DISMISSED in their entirety against defendants Weeks (Counts 1 and 2) and Arthur (Count 2). The motion to dismiss as to Counts 3 and 4 is GRANTED, with leave to amend within twenty (20) days hereof.
The following scheduling order is entered as to defendants Safford and Korn:
(1) All discovery is to be completed by October 31, 2002;
(2) Dispositive motions are to be filed by November 15, 2002; and
(3) This case will be placed in the trial pool commencing on January 13, 2003.