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HomeMy WebLinkAbout01-04718 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. PLAINTIFF, VS EARL REITZ, WARDEN; JANET SG04T, DEPUTY WARDEN OF OPERATIONS; . MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; COMBERLAND COUNTY PRISON BOARD, et. al.; . COUNTY OF CUMBERLAND, PA; . DEFENDANTS. CIVIL ACTION N0, o /~ 7 ~~ NOPICB TO DID You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgement may be entered against you by the Court without further notice for any money claimed in the complaint or relief requested by the Plaintiff. You may lose money or property or other rights important to you. You should take this paper to your lawyer at once. If you do not have a Sawyer or cannot afford one, go to or telephone the office set forth below to find where you can get legal help. Legal Services, Inc. 8 Irwin Row Carlisle, Pa. 17013 (717) 243-9400 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. PLAINTIFF, VS . EARL REITZ, WARDEN; JANET SCOTT', DEPUTY WARDEN OF OPERATYONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD, et. al.; COUNTY OF CUMBERLAND, PA; DEFENDANTS. CIVIL ACTION N0. ~ I - / ~ ~ C] CDC I~FT TAE PIAII~TIZFF, Ja1m L. Porte[ Jr. , pro se, who respectfully fifes with this Honorable Court this e~nplaint pursuant to 42 Pa. C.S.A. § 931 and in support thereof sets forth the following: 1. Plaintiff, John L. Porter Jr., pro se, is a citizen of the Coamonweaith of Pennsylvania with a current address of 175 Progress Drive, Waynesburg, Pa. 15370, and is currently incarcerated on a non-related criminal conviction. (Hereafter referred to as Plaintiff) 2. Defendant, Earl Reitz, is the Warden of the Cumberland County Prison with a current address of 1101 Claremont Road, Carlsle, Pa. 17013 3. Defendant, Janet Scott, is the Deputy Warden of Operations of the Cumberland County Prison with a current address of 1101 Claremont Road, Carlisle, Pa. 17013. 4. Defendant, Michael Carey, is the Deputy Warden of Security of the Cumberland County Prison with a current address of 1101 Claremont e Road, CarSsle, Pa. 17013. 2 5. Defendants, Cumberland County Prison Board, et. al., are responsible for overall policy promulgation and operations within the Cumberland County Prison with a current address of 1 Courthouse Square, Carlisle, Pa. 17013. 6. Defendant, County of Cumberland, Pennsylvania, is a Political Subdivision Entity with a current address of 1 Courthouse Square, Carlisle, Pa. 17013. 7. The Defendants are sued directly and/or indirectly in their Professional and/or Personal capacities. 8. On or about September 22, 1999, Plaintiff was incarcerated in the Cumberland County Prison, housed on "F" Slock, in cell number eight (8), which is located on the Lower Tier. Around 2:30 PM on this date, Plaintiff took a shower after Gym activities. Upon exiting the shower, the Plaintiff had to descend a flight of approximately five (5) steps to reach the Lower Tier where the Plaintiff was housed. As the Plaintiff reached the third step, there was a puddle of water, which the Plaintiff did not notice. The Plaintiff stepped in the puddle, lost his footing, and fell. The Plaintiff reached for the yellow safety rail located on his right side. The Plaintiff grabbed the rail in an attempt to break his fall. In the process, the Plaintiff injured his right arm, causing numbness and tingling sensations traveling from the Plaintiff's right ring and pinky fingers, up through his right wrist and elbow, all the way to his shoulder. At this time, the Plaintiff recovered his footing to see the puddle of water, with no "Wet Floor" sign posted on the steps leading to the Lower Tier. There was no slip-resistant material on the steps. The Plaintiff reported the incident and followed procedure by attending the next available sick call on September 24, 1999. _~ 3 Currently, the Plaintif€ still experiences constant numbness in his right wrist that the doctor at S.C.I Greene stated may never go away. CODS I NEGLIGENT INTENTIONAL Old OTHERWISE TORTIOIIS CONDi1CT 9. Paragraphs 1 through 8 are incorporated herein by reference made a part hereof. 10. Plaintiff files this Complaint pursuant to Title 42 Pa. C.S.A. § 5524, to receive damages for injury to the person which is founded on negligent, intentional or otherwise tortious conduct. 11. The County and/or Prison Board owns or leases the property on which the injury occurred and the injuries were caused by a dangerous condition, and/or artificial condition, and were facilitated by the actions and/or inactions of the Defendants. The Defendants breached their duty as owners/leasers of the real property. 12. The Defendants failed to make or maintain safely certain improvements to the steps on "F" Block leading to the Lower Tier by not placing a slip-resistant material on each step that would have saved the Plaintiff from harm or injury. 13. Plaintiff would be able to recover damages under Commonwealth Law and/or Statute due to the dangerous condition deriving and originating from, or having its source in the County's Realty. The unsafe condition of the unsafe steps caused or facilitated the Plaintiff's injuries. 14. The Plaintiff's injuries were also facilitated by the Defendants' failure to properly train, instruct, and supervise employees by not placing a "Wet Floor" sign on the problem area, when they knew or should have known an unsafe condition existed. F~ 4 15. The Defendants have breached a direct and/or imputed duty of care, custody, and control based on a legal relationship between the parties and/or because of a failure to discover or correct a defect or remedy a dangerous condition of their Real. Estate. 16. The Defendants were directly responsible because the injury suffered by the Plaintiff wouid not have come about but for their negligent, intentional, or otherwise tortious conduct in that they failed to maintain or make reasonable safe improvements to Cmanty Realty, existing as unsafe, dangerous, or defective condition, where Defendants Imew or should have known that the aforesaid conditions would result in injury. The Plaintiff's rights were violated as guaranteed by the 8th Amendment to the U.S. Constitution, and Article I, Section 13 of the Pennsylvania Constitution. The Defendants were required to ensure that their property was kept in a reasonable, safe, and usable condition. C0~ II VIOLATION OF CIVIL RIGHTS 17. Paragraphs 1 through 16 inclusive are incorporated herein by reference and made a part hereof. 18. The Plaintiff invokes Jurisdiction within this Honorable Court to the extent that this claim sets forth violation of Plaintiff's Civil Rights under Title 42 U.S.C. § 1983. This Court has Jurisdiction to adjudicate such claims. See Commonwealth Ex. Rel. Suanderrs v. Cream, 354 A. 2d. 702, at 703-704, note 3 (PA 1975); Coffman v. Wilson Police Department, 739 F, Supp. 257, at 267-268 (Ed. PA 1990); Fawber v. Conen, 516 PA. 353, 532, A. 2d 429 (1987); Balshv v. Rank, 507 PA. 384, 490 A. 2d 415 (1985); Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, at558 n. 7 (1980). 19. As direct result of the Defendants' actions, omissions, inaction and or failures, the Plaintiff suffered numbness and tingling 5 sensations from his right ring and pinky fingers, up through his right wrist and elbow, to his shoulder. The Plaintiff is partially disabled and has limited use of his right wrist. The Plaintiff continues to experience numbness, mental anguish, physical pain and suffering, and disability as a result of the injury. The Plaintiff also experiences difficulty sleeping due to the numbness in his right wrist. i+~erefore, The Plaintiff, John L. Porter Jr., pro se, is seeking the following damages and/or Judgments against the Defend-ants, plus fees, Attorney Fees, and costs associated with the filing and service of the complaint, and, A. Compensatory Damages in an amount in excess of $100,000.00 from each Defendant for mental anguish, physical pain and suffering, and disability; and, B. Punitive Damages in an amount in excess of $100,000.00 from each Defendant for deliberate indifference, the unnecessary and wanton infliction of pain, willful Misconduct, negligent, intentional, or tortious conduct and malice; and, C. Nominal Damages in an amount in excess of $100,000.00 from each Defendant for remote damages; and, D. Grant any other damages and relief deemed just and proper by the Court. Respectfully submitted by: Date: /Y~bu~rr (o, .ZtY)1 _ ~iF K... ~/3..~ ~_ John L. Porter JR. Plaintiff, Pro Se IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. PLAINTIFF, VS EARL.REIT~, WARDEN; JANET SCOTTn DEPUTY WARDEN OF OPERATIONS; MICHAEL CAR'EY, DEPUTY WARDEN OF SECURIT7~; CUMBERLAND COUNTY PRISON BOARD, et. al.; COUNTY OF CUMBERLAND, PA; DEFENDANTS. CIVIL ACTION NO IIBMAI~ID POR J[)fdY T12IAI. The Plaintiff demands a Jury Trial in the above - Captioned matter. Respectfully submitted by: Date: Au6uST ~ , apo/ ~ `7~ John L. Porter JR. Plaintiff, Pro Se IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. PLAINTIFF, VS CIVIL ACTION N0. EARL REITZ, WARDEN? JANET'SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD, et. al.; EOUNTY OF CUMBERLAND, PA; DEFENDANTS. I3tU0F OF SBRVICE I hereby certify that a true and correct copy of the foregoing notice to Defend, Complaint, and Demand for Jury Trial will be / has been served via First Class Prepaid U.S. Mail upon the below written Defendants on this day of 20001 for service by the Sherriff's Office per Rule 400 (a), PA. Rules of Civil Procedure. Earl Reitz, Warden 1101 Claremont Road Carlisle, Pa. 17013 Janet Scott, Deputy Warden of Operations 1101 Claremont Road Carbsle, Pa. 17013 Michael Carey, Deputy Warden of Security 1101 Claremont Road Carbsle, Pa. 17013 Office of Commissioners 1101~Claremont Road Carbsle, Pa. 17013 Cumberland County Prison Board, et. al. Cumberland County Court House 1 Courthouse Square Carlisle, Pa. 17013 County of Cumberland, Pennsylvania c/o Robert Saidis, County Solicitor Cumberland County Court House 1 Courthouse Square Carlisle, Pa. 17013 Respectfully submitted by: ~, ~ John L. Porter, Jr. EA-8952 175 Progress Drive Y3aynesburg, Pa. 15370 .,<~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TOHN L. PORTER, JR. PLAINTIFF, VS EARL RETT2, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD, et. al.; • COUNTY OF CUMBERLAND, PA; DEFENDANTS. CIVIL ACTION V&KIFICI4TIQ+i I hereby certify that the .facts set forth in the foregoing complaint and proof o€ service are true and correct to the best of my personal 1mowIledge and information or belief and that any false statement contained therein are made subject to the penalty of § g014 of the Crimes Code relating to unsworn falsification to Authority. Respectfully submitted by: Date: ~u6udT poi ~Qd1 L~~/~~'l~t.. John L. Porter Jr. Plaintiff, Pro Se ~ ~ ~-- ~~ ~ (~. ° ~ '~ ~ ~- ~ 0 -C c r ~ ~ ~~~ F,; .--. ~ ~ ~; ~~- u5 -r, ~ r_ -? T \ P V ,,~ V' ~T~~ \\ \ 1 -,, .. .. - .R.. r:3fi~!e-. rmvr-Mrs 5~a,~ a~sz^r ~~w ~. _ « v ~. ~ .. Eau +"g~ x-,. ~~k`~u7`",, _.., r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOfIlV L. PORTER, JR. PLAINTIFF, ~~ EARL REITZ, WAITDENp JANET SCOTT, DEPU'T'Y WARDEN OF OPERATTONS; MICHAEL CAREY, DEPUTY' WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD, et. al.; COUNTY OF CUMBERLAND, PA; DEFENDANTS. CIVIL ACTION N0. Q/ - 7 7/ IaDTICE 'lO DTI@ID You have been sued in Court.. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgement may be entered against you by the Court without further notice for any money claimed in the complaint or relief requested by the Plaintiff. You may lose money or property or other rights important to you. You should take this paper to your lawyer at once. If you do not have a lawyer or cannot afford ane, go to or telephone the office set forth below to find where you can get legal help. C1 ~ Q C _. -r2 Legal Services, Inc. _ 'Qt m~:~ ~+ ~ - `~;~' 8 Irwin Row z:~~i ~~ ~ _t.,,, Carlisle, Pa. 17013 ~ ~ '~-~,-; (717) 243-9400 ~ _, ~ F '_ _ -" ~ ~ ~ n c ,,,. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, CIVIL ACTION - LAW JOHN L. PORTER, JR. PLAINTIFF, VS CIVIL ACTION NO EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MPCHAEL CAREY, DEPUTY WARDEN 0'F SECURITY; CUMBERLAND COUNTY PRISON BOARD, et. al.; COUNTY OF CUMBERLAND, PA; . DEFENDANTS. ~ NOid THE FIAII~IFF, John L. Porter Jr., pro se, who respectfully files with this Honorable Court this complaint pursuant to 42 Pa. C.S.A. § 931 and in support thereof sets forth the following: 1. Plaintiff, John L. Porter Jr., pro se, is a citizen of the CoB¢nonwealth of Pennsylvania with a current address of 175 Progress Drive, Waynesburg, Pa. 15370, and is currently incarcerated on a non-related criminal conviction. (Hereafter referred to as Plaintiff) 2. Defendant, Earl Reitz, is the Warden of the Cumberland County Prison with a current address of 1101 Claremont Road, Carlyle, Pa. 17013 3. Defendant, Janet Scott, is the Deputy Warden of Operations of the Cumberland County Prison with a current address of 1101 Claremont Road, Carlisle, Pa. 17013. 4. Defendant, Michael Carey, is the Deputy Warden of Security of the Cumberland County Prison with a current address of 1101 Claremont , Road, Carlisle, Pa. 17013. 2 5. Defendants, Cumberland County Prison Board, et. al., are responsible for overall policy promulgation and operations within the Cumberland County Prison with a current address of 1 Courthouse Square, Carlisle, Pa. 17013. 6. Defendant, County of Cumberland, Pennsylvania, is a Political Subdivision Ehtity with a current address of 1 Courthouse Square, Carlisle, Pa. 17013. 7. The Defendants are sued directly and/or indirectly in their Professional and/or Personal capacities. 8. On or about September 22, 1999, Plaintiff was incarcerated in the Cumberland County Prison, housed on "F" Block, in cell number eight (8), which is located on the Lower Tier. Around 2:30 PM on this date, Plaintiff took a shower after Gym activities. Upon exiting the shower, the Plaintiff had to descend a flight of approximately five (5) steps to reach the Lower Tier where the Plaintiff was housed. As the Plaintiff reached the third step, there was a puddle of water, which the Plaintiff did not notice. The Plaintiff stepped in the puddle, lost his footing, and fell. The Plaintiff reached far the yellow safety rail located on his right side. The Plaintiff grabbed the rail in an attempt to break his fall. In the process, the Plaintiff injured his right arm, causing numbness and tingling sensations traveling from the Plaintiff's right ring and pinky fingers, up through his right wrist and elbow, all the way to his shoulder. At this time, the Plaintiff recovered his footing to see the puddle of water, with no "Wet Floor" sign posted on the steps leading to the Lower Tier. There was no slip-resistant material on the steps. The Plaintiff reported the incident and followed procedure by attending the next available sick call on September 24, 1999. ~«_ 3 Currently, the Plaintiff still experiences constant numbness in his right wrist that the doctor at S.C.I Greene stated may never go away. CU@Tl' I 13F:GLIGENT INTENTIOTdAL OR OTf1ERbTISE TOR'1'IOUS CONDi1CT 9. Paragraphs 1 through 8 are incorporated herein by reference made a part hereo€. 10. Plaintiff files this Complaint pursuant to Title 42 Pa. C.S.A. § 5524, to receive damages for injury to the person which is founded on negligent, intentional or otherwise tortious conduct. 11. The County and/or Prison Board owns or leases the property on which the injury occurred and the injuries were caused by a dangerous condition, and/or artificial condition, and were facilitated by the actions and/or inactions of the Defendants. The Defendants breached their duty as owners/leasers of the real property. 12. The Defendants failed to make or maintain safely certain improvements to the steps on "F" Block leading to the Lower Tier by not placing a slip-resistant material on each step that would have saved the Plaintiff from harm or injury. 13. Plaintiff would be able to recover damages under Commonwealth Law and/or Statute due to the dangerous condition deriving and originating from, or having its source in the County's Realty. The unsafe condition of the unsafe steps caused or facilitated the Plaintiff's injuries. 14. The Plaintiff's injuries were also facilitated by the Defendants' failure to properly train, instruct, and supervise employees by not placing a "Wet Floor" sign on the problem area, when they knew or should have known an unsafe condition existed. ,.t, ~ . 4 15. The Defendants have breached a direct and/or imputed duty of care, custody, and control based on a legal relationship between the parties and/or because of a failure to discover• or correct a defect or remedy a dangerous condition of their Real Estate.. 16. The Defendants were directly respon~sibIle because the injury suffered by the Plaintiff would not have come about but for their negligent, intentional, or otherwise tortious condst in that they failed to maimta,in or make reasonable safe m~xravemenBs to Coiuity Realty, existing as unsafe, dangerous, or defective c~#ndition, where Defendants. knew or should have known that the aforesaid conditions would result in injury. The Plaintiff's rights were violated as guaranteed by the 8th Amendment to the U.S. Constitution, aztd Article I, Section 13 of the PeruasyIlvania Constitution. The Defendants were required' to ensure that their property was kept in a reasonable, safe, and usable condition. ~T1' II VIOLATION OF CIVIL RIGHTS. 17. Paragraphs 1 through 16 inclusive are incorporated herein by reference and made a part hereof. 18. The Plaintiff invokes Jurisdiction within this Honorable Court to the extent that this claim sets forth violation of Plaintiff's Civil Rights under Title 42 U.S.C. § 1983. This Court has Jurisdiction to adjudicate such claims. See CoR¢nonwealth Ex. Rel. Suanderrs v. Cream, 354 A. 2d. 702, at 703-704, note 3 (PA 1975); Coffman v. Wilson Police Department, 739 F, Supp. 257, at 267-268 (Ed. PA 1990); Fawber v. Conen, 516 PA. 353, 532, A. 2d 429 (1987); Balshv v. Rank, 507 PA. 384, 490 A. 2d 415 (1985); Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, at558 n. 7 (1980). 19. As direct result of the Defendants' actions, omissions, inaction and or failures, the Plaintiff suffered numbness and tingling 5 sensations from his right ring and pinky fingers,- up through his right wrist and elbow, to his shoulder. The Plaintiff is partially disabled and has limited use of his right wrist. The Plaintiff continues to experience numbness, mental anguish, physicaS pain and suffering, and disability as a result of the injury.. The Plaintiff also experiences di€ficulty sleeping due to the numbness in his. right wrist. i~refore, The Plaintiff, John L. Porter Jr.., pro se, is seeking the following damages and/or Judgments against the Defendants, plus fees, Attorney Fees, and costs associated with the filing and service of the c~nplaint, and, A. Compensatory Damages in an amount in excess of $100,000.00 from each Defendant for mental anguish, physical pain and suffering, and disability; and, B. Punitive Damages in an amount in excess of $100,000.00 from each Defendant for deliberate indifference, the unnecessary and wanton in€lietion of pain, willful Miseanduet, negligent, intentional, or tortiaus conduct and malice; and, C. Nominal Damages in an amount in excess of $100,000.00 from each Defendant for remote damages; and, D. Grant any other damages and relief deemed just and proper by the Court. Respectfully submitted by: Date •~ WT (~ ~ ~O(l f ~. ~i~.~ John L. Porter JR. Plaintiff, Pro Se IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. PLAINTIFF, VS EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON HOARD, et. al.; COUNTY OF CUMBERLAND, PA; DEFENDANTS. CIVIL ACTION N0. DffiiAI~N FOB 3URY Y1tTAL The Plaintiff demands a Jury Trial in the above - Captioned matter. Respectfully submitted by: John L. Porter JR. Plaintiff, Pro Se _:., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. PLAINTIFF, VS CIVIL ACTION N0. EARL REIT'~r WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; . MICHAEL CAREY, DEPUTY WARDEN OF SECURITY: CUA~ERLAND COUNTY PRISON BOARD, et. al.; COUNTY OF CUMBERLAND, PA; DEFENDANTS. PRU©P OF SERVICE I hereby certify that a true and correct copy of the foregoing notice to Defend, Complaint, and Demand for Jury Trial will be / has. been served via First Class Prepaid U.S. Mail upon the below written Defendants on this day of , 20001 for service by the Sherriff's Office per Rule 400 (a), PA. Rules of Civil Procedure. Earl Reitz, Warden 1101 Claremont Road Car isle, Pa. 17013 Janet Scott, Deputy Warden of Operations 1101 Claremont Road CarLsle, Pa. 17013 Michael Carey, Deputy Warden of Security 1101 Claremont Road CarLsle, Pa. 17013 Office of Coimnissioners 1101 Claremont Road CarLsle, Pa. 17013 Cumberland County Prison Board, et. al. Cumberland County Court House 1 Courthouse Square Carlisle, Pa. 17013 County of Cumberland, Pennsylvania c/o Robert Saidis, County Solicitor Cumberla~ County Court Rouse 1 Courthou®e Sduare Carlisle, Pa. 17©13 Respectfully submitted by: ~~- John L. Porter, Jr.. EA-8552 175 Progress Drive Waynesburg, Pa. 1537a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. . PLAINTIFF, VS EARL REIT~, WARDEN; .. JANET SC©'I'Tr DEPUTY WARDEN OF OPE1tATI0NS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY;. CUMBERLAND COUNTY PRISON BOARD, et. al.; . CQUNTY OF CUMBERLAND, PA; DEFENDANTS. CIVIL ACTION NO. I hereby certify that the facts set forth in the foregoing complaint and proof of service are true and correct to the best of my personal ]mowledge and information or belief and' that any false statement contained therein are made subject to the penalty of § 9014 of the Crimes Cade relating to unsworn falsification to Authority. Respectfully submitted by: Date://UGA.~' ~ . °~~1 i~%~i~~~/t7/~ ~iei John L. Porter Jr. Plaintiff, Pro Se DEVLIN & DEVINE ANDREA L. BENNETT ATTORNEYS AT LAW JOSEPH R D'ANNVNZto SUITE 200 - 100 WEST ELM STREET EvetYN R DEVEVE CONSHOHOCKEN, PA 19428 WatuM). DEVUN,JR. MARK F. DIGIOVANNI 610 397-4600 ( ) WI[,ISAM c. DowNEr PAx: (610) 397-4629 DAVID P. lGIRAMES5QJL5 JOSEPH MCALEER MARCY H. TANI~R RAMON D. TOWNSEND August 28, 2001 Timothy J. Kennedy, Esquire Louis P. Lombazdi II & Associates 1000 Germantown Pike Suite J-6 Norristown, PA 19462 Re: Miller v. Associated Project Control Our File No.: 95155-BWS Dear Tim: PARALEGALS RODERIQC R Mrrc[-o:tt Direct Dial Number: (610) 39711605 I am in receipt of your recent correspondence in the above referenced matter. Please be advised that my client is willing to pay Seven Thousand Five Hundred Dollazs ($7,500.00) to settle the above referenced matter via a Joint Tortfeasor Release. This is a bottom-line, non- negotiable figure. Kindly advise whether the plaintiff is willing to settle. I Thank you for your attention to this matter. %~ truly yours, - / ~' Andrea L. Bennett ALB/vas ,n ;~.' 08/28/01 10:21 FAS 5702075650 JS 4a USDC rt1DPA Clerks Office ~., (Rev. 3/99) CIVIL COVER SHEE'i• I~ 001 The JS-+4 civil rover sheet antl the infortnatlon contained herein neitlTer replace nor supplement the filing and service of pleatlings or other papers as requhac bylaw, except ea provided by local rules of court This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court Tor the purpose, of initl_a_ting the civil docket sheet (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) 1. (a) PLAINTIFFS I DEFENDANTS JOHN PORTER, SR. Cumberland County Prison 1 Courthouse Square (N)C COUNTY OF REI;IDENCEOF F~T31JeTED PWNTIFF (EXCEPT IN U.S. PIJUNTIFF CASES) COUNTY OF CUMBERLAND 1 COURTHOUSE SQUARE CARLISLE, PA 17013 CWNTY OF RESN)ENCE OF FlRSTIJSTED DEFENDANT (IN U.S. PLAINTIFF CASES ONLY) NOTE W LAND CONDt7ANATIDN CASES. USE THE LOCATN]N aF THE TRACT OFlN10INVOLVE4 (C) ATTORNEYS (FlRN NAME ADDRESS. AND TELEPHONE NUMaEP) ATTORNEY$ pF NNDWN) ANDREA L. BENNETT ~r~ - SL DEVLIN & DEVINE, 100 W. Elm Street, Ste. 200 Conshohocken,. PA 19148 il. BASIS OF JURISDICTION (PLACEAN'%'INONEaazdJl a + US. Govemmxd p(s Federal Cueadon PlaintCl (U.S. Government Not a Pert') ^ z U.S. Gowmmem a + oNeraily t>aterLearrc (IndirsmCl6zerlshQoiPartiea in hem nl) III. CITI~NSNIP OF PRINClPi4L PARTIES (PLACEAN'%'IN ONE BOX FCR PLAINTFl (For Diversay Cases Ony) AND CNE adk FOR DEFENDANT) PTF DEF PTF DEP Cit~en d This Stem a , a t Inwrporated or Rincipal Pl~e ^ + o + Citizen of Anotl,x State a z O 2 Cltlzen or Subject of q a ~ a s of euslneu In ThIS Stem IiLCaLPUeted and PTInCg1Bl Place a s a s of Business In AIwC,er Slate Foreign NaGOn ~ ^ s a e IV_ NOTUAE AF SUIT IPLACEAN'X' IN ONE BOX ONf.YI ~ ' CONTRACT TORTS FORFERUAElPENALTY BANKRUPTCY OTNERSTATIJTES atmllraarw. PeRaaeat.IN,tum I!lJ180/1ALIIaIlI11Y aatoAgeCavra oeaeAPP.rzelse,sa a,wSlY.ileeppeleennw9 ^ ,w Nshr a ro AbpIYN o x67 Peedvtl MW - ^ mo D91rr Fame a thW a +1a amour a ,m MNI«Aa a rs AlRlalw Pl9d9u MM. MmanLCtlw a me Dnla aal9L9e seam. o as vaawa,w o Na0 e.w+ne anlleno ^ ib Nepo9oala Yo9lullele U a aw.P«.ar mlw- PlaeuG ILO a FnlRwy IIt Isc 9eT 2a u8c ts7 a m can+numnCC awa.e a + D a lso a.mw d o,rP.Yl,w+ a eao Ae,aAC ue.l6 a sao uquorlaas al, eo aawot a a Edmgnwod vudyLSe srlaer a ass AaaplOS Pelavnd ^ eea R.R. a tfutlr PROPERTY RKiNTS a qa Retlwar Inauaoe one o ss1 NMiwAei o m FaewrL Employaw' Inlury Ploe,eu+aNNy a sae NNNr a.ae a em ~ eemgt o~ga,man. a tR Remwlyd Mhulue u.eitiy a eao oa:bam.l a eav PdAa ^ Ito sr.aN.s.nra ' sae.9law p as Mabw PvmdNAt P110Pt]RY sdaarNaun a ~~ CaMroallrv o m0 s.oaNaa IEui,barars) v d O a 4Y MaNne Aoeua a >m ClhrFrsd uebiYN m T Mi b t a aaa dllar EcJwgs ns G bmBrCMe a verp9ynr a 19 Rstway d Nla~an'e 8rwres en< ne n n a Qaw M9rorvNide amaNer Penerr LABOR SOCWLSECURITY g a a ,zusc aN,o .. a ,a smlHden• aunt ass Meer vdvw P,eRaIN ore+aa a an AphYCVY,m ^ tw ON+er CemaG PrtauR UaL911N a lee Plaprty Ornrya a 7,0 FirlaGOr SUMWe a eM F11A tt99all) a Ma fieon9mie Sb6Niaoen Ad a lee Cemarz Pmda# uoaNNy ^ 7ea Oa1ar PelanW NMY ProeuCUraNNy '~ a aeR Blsrk Wlq ~ a Na Enuimmunml Meaty a Tm LavprrNyn RevNbrvl a eat OR9CIDIWW Nm(aN AY YmmAC aw E . p rwn)r 9 REALRAOPERTY CMLRIGHTS PRISONERPETRIONS ~ aeNSSlDttriIDII aewFRMeamaf o ire ova CgaeNletlan C e+t `ANl9 a s10 Nenomto Vaolr m 770 a p1ab0f~`M1 ~' ~ es Rsl (+e5(nn bYeen.tlM Aft a 9w Appeal d Fs9 Delrmnatlen a ao RaeeoNFV p zw Relq law a Ej9Ctlnrl9 ^ Ne Enpbymsnl a Ma NouYgl 9a~wnee NAasAO eowus: ^ 7b RalAwy Labor Aa FEDERAL TAX SUBS ~~~ era. m du91m o sa ipoa Lane Ap:LnegevtleM a oaa dan.r " a fm edmemnwaY d a zee mrt Flemvl L+9oaM ++a'~~ p ~ ~ ~ a Too ww uoor a era r ow~(t~Urma ^ Ira All CtllrReel Pmpary .~ INa dew CNN RigvR e +a M r a timer ina.m a a® City Rlyla ^ 791 Fnml. Rec Va a em sow smmv Aawr a sea Pn9on c9na9m1 saoNnN Ad a f77 ~IISC ~~ V. ORIGIN (PLACE AN ~P fN ONE BO7(ONLY) Appeal ro District a , Original Transferred ham Judge horn R z Renwvad hen o z Rertlartded horn a e Revtstamtl or o s another di5lrkK a s MulOtlbtrkt a 7 Megetrate Proceeding StemCaurt AppeYeteCourt Reopened (seedy) LiOigatltxf Judgmem VI. CAUSE OF ACTION I~TMEUSaw.srATVreurmelvnecNwuAREFwNDAwwrareeRlEFSraraNENroFCwsE. DoNOrCDE,luP801CTIDNAtsTATUTFS uNUms orvER51rt1 This case is a Section 1983 Case. VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES tiny it aemantled'n camplaktc COMPLAINT. O UNDER F.R.C.R 23 JURY DEMAND: ~{~% a NO VIII.RELATED CASE(S) (SeainstrLNCtiorol: IF ANY ~~ _ oocto:rNUMeEn roR n:~.~~,:mw.rs m-a~w.n n ime NQa. JuodE 'f ~F IN THE UNITED STATES DIS'I`RIC~ COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOHN L. PORTER, JR. PLAINTIFF, No.: vs. EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD; COUNTY OF CUMBERLAND, PA; DEFENDANTS. NOTICE OF REMOVAL TO THE CLERK OF COURTS: Defendants, by and through their counsel, William J. Devlin, Esquire and Andrea L. Bennett of the law firm of Devlin & Devine, hereby file this Notice of Removal pursuant to 28 U.S.C. § 1441 and state as follows: The above captioned matter was originally filed by Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, under docket number 01-4718. See Complaint, attached hereto and incorporated herein as Exhibit "A"). 2. In his Complaint, the plaintiff alleges violations of the United States Constitution, and of federal law, particularly the Civil Rights Acts of 1871, as amended 42 U.S.C. §1983. See Exhibit "A"). As the United States District Court for the Middle District of Pennsylvania has original jurisdiction over cases founded on a claim or right arising under the a,- __ constitution, treaties or laws of the United States, it is remo~ able without regard to the citizenship or residence of the parties. 28 U.S.C. § 1441: DEVLIN AND DEVINE .__-- BY~.Lti illiam J. Devlin, Esquire Andrea L. Bennett, Esquire Attorneys for Defendants 100 West Elm Street, Suite 200 Conshohocken, PA 19428 (610) 397-4600 ~~ ~i Date: °^* - xi~~. ,,~,- `` IN THE UNITED STATES DISTRI~T COURT' FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOHN L. PORTER, JR. PLAINTIFF, vs. EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD; COUNTY OF CUMBERLAND, PA; DEFENDANTS. No.: CERTIFICATION OF SERVICE ANDREA L. BENNETT, ESQUIRE, attorney for defendants, hereby certifies that she caused a copy of the within Notice of Removal to be served upon the parties named below by United States, first-class mail, postage prepaid on August sir ' 2001: Janet A. Walter County of Cumberland 1 Courthouse Square Cazlisle, PA 17013 Court of Common Pleas Cumberland County Courthouse 1 Courthouse Squaze Cazlisle, PA 17013 John L. Porter, Jr. County of Cumberland Prison 1 Courthouse Squaze Cazlisle, PA 17013 DEVLIN & DEVINE \~~ By: ^rw~~~~~~~ K~ William J. Devlin, Jr. Andrea L. Bennett Attorneys for Defendants ~._- '~' EXM I B 1 T ~iA~~ ,,~, ~~ 08/17/2001 02:42:30 ~M 08%17/01 FRI 14:59 F.~.% 717 7: 1972 ~ INS. CHILL. -.»+ ST PAUL PUBCLXS X1004 :~~^` ~~ + - - jjjaaa/// ~i IN THE COURT OF COD4fON PLEAS OF C[rbIDERLAND COUNTY, PENNSYLVANIA CIVII, ACTION -LAW JOHN L. PORTER, JR. I... .~ PLAINTIFF, YS : CIVIL ACTION N0. 4/ - ~~/ EP,RL REITZ, WARDEN: ~ JANET SCOTT, DEPUTY WP,RDEN OF OPERATIONSi .. MICHAEL C.4REY, DEPUTY WARDElY OF SECURITY; CUhIDERLAND COUNTY PRISON BOARD, et. a1.: .. COUNTY OF CUt~ERLAND, PA; DEFENDANTS. NOTICE Rt7 DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail' to do so, the case may proceed without you, and a judgement may be entered against you by the Court without further notice Eor any money claimed in the complaint or relief requested by the Plaintiff. You may lose money or property or other rights important bo you. You should take this paper to your lawyer at once. If you do not have a lawyer or cannot afford one. go to or telephone the office set forth below to find where ou c y an, get legal help. ~~, rnr,: ~_ Legal Servfces, Inc. ~'' ~- 8 Irwin Row _ :.,, ~ ' Carlisle, Fa. 17013 1~~; (717) 243-9400 ~~ - •:~~~ In Testimony whereGf, I here unto set my have and the sea! at said Co tai Carli !e. Thi day d . ,. a ~ Prothonotary 08/17/2001 02:42:30tiPM _ _ 08%17/01 FRI 15:00 F.~1S 717 7: 1972 (' INS. CHILL ~ »»» ST PAUL PUBCLHS f~005 .~ ,~: _~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW JOHN L. PORTER, JR. PLAINTIFF, / VS °`EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; ~MICH.n,EL CAREY, DEPUTY WP.RDEN. OF SECIR2ITY; . C~ERLAND COUPPI"l PRISON BOARD, et. al.; L COTJNTY OF CUMBERLAND', PA; DEFENDANTS. CIVIL ACTION N0. Q/~~ ~7/$ C(Y~.S NOFT TflE PZAII~'B, Jails L_ Porter Jr., P~ $e, who respectfully files with this Honorable Court this complaint pursuant to 42 Pa. C.S.A. § 93I and in support thereof .sets forth the following: 1, 1. Plaintiff, John L. Porter Jr.', pro se, is a citizen of the Co¢mionwealth of Pennsylvania with a current address of 175 Progress Drive, Waynesburg, Pa. 15370, and is currently incarcerated on a non-related criminal corrviction. (5ereafter referred to as Plaintiff) 2. Defendant, Earl Reitz, is the Warden of the Cumberland County Prison with a current address of 1101 Claremont Road, Car1sle, Pa. 17013 i 3. Defendant, Janet Scott, 'is the Deputy Warden of Operations of the Cumberland County Prison with a current address of 1101 Claremont Road, CarL°sie, Pa. 17013. 4. Defendant, Michael Carey, is the Deputy Warden of Security of the Cumberland County Prison with a current address of 1101 Claremont Road, CarLsle, Pa. 17013. -.. OB/1?/2001 02:42:30_~PM 08/17/01 FRI 15:00 FAb 717 7 097: ~ INS. CHILL +++ ST PAUL PUBCLI[S C~ 008 ~.- ~ -. 2 ~ .- 5. Defendants, Ctmtberland County Prison Board, et. al., are responsible for overall policy promulgation and operations within the Cumberland County Prison with a current address of 1 courthouse square, Carlisle, Pa. 17013. 6. Defendant, County of Cumberland, Pennsylvania, is a Political , Subdivision Eatity with a current address of 1 Courthouse Square, Carlisle, Pa. 17013. _ 7. The Defendants are sued directly and/or indirectly in their Professional and/or Personal capacities. 8. on or about September 22, 1999, Plaintiff was incarcerated in the Cumberland County Prison, housed on "F" flock, in cell number eight (B), which is located on the Lower Tier. Around 2:30 PM on this date, Plaintiff tcok a shower after Gym activitfes. Upon exiting the shower, the Plaintiff had to descend a flight of approximately five (5) steps to reach the Lower Tier where the Plaintiff was housed. 1. As the Plaintiff reached the third step, there was a puddle of water, which the Plaintiff did not notice. The Plaintiff stepped in the puddle, lost his footing, and fell. The Plaintiff reached for the yellow safety rail located on his right side. The 'Plaintiff grabbed the rail in an attempt to break his fall. In the process, the Plaintiff injured his right arm, causing numbness and tingling sensations traveling from the Plaintiff's right .ring and pinky fingers, up through his right wrist and elbow, all the Sray to his shoulder. At this time, the Plaintiff recovered his footing to see the puddle of water, with no "Wet Floor" sign posted on the steps leading to the Lower Tier. There xas no slip-resistant material on the steps. The Plaintiff reported the incident and followed procedure by attending the next available sick call on September 24, 1999. . 08/17/2001 02:42:3(~pM _ 08/17/01 FRI 15:00 FAS 717 7 0972 r INS. CHILL »»» ST PAUL PUBCLHS . ~.: ,- 3 ~, Currently, the Plaintiff .still experiences constant numbness in his right wrist that the doctor at S.C.I Greene stated may never go away. COLIlYP I NEGLIGENT INTENTIONAL OR OTHERWISE TORTIOIIS CONDUCT 9. Paragraphs 1 through 8 are incorporated herein by reference made a part hereof. 10. Plaintiff files this Complaint pursuant to Title 42 Pa. C.S.A. § 5524. to receive damages for injury to the person which is founded on negligent, intentional or otherwise tortious conduct. 11. The County ana/or Prison Board owns or leases the property on which the injury occvrrec] and the injuries were caused by a dangerous condition, and/or artificial. condition, and were facilitated by the actions and/or inactions of the Defendants. The Defendants breached their duty as owners/leasers of the real property. i 12. The Defendants failed to maze or maintain safely certain improvements to the steps on "F" Stock leading to the Lower Tier by not placing a slip-resistant material on each step that would have saved the Plaintiff from harm or injury. 13. Plaintiff would be able to recover damages under Conmionwealth Law and/or Statute due to the dangerous condition deriving and originating from, or having iEs~ source in the County's Realty. The unsafe condition of the unsafe steps caused or Facilitated the Plaintiff's injuries. 14. The Plaintiff's injuries were also facilitated by the Defendants' failure to properly train, instruct, and supervise employees by not plating a "Wet Floor" sign on the problem area, when they Sinew or should have known an unsafe condition existed. f~100 i ' .08/17/2001 02:42:30-,PM 08/17/01 FRI 15:00 FAS 71T 7 0972 r INS. C. HILL .+-. ST PAUL PUBCL3tS ~.: 4 ,~~ - 15. The Defendants have breached a direct and/or imputed duty of care, custody, and control based on a legal relationship between the parties and/or because of a failure to discover or correct a defect or remedy a dangerous condition of their Real Estate. 16. The Defendants were directly responsible because the injury suffered by the Plaintiff would not have come about but for their negligent, intentional, or otherwise tortious eonduet in that they failed to maintain or make reasonable safe improvements to County Realty, existing as unsafe, dangerous, or defective condition, where Defendants knew or should have known that the aforesaid conditions would result in injury. The Plaintiff's rights were violated as guaranteed by the 8th Amendment to the II.S. Constitution, and Article I, Section 13 of the Pennsylvania Constitution. The Defendants were required to ensure that their property was kept in a reasonable, safe, and usable condition. CODNT II VIOLATION OF CPIIL RIGr1TS c L7. Paragraphs 1 through 16 inclusive are incorporated herein by refezence and made a part hereof. 18. The Plaintiff invokes Jurisdiction within this fionorable Court to the extent that this claim sets forth violation of Plaintiff's Civil Rights under Title ,42 U.S.C. § 1983. This Court has Jurisdiction to adjudicate such claims. See Commonwealth Ex. Rel. Suanderrs v. Cream, 3S4 A. 2d. 702, at 703-704, note 3 (PA 1975); Coffman v. Wilson Police Department, 739 F, Supp. 257, at 267-268 (Ed. PA 1990); Fawber v. Conen, 516 PA. 353, 532, A. 2d 429 (1987); Balshy v. Rank, 507 PA. 384, 490 A. 2d 415 (1985); Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, at558 n. 7 (1980). fdj 008 19. As direct result of the Defendants' actions, omissions, inaction and or Failures, the Plaintiff suffered numbness and tingling .OS/1?/2001 02:42:30_PM 08/17/01 FRI 15:01 FAS 717 7 0972 r IYS. Q.HILL ~ »»» ST PAUL PUBCLHS ¢1009 . ~ya ~ ~~ - - . sensations from his right ring and pinky fingers, up through his right wrist and' elbow, to his shoulder. The Plaintiff is partially disabled and has limited use of his right wrist. The Plaintiff continues to experience numbness, mental anguish, physical pain and suffering, and disability as a result of the injury. The Plaintiff also experiences difficulty sleeping due to the numbness in his right wrist. 5~eenefoxe, The Plaintriff, Joha L. Porter Jr., pro se, is seeking the following damages and/or Judgments against the Defendants, plus fees, Attorney Fees, and costs associated with the filing and service of the complaint, and, A. Compensatory Damages in an amount in excess of $100,000.00 from each Defendant for mental anguish, physical pain and suffering, and disability; and, H. Punitive Damages in an. amount- in e~ccesa of $100,000:00 from each Defendant for deliberate indifference, the unnecessary and wanton infliction of pain, willful Misconduct, negligent, intentional, or tortious conduct and malice; and, ' C. Nominal Damages in an amount in excess of $100,000.OQ from each Defendant for remote damages; and, D. Grant any other damages and relief deemed just and proper by the Court. Respectfully submitted by: Date: /Yv~w. G . ~! John L, porter JR. Plaintiff, Pro Se 08/17./2001 O2:42:3O_PM 08/17/01 FRI 15:01 FAZ 717 7 0972 ~ INS. CHILL ~ ~++ ST PAUL PUBCLHS X1010 ~~~ _~ ~, IN THE COURT OF COMMON FLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. PLAINTIFF, VS EARL REZTZ, WARDEN; JFu`IET SCOTT, DEPUTY Sv71RDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEY OF SECURITY; CUMBERLAND COIIN'I'Y PRISON BOARD, et. al.; COUNTY OF CUFIDEL2LAND, PA; DEFENDANTS. CIVIL ACTION N0. ~{" cf7/(~i DEB4fBID POR JiIBIY TSIBI, The Plaintiff demands a Jury Trial in the above - Captioned matter. Respectfully submitted by: Date: Fld:.ac~ ~ ~QC.') r7~: ~~y~~x~ John L. Porter JR. Plaintiff, Pro Se _.. ~r~ - 08/17./2001 02:42:30 -PM _ 08/17/01 FRI 15:01 FAS 717 7: 1972 ~ ~ INS. C. HILL ~~ ++» ST PAUL PUBCLHS .. , f" ,~ IN THE COURT OF COMMON PLEAS OF CUMBF.Ri.AND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW ~ 011 JO[~Pi L. FORTER, JR. PLAINfiIFF, VS EARL REITZ, WARDEN; . JANET SCOTT, DEPUTY WARDEN OF _ OPERATIONS; MICHAEL, CAREY, DEPOTY WARDE~11 OF SECURITY; . CCTMBERIAND COilbil'IR PRISON BOARD, et. :. al.; . COUNTY OF COMBERLAND, PA; DEFENDANTS., . CIVIL ACTION N0, ~! ~ ~~ 7~ P800F OF SEHPIC6 I hereby certify that a true and correct copy of the foregoing notice to Defend, Complaint, and Demand for Jury Trial wi11 be / has been served via First Class Prepaid U.S. Mail upon the below written . Defendants on this 13''~ day of Ao~.v;7' 2q(701 for service by the Sherriff's Office per Rule 400 (a}, PA. Pules of Civil Procedure. i Earl Reitz, Warden 1101 Clazemont Road CarLsle, Pa. 17013 Janet Scott, Deputy Warden of Operations 1101 Claremont Road Car1•sle, Pa. 17013 Michael Carey, Deputy warden of Security 1101 Clazemont Road ` . Carlsle, Pa. 17013 Office of Commissioners 1101, Claremont Road Car7csle, Pa. 17013 Cumberland County Prison Hoard, et. al. Cumberland County Court House 1 Courthouse Square Carlisle, Pa. 27013 08/17/2001 02:42;3CL PM 08117/O1 FRI 15:01 FAS 717 ~ '0972 f INS. CHILL '" ++~ ST PAUL PUBCLHS X1012 ~.. 2 ~ - -- County of Cumberland, Pennsylvania. c/o Robert Saidis, County Solicitor Cumberland County Court House 1 Courthousz Square Carlisle, Pa. 17013 Respectfully submitted by: ~~~~ ~- John L. Porter, Jr. EA-8952 175 Progress Drive Waynesburg, Pa. 15370 : ,, ,,..,,.,~.,<m~._. 08/17/2001 O2:42:3O~PM QS/17/01 FRI 15:01 F~1S 717 7 '.0972 f' INS. CHILL ~++ ST PAUL P[iBCLHS I~jO1S ~ ,+ i IN THE COURT OF COI~AtON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW JOHN L. PORTER, JR. PT.AINTIFF, VS EARL REITZ, WARDEN; JANET SCOTTe DEPUTI' WARDEN OF OPERTiTIONS; MICHAEL CAREY, DEPUTY WP.RDEN OF SECURITY; CU[~ERLAMS COLRV4'Y PRISON BOARD, et. al.; COI7NTY OF CUPffiERLAND, PA; DEE'ENDANTS. CIVIL ACTION N0. G!' ~flf ~7 VERIFICATION I hereby certify that the facts set forth in the foregoing complaint and proof of service are true and rnrrect to the best of my personal knowledge and information or telief and that any false , statement contained therein are made subject to the penalty of § 9014 0° the Crimes Code relating to ursworn falsification to Authority. Respectfully suhanitted by: Date: N~~++ ~' ~. BOO) ~~~~ ~ John L. Porter Jr. Plaintiff, Pro Se j. r ~'~~"- -- SHERIFF'S RETURN - REGULAR M CASE NO: 2001-04718 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PORTER JOHN VS REITZ EARL ET AL KENNETH GOSSERT Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE REITZ EARL was served upon DEFENDANT the at 0835:00 HOURS, on the 16th day of August 2001 at 1101 CLAREMONT ROAD CARLISLE, PA 17013 EARL REITZ by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 3.25 .00 10.00 R. Thomas Kline .00 31.25 08/17/2001 SCI GREENE Sworn and Subscribed to before By: me tnhis ,gyp ~ day of CXcu.~~,,Jf- wool A.D. Q. ~~y P othonotary SHERIFF'S RETURN - REGULAR CASE NO: 2001-04718 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PORTER JOHN L VS REITZ EARL ET AL KENNETH GOSSERT Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE SCOTT JANET was served upon DEFENDANT the at 0835:00 HOURS, on the 16th day of August 2001 at 1101 CLAREMONT ROAD CARLISLE. PA 17013 EARL REITZ by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Ans wers: 6.00 .00 L a/ ~i~i~~'~~1 ~6 .00 ~ !! 10.00 R. Thomas Kline .00 16.00 08/17/2001 SCI GREENE Sworn and Subscribed to before By: me //this ~ day of ld..~s,.a- oZo-n/ A.D. rot onota SHERIFF'S RETURN - REGULAR CASE NO: 2001-04718 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PORTER JOHN L VS REITZ EARL ET AL KENNETH GOSSERT Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTI was served upon CARER MICHAEL the DEFENDANT at 0835:00 HOURS, on the 16th day of August 2001 at 1101 CLAREMONT ROAD CARLSSLE, PA 17013 by handing to EARL REITZ a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 .00 .00 10.00 R. Thomas Kline .00 16.00 08/17/2001 SCT (7R FFNF' Sworn and Subscribed to before By: me this 3a ~` day of ,0-~ ~iH ~ / A . D . r thonotar~ SHERIFF'S RETURN - REGULAR CASE NO: 2001-04718 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PORTER JOHN L VS REITZ EARL ET AL KENNETH GOSSERT Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ICE OF THE COMMISSIONERS the DEFENDANT at 0810:00 HOURS, on the 16th day of August 2001 at ONE COURTHOUSE SQUARE ISLE, PA 17013 JANET WALTER (PARALEGAL) by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 So Answers: ~~~~~~~~ R. Thomas Kline 08/17/2001 SCI GREENE Sworn and Subscribed to before By: me this 3's~ ~- day of ~,..,.,,..r- ~e>v f A.D. t~ ~ thonotar SHERIFF'S RETURN - REGULAR CASE NO: 2001-04718 P COMMONWEALTH OF PENNSYLVANIA: COUN'T'Y OF CUMBERLAND PORTER JOHN L VS REITZ EARL ET AL KENNETH GOSSERT Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon COUNTY OF CUMBERLAND, PA the DEFENDANT at 0810:00 HOURS, on the 16th day of August 2001 at C/O ROBERT SAIDIS, SOLICITOR 1 COURTHOUSE SQUARE CARLISLE, PA 17013 by handing to JANET WALTER PARALEGAL IN COMMISSIONERS OFFICE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 So Answers: R. Thomas Kline 08/17/2001 SCI GREE"'^ Sworn and Subscribed to before By: me this 3U == day of / A.D. P o honota~ j ..,- _ SHERIFF'S RETURN - REGULAR CASE NO: 2001-04718 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PORTER JOHN L VS REITZ EARL ET KENNETH GOSSERT Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CUMBERLAND COUNTY PRISON BOARD the DEFENDANT at 0835:00 HOURS, on the 16th day of August 2001 at 1101 CLAREMONT ROAD CARLISLE, PA 17013 by handing to EARL REITZ a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 .00 ~,S~7te[~~ a~ .00 ~ 10.00 R. Thomas Kline .00 16.00 08/17/2001 SCI GREENE Sworn and Subscribed to before By: me this 30 "~ day of of A.D. ~. ~ 7u.Qoo..~- P~o~honotary ;,~,_ ai- v~/~ DATE OF NOTICE: S6vTsnsa~ J~, ~ a{~J YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A NDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LEGAL SERVICES, INC. 8 IRWIN ROW CARLISLE, PA 17013 (717)243-9400 RESPECTFULLY SUBMITTED DATE: -SEwrn'~4s~. ~~ ~~ BY: JO L. PORTER, JR. PLAINTIFF, PRO SE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION JOHN L. PORTER, JR, PLAINTIFF, VS. CIVIL ACTION NO.Ol-4718 Earl Reitz, Warden; Janet Scott, Deputy Warden of Operations; Michael Carney, Deputy Warden of Security; Cumberland County Prison Boazd, et.al.; County of Ctiunberland, Pennsylvania; DEFENDANTS I HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF THE FOREGOING IMPORTANT NOTICE HAS BEEN SERVED ,VIA FIRST CLASS U.S. MAIL, POSTAGE PRE-PAID, BY DEPOSITING SAME IN THE INSTITUTIONAL MAILBOX AT SCI GREENE, UPON THE DEFENDANTS, ON THIS THE /D =' DAY OF ~SAT~°, X62 . 2001. EARL REITZ 1101 CLAREMONT ROAD CARLISLE, PA 17013 CUMBERLAND COUNTY PRISON BOARD 1101 CLAREMONT ROAD CARLISLE, PA 17013 JANET SCOTT 1101 CLAREMONT ROAD CARLISLE, PA 17013 MICHAEL CAR~EY 1101 CLAREMONT ROAD CARLISLE, PA 17013 OFFICE OF THE COMMISSIONERS ONE COURTHOUSE SQUARE CARLISLE, PA 17013 COUNTY OF CUMBERLAND, PA CIO ROBERT SAIDIS, SOLICITOR ONE COURTHOUSE SQUARE CARLISLE, PA 17013 RESPECTFULLY S TTED BY: ~~ JOHN L. PORTER, JR. D.O.C. NO. EA-8952 175 PROGRESS DRIVE WAYNESBURG, PA 15370 .iN^ua ,a==1. ~rv n~}.~q C;*M'i~~t¢9F+v~k'~`~lo~ _ _ _ _ _ 1~'frif frn'..-i.va 1~ '-[Ptl~fYZ{~91~-'v_£^hi 115~~~fifW'L4T.$NN'-"ff~'BRt x~Sa.a~ins.xe'.-r. ~~~ J IN THE COURT OF COMMON PLEA5 OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION JOHN L. PORTER, JR., PLAINTIFF, VS. Earl Reitz, Warden; Janet Scott, Deputy Wazden of Operations; Michael Garrey, Deputy Warden of Security; Cumberland County Prison Board, et.al.; County of Cumberland, Pennsylvania; DEFENDANTS CIVIL, ACTION NO.Ol-4718 I HEREBY CERTIFY AND VERIFY THAT THE FACTS SET FORTH IN THE FOREGOING IMPORTANT NOTICE AND PROOF OF SERVICE ARE TRUE AND CORRECT TO THE BEST OF MY PERSONAL KNOWLEDGE AND INFORMATION OR BELIEF AND THAT ANY FALSE STATEMENTS CONTAINED THEREIN ARE MADE SUBJECT TO THE PENALTY OF §4904 OF THE CRIMES CODE RELATING TO UNSWORN FALSIFICATION TO AUTHORITY. RESPECTF SUBMITTED DATE: ,~P~36r+- ~, ~DOJ $y; JO L. PORTER, JR. PLAINTIFF, PRO SE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION JOHN L. PORTER, JR., PLAINTIFF, VS. Earl Reitz, Warden; Janet Scott, Deputy Warden of Operations; Michael Caney, Deputy Wazden of Security; Cumberland County Prison Board, et.al.; County of Cumberland, Pennsylvania; DEFENDANTS TO: EARL REITZ 1101 CLAREMONT ROAD CARLISLE, PA 17013 JANET SCOTT 1101 CLAREMONT ROAD CARLISLE, PA 17013 MICHAEL CAR~FEY 1101 CLAREMONT ROAD CARLISLE, PA 17013 OFFICE OF THE COMMISSIONERS ONE COURTHOUSE SQUARE CARLISLE, PA 17013 COUNTY OF CUMBERLAND, PA CIO ROBERT SAIDIS, SOLICITOR ONE COURTHOUSE SQUARE CARLISLE, PA 17013 CUMBERLAND COUNTY PRISON BOARD 1101 CLAREMONT ROAD CARLISLE, PA 17013 DATE OF NOTICE: S6r~,.y~e. Ia. ~oo~ CIVIL ACTION N0.01-4718 y ..~,,.:~.v~~~.:..,emk~~ex,-~~~s€.:~:n~raa~ mrem:s"~r-,"",r-,~m...:..,~ -~__OS/7.8~_Ol 10:21 FA% 5702075660 USDC MDPA Clerks OPPice fL1j001 ~ ,_ ~R`"'~) CIVIL COVER SHEET- ' The JS-4a civA cover sheet antl the information contained herein neither replace nor supplement the fiiing and service of pleadings or other papers as requlrec bylaw, except as provided by local rules of rourt This form. approved by the Judicial Cbnlerence of the United States in Septemher 7974, 's required far the usE . of the Clerk of Court for the purpose, of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) t. (a) PLAINTIFFS I DEFENDANTS JOHN PORTER, JR. Cumberland County Prison 1 Courthouse Square (t1)C COUNTr OF PE~910EtJCE OF FIDR9T L315Tm RwNnFF (EXCEPT IN U,S. PLAINTIFF CASES) COUNTY OF CUMBERLAND L COURTHOUSE SQUARE CARLISLE, PA 17013 COUNtt OF RESIDENCE OF FIRST USTE7) DEFENDPNT (IN .S. PLAINTIFF CASES ONLY) NO IN CON 5, USE TH6.~~'ICAT ' OFUWO ~e e (C) ATTOfiNEY9 (FNiM NAME, ADDRESS, AND IFLEPHONE NUMBEfl) PTtORNEYS (IF N710WN) ~~ ANDREA L. BENNETT ~r-~ - Sti- DEVLIN & DEVINE, 100 W. Elm Street, Ste. 200 Conshohocken, PA 19148 tl.6ASiSOFJURtSDtCTION (PIACEAN'X'INONEftOIfOM a t U.S. GovammeM ~t(3 Ferterel Question Plaintdl (U.S. I,govt7mment Nat a Party) ^ z U.S. OOVemm9M ^ + DlversitY Defendant (Indicate CtGZtmsflip of Pattie9 ht Item In} of Susirtees to ThLS State 1 Of BnCOlpOf818d Qfd ~ D s ^ 9 Foreign Nation ~ ^ a ^ e IV. NATURE OF SUIT(Pt,4CEANx-woNEaootaNC~ _ tte alasarloa D 700 tavYr ^ 130 Maw Atl ^-1W NepOCGMs bI1L1u11Bf1[ tst Madimis Art Ots p 1a3 Reoaay at OtaeP+7n'"rt M V9paran's9msrb O tao snxi4ealaas• saes ^ 790 Omr Cantreri p 1m ConIMq PladlC Uat810y PtatapNaa 1N,61RY o Sto AiIpleM O 376 AYW m PloEict Q Sm sl tJba a ^ O30 ~ EmplgN,e' ^ 340 Malls Q SN f ROaxA ^ Sa0 Mohr VaeirJa O 39s Molar v.Na. RIbdK3 ual>inry ^ Ste a6,er Pel9arW ryw -PFA60NAL IfYURY ^ Sax Reaafld ryw- Med MaIaPyr~aWASw O ~~RaAuR tleb0A0_ O Sw IPmb~dI,aWM/ PER60rlal FROPERIY ^ 370 OlberFnaq ^ 377 TMhin la>6n0 D Sao OIIw Peeaaeul PnxlMly Damage Q Se6 FPu>~ Q 010 AtPtcJaa9 Q axo OOIar rbaa a O K6 Oit10 ReWad p tuo uwbrtaa9 D a19 R.R. a tka•A D OQ9 AWne Raga o ea ~ O a09 OOIer ^ na ~ Iahaslan4eNa D 710 tabmlMtFrA Raliars ^ 4ZY APpea128 USC 1s0 ^ +O3 ~ ^ 620 Capy119lib ^ sav Pslara Q X+o 7reaeneek ^ 11TH Hut l7aesttl ^ aet elrx was I ^ 003 dPASCNP7IA ~ 6M S91D Tps %1 ^ as wn0 oabrmeean D MI M7efl9 p 610 Abtlarota VraY O 7~ g8~adaa+e "" ~ ~ aet ASI (105(OR ^ no rwatlam.. R ~ ~ i ~~~ D 4u Em9avme,9 D w Naaue qua: p ra nellairy tsba AR FEDERAL TAX SUR p 2 o Ta u m taM ^ 3A6 7ba tAOtluCI tlabieN /~a+adWUS 4M YN,9ss ^ 6t0 Oaisel Q 936 Da991 PYNitY 0790 01199 tabor ^ Q0 Ta O~~usrctlfl z9o NI oewRa.I Property .~ Aaa 01Mr rJw RIg14 O sa M9gemne oowr D aao CFnI flitPm v~a ^ 797 ~ Nry ^ 071 IRS -Thho RNry . 4 sa6 Rrlson cari®mn d S xe USC T00H ^ +m 9tYa Reepaaesanma<a Q +19 AntlWfl ^ a9 9.uo anO lianNn9 Q a® ConmeaaACC RauulwG Q 4w Deaoia9m D <m Co~wOrlg~ma~ arM ^ tt9 SeleaMServim O-t90 RaodSSSlCurmoEitlal ~ AS t2l1SC 3fta D p7 AploYpsel Alb O eat &otlamio Se+hiliaatlan AC Q K7 EnWramwiml MMIM9 ^ e9e FJ,Mara9gR19mAa O 696 Ilaalmstlan Aa ^ 900 AttPeet at Fee lletrninatlan UlFler EquY A®as 7b JY9tlCe Of60 SWaS~Meaea ~ O tqD OIMr Slsnaory Adb1u V. ORIGIN (PLACE AN 7(' IN ONE SOX ONfYj Appeal to District O t Original Trenelerred from Judge ham ~ 3 Removed from ^ 3 Remanded hen p + Rehl9tetetl ar ^ s LtnOMer tlistdct ^ 9 MugML9Ma ^ 7 Magistrate Proceeding State Court AppttYate Court Reopenetl (spedty) Lidgatbn Jutlgmt7rrt VI. CAUSE OF ACTION ta7EntEU.s civa.sTAnnEUnoERwNicttwuARErvwDAt~owwreeRlERSrAiEMENroFCause 00 NOT CrtE JUP601CTIONALSTAlUTE3 UME95 ONE1tSI7Y.) This case is a Section 1983 Case. VII. REOWESTED IN CHECK IFTHIS IS A CLA9S ACTK)N DEteIAND S CHECK YES ony if dernanded'n romplaird: COMPLAINT: 4 UNDER FR.C.R 23 JURY DEIAAND: rES D "D ViII.RELATED CASE(S) (See tr7sWCeoro): IF ANY JUWE DOCtQ:T NU!®E71 HI. CtTTZENSFIIP OF PAINCIPAL PARTIES (RtACE AN •x-7N ONE Sox FORRwNnFF (For DNershy 08998 Only) AND ONE eOX F0fl OEFENOIW7) PTF DEF PTF DEF Citlzen Of This State 6 t O t lncdrpdrated ar Pditdpal Place ^ + p a CIOZerI Of Ar101h9r $f819 ^ 2 ^ 2 0itizen a Stlblect a• a 0 3 O 3 oi~. ~7~~ ~- t IN THE UNITED STATES DISTRICT COURT FOR THE MH)DLE DISTRICT OF PENNSYLVANIA JOHN L. PORTER, JR. PLAINTIFF, No.: Y vs. :c v EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD; ,s ,;,,:; COUNTY OF CUMBERLAND, PA; FILED DEFENDANTS. SCRANTON AUG ~ 0 2001 NOTICE OF REMOVAL pEp DEPUTY CLERK TO THE CLERK OF COURTS: Defendants, by and through their counsel, William J. Devlin, Esquire and Andrea L. Bennett of the law firm of Devlin & Devine, hereby file this Notice of Removal pursuant to 28 U.S.C. §1441 and state as follows: The above captioned matter was originally filed by Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, under docket number 01-4718. See Complaint, attached hereto and incorporated herein as Exhibit "A"). 2. In his Complaint, the plaintiff alleges violations of the United States Constitution, and of federal law, particulazly the Civil Rights Acts of 1871, a~ a„~nended 42 U.S.C. §1983. See Exhibit "A"). 3. As the United States District Court for the Middle Disu-ict of Pennsylvania has original jurisdiction over cases founded on a claim or right ; .- ;ry ~vs ~~°~~ii~ ~1LIiS . F -- r constitution, treaties or laws of the United States, it is removable without regard to the citizenship or residence of the parties. 28 U.S.C. §1441. DEVLIN AND DEVINE ~~ BY ./ G- tip""""-! ~ ~ t illiam J. Devlin, Esquire Andrea L. Bennett, Esquire Attorneys for Defendants 100 West Elm Street, Suite 200 Conshohocken, PA 19428 (610)397-4600 ? ~ ~ ~, Date: . , .- r IN THE UNITED STATES DISTRICT COURT FORTHE MIDDLE DISTRICT OF PENNSYLVANIA JOHN L. PORTER, JR. PLAINTIFF, vs. EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD; COUNTY OF CUMBERLAND, PA; DEFENDANTS. No.: CERTIFICATION OF SERVICE ANDREA L. BENNETT, ESQUIRE, attorney for defendants, hereby certifies that she caused a copy of the within Notice of Removal to be served upon the parties named below by United States, first-class mail, postage prepaid on August ~'/.' ' 2001: Janet A. Walter - County of Cumberland 1 Courthouse Square Cazlisle, PA 17013 Court of Common Pleas Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 DEVLIN & DEVINE John L. Porter, Jr. County of Cumberland Prison 1 Courthouse Square Carlisle, PA 17013 By: :~ ~z w William J. Devlin, Jr. Andrea L. Bennett Attorneys for Defendants ~~ o~ r EX~"~~BIT iiA" 08/17/2001 02:42:30~M _ 08/17/01 FRI 14:59 FA% 717 7: 1972 - f INS. GRILL -r++ ST PAUL PUBCL3[S LL ` T IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW c. HN L PORTER JR JO , . PLAINTIFF, EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHLF'f. CAREY, DEPUTY WARDEN OF SECQRITY; CUFlBERLAND COUNTY PRISON BOARD, et. al.; COUNTY OF CUF43ERLAND, PA; DEFENDANTS. . CIVIL ACTION N0. ©/ - ~ ~ / NOTICE '117 DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the foliowing pages, you must take action within twenty (20) days after this complaint and notice are served by entering. a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgement may be entered against you by the Court without further notice for any money claimed in the complaint or relief requested by the Plaintiff. You may lose money or property or other rights important bo you. You should take this paper to your lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the office s`t forth below to find Where you can get legal help. z,~; ~~ fitr.~ ' ~. 7~- ,~ ~_ . . c. Legal Services, Inc. ~~'' 8 Irwin Row ~``~ Carlisie, Pa. 17013 ~ `~ --~ (717} 243-9400 Z ~. .. 'CSv~ C©°Y ~€~~J~ R~CO~ti~~ in Testimony whereof, I here unto set my hanc and the s I of said Ca tat Carli le, t? . , 'ihfs day n ti !? /.'. Prattwnatary VS ~00~4 ~/ 1'.. ~v! ~~ •:(ri ^.~ i ' 08/17/2001 02:42:30~M 08/17/01 FRI 15:00 FAg 717 7: 0972 f INS. CHILL ~~ +++ ST PAUL PUBCLMS •" ~f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTX, PENNSYLVANIA CIVIL, ACTION - LAW JOHN L. PORTER, JR. PLAINTIFF, / VS . `EARL REITZ, WARDEN; JANET SCOTT. DEPUTY WARDEN OF . OPERP.TIONS; ~MICFiTFT• CAREY, DEPUTY WARDEN OF SECURITY; CIh~SBERLAND COUNTY PRISON HOARD, et. ai.; . L COWi TY OF CUMHERLAND'. PA; DEFENDANTS. CIVIL ACTION N0. Q~~' ~f7/~ OOt~3 NOW THE PLAII4TIFP, John L_ Porter Jr., p~ se, who respectfully files with this Honorable Court this complaint pursuant to 42 Pa. C.S.A. ~ 931 and in support thereof seta forth the following: ~• 1. plaintiff, John L. Porter Jr.', pro se, is a citizen of the Commonwealth of Pennsylvania with a current address of 175 Progress Drive, Waynesburg, Pa. 15370, and is currently incarcerated on a non-related criminal conviction. (Hereafter referred to as•Piaintiff) 2. Defendant, Earl Reitz, is the Warden of the Cumberland County Prison with a current address of 1101 Claremont Road, Carlsie, Pa. 17013 3. Defendant, Janet Scott, is the Deputy Warden of Operations o€ the Cumberland County Prison with a current address of 1101 Claremont Road, CarU`sle, Pa. 17013. 4. Defendant, Michael Carey, is the Deputy Warden o€ Security of the Cumberland County Prison with a current address of 1101 Claremont Road, Carlsle, Pa. 17013. @1005 . - 08/17/2001 02:42:30,PM __ 0'8/17/01 FRI 15:00 FA% 717 7 0972 f INS. CHILL ++~ ST PAUL PUBCLMS fdJ006 ~ ,_ ` ~t 2 , 5. Defendants, Cumberland county Prison Board, et. al., are responsible for overall policy promulgation and operations within the Cumberland County Prison with a current address of 1 Courthouse square, Carlisle, Pa. 17013. 6. Defendant, County of Cumberland, Pennsylvania, is a Political r Subdivision Entity with a current address of I Courthouse square, Carlisle, Pa. 170I3. 7. The Defendants are sued directly and/or indirectly in their Professional and/or Personal capacities. 8. On or about September 22, 1999, Plaintiff was incarcerated in the Cumberland County Prison, housed an "F" Block, in cell number eight (8), which is located on the Lower Tier. Around 2:30 PM on this date, Plaintiff took a shower after Gym activitfes. Upon- exiting the shower, the Plaintiff had to descend a fii.ght of approximately five (5) steps to reach the lower Tier where the Plaintiff was housed. As the Plaintiff reached the third step, there was a puddle of water, which the Plaintiff did not notice. The Plaintiff stepped in the puddle, lost his footing, and fell. The Plaintiff reached fOr the yellow safety rail located on his right side. The 'Plaintiff grabbed the rail in an attempt to break his fall. In the proCe55r the Plaintiff injured his right arm. causing numbness and tingling sensations traveling from the Plaintiff's right .ring and pinky fingers, up through his right wrist and elbow, all the way to his shoulder. At this time, the Plaintiff recovered his footing to see the puddle of water, with no "Wet Floor" sign posted on the steps leading to the Lower Tier. There was no slip-resistant material on the steps. The Plaintiff reported the incident and followed procedure by attending the next available sick call on September 24, 1999. ,~ 08./17/2001 02:42:3(1-.PM - 08/17/01 FRI 15:00 FA% 717 7 '0972 ~. INS. CHILL ~++ ST PAUL PUBCLMS c -_ ~r 3 , Currently, the Plaintiff .still experiences constant numbness in his right wrist that the doctor at S.C.I Greene stated may never go away. COiR~iJ• I NEGLIGENT INTENTIONAL OR OTHERWISE TORTIOIIS CONDUCT 9. Paragraphs 1 through 8 are incorporated herein by reference made a part hereof. ' 10. Plaintiff files this Complaint pursuant to Title 42 Pa. C.S.A. § 5524, to receive damages for injury to the person which is founded on negligent, intentional or otherwise tortious conduct. 11. The County and/or Prison Board owns or leases the property on which the injury occurred and the injuries were caused by a dangerous condition, and/or artificial condition, and were facilitated by the actions and/or inactions of the Defendants. The Defendants breached their duty as owners/leasers of the real property. s RJ 007 12. The Defendants failed to make or maintain safely certain improvements to the steps on "F" Block leading to the Lower Tier by not placing a slip-resistant material on each step that would have saved the Plaintiff from harm or injury. ^ 13. Plaintiff would be able to recover damages under Conmionwealth Law and/or Statute due to the dangerous condition deriving and originating from, or having its source in the County's Realty. The unsafe condition of the unsafe steps caused or facilitated the Plaintiff's injuries. 14. The Plaintiff's injuries were also facilitated by the Defendants' failure to properly train, instruct, and supervise employees by not placing a "Wet Floor" sign on the problem area, when they )anew or should have known an unsafe condition existed. 08/17/2001 02:42:30__PM 08/17/01 FRI 15:00 FA% 717 7 0972 r INS. C HILL . 4 -.+~ ST PAUL PUBCLEIS fdJ008 ! '" t I5. The Defendants have breached a direct and/or imputed duty of care, custody, and control based on a legal relationship between the parties and/or because of a failure to discover or correct a defect or remedy a dangerous condition of their Real Estate. 16. The Defendants were directly responsible because the injury suffered by the Plaintiff would not have come about but for their negligent, intentional, or otherwise tortious Conduct in that they ` failed to maintain or make reasonable safe improvements to County Realty, existing as unsafe, dangerous, or defective condition, where Defendants knew or should have known that the aforesaid conditions would result in injury. The Plaintiff's rights were violated as guaranteed by the 8th Amendment to the II.S. Constitution, and Article L, Section 13 of the Pennsylvania Constitution. The Defendants were required to ensure that their property was kept in a reasonable, safe, and usable condition. COUNT ii VIOLATION OF CIVIL RIGHTS c 17. Paragraphs 1 through 16 inclusive are incorporated herein by reference and made a part hereof. 18. The Plaintiff invokes Jurisdiction within this Honorable Court - to the eXtent that this claim sets forth violation of Plaintiff's Civil Rights under Title ,42 U.S.C. § 1983. This Court has Jurisdiction to adjudicate such claims. See Commonwealth Ek. Rel. Suanderrs v. Cream, 354 A. 2d. 702, at 703-704, note 3 (PA 1975); Coffman y. Wilson Police Department, 739 F, Supp. 257, at 267-268 (Ed. PA 1990); Fawber y. Conen, 516 PA. 353, 532, A. 2d 429 (1987); Balshy v. Rank. -507 PP.. 384, 490 A. 2d 41S (1985); Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, at558 n. 7 (1980). 19. As direct result of the Defendants' actions, omissions, inaction and or failures, the Plaintiff suffered numbness and tingling ' 08/17/2001 02:42:30., PM 68/17/01 FRI 15:01 FA% 717 7 -0972 f INS. C,. HILL ' f ~~+ ST PAUL PUBCLMS 0009 ~: 5 , sensations from his right ring and pinky fingers, up through his right wrist and' elbow, to his shoulder. The Plaintiff is partially disabled and has limited use of his right wrist. The Plaintiff continues to experience numbness, mental anguish, physical pain and suffering, and disability as a result of the injury. The Plaintiff also experiences difficulty sleeping due to the numbness in his right wrist. Sihenefore, The Plaintiff, John L. Porter Jr., pro se, is seeking the following damages and/or Judgments against the Defendants, plus fees, Attorney fees, and rnsts associated with the filing. and service of the complaint, and, A. Compensatory Damages in an amount in excess of $100,000.00 from each Defendant for mental anguish, physical pain and suffering, and disability; and, B. Punitive Damages in an amount in excess or' $100,000.00 from each Defendant for deliberate indifference, the unnecessary and wanton infliction of pain, willful Misconduct, negligent, intentional, or tortious conduct and malice; and, c. nominal Damages in an amount in excess of $100,000.00 from each Defendant for remote damages; and, D. Grant any other damages and relief deemed just and proper by the Ccurt: Respectfully submitted by: Date' i/(IGYJi v ~ ~^(.(/( ,l~^'~Y/r•~,~'] John L. porter ,7R. Plaintiff, Pro Se ~. ' 08/17/2001 O2:42:3O_PM . 08/17/01 FRI 15:01 FAb 717 7 0972 r INS. CHILL ~ +~+ ST PAUL PUBCLffiS X01.0 't IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. PLAINTIFF, VS CIVIL ACTION N0. ~~" ~l7/ fi ' r EARL REITZ, WARDEN, JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; -- MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD, Et'. al.; COUNTY OF CUbffiERLAND, PA7 DEFENDANTS. DE2SADID FUR JOKY maTnT" The Plaintiff demands a Jury Trial in the above - Captioned matter. Date • IV~/L-4Fi ~ ~}j Respectfully submitted by: "~ i~ John L. Porter JR. Plaintiff, Pro Se . - 08/,17/2001 02:42:30 PM _ 08/17/01 FRI 15:01 FA% 717 7: 1972 ~ ~ INS. CHILL ~ +++ ST PAUL PUBCLMS _ F ,.. ~r ~~ I1V THE COURT OF CObAfON PLEAS OF CCfi18ERi.AND COUNTY, PENNSYLVANIA CIVII, ACTION - LAW X1011 JOI•]N L. FORTER, JR. PLAINTIFF, VS EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MCCHAEL CAREY, AEPUTY WARDEN OF SECURITY; CUMBERLAND COIIN'PY PRISON BOARD, et. :. al.; COUNTY OF CUMBERLAND, PA; DEFENDANTS. CIVII, ACTION N0. ~i - ~F 7/ (J PR00$ OP' SSRPICE I hereby certify that a true and correct copy of the foregoing notice to Defend, Complaint, and Demand for Jury Trial will be / has been served via First Class Prepaid II.S. Mail upon the below written. Defendants on this l37~ day of Ao;~~ir 2Q001 for service by the SherrifF's Office per Rule 400 (a), PA. Pules of Civil Procedure. i - Earl Reitz, Warden 1101 Clazemont Road CarLsle, Pa. 17013 Janet Scott, Deputy Warden of Operations 1101 Claremont Road Car1•sle, Pa. 17013 Michael Carey, Deputy Warden of Security 1101 Clazemont Road Car7,sle, Pa. 17013 Office of Commissioners 1101, Claremont Road Carlsle, Pa. 17013 Cumberland County Prison Board, et. al. Cumberland County Cpurt House ~ 1 Courthouse Square Carlisle, Pa. 17013 q ~ 08/17/2001 O2:42:3O,PM 08/17/01 FRI 15:01 FA% 717 0972 f IhtS. CHILL ~+~ ST PAUL PUBCLS[S C~j012 ' ~ , t 2 -- County of Cumberland, Pennsylvania. c/o Robert Saiiis, County Solicitor Cumberland County Court House 1 Courthouse Square Carlisle, Pa. 17013 Respectfully submitted by: ~.~~'~~- Sohn L. Porter, Jr. EA-8952 175 Progress Drive Waynesburg, Pa. 15370 s r _ 08/17/2001 02:42:30 PM _ `0'8/17%01 FRI 15:01 FAb 717 7 0972 C' INS. C.HILL~ ~~-. ST PAUL PUBCLffiS I~j015 ~;. '~ f 7ST THE COURT OF CWPIC7N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. . PLAIN'PIFF, VS EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; . MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON HOARD, et_ al.i COUNTY OP CUhffiERLAND, PA; DEFEND_AN'15. CIVIL ACTION N0. G! - ~~ /~ ~ 4ERIT~LCATION I hereby certify that the facts set forth in the foregoing complaint and proof of service aze true and correct to the best Of my personal }alowledge and information or belief and that any false statement contained therein are made subject to the penalty of § 9014 of the Crimes Code relating to unsworn falsification to Authority. Respectfully submitted by: Date•~~wn' ~, ~ouJ ~~~~ ~_ ~ -- John L. Porter Jr. Plaintiff, Pro Se ~..~ ~~ _ cn _~ ~_ ~.,~ - ~_ , r =~;= - ; ~Iw ' -r ~ ~_~~- ~' 1.-i -...~ - - ~ ~ qL ~` ~, [7 ~Jf L, r ~'S1 ca -~ -1P °;cz:ie^sb~.ii"'£"3V'°T,ant3h£(3RSSF.:JiFY~"~~.^"'~@flA A:~.'„L~$.'.f ,, DEVLIN AND DEVINE BY: Andrea L. Bennett, Esquire Attorney for Defendants ID#: 74991 Suite 200,100 West Elm Street Conshohocken, PA 19428 (610) 397-4605 JOHN L.. PORTER, JR. PLAINTIFF, vs. EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD; COUNTY OF CUMBERLAND, PA; DEFENDANTS. ORDER AND NOW, this COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 01-4718 day of 2001, upon consideration of the Preliminary Objections of Defendants, and any response thereto, it is hereby ORDERED and DECREED that said Preliminary Objections are SUSTAINED, and Plaintiff s Complaint is DISMISSED with PREJUDICE. J. DEVLIN AND DEVINE BY: Andrea L. Bennett, Esquire Attorney for Defendants ID#: 74991 Suite 200,100 West Elm Street Conshohocken,PA 19428 (610) 397-4605 JOHN L. PORTER, JR. PLAINTIFF, vs. EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD; COUNTY OF CUMBERLAND, PA; DEFENDANTS. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.Ol-4718 PRELIMNARY OBJECTIONS OF DEFENDANTS, EARL REITZ, JANET SCOTT, MICHAEL CAREY, CUMBERLAND COUNTY PRISON BOARD AND CUMBERLAND COUNTY TO PLAINTIFF'S COMPLAINT And now, defendants, Earl Reitz, Janet Scott, Michael Carey, Cumberland County Prison Board and County of Cumberland, by and through their attorneys, Devlin & Devine, preliminary object to plaintiff s Complaint as follows: 1) On or about August 6, 2001, plaintiff, John L. Porter, filed a Civil Action Complaint in the Caurt of Common Pleas of Cumberland County. (See Civil Action Complaint, attached hereto and incorporated herein as Exhibit "A"). 2) On or about August 28, 2001, defendants filed a Notice of Removal to the United States District Court for the Middle District of Pennsylvania. 3) By Order dated October 3, 2001, the Honorable Richard Conaboy of the United States District Court for the Middle District of Pennsylvania dismissed plaintiff's civil rights claims as legally frivolous and declined jurisdiction over plaintiff s pendent state law claims. Judge Conaboy remanded the remainder of plaintiff s actions back to the Cumberland County Court of Common Pleas. (See Memorandum and Order attached hereto and incorporated herein as Exhibit "B"). 4) In his Complaint, the plaintiff alleges that on September 22, 1999, he was incarcerated in Cumberland County Prison when he took a shower after gym activities. The plaintiff further alleges that as he was descending a flight of five steps, he fell on a puddle of water that had accumulated on the third step. The plaintiff alleges that he then reached for a yellow safety rail to his right and injured his right arm in the process. (See paragraph 8 of Exhibit "A"). 5) In his Complaint, the plaintiff entitles Count I "Negligent, Intentional or Otherwise Torturous Conduct " In the body of his Complaint, he alleges that defendants a) failed to place a slip resistant material on each step; b) failed to properly train, instruct, and supervise employees; and c) failed to place a "wet floor" sign on the area. (See paragraphs 12-14 of Exhibit "A"). 6) Count I of plaintiff s Complaint alleging an intentional tort must be dismissed as against all defendants, as the plaintiff pleads no facts to suggest that defendants acted intentionally. 7) Assuming arguendo that plaintiff states a claim for an intentional tort, that claim must be dismissed as against the County and the Prison Board (assuming the Board is not dismissed as a party), as they are immune from claims of intentional torts under the Political Subdivision Tort Claims Act. 8) The Political Subdivision Tort Claims Act provides that liability may be imposed against a local agency and its employees if - 1) damages are otherwise recoverable under common law or by statute creating a cause of action against one not having an immunity defense, and 2) the injury is caused by the negligent acts of the local agency or its employees acting within the scope of its office or duties. 42 Pa.C.S.A. SCC. 8542(b)(1)(2). Additionally, the injury must occur as a result of one of eight enumerated acts. The eight enumerated acts, or exceptions, are i) Vehicle liability, ii) Care, custody or control of personal property, iii) Real property, iv) Trees, traffic controls and street lighting, v) Utility service facilities, vi) Streets, vii) Sidewalks, and viii) Care, custody or control of animals. Id. 9) The plaintiff s negligence claims do not fall within any of the above-listed exceptions to the Tort Claims Act immunity, as plaintiff's allegation is not of a defective condition of the County's real property, but of a defective condition on it. Accordingly, the plaintiff s negligence claims must be dismissed. 10) The plaintiff s claim for punitive damages must be dismissed, as there are no allegations to support the conclusion that the defendants' actions were reckless, willful, wanton, or outrageous. See Chambers v. MontQOmerv, 411 Pa. 399, 192 A2d. 355 (1933). 11) Pursuant to Pa.R.C.P. 1028 (a), defendants respectfully request that plaintiff s Complaint be dismissed. RESPECTFULLY SUBMITTED: DEVLIN DEVINE ~' BY: Andrea L. Be Attorney for Defendants Suite 200, 100 West Elm Street Conshohocken, PA 19428 DEVLIN AND DEVINE BY: Andrea L. Bennett, Esquire Attorney for Defendants ID#: 74991 Suite 200,100 West Elm Street Conshohocken,PA 19428 (610) 397-4605 JOHN L, PORTER, JR. PLAINTIFF, COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD; COUNTY OF CUMBERLAND, PA; DEFENDANTS. NO.Ol-4718 MEMORANDUM OF LAW IN SUPPORT OF PRELIMNARY OBJECTIONS OF DEFENDANTS, EARL REITZ, JANET SCOTT, MICHAEL CAREY, CUMBERLAND COUNTY PRISON BOARD AND CUMBERLAND COUNTY TO PLAINTIFF'S COMPLAINT I. FACTS On or about August 6, 2001, plaintiff, John L. Porter, filed a Civil Action Complaint in the Court of Common Pleas of Cumberland County. (See Exhibit "A"). On or about August 28, 2001, defendants filed a Notice of Removal to the United States District Court of the Middle District of Pennsylvania. By Order dated October 3, 2001, the Honorable Richard Conaboy of the United States District Court for the Middle District of Pennsylvania dismissed plaintiffs civil rights claims as legally frivolous and declined jurisdiction over plaintiff's pendent state law claims. Judge Conaboy remanded the remainder of plaintiffs action, alleging state law tort claims, back to the Cumberland County Court of Common Pleas. (See Exhibit `B"). In his Complaint, the plaintiff alleges that on September 22, 1999, he was incarcerated in Cumberland County Prison when he took a shower after gym activities. The plaintiff further alleges that as he was descending a flight of five steps, he fell on a puddle of water that had accumulated on the third step. The plaintiff alleges that he then reached for a yellow safety rail to his right, and injured his right arm in the process. (See paragraph 8 of Exhibit "A"). Count I of Plaintiff s Complaint is entitled "Negligent, Intentional or Otherwise Tortious Conduct." The plaintiff specifically alleges that the defendants 1) failed to place aslip-resistant material on each step, 2) failed to properly train, instruct and supervise employees, and 3) failed to place a "Wet Floor" sign on the area. (See paragraphs 12-14 of Exhibit "A"). II. LEGAL ARGUMENT A. Legal Standard Pennsylvania Rule of Civil Procedure 1028(a)(4) provides, in relevant part, that preliminary objections maybe filed by any party to any pleading on the basis of its legal insufficiency. Pa.R.C.P. 1028 (a)(4). In ruling on preliminary objections, the Court must treat as true all well-pleaded material, factual averments, and all inferences fairly deductible therefrom. The Complaint must be examined to determine whether it sets forth a cause of action, which, if proven, would entitle the party to the relief sought. McArdle v. Tronetti, 426 Pa. Super. 607, 627 A.2d 1219, 1221 (1993). For the reasons discussed below, the plaintiff's Complaint in the present case fails under this scrutiny, and must be dismissed. B. Count I of Plaintiff s Complaint Alleging an Intentional Tort Must Be Dismissed, As The Plaintiff Offers No Facts To Suggest That the Defendants Acted Intentionally: Assuming Arguendo that Plaintiff States a Claim for an Intentional Tort, That Claim Must Be Dismissed as against The Prison and the Prison Board, as Thev Are Immune From Such Claims Under the Political Subdivision Tort Claims Act. Plaintiff entitles Count II of his Complaint "Negligent, Intentional or Otherwise Tortious Conduct." The allegations of Count II, and of the entire Complaint, do not set forth any facts whatsoever which would support a conclusion that any of the defendants' knew of the alleged dangerous condition. Accordingly, to the extent that the plaintiff is alleging that the defendants' actions or inactions constituted an intentional tort, Count I must be dismissed. Assuming arguendo that the plaintiff has stated a claim for an intentional tort, it must be dismissed against Northampton County and its Prison Board, under the Political Subdivision Tort Claims Act. Where a plaintiff alleges willful misconduct on the part of local agency employees, the Tort Claims Act, 42 Pa. Cons. Stat. Ann sec. 8542(a)(2), bars recovery against the agency, as liability may be imposed on a local agency for negligent acts only. Petula c. Mellodv, 158 Pa. Commw. 212, 631 A.2d 762 (Pa. Commw. 1993). Although section 8550 of the Tort Claims Act permits suits against the local agency's employees for willful acts, it does not create any exception to section 8542, which articulates the only situations under which the local agency itself maybe subject to suit in tort. There is no exception under section 8542 for intentional torts. Accordingly, Count I of plaintiff's Complaint must be dismissed. C. Count II of Plaintiff's Complaint Alle¢inQ Nealieence Must Be Dismissed, As the Alleeed Facts Do Not Brina The Case Within Anv of the Exceations to the Political Subdivision Tort Claims Act Immunity. hz the present case, if all of the allegations of the plaintiff s Complaint aze assumed to be true, Count I alleging negligence must be dismissed, as Cumberland County, its Prison Boazd, and its employees, enjoy statutory immunity pursuant to the Political Subdivision Tort Claims Act. 42 Pa. C.S.A. sac. 8542 The Political Subdivison Tort Claims Act provides that liability maybe imposed against a local agency and its employees if 1) the damages aze otherwise recoverable under common law or by statute creating a cause of action against one not having an immunity defense, and 2) the injury is caused by the negligent acts of the local agency or its employee acting within the scope of its office or duties. 42 Pa. C.S.A. sec. 8542(b)(1)(2). Additionally, the injury must occur as a result of one of eight enumerated acts. Id. The eight enumerated acts, or exceptions, are 1) vehicle liability, 2) care, custody or control of personal property, 3) real property, 4) trees, traffic controls and street lighting, 5) utility service facilities, 6) streets, 7) sidewalks, and 8) care, custody or control of animals. Id. The Real Property Exception to immunity provides for the imposition of liability for "the care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency." 42 Pa. C.S.A. sec 8542 (b)(1)(3). Under this exception, liability may be imposed where a plaintiff proves that the presence of a slippery substance on government property was caused by improper design, construction, deterioration, or inherent defect of the real estate itself. See Finn v.City of Philadelphia, 541 Pa. 596, 664 A.2d 1342 (1995). In the present case, the plaintiff has pled no such defect, but only the absence ofslip-resistant material upon the step. The defendants acknowledge that liability may also be imposed for negligence which makes government-owned real property unsafe for activities for which it is regularly used, intended to be used, or reasonably foreseen to be used. Singer v. School District of Phila., 99 Pa. Commw. 553, 513 A.2d 1108, 1109 (1986). In the present case, the plaintiff alleges that a puddle of water accumulated on the stair between the prison shower area and the lower tier, where he was housed. There is no allegation that the area served a special use, or that the prison constructed the stairway knowing that water would necessarily accumulate there. The defendants acknowledge that the Commonwealth Court, in the case of Bradley v. Franklin Count~Prison, interpreted the Tort Claim immunity and held that a shower drying off area must have tiles with non-slip properties in order to be safe for its particulaz use. 674 A.2d 363, 365. (Pa. Commw. 1996). However, the facts of the present case aze distinguishable. The plaintiff has not alleged that he slipped in a drying off azea, where wet feet necessarily traverse. Instead, he fell in a stairway leading to the tier where he was housed. Liability will not be imposed under the real property exception for injuries caused by the negligent failure of a government entity to remove a foreign substance from realty. See, e.g. Bowles v. SEPTA, 581 A.2d 700 (Pa. Commw. 1990); Metkus v. Pennsburv School Dist., 674 A.2d 355 (PA. Commw. 1996); Shedrick v. William Penn School Dist., 654 A.2d 163 (Pa. Commw. 1995). In the present case, the plaintiff alleges just that; the failure of prison employees and/or officials to remove water from the stairway. Accordingly, Count I of plaintiff's Complaint alleging negligence must be dismissed. D. The Plaintiff s Claim for Punitive Damaees Must Be Dismissed, as There Are No Allegations To Support the Conclusion That Defendants' Actions Were Reckless. Willful, Wanton or Outra¢eous. In the concluding paragraphs of plaintiff s Complaint, the plaintiff seeks "Punitive damages in an amount in excess of $100,000.00 from each defendant for deliberate indifference, the unnecessary and wanton infliction of pain, willful Misconduct, negligent, intentional or torinous conduct and malice." (See Wherefore paragraph of Exhibit "A"). An essential element to support a claim for punitive damages is that the conduct must have been outrageous. Outrageous conduct is an act done with a bad motive or with reckless indifference to the interests of others. Chambers v. Montgomer~411 Pa. 399, 192 A.2d 355 (1933)-, Focht v. Rabada. 217 PA. Super. 35, 38, 268 A.2d 157 (1970). Plaintiff has failed to allege in his Complaint any facts whatsoever that moving defendant's conduct was reckless, willful, wanton or outrageous. If all of the allegations of plaintiff s Complaint were true, they at best state a claim for failure to act with reasonable care. Accordingly, the plaintiff s claim for punitive damages must be dismissed. III. CONCLUSION For the reasons discussed above, plaintiff s Complaint must be DISMISSED. RESPECTFULLY SUBMTI'TED: DEVLIN AND DEVINE BY: ea L. Bennett Attorney for Defendants Suite 200, 100 West Ehn Street Conshohocken, PA 19428 610-397-4635 Attorney ID # 74991 EXHIBIT "A„ 08/17/2001 02:42:30~M 08/17%01 F'RI 14:59 FAb 717 7: `1972 r ~ INS. CHILL -.++ ST PAUI. PUBCLllS f~J004 ~~ . ~` IN THE COURT OF COMMON .PLEAS OF CU~IDERLAND CO[Rd'I'Y, PENNSYLVANIA u CIVIL, ACTION -LAW JOHN L. PORTER, JR. PLAINTIFF, VS ~ CIVIL ACTION N0. Q ~ - ~ ~ / EARL REITZ, WARDF'rl; r . - JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICFTAEL CAREY, DEPUTY WARDEN OF '{ SECQRITY; CObfBERLAND COWi TY PRI.~SON BOARD, et. al.; COUN'T'Y OF CUt~ERLAND, PA; ' DEFENDANT". . NOTICE TO DEk'aH) You have been sued in Court. If you wish to defend against the ~) ." claims set forth in the £oliowing pages, you must take action within twenty (20) days after this complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgement may be entered against you by the court without gurther notice for any.money claimed in the complaint or .; relief requested by the Plaintiff. You may lose money or prop2rty or other rights .important to you. You should take this paper to your lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the office s`t ,~ forth below to find where you can,•get legal heap. z,~; rn r.,; - _> .. _ ~_ ." Legal Services, Inc. ~~'- .~ 8 Irwin Row _ f' ::, Carlisle, Fa. 17013 ~r-~~ (717) 243--9400 z. •. ~:r+~ in Testimony whereof, I here unto sat my hone and the s tot said Cu tat Cali !e. Thts day ~: l~' . /.. e Prottwnotary 08/17/2001 02:42:30•_PM rya ST p,l~, pUBCLllS 01005 08/17%01 FEFI 15:00 FAb 717 7: 1972 ~ f INS. CHILL IN THE COIIRT OF COMMON FLE.~1S OF CU,~BERLANO COUNTY, PENNSYLVANIA CIVIL, ACTION - LAW JOFIN L. PORTER, JR. PLAINTIFF, / VS /`EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERP,TIONS; - ~MICHAEI. CAREY, DEPUTY WARDEN OF SECURITY; ~ C(I~ERLAND COUNTY PRISON BOARD, et. al.; ,,' L COUNTY OF CUMBERLAND', PA; . ' DEFENDANTS. . CIVIL ACTION N0. ~~~- 47/IJ i ~ CtP1ES NOW THS PLAII~B, John L. Pnrtex' Jr., pro sa, Who I respectfully files with this Honorable Court this complaint pursuant to 42 Pa. C.S.A. § 931 and in support thereof sets forth the following: i 1. Plaintiff, John L. Porter Jr.', pro se, is a citizen of the Commonwealth of Pennsylvania with a current address of 175 Progress Drive, Waynesburg, Pa. 15370, and is currently incarcerated on a non-related criminal corrviction. (Hereafter referred to as Plaintiff) 2. Defendant, Farl Reitz, is the Warden of the Cumberland County Prison with a current address of 1101 Claremont Road, Car]isle, Pa. 17013 3. Defendant, Janet Scott, is the Deputy Warden of Operations of ~ .. the Cumberland County Prison with a current address of 1101 Claremont ;; Road, CaxL°sle, Pa. 17013. r r 4. Defendant, Michael Carey, is the Deputy Warden of Security of the Cumberland County Prison with a current address of 1101 Claremont Road, Carlsle, Pa. 17013. ,.,~ 08/17/2001 02:42:30. PM 08/17/01 FRI 15:00 FA% 717 7 0972 f INS. C HILL -.+~ ST PAUL PUBCLMS f~ 008 2 5. Defendants, Cumberland County Prison Board, et. al., are responsible for overall policy promulgation and operations within the Cumberland County Prison with a current address of 1 Courthouse Square, Carlisle, Pa. 17013. 6. Defendant, County of Cumberland, Pennsylvania, is a Political Subdivision Eatity with a current address of 1 Courthouse Square, Carlisle, Pa. 17013. /~ 7. The Defendants are sued directly and/or indirectly in their Professional and/or Personal capacities. +~ 8. Qn or about September 22, 1999, Plaintiff was incarcerated in the Cumberland` County Prison, housed on "F" 81ock, in cell number eight (B), which is located on the Lower Tier. I ' Around 2:30 PM on this date, Plaintiff took a shower after Gym activities. Vpon exiting the shower, the Plaintiff had to descend a flight of approximately five (5) steps to reach the Lower Tier where the Plaintiff was housed. As the Plaintiff reached the third step, there was a puddle of water, which the Piaintiff did not notice. The Plaintiff stepped in the puddle, lost his footing, and fell. The Plaintiff reached for the yeiiow safety rail located on his right side. The Piaintiff grabbed the rail in an attempt to break his fail. In the process, the Piaintiff injured his right arm, causing numbness and tingling sensations traveling from the Plaintiff's right .ring and pinky fingers, up through his right wrist and elbow, ail the way to his shoulder. n M1 .. ,~ At this time, the Plaintiff recovered his footing to see the ,' puddle of water, with no "Wet Floor" sign posted on the-steps leading to the Tower Tier. There was no slip-resistant material on the steps. The Plaintiff reported the incident and followed procedure by attending the next available sick call on September 24, 1999. 08/17/2001 02:42:3h-,PZ1 0$/17!01 FRI 15:00 FA3 717 7 0972 r IYS. CHILL +++ ST PdUL Pi7$CLHS ~ OOi 3 Currently, the Plaintiff ,stf11 experiences constant numbness in his right wrist that the doctor at S.C.I Greene stated may never go away. CO@1T Y NEGLIGENT ENTEIVTZONAL OR OTHzRWISE TdATIOIIS CONDUCT 9. Paragraphs 1 through 8 are incorporated herein by reference ~I made a part hereof. ' 10. Plaintiff files this Complaint pursuant to Title 42 Pa. C.S.A. ' § 5524, to receive damages for fnjvey to the person which is founded on negligent, intentional or otherwise tortious conduct. ~ 11. The County ana/or Prison Board owns or ceases the property on I ' which the injury occurred and the injuries were caused by a dangerous condition, and/oz artificial condition, and were facilitated by the actions and/or inactions of the Defendants. The Defendants breached •. their duty as owners/leasers of the zeal property. i 12. The Defendants failed to make or maintain safety certain .improvements to the steps on °F" Block leading to the Lower Tier; by not placing a slip-resistant material an each step that would have saved the Plaintiff prom harat or injury. 13. plaintiff would be able to recover damages under Commonwealth Law and/or Statute due to- the dangerous condition deriving 'and originating from, or having its Source in the County`s Realty. The unsafe condition of the unsafe steps caused ar facilftated the ,, Plaintiff's injuries. ,~ i 14. The Plaintiff's injuries were also facilitated by the Defendants' fa#lure to properly train, instruct, and supervise employees by not placing a "Wet Floor" sign on the problem area, when they latew or should have known an unsafe conditien e_Y3.sted. 08/17/2001 02:42:30 PM 08/17/01 FRI 15:00 F.,LY 717 7 D972 f INS. CHILL -.++ ST PAUL PUBCLMS ~dJ008 4 15. The Defendants have breached a direct and/or imputed duty of care, custody, and control based on a legal relationship between the parties and/or because of a failure to discover or correct a defect or remedy a dangerous condition of their Real Estate. f~ ifi. The Defendants were directly responsible because the injury suffered by the Plaintiff would not have come about but for their negligent, intentional, or otherwise tortious conduct in that they ` failed to maintain or make reasonable safe improvements to County ~~ Realty, existing as unsafe, dangerous, or defective condition, where Defendants knew or should have )mown that the aforesaid conditions would result in injury. The Plaintiff's rights were violated as guaranteed by ' the Bth Amendment to the II.S. Constitution, and Article I, Section 13 of the Pennsylvania Constitution. The Defendants were required to ensure that their property was kept in a reasonable, safe, and usable condition. COQNT II .. VIOLATION OF CIVIL RIGHT'S c I7. Paragraphs 1 through 16 inclusive are incorporated herein by reference-and made a part hereof. .~ r 18. The Plaintiff invokes Jurisdiction within this Honorable Court to the extent that this claim sets forth violation of Plaintiffs Civil Rights under Title ,42 U.S.C. § 1983. This Court has Jurisdiction to adjudicate such claims. See Commonwealth Ex. Rel. Suanderrs v. Cream, 354 A. 2d. 702, at 703-704, note 3 (PA 1975); Coffman v. Wilson Police Department, 739 F, Supp. 257, at 267-268 (Ed. pA 1990); Fawber y. Conen, 516 PA. 353, 532, A. 2d 429 (1987); Haishv v. Rank, 507 PA. 384, 490 A. 2d 415 (1985); Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, at558 n. 7 (1980). 19, As direct result of the Defendants' actions, omissions, inaction and or failures, the Plaintiff suffered numbness and tingling 08/17/2001 02:42:30. PM ~~a ST PAUL PUBCLHS X009 08/17/01 F'k'I 15:01 FAb 717 7 0972 r INS. CHILL 5 sensations fzom his right ring and pinky fingers, up through his right wrist ahd elbow, to his shoulder. The Plaintiff is partially disabled and has limited use o£ his right wrist. The Plaintiff continues to experience numbness, mental anguish, physical pain and suffering, and disability as a result of the injury. The Plaintiff also experiences difficulty sleeping due to the numbness in his right wrist. i i~erefore, The Plaintiff, John L. Porter Jr.r pro se, is seeking ~ the following damages and/or Judgments against the Defendants, plus £ees, Attorney Fees, and costs associated with the filing and service of the complaint, and. A. Compensatory Damages in an amount in excess of $100,000.00 from each Defendant far mental anguish, physical pain and suffering, and disability; and, l~ 9. Punitive Damages in an amount in excess of $100,000.00 from each Defendant for deliberate indifference, the unnecessary and wanton infliction of pain, willful Misconduct, negligent, intentional, or tortioUS conduct and malice; and, C. Nominal Damages in an amount in excess of $100,000.04 from each Defendant for remote damages; and, D. Grant any other damages and relief deemed just and proper by the Court. M1 4 .~ .~ r i Date:_ u6wT G ~ ill Respectfully submitted by: 1~C_'y "'"'_'-'' John L. Porter JR. Plaintiff, Fro Se 08/17/2001 02:42:30 PM 08/1'7/01 FY2I 15:01 FAS 717 7 0972 ~ INS. CHILL +~+ ST PAUL PUBCL3IS Idj010 IN THE COURT OF COA4NON PLEAS OF CpMBERLANb COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. PLAINTIFF, yg : CIVIL ACTION N0. ~(` ~f7(V, EARL REITZ, WARDEN; JANE'S' SCG1T, DEPUTY WARDEN OF OPERATIONS; - MICHAEL CAREY, DEPUTY WARDEN OF ~( SECURITY; CUhffiERLAND COUN'I"1 PRISON BOARD, 0t'. al.; COUNTY OF CC1rIBERLAND. PA; ' DEFENDANTS. . DPIANII -FOR J08Y TSIAL The Plaintiff demands a Jury Trial in the above - Captioned ~l .' matter. Respectfully submitted by: Date..V~:.or~ ~ PDU) John L. Porter JR. Plaintiff, Pro Se M1 R I'/ .. r r 08/17/2001 02:42:30 PM 08/17/Q1 FRT. 15:01 FAb 717 1, X972 f ~ INS. C.$ILL y~~ ST PAUL PUBCLHS IN THE COORT OF COD4SON PLEAS OF CIIMBF.Ri,AND COUNTY, PEVNSYLVANIA CIVIL ACTION - LAw JOI3N L. FORTER, JA. . PLAINTIFF, VS . EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN pF OPERATIONS; MICHAEL CAREY, DEPUTSC WARDEN OF ~ 1 SECC7RITY; . COMBERLAPID CODNTY PRISON BOARD, et. :. . al.; CO~N'1'Y pF C[71+IDERI,AND, PA; DEFENDANTS. CIVIL ACTION N0. ~! - X17/ r PROOF OF' SER4IC8 I hereby certify that a true and correct copy of the foregoing (~ ++ notice to Defend, Complaint, and Demand for Jury Trial will be / has been served via First Class Prepaid II.S. Mail upon the below written Defendants on this !3'~ day of A~s~~r , 2Q'001 for service by the Sh~rriff's Office per Rule 400 (a), PA. Pules of Civil Procedure. i Earl Reitz, Warden 1101 Claremont Road ' CarLsle, Pa. 17013 Janet Scott, Deputy Warden of Operations 1101 Claremont Raad Carlsle, Pa. 17013 Michael Carey, Deputy Warden of Security 1101 Claremont Road Carlsle, Pa. 17013 A 'j Office of Commissioners ~ 1101, Claremont Road Carksle, Pa. 17013 Cumberland County Prison Eoard; et. al. Cumberland County Court House ` 1 Courthouse Square Carlisle, Pa. 17013 fQ 011 08/17/2001 02:42:30 PM 08/17/01 FRI 15:01 F.~% 717 '0972 ~ INS. CHILL ~ +~+ ST PATJI. PUBCLHS X012 2 County of Cumberland, Pennsylvania. c/o Robert Saidis, County Solicitor Cumberland County Court House 1 Courthouse Square Cazlisle, Pa. 17013 l~ l~ "~ Respectfully submitted by: ~~- T John L. Porter, Jr. EA-8952 175 Progress Drive Waynesburg,. Pa. 15370 s "v 08/17/2001 02:42:30_PM _ 08/17/01 FRT 15:01 FA% 717 7 0972 ['~ INS. CHILL +++ ST PAUL PUBCLxS IN THE COURT OF COM6ION PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL, ACTION - LAw JOHN L. PORTER, JR. PLAINTIFF, VS EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF ~ SECURITY; CUMBERLAND COUNTY PRISON HOARD, et. az.; ' COUNTY OF CUMBERLAND, PA; ' DEFENDANTS. CIVIL ACTION N0. ~~ - ~! ~~ vF~NICATION f~ I hereby certify that the facts set fozth in the foregoing ,' complaint and proof of service aze true and cozrect to the hest o£ my personal knowledge and information oz belief and that any false statement contained therein are made subject to the penalty of § 9014 of the Crimes Code relating to unsworn falsification to Authority. Date: ~~~' Co. emu) Respectfully submitted by: ~~~, ~_ John L. Porter Jr. Plaintiff, Pro Se n M1 .. 'v r~ols EXI-IIBIT "B" JOHN L. PORTER, JR., Plaintiff UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA jl /~~~ ,, John L. Porter, Jr., an inmate confined at the Cumberland M1 A ;// r r County Prison, Carlisle, Pennsylvania, initiated this Dro se civil complaint in the Cumberland Court of Common Pleas on August 9, 2001. Named as Defendants are Cumberland County, the Cumberland County Prison Board, and the following officials at the Cumberland ',County Prison: Warden Earl Reitz, 'Deputy Warden of Operations Janet (Scott, and Deputy Warden o-f Security Michael Carey. On August 30, G ~O i~l ~° ~ v. CIVIL N0. 3:CV-O1-1676 EARL REITZ, ET AL., (Judge Conaboy) Defendants FILED ^^°QNTON MEMORANDUM AND ORDER ~~r U3 2001 Background i-~;, 2001, the Defendants removed Plaintiff's action to this court. For the reasons outlined below, Porter's federal claims will be dismissed as frivolous pursuant to ~ 1915A(b)(1) and the remainder lof his action will be remanded to state court. 1 Plaintiff states that on or about September 22, 1999, he was housed on the Lower Tier of the Cumberland County prison. After taking a shower on said date, Porter "had to descend a flight of approximately five (5) steps to reach the Lower Tier." Doc. 1, 8. when Plaintiff stepped in a puddle on the third step, he lost his footing. In an attempt to break his fall, Porter reached for a "yellow safety rail" and in the process "injured his right arm." Id. His complaint asserts that he "still experiences constant numbness in his right wrist." Id. Count I of Plaintiff's complaint seeks recovery under f~ ' Pennsylvania state law on the basis that his injury was causec~tby negligent, intentional or otherwise tortious conduct. Count II. asserts a claim under 42 U.S.C. § 1983 alleging that the Defendants' failure to place a warning sign on the steps or to install slip resistant material on the steps violatecP his civil frights. Porter seeks compensatory, punitive and nominal damages. DISCIISSION 28 U.S.C. § 1915A requires district courts to screen n M1 .~ r i complaints in prisoner actions, such as the instant case, where the inmate has not applied to proceed in forma pauperis. § 1915A provides in pertinent part: (a) Screening. -- The court shall review ... a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 2 (b) Grounds for dismissal. -- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint -- (1) is frivolous, malicious, or fails to state a claim upon which relief may be . granted; or (2) seeks monetary relief from a defendant who is immune from such relief. Under § 1915A(b)(1), a district court may summarily dismiss ~~ '~ M1 n ;/, r any claims that are frivolous, malicious, or fails to state a claim upon which 'relief may be granted. Indisputably meritless legal theories are those "in which either it is readily apparent that the e plaintiff's complaint lacks an arguable basis in law." Roman Ei. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990) (quoting Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir. 1990)). The Court of Appeals for the Third Circuit has stated that "the plain meaning of 'frivolous' authorizes the dismissal of claims that'. are of little or no weight, value, or importance, not worthy of serious consideration, or trivial." Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995),• It also has been determined that "the frivolousness determination is a discretionary one," and trial courts "are in the best position" to determine when a litigant's claims are appropriate for summary dismissal. Denton, 504 U.S. at 33. 3 With respect to § 1983 allegations regarding Cumberland l~ "~ n ;' r r County and the Cumberland County Prison Board, a municipal body or other local governmental unit, not part of a state for Eleventh Amendment purposes, is a "person" subject to suit under 42 U.S.C. § 1983. Mone11 v. Department of Social Servs., 436 U.S. 658, 690-91 (1978): . Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, ..., the action that is alleged to be unconstitutional implements or executes a policy, statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local ;~ governments, like every other § 1983 'person,' by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels. e~ (Internal Citations and Footnotes Omitted); see also Board of County Commis of Brvan County, OKL. v. Brown, 520 U.S. 397, 117 S. Ct. 1382, 1388-89 (1997); Roman v. Jeffes, 904 F.2d 192, 196-97 (3d Cir. 1990); Illiano v. Clav Townshig, 892 F. Supp. 117, 121 (E.D. 4 Pa. 1995). However, it has also been repeatedly held that a municipality may not be subjected to § 1983 liability on a theory of respondeat superior. Bryan County, 117 S. Ct. at 1388; City of Canton v. Harris, 489 U.S. 378, 392 (1989); Citv of St. Louis v. Praprotnik, 485 U.S. 112, 121-22 (1988); Pembaur v. Cincinnati, 475 U.S. 469, 478-79 (1986); Oklahoma City v. Tuttle, 471 U.S. 808, l~ '~ .~ ,~ l1 818, reh'a denied, 473 U.S. 925 (1985); Monell, 436 U.S. at 691; Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996), cert. denied, 519 U.S. 1151 (1997); Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). Rather, "... a plaintiff seeking to impose liability on a municipality under § 1983 [is requir~el] to identify a municipal 'policy' or 'custom' that caused the plaintiff's injury." Brvan County, 117 S. Ct. at 1388; Beck, 89 F.3d at 971. In Bryan County, the United States Supreme Court elaborated on the showing required for municipal liability under § X1983, stating: . [I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff••must also demonstrate that through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. 5 Id. at 1388; see Kneipn v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996) . The United States Court of Appeals for the Third Circuit has ~ ' f " n M1 .. held that a municipality can be held liable under § 1983 "only when 'execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury."' Andrews, 895 F.2d at 1480 (citing onell, 436 U.S. at 694). For purposes of imposing § 1983 liability, the Third Circuit added in Andrews, there are two ways in which a governmental policy or custom is established: Policy is made when a 'decisionmaker possess[ing] final authority to establish municipal policy with respect to the action' issues an official proclamation, policy, or edict. Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292, 1299, 89 L. Ed. 2d 452 (1986). A;~ course of conduct is considered to be a 'custom' when, though not authorized by law, 'such practices of state officials [are] so permanent and well settled' as to virtually constitute law. Monell, 436 U.S. at 690, 98 S. Ct. at 2035 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S. Ct. 1598, 1613-14, 26 L. Ed. 2d 142 (1970)). Accord Anela v. City of Wildwood, 790 F.2d 1063, 1067 (3d Cir. 1986), cert. denied, 479 U.S. 949, 107 S. Ct. 434, 93 L. Ed. 2d 384. re Id.; see also Beck, 89 F.3d at 971; Fletcher v. O'Donnell, 867 F.2d 791, 793-94 (3d Cir.), cert. denied, 492 U.S. 919 (1989) ("Custom may be established by proof of knowledge and acquiescence."). 6 Since there are no allegations in the complaint that Plaintiff's injury occurred as the result of any policy or custom, Cumberland County and the Cumberland County Prison Board are entitled to an entry of dismissal with respect to Porter's § 1983 claims. A plaintiff, in order to state a viable § 1983 claim, must (~I 1~ '~ n plead two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that said conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Groman v. Township of Manalaoan, 47 F.3d 628, 638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir t 1990). As noted earlier, claims brought under § 1983 cannot be premised on a theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). father, each named defendant must be shown, via the complaint's allegations, to ,have been personally involved in the events or occurrences which underlie a claim. See Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). As explained in Rode: A defendant in a civil rights action must have personal involvement in the alleged wrongs. . (P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and 7 acquiescence, however, must be made with appropriate particularity. Rode, 845 F.2d at 1207. Prison officials violate an inmate's right to be free from 1~ ~~ '" cruel and unusual punishment when, through intentional conduct or deliberate indifference, they subject the inmate to harm. Young v. 4uinlan, 960 F.2d 351, 361 (3d Cir. 1992); Riled v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985). Mere negligent conduct that leads to serious injury of a prisoner by a prisoner does not expose a prison official to liability under § 1983. Davidson v. Cannon, 474 U.S. 344, 347-48 (1986). ~e To succeed, a prisoner must show that: (1) he was incarcerated under conditions posing a substantial risk of serious .harm; (2) the defendant was "aware of facts from which the ,inference could be drawn that a substantial risk of serious harm I ; exists;" (3) the defendant actually drew this inference; and (4) the defendant deliberately disregarded the apparent risk. Farmer, 511 U.S. at 837. The remaining Defendants are all identified as being R" supervisory officials at the Cumberland County Prison. There are no allegations that any of those officials had knowledge that a dangerous condition existed on the steps leading to the Lower Tier. ',The plaintiff also offers no indication as to the cause, or how long the puddle on the third step existed. Likewise, there are no 8 l~ '~ R M1 ,. ,~/ r~ facts alleged which could establish that this purportedly unsafe condition was anything more than a one time, unforseen, temporary occurrence. Consequently, pursuant to the standards announced in Farmer, it is apparent that Porter has failed to assert a viable § 1983 failure to protect claim. At best, the complaint asserts 1, claims of negligence which under Davidson, are insufficient for purposes of § 1983. Additionally, it equally appears that Porter is attempting to establish § 1983 liability against the remaining Defendants solely on the basis of their supervisory capacities, which is barred under Capone. ~ r Since Plaintiff's § 1983 claims are "based on an ,,indisputably meritless legal theory," they will be dismissed as (legally frivolous under § 1915A(b)(1). Wilson, 878 F.2d at 774. As a result of this court's determination that Porter's federal .y constitutional claims are meritless, it will not exercise jurisdiction over his pendent state law claims. See 28 U.S.C. § 1367(c)(3) (1997) (a district court may decline to exercise supplemental jurisdiction over a claim when the court has dismissed all claims over which it has original jurisdiction). The remainder Hof Plaintiff's action shall be remanded to the Cumberland County (Court of Common Pleas. An appropriate order will enter. 9 { AND NOW THIS / DAY OF OCTOBER, 2001 IT IS HEREBY ORDERED THAT: 1. Plaintiff's civil rights claims are dismissed, as legally frivolous, under 28 U.S.C. § 1915A(b)(1). 2. Jurisdiction is declined over the Plaintiff's pendent state law claims. See 28 U.S.C. § 1367(c)(3). 3. The remainder of Plaintiff's action is remanded to the f~ "" ~^ ,' Cumberland County Court of Common Pleas. 4. The Clerk of Court is directed to close this case. 5. Any appeal from this order will be deemed frivolous, without probable cause and not taken in good faith. e~ ` ~j ;' RICHARD P. CONABOY United States District Judge FILED • SrRANTON CCT 0 3 2001 s~i~ rtrt DEPUTY CLERK 10 VERIFICATION I, Andrea L. Bennett, Esquire, hereby verify that I am counsel for defendants in the instant action. I have reviewed the foregoing Preliminary Objectioins of Defendants and the statements contained therein are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. ~~ Andrea L. Bennett, Esquire DATED:___j ~~ ~! b ~___ " ~ r , DEVLIN AND DEVINE BY: Andrea L. Bennett, Esquire ID#: 74991 Suite 200,100 West Elm Street Attorney for Defendants Conshohocken,PA 19428 (610) 397-4605 JOHN L. PORTER, JR PLAINTIFF, COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. NO. 01-4718 EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD; COUNTY OF CUMBERLAND, PA; DEFENDANTS. CERTIFICATE OF SERVICE I hereby certify that service of a true and correct copy of the enclosed Defendants' Preliminary Objections to Plaintiff's Complaint was sent to all parties on November ~ 2001, by United States certified mail and first-class mail, postage pre-paid.. John L. Porter, Jr. SCI Greene Inmate #EA 8952 1030 E. Roy Fruman Highway Waynesburg, PA 15370 DEVLIN AND DEVINE ~, ~- BY: Andrea L. Benue ,Esquire Attorney for Defendants a S ° w ~~ ~~ ~X' ~~ n _ -q , i '~ r-' ,- -' ~ 3 , .~ -~--- - ~ -~-~ ~ t w ~ . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. ; PLAINTIFF, VS, : CIVIL ACTION No. 01-4718 EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD, et.: al,; COUNTY OF CUMBERLAND, PA; ; DEFENDANTS. AND NOW COMES the plaintiff, John L, Porter, Jr., pro se, and respectfully files with this Court an Answer To Defendant's Motion To Overrule Plaintiff's Objection To The Issuance Of A Subpoena, 1) On or about October 3, 2001, the Honorable Richard Conaboy of the United States District Court for the Middle District of Pennsylvania dismissed Plaintiff's civil rights claims and declined jurisdiction over Plaintiff's pendent state law claims. Judge Conaboy remanded the Plaintiff's state law claims back to the Cumberland County Court of Common Pleas, 2) On or about October 17, 2001, the Plaintiff received a subpoena from the United States District Court for the Eastern District of Pennsylvania requesting medicai records from the Cumberland County Prison. 3) Due to the fact that the pendent state law claims were remanded from the United States District Court back to the Cumberland County Court of Common Pleas on October 3, 2001 and the subpoena from the United States District Court was received about two (2) weeks later on October 17, 2001, the Plaintiff objected. The United States District Court did not have jurisdiction over the claim at the time the subpoena was filed. 4) At this time, the Plaintiff has no objections to the subpoena for medical records from Cumberland County Prison, but would like to add that the Plaintiff has received on-going medical care for injuries suffered since date of fall, September 22, 1999, at S.C.I. Camp Hill and S.C.I, Greene. The medical records from the aforementioned State Correctional Institutions are a necessity as well pursuant to Pennsylvania Rules of Civil Procedure 4003.1. WHEREFORE, the Plaintiff has no objections to a subpoena for medical records from the Cumberland County Prison at this time. Date: ~lovs~s2 ~3, ~oU~ -2- Respectfully Submitted By: ~, John L, Porter, Jr. Plaintiff, PRO SE TN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L, PORTER, JR. PLAINTIFF, VS, EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF . SECURITY; CUMBERLAND COUNTY PRISON BOARD, et,: al„ COUNTY OF CUMBERLAND, PA; . DEFENDANTS. CIVIL ACTION No, 01-4718 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Answer To Defendants' Motion To Overrule Plaintiff's Objection To The Issuance Of A Subpoena has been served via first class U,S. Mail, postage pre-paid, by depositing same into the Institutional Mail System at S.C,I, Greene, upon the below written Defendant(s) on this d73'e~ day of /V®vb,.,cv~ , 2001. ANDREA L. BENNETT, ESQ, DEVLIN AND DEVINE 100 WEST ELM STREET, SUITE 200 CONSHOHOCKEN, PA 19428 Respectfully Submitted John L, Porter, Jr. Inmate {{ EA-8952 175 Progress Drive Waynesburg, PA 15370 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR, PLAINTIFF, VS. EARL REITZ, WARDEAI; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD, et,: al,; e COUNTY OF CUMBERLAND, PA; DEFENDANTS. CIVIL ACTION No, 01-4718 VERIFICATION I hereby certify that the facts set forth in the foregoing Answer To Defendant's Motion To Overrule Plaintiff's Objectian To The Issuance Of A Subpoena and Certificate of Service are true and correct to the best of my personal knowledge and information or belief and that any false statement contained therein are made subject to penalty relating to unsworn falsification to Authority. Date: N~~r~.,~s.~, a3, ~~i Respectfully Su mined BY: :~~i~~~- John L, Porter, Jr.~ Plaintiff, PRO SE c ~: pTt(T. " _; ~Zl .CJ "- ~<r ~' ~ Y~; C:'. -G (% 7 ~ m._ , ~._ _ .... :.: m; ,. .; ~,-~ Saar ,:*-z-~..,nm p~„a au. „$e?x IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. PLAINTIFF, vs. EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF : OPERATIONS] MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTX PRISON BOARD, et, al,; COUNTY OF CUMBERLAND, PA; DEFENDANTS. CIVIL ACTION No. 01-4718 PLAINTIFF'S RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW, comes the Plaintiff, John L. Porter, Jr., pro se, and respectfully files this Plaintiff's Response To Defendants' Preliminary Objections and in support thereof avers the following: 1) Plaintiff, John L, Porter, Jr,, is a former inmate of the Cumberland County Prison who is currently incarcerated at S.C.I, Greene in Waynesburg, Pennsylvania. 2) While incarcerated at the Cumberland County Prison, the Plaintiff suffered a slip and fall and sustained injuries to his right wrist and arm, The fall occurred upon exiting the shower to return to his cell. 3) The Plaintiff fell while descending a flight of stairs, leading to the lower tier where his cell was located. One of the steps had accumulated water on it that caused the fall, The plaintiff observed no wet-floor sign in the vicinity. 4) The set of stairs leading to the lower tier did not possess any type of slip-resistant material to prevent the fall, In addition, there are two (2) more sets of stairs leading to the upper tier that did possess a slip-resistant material to prevent such falls and injuries that Plaintiff suffered. 5) The Plaintiff questions whether any safety inspections were performed on the surface of the stairs to know whether water would accumulate on the specified area or any other area in the institution or if there are routine inspections or training seminars to bring certain safety attentions to staff. Therefore, the Defendants' actions and/or inactions and failure to properly train, instruct, or supervise its employees directly and/or indirectly caused the Plaintiff's injuries, 6) The Defendants' actions and/or inactions were reckless and failed to provide reasonable care in that a safe and/or secure environment was not provided due to-the failure to check and/or maintain care, custody, and control of "F" block on a regular and timely basis. An officer sitting at his desk is unable to view the set of stairs where the water accumulated, If the Defendants' were to properly train, instruct, or supervise its employees, the Plaintiff's injuries could have been prevented. -2- 7) In paragraph 7 of the Plaintiff's complaint the Defendants axe sued directly and/or indirectly in both their professional and/or personal capacities, The Defendants failed to act with reasonable care in both their professional and/or personal capacities. 8) A lawsuit must meet three requirements: (1) The Plaintiff has suffered an actual or threatened injury; (2) That the injury was caused by the alleged actions of the Defendants= and (3) That the injury must be subject to redress by a favorable decision in Court. A11 requirements in this case have been met. 9) The Court must read a pro se Plaintiff allegations liberally and apply a less stringent standard to the pleadings of a pro se Plaintiff than to a complaint drafted by counsel. Therefore, this matter should not be dismissed. Haines V. Kerner (1972); Gibbs V. Roman (1997). 10) The Defendants seek this dismissal for claims for punitive damages, but this ignores the fact that the Plaintiff is also seeking compensatory damages and nominal damages. WHEREFORE, the Plaintiff respectfully asks this Court not to dismiss this complaint and continues this matter to trial. DATE: Ab~n~z Z1, zaot Respectfully Submitted BY: John L. Porter, Jr. Plaintiff PRO SE -3- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L, PORTER, JR, PLAINTIFF, VS. ; EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD, et. s al.; COUNTY OF CUMBERLAND, PA, DEFENDANTS. CIVIL ACTION No. 01-4718 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiff's Response To Defendants' Preliminary Objections has been served via first class Mail, postage pre-paid, by depositing same into the Institutional Mail system at S.C.I. Greene, upon the below written Defendant(s) on this Z3=° day of /l/ovssecc. , 2001. ANDREA L. BENNETT, ESQ. DEVLiN AND DEVINE 100 WEST ELM STREET, SUITE 200 CONSHOHOCKEN, PA 19428 Respectful Submitted BY: ~G John L, porter, Jr. Inmate # EA-8952 175 Progress Drive Waynesburg, PA 15370 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L, PORTER, JR. PLAINTIFF, VS, : EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF : OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; . CUMBERLAND COUNTY PRISON BOARD, et. : al.; COUNTY OF CUMBERLAND, PA; , DEFENDANTS. CIVIL ACTION No. 01-4718 VERTFICATTUN I hereby certify that the facts set forth in the foregoing Plaintiff's Response to Defendants' Preliminary Objections and Certificate of Service are true and correct to the beat of my personal knowledge and information or belief and that any false statement contained therein are made subject to penalty relating to unsworn falsification to Authority. DATE S /~leubr/~. L3 . 7.0o i' Respe tfully Submitted BY:3~~da(~, ohn L. Porter, Jr. Plaintiff, PRO SE ~J G~^ Ci C -°°" it w `~ ' mss r~-~ ': -.. 7[„ rv -ern : ~ ~ rra ~ . ~~ _ + % " - ~- -ca _ Lj : ~- • ~' yG r r~ ~ ,~ ~ (~ G _. pNS, ,. - - .. e~nst *,• t--r_a ~.n;;~.u!z~S~KZ.^FA'P53R'~~. 4~§ :. 4 ORIGINAL UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOHN L. PORTER, JR., Plaintiff v. EARL REITZ, ET AL., Defendants ~Sackaround CIVIL NO. 3:CV-O1-1676 (Judge Conaboy) MEM01tANDUM AND ORDER FILED ^^4aNTON ACT 0 3 2001 {'' i_il John L. Porter, Jr., an inmate confined at the Cumberland County Prison, Carlisle, Pennsylvania, initiated this pro se civil complaint in the Cumberland Court of Common Pleas on August 9, 2001. Named as Defendants are Cumberland County, the Cumberland County Prison Board, and the following officials at the Cumberland County Prison: Warden Earl Reitz, Deputy Warden of Operations Janet Scott, and Deputy Warden of Security Michael Carey. On August 30, 2001, the Defendants removed Plaintiff's action to this court. For the reasons outlined below, Porter's federal claims will be (dismissed as frivolous pursuant to ~ 1915A(b)(1) and the remainder Hof his action will be remanded to state court. 1 ~?.+.°3 C@COtCI ~O~ Plaintiff states that on or about September 22, 1999, he was housed on the Lower Tier of the Cumberland County prison. After taking a shower on said date, Porter "had to descend a flight of approximately five (5) steps to reach the Lower Tier." Doc. 1, ¶ 8. When Plaintiff stepped in a puddle on the third step, he lost his footing. In an attempt to break his fall, Porter reached for a "yellow safety rail" and in the process "injured his right arm." Id. His complaint asserts that he "still experiences constant numbness in his right wrist." Id. Count I of Plaintiff's complaint seeks recovery under Pennsylvania state law on the basis that his injury was caused by negligent, intentional or otherwise tortious conduct. Count II asserts a claim under 42 U.S.C. § 1983 alleging that the Defendants' failure to place a warning sign on the steps or to install slip resistant material on the steps violated his civil rights. Porter seeks compensatory, punitive and nominal damages. DISCUSSION 28 U.S.C. § 1915A requires district courts to screen complaints in prisoner actions, such as the instant case, where the inmate has not applied to proceed in forma pauberis. § 1915A provides in pertinent part: (a) Screening. -- The court shall review ... a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 2 (b) Grounds for dismissal. -- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint -- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief. Under § 1915A(b)(1), a district court may summarily dismiss any claims that are frivolous, malicious, or fails to state a claim upon which relief may be granted. Indisputably meritless legal theories are those "in which either it is readily apparent that the plaintiff's complaint lacks an arguable basis in law." Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990) (quoting Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir. 1990)). The Court of Appeals for the Third Circuit has stated that "the plain meaning of 'frivolous' authorizes the dismissal of claims that are of little or no weight, value, or importance, not worthy of serious consideration, or trivial." Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995). It also has been determined that "the frivolousness determination is a discretionary one," and trial courts "are in the best position" to determine when a litigant's claims are appropriate for summary dismissal. Denton, 504 U.S. at 33. 3 With respect to § 1983 allegations regarding Cumberland County and the Cumberland County Prison Board, a municipal body or other local governmental unit, not part of a state for Eleventh Amendment purposes, is a "person" subject to suit under 42 U.S.C. § 1983. Monell v. Department of Social Servs., 436 U.S. 658, 690-91 (1978): . Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, ..., the action that is alleged to be unconstitutional implements or executes a policy, statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights- protected by the Constitution, local governments, like every other § 1983 'person,' by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels. (Internal Citations and Footnotes Omitted); see also Board of County Commis of Bryan County, OKL. v. Brown, 520 U.S. 397, 117 S. Ct. 1382, 1388-89 (1997); Roman v. Jeffes, 904 F.2d 192, 196-97 (3d Cir. 1990); Illiano v. Clay Township, 892 F. Supp. 117, 121 (E.D. 4 Pa. 1995). However, it has also been repeatedly held that a municipality may not be subjected to § 1983 liability on a theory of respondeat superior. Brvan County, 117 S. Ct. at 1388; Citv of Canton v. Harris, 489 U.S. 378, 392 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 121-22 (1988); Pembaur v. Cincinnati, 475 U.S. 469, 478-79 (1986); Oklahoma City v. Tuttle, 471 U.S. 808, 818, reh'g denied, 473 U.S. 925 (1985); Monell, 436 U.S. at 691; Beck v. Citv of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996), cert. denied, 519 U.S. 1151 (1997); Andrews v. Citv of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). Rather, "... a plaintiff seeking to impose liability on a municipality under § 1983 [is required] to identify a municipal 'policy' or 'custom' that caused the plaintiff's injury." Brvan County, 117 S. Ct. at 1388; Beck, 89 F.3d at 971. In Brvan County, the United States Supreme Court elaborated on the showing required for municipal liability under § 1983, stating: . [I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. 5 Id. at 1388; see Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996). The United States Court of Appeals for the Third Circuit has held that a municipality can be held liable under ~ 1983 "only when 'execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury."' Andrews, 895 F.2d at 1480 (citing Monell, 436 U.S. at 694). For purposes of imposing ~ 1983 liability, the Third Circuit added in Andrews, there are two ways in which a governmental policy or custom is established: Policy is made when a 'decisionmaker possess[ing] final authority to establish municipal policy with respect to the action' issues an official proclamation, policy, or edict. Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292, 1299, 89 L. Ed. 2d 452 (1986). A course of conduct is considered to be a 'custom' when, though not authorized by law, 'such practices of state officials [are] so permanent and well settled' as to virtually constitute law. Monell, 436 U.S. at 690, 98 S. Ct. at 2035 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S. Ct. 1598, 1613-14, 26 L. Ed. 2d 142 (1970)). Accord Anela v. City of Wildwood, 790 F.2d 1063, 1067 (3d Cir. 1986), cert. denied, 479 U.S. 949, 107 S. Ct. 434, 93 L. Ed. 2d 384. Id.; see also Beck, 89 F.3d at 971; Fletcher v. O'Donnell, 867 F.2d 791, 793-94 (3d Cir.), cert. denied, 492 U.S. 919 (1989) ("Custom may be established by proof of knowledge and acquiescence."). 6 Since there are no allegations in the complaint that Plaintiff's injury occurred as the result of any policy or custom, Cumberland County and the Cumberland County Prison Board are entitled to an entry of dismissal with respect to Porter's § 1983 claims. A plaintiff, in order to state a viable ~ 1983 claim, must plead two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that said conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990). As noted earlier, claims brought under ~ 1983 cannot be premised on a theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each named defendant must be shown, via the complaint's allegations, to have been personally involved in the events or occurrences which underlie a claim. See Rizzo v. Goode, 423 U.S. 362 (1976); Hamoton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). As explained in Rode: A defendant in a civil rights action must have personal involvement in the alleged wrongs. . [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and 7 acquiescence, however, must be made with appropriate particularity. Rode, 845 F.2d at 1207. Prison officials violate an inmate's right to be free from cruel and unusual punishment when, through intentional conduct or deliberate indifference, they subject the inmate to harm. Young v. Quinlan, 960 F.2d 351, 361 (3d Cir. 1992); Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985). Mere negligent conduct that leads to serious injury of a prisoner by a prisoner does not expose a prison official to liability under § 1983. Davidson v. Cannon, 474 U.S. 344, 347-48 (1986). To succeed, a prisoner must show that: (1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the defendant was "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists;" (3) the defendant actually drew this inference; and (4) the defendant deliberately disregarded the apparent risk. Farmer, 511 U.S. at 837. The remaining Defendants are all identified as being supervisory officials at the Cumberland County Prison. There are no allegations that any of those officials had knowledge that a dangerous condition existed on the steps leading to the Lower Tier. The plaintiff also offers no indication as to the cause, or how long the puddle on the third step existed. Likewise, there are no 8 facts alleged which could establish that this purportedly unsafe condition was anything more than a one time, unforseen, temporary occurrence. Consequently, pursuant to the standards announced in Farmer, it is apparent that Porter has failed to assert a viable § 1983 failure to protect claim. At best, the complaint asserts claims of negligence which under Davidson, are insufficient for purposes of § 1983. Additionally, it equally appears that Porter is attempting to establish ~ 1983 liability against the remaining Defendants solely on the basis of their supervisory capacities, which is barred under Capone. Since Plaintiff's ~ 1983 claims are "based on an indisputably meritless legal theory," they will be dismissed as legally frivolous under ~ 1915A(b)(1). Wilson, 878 F.2d at 774. As a result of this court's determination that Porter's federal constitutional claims are meritless, it will not exercise jurisdiction over his pendent state law claims. See 28 U.S.C. ~ 1367(c)(3) (1997) (a district court may decline to exercise supplemental jurisdiction over a claim when the court has dismissed all claims over which it has original jurisdiction). The remainder of Plaintiff's action shall be remanded to the Cumberland County Court of Common Pleas. An appropriate order will enter. 9 AND NOW THIS / DAY OF OCTOBER, 2001 IT IS HEREBY ORDERED THAT: 1. Plaintiff's civil rights claims are dismissed, as legally frivolous, under 28 U.S.C. § 1915A(b)(1). 2. Jurisdiction is declined over the Plaintiff's pendent state law claims. See 28 U.S.C. § 1367(c)(3). 3. The remainder of Plaintiff's action is remanded to the Cumberland County Court of Common Pleas. 4. The Clerk of Court is directed to close this case. 5. Any appeal from this order will be deemed frivolous, without probable cause and not taken in good faith. d~~ ~ ~ ~~- RICHARD P. CONABOY United States District Judge FILED ~f;RANTON OCT 0 3 2001 Nttt DEPUTY CLERK 10 .. >. c~ ~~ - c- -- - R}~ _ `-7 rk. _' _ t ~ ~. y Y JOHN L. PORTER, JR., Plaintiff v. EARL REITZ, WARDEN; JANET SCOTT, DEPUTY: WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD, COUNTY OF CUMBERLAND, PA; Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 01-4718 CIVIL TERM ORDER OF COURT AND NOW, this 315` day of December, 2001, upon consideration of the Motion of Defendants To Overrule Plaintiff's Objection to the Issuance of a Subpoena, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. John L. Porter, Jr., EA-8952 SCI Greene 169 Progress Drive Waynesburg, PA 15370 ,A. /-03.0 Plaintiff, Pro Se '"~'~`"`~ n _.~ BY THE COURT, HifV`dit"IASivN?d ~,-- :_; . „-. ~a ~~ ~.~a°°;~;,..:.~., , i ~ H ~i~~~a ~~~r~a~~~li I S~ ,_ Andrea L. Bennett, Esq. 100 West Elm Street Suite 200 Conshohocken, PA 19428 Attorney for Defendants :rc zoos ~c~n~ DEVLIN AND DEVINE BY: Andrea L. Bennett, Esquire ID#: 74991 Attorney for Defendants 100 West Eim Street, Suite 200 Conshohocken, PA 19428 (610)397-4605 JOHN L. PORTER, 7R. PLAINTIFF, COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD; COUNTY OF CUMBERLAND, PA; DEFENDANTS. ORDER AND NOW, this day of 2001, the plaintiff's objection to the issuance of a Subpoena for the medical records from Cumberland County Prison is hereby OVERRULED, and it is HEREBY ORDERED that said Subpoena shall be issued forthwith. BY THE COURT: NO. 01-4718 J. DEVLIN AND DEVINE BY: Andrea L. Bennett, Esquire ID#: 74991 Attorney for Defendants 100 West Elm Street, Suite 200 Conshohocken, PA 19428 (610) 397-4605 JOHN L. PORTER, JR. PLAINTIFF, COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD; COUNTY OF CUMBERLAND, PA; DEFENDANTS. NO. 01-4718 MOTION OF DEFENDANTS TO OVERRULE PLAINTIFF'S OBJECTION TO THE ISSUANCE OF A SUBPOENA And now, defendants, Eazl Reitz, Janet Scott, Michael Carey, Cumberland County Prison $oazd and County of Cumberland, by and through their attorneys, Devlin & Devine, move this Honorable Court to overrule plaintiff's objection to a Subpoena for Cumberland County Prison medical records: 1) On or about August 6, 2001, plaintiff, John L. Porter, filed a Civil Action Complaint in the Court of Common Pleas of Cumberland County. (See Civil Action Complaint, attached hereto and incorporated herein as Exhibit "A"). 2) On or about August 28, 2001, defendants filed a Notice of Removal to the United States District Court for the Middle District of Pennsylvania. 3) By Order dated October 3, 2001, the Honorable Richard Conaboy of the United States District Court for the Middle District of Pennsylvania dismissed plaintiff's civil rights claims as legally fiivolous and declined jurisdiction over plaintiff's pendent state law claims. Judge Conaboy remanded the remainder of plaintifF s actions back to the Cumberland County Court of Common Pleas. (See Memorandum and Order attached hereto and incorporated herein as Exhibit "B"). 4) In his Complaint, the plaintiff alleges that on September 22, 1999, he was incarcerated in Cumberland County Prison when he took a shower after gym activities. The plaintiff further alleges that as he was descending a flight of five steps, he fell on a puddle of water that had accumulated on the third step. The plaintiff alleges that he then reached for a yellow safety rail to his right and injured his right arm in the process. (See paragraph 8 ofExhibit "A"). 5) Defense counsel contacted Medical Legal Reproductions, Inc. for the purposes of issuance of a Subpoena for the purpose of obtaining plaintifF s medical records from Cumberland County Prison's Medical Department. 6) Plaintiff raised an objection to the issuance of a Subpoena. (See MLR Service Report, attached hereto and incorporated herein as Exhibit "C".) 7) The requested medical records are relevant, pursuant to Pennsylvania Rule of Civil Procedure 4003.1, as the plaintiff's claim is one for personal injury. WHEREFORE, moving defendants request entry of an Order overruling plaintiff s objection, and ordering the issuance of a Subpoena forthwith. DEVLIN & DEVINE '`7 BY %'~/ I~ i`' / Andrea L. Bennett, Esquire Attorney for Defendants ' 08/17/2001 02:42:30_PM 08/17/01 FEtI 14:59 FA% 717 7: 1972 f INS. C HILL +++ ST PAUL PUBCL3[S X004 • ~~'1 • pC IN THE COURT OF COMMON PLEAS OF COMBERLANB COUNTY, PENNSYLVANIA ~U CIVIL ACTION - LAW . JOHN L. PORTER, JR. • PLAINTIFF, ~. VS SARI, REITZ, WARDENS JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREYr DEPUTY WARDEN OF SECURITY; CUb1BERLAND COUNTY PRISON BOARD, et. ax.; COUNTY OF CUI~ERLAND, PA; . DEFENDANTS. +~"'" . CIVIL ACTION N0. Q~ - / ~/ ND'1`ICE TO DEFEAin You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty {20) days after this complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fair to do so, the case may proceed without you, and a judgement may be entered against you by the Court without further notice for any money claimed in the complaint or relief requested by the Plaintiff. You may lose money or property or other rights important bo you. You should take this paper to your lawyer at once. If you do not have a lawyer or cannot afford one. go to or telephone the office s`t ~_ forth below to find where you can get legal help. zis;- c~, S.+ Legal Services, Inc. ~'' ~_ 8 Irwin Row _ =» Cafilisle, Pa. 17013 ~ c_ - (717) 243-9400 ~ .. ~: 'fRu~ ~t);'Y ~R~~t RAC©3'it9 in Testimony whereof, I here unto set my hone and the se I ut said Cb tat Carli !e, Thf day a, ~ , :~~ Prothonotary ,~ •:l ri 1' ,,.:~~~~ 08/17/2001 02:42:30._PM 08/17/01 FRI 15;00 FA% 717 7: )972 f INS. CHILL +++ ST PAUI. PUBCLHS IN THE COURT OF COMMON PLEAS OF CUMBERLAAID COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. PLAINTIFF, / VS `EARL REITZ, WARDENi - r JANET SCOTT, DEPUTY WARDEN OF OPk.RP.TI0N5; - ~MICHAEL CARER. DEPUTY WARDEN OF SECURITY: . CUMBERLAND COUNTY PRISON BOARD, et. al.; . L COUNTY OF CUMBERLADID', PA; . DEFENDANTS. CIVIL ACTION N0. Q~.. ~7/U COMES NC7W THE PLAINTIFF, John L_ Porter Jr., pro se, who respectfully files with this Honorable Court this complaint pursuant to 42 Pa. C.s.A. § 931 and in support thereof sets forth the following: i 1. Plaintiff, John L. Porter Jr.', pro se, is a citizen of the Co¢mionwealth of Pennsylvania with a current address of 17S Progress Drive, Waynesburg, Pa. 15370, and is currently incarcerated on a non--related criminal conviction. (Hereafter referred to as Plaintiff) 2. Defendant, Earl Reitz, is the Warden of the Cumberland County Prison with a current address of 1101 Claremont Road, Carlsle, Pa. 17013 3. Defendant, Janet Scott, is the Deputy Warden of Operations of the Cumberland County Prison with a current address of 1101 Claremont Road, CarL`sle, Pa. 17013. 4. Defendant, Michael Carey, is the Deputy Warden of Security of the Cumberland County Prison with a current address of 1101 Claremont Road, Carlisle, Pa. 17013. @1005 ,.h,= 08/17/2001 02:42:30.,PM 08/17/01 FRI 15:00 FA% 717 7 0972 C INS. CHILL +-.+ ST PAUL PUBCLMS 2 $. Defendants, Cumberland County Prison Board, et. al., are responsible for overall policy promulgation and. operations within the Cumberland County Prison with a current address of 1 Courthouse square, Carlisle, Pa. 17013. ~*"~ 6. Defendant. County of Cumberland, Pennsylvania, is a Political r Subdivision Entity with a current address of 1 Courthouse Square, Carlisle, Pa. 17013. - 7. The Defendants are sued directly and/or indirectly in their Professional and/or Personal capacities. 8. On or about September 22, 1999, Plaintiff was incarcerated in the Cumberland County Prison, housed on "F" Block, in cell number eight (8), which is located on the Lower Tier. Around 2:30 PM on this date, Plaintiff took a shower after Gym activities. Upon exiting the shower, the Plaintiff had to descend a flight of approximately five (5) steps to reach the Lower Tier where the Plaintiff was housed. As the Plaintiff reached the third step, there was a puddle o£ water, which the Plaintiff did not notice. The Plaintiff stepped in the pnddie, lost his footing, and Eell. The Plaintiff reached for the yellow safety rail located on his right side. The 'Plaintiff grabbed the rail in an attempt to break his fall. In the" process, the Plaintiff injured his right arm. causing numbness and tingling sensations traveling from the Plaintiff's right .ring and pinky fingers, up through his right wrist and elbow, all the way to his shoulder. At this time, the Plaintiff recovered his footing to see the puddle of water, with no "Wet Floor" sign posted On the steps leading to the Lower Tier. There was no slip-resistant material on the steps. f~ 006 The Plaintiff reported the incident and followed procedure by attending the next avdilabie sick calf on September 24, 1999. 08/17/2001 O2:42:30_.PM 08/17/01 FRI 15:00 FA% 717 7 0972 f INS. CHILL ++~ ST PAUL PUBCLHS 3 Currently, the Plaintiff ,still experiences constant numbness in his right wrist that the doctor at S.C.I Greene stated may never go away. ~^' COill~ I NEGLIGENT IN'T'ENTIONAL OR OTHERWISE TORTIOUS CONDUCT 9. Paragraphs 1 through 8 are incorporated herein by reference made a part hereof. 10. Plaintiff €iles this Complaint pursuant to Titie 42 Pa. C.S.A. ~ 5524, to receive damages for injury to the person which is founded on negligent, intentional or otherwise tortious conduct, 11. The County and/or Prison Board owns or leases the property on which the injury occurred and the injuries were caused by a dangerous condition, and/or artificial condition, and were facilitated by the actions and/ar inactions of the Defendants. The Defendants breached their duty as owners/leasers of the real property. i 12. The Defendants failed to make or maintain safely certain improvements to the steps on "F" Block leading to the Lower Tier by not placing a slip-resistant material on each step that would have saved the Plaintiff €rom harm or injury. 13. Plaintiff would be able to recover damages under Commonwealth Law and/or Statute due to the dangerous condition deriving and originating from, or having its Source in the County's Realty. The unsafe condition of the unsafe steps caused or facilitated the Plaintiff's injuries. 14. The Plaintiff's injuries- were also facilitated by the Defendants' failure to properly train, instruct, and supervise employees by not placing a "Wet t'loor" sign on the problem area, when they knew or should have known an unsafe condition existed. fm 007 ~,s~ ,u, 08/17/2001 02:42:30 PM 08/17/01 FRI 15:00 FA% 717 7 0972 f INS. CHILL +++ ST PAUL PUBCLMS 4 I5. The Defendants have breached a direct and/or imputed duty of care, custody, and control based on a legal relationship between the parties and/or because of a failure to discover or correct a defect or remedy a dangerous condition of their P.ee:e-estate. 16. The Defendants were directly responsible because the injury suffered by the Plaintiff would not have come about but for their negligent, intentional, or otherwise tortious conduct in that they ` Failed to maintain or make reasonable safe improvements to County Realty, existing as unsafe, dangerous, or defective condition, where Dependants knew or should have known that the aforesaid conditions would result in injury. The Plaintiff's rights were violated as guaranteed by the 8th Amendment to the U.S. Constitution, and Article I, Section 13 of the Pennsylvania Constitution. Trie Defendants were required to ensure that their property was kept in a reasonable, safe, and usable condition. COC~Ti' II VIOLATION OF CIVIL RIGHTS c 17. Paragraphs 1 through 16 inclusive are incorporated herein by reference and made a part hereof. 18. The Plaintiff invokes Jurisdiction within this Honorable Court tb the extent that this claim sets forth violation of Plaintiff's Civil Rights under Title 42 U.S.C. § 1983. This Court has Jurisdiction to adjudicate such claims. See Con~pnwealth Erc. Rel. Suanderrs v. Cream, 354 A. 2d. 702, at 703-704, note 3 (PA 1975); Coffman v. Wilson Police Department, 739 F, Supp. 257, at 267-268 (Ed. FA 1990); Fawber y. Conen, 516 PA. 353, 532, A. 2d 429 (1987}; Balshv v. Rank, 507 PA. 384, 490 A. 2d 4I5 (1985); Martinez v. California, 444 U.$. 277, I00 S. Ct. SS3, at558 n. 7 (1980). 19. As direct result of the befendants' actions, omissions, inaction and or failures, the Plaintiff suffered numbness and tingling ~ 008 08/17/20.01 02:42:30-PM 08/17/01 FRI 15:01 FA% 717 7 0972 f INS. CHILL +++ ST PAUL PUBCLHS ~d1009 5 sensations from his right ring and pinky fingers, up through his right wrist and'eibow, to his shoulder. The Plaintiff is partially disabled and has .limited use of his right wrist.. The Plaintiff continues to experience numbness, mental anguish, Cal pain and suffering, and disability as a result of the injury. The Plaintiff also experiences difficulty sleeping due to the numbness in his right wrist. ii6erefore, The Plaintiff, John L. Porter Jr., pro se, is seeking the following damages and/or Judgments against the Defendants, plus fees, Attorney Fees, and costs associated with the Piling and service of the complaint, and, A. Compensatory Damages in an amount in excess of $100,000.00 from each Defendant for mental anguish, physical pain and suffering, and disability; and, s. Punitive Damages in an amount in excess of $100.000.00 from each Defendant for deliberate indifference, the unnecessary and wanton infliction of pain, willful Misconduct, negligent, intentional, or tortious conduct and malice; and, C. Nominal Damages in an amount in excess of $100,000.00 from each Defendant for remote damages; and, D. Grant any other damages and relief deemed just and proper by the Court. Respectfully submitted by: Date • /yu~ o..- G ~ ~a-~ j - John L. Porter JR. Plaintiff, Pro Se OS'/17/2OO1 O2:42:3O_PM 08/17/01 FRI 15:01 FA% 717 7 0972 f INS. CHILL i++ ST PAUL PUBCLgS ~dJ010 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW JOHN L. PORTER, JR. PLAINTIFF, "- VS CIVIL ACTION N0. ~'"Y7~~ EARL REITZ, WARDEN; ~ . JANET SCOTT, DEPUTY WARDEN OF , OPERATIONS; . MICHAEL CAREY, DEPUTY WARDEN OF . SECURITY; CUMBERLAND COUNTY PRISON BOARD, Bt'. al.; COUNTY OF CUMBERLAND, PA, DEFENDANTS. DEl414ID FOR JURY '1'ET21L The Plaintiff demands a Jury Trial in the above - Captioned matter. Respectfully submitted by: ~ / : ~~~ ~- John L. Patter JR. Plaintiff, Pro Se 08/17/2001 02:42:30.oM 08/17/01 FRI 15:01 FA% 717 7: 1972 f ~ INS. CHILL +++ ST PAUL PUBCI.3IS X011 IN THE COURT OF COMMON PLEAS OF CCR•1BF.RT.,AND COUNTY, PENNSYLVANIA CIVIL ACTION - LAw JDI"IPT L. PORTER, JR. PLAINTIFF, " yS CIVIL ACTION N0. ~{ ~ ~E 7/ EARL REITZ, WARDEN; . JANET SCOTT, DEPUTY WAROEN OF OPI:RATI9NS; MICHAEL CAREY, AEPOTSC WARDEN OF SECURITY; CUMBERhAND COUNTY PR250N BOARD, et. :. al.; COUN'T'Y OF CUMBERLAND, PA; DEFENDANTS. I32OOF OF SSHPI('_6 I hereby certify that a true and correct copy of the foregoing notice to Defend, Complaint, and Demand for Jury Trial will be / has been served via First Class Prepaid U.S. Mail upon the below written Defendants on this /3 'y day of NJW~12" 2Q"001 for service by the ShQrriff's Office per Rule 400 (a), FA. Pules of Civil Procedure. t Earl Reitz, Warden 1101 Claremont Road CarLsle, Pa. 17013 Janet Scott, Deputy Warden of Operations 1101 Claremont Road Car]rsle, Pa. 17013 Michael Carey, Deputy warden of Security 1101 Claremont Road Car7:sle, Pa. 17013 Office of Commissioners 1101, Claremont Road Carlsie, Pa. 17013 Cumberland County Prison Hoard, et. al. Cumberland County Court House ~ 1 Courthouse Square Carlisle, Pa. 17013 08%17/2001 02:42:30. PM 08/17/01 FRI 15:01 FA% 717 0972 f- INS. CHILL ++~ ST PAUL PUBCLJiS X1012 2 County of Cumberland, Pennsylvania. c/o Robert Saidis, County Solicitor Cumberland County Court House ~f_. 1 Courthouse Square Carlisle, Pa. 17013 Respectfully submitted by: ~ ~-- John L. Porter, Jr. EA-8952 175 Progress Drive Waynesburg, Fa. 15370 : r 08/17/2001 02:42:30_PM _ 08/17/01 FRI 15:01 FAb 717 7 0872 C' INS. CHILL ~++ ST PAUL PUBCLMS SSI THE COURT OF COMhION PLEAS OF CUMBERLAND COUNTYr PENNSYLVANIA CIVIL ACTION - LAW JOHN L. PORTER, JR. PLAIN'PIFF, -- VS CIVIL ACTION N0. Gl " ~~ /~ g EARL REITZ, WARDEN; r JANET SCOTTr DEPUTY WARDEN OF . OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUtrffiERLAND COUNTY PRISON HOARD, et. al.; COUNTY OF CUM$ERLANDr PA; DEFENDANTS. YB[tIl>ICATION I hereby certify that the facts set forth in the foregoing complaint and proof of service are true and correct to the best of my personal knowledge and information or belief and that any false statement contained therein aze made subject to the penalty of § 9014 of the Crimes Code relating to unsworn falsification to Authority. Date • /v~tw,. Co, BOG) Respectfully submitted by: ~~~'t- ~. John L. Sorter Jr. Plaintiff, Pro Se Cdj 019 c /~~~~~ ~I UNITED STATES DISTRICT COURT -- FOR THE MIDDLE DISTRICT. OF PENNSYLVANIA ter- -^ JOHN L. PORTER, JR., Plaintiff EARL REITZ, ET AL., Defendants Background (Judge Conaboy) MEMORANDUM AND ORDER John L. Porter, Jr., an inmate confined at the Cumberland v. CIVIL NO. 3:CV-O1-1676 FILED ^^'~QNTON ~ ~ r U 3 2001 Y~:;, 1 County Prison, Carlisle, Pennsylvania, initiated this pro se civil complaint in the Cumberland Court of Common Pleas on August 9, 2001. Named as Defendants are Cumberland County, the Cumberland County Prison Board, and the following officials at the Cumberland County Prison: Warden Earl Reitz, Deputy Warden of Operations Janet Scott, and Deputy Warden of Security Michael Carey. On August 30, 2001, the Defendants removed Plaintiff's action to this court. For the reasons outlined below, Porter's federal claims will be dismissed as frivolous pursuant to § 1915A(b)(1) and the remair_der- of his action will be remanded to state court. DEFENDANT'S EXHIBIT ~~ ~~ a y Plaintiff states that on or about September 22, 1999, he was housed on the Lower Tier of the Cumberland County prison. After -w--` taking a shower on said date, Porter "had to descend a flight of approximately five (5) steps to reach the Lower Tier." Doc. 1, ¶ 8. When Plaintiff stepped in a puddle on the third step, he lost his footing. In an attempt to break his fall, Porter reached for a "yellow safety rail" and in the process "injured his right arm." Id. His complaint asserts that he "still experiences constant numbness in his right wrist." Id. Count I of Plaintiff's complaint seeks recovery under Pennsylvania state law on the basis that his injury was causec~~by negligent, intentional or otherwise tortious conduct. Count II asserts a claim under 42 U.S.C. § 1983 alleging that the Defendants' failure to place a warning sign on the steps or to install slip resistant material on the steps violated his civil rights. Porter seeks compensatory, punitive and nominal damages. DISCUSSION 28 U.S.C. § 1915A requires district courts to screen complaints in prisoner actions, such as the instant case, where the inmate has not applied to proceed in forma pa~i.peris. § 1915A provides in pertinent part: (a) Screening. -- The court shall review ... a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 2 (b) Grounds for dismissal. -- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint -- .,-~ (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief. Under § 1915A(b)(1), a district court may summarily dismiss any claims that are frivolous, malicious, or fails to state a claim upon which relief may be granted. Indisputably meritless legal theories are those "in which either it is readily apparent that the e plaintiff's complaint lacks an arguable basis in law." Roman ~. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990) (quoting Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir. 1990)). The Court of Appeals for the Third Circuit has stated that "the plain meaning of 'frivolous' authorizes the dismissal of claims that are of little or no weight, value, or importance, not worthy of serious consideration, or trivial." Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995). It also has been determined that "the frivolousness determination is a discretionary one," and trial courts "are in the best position" to determine when a litigant's claims are appropriate for summary dismissal. Den on, 504 U.S. at 33. 3 With respect to § 1983 allegations regarding Cumberland County and the Cumberland County Prison Board, a municipal body or r.~`. other local governmental unit, not part of a state for Eleventh Amendment purposes, is a "person" subject to suit under 42 U.S.C. § 1983. Monell v. Department of Social Servs., 436 U.S. 658, 690-91 (1978): . Congress did intend municipalities ,. and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, ..., the action that is alleged to be unconstitutional implements or executes a policy, << statement, ordinance., fegulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other §-1983 'person,' by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels. (Internal Citations and Footnotes Omitted); see also Board of County Commis of Brvan County OKL v Brown, 520 U.S. 397, 117 S. Ct. 1382, 1388-89 (1997); Roman v. Jeffes, 904 F.2d 192, 196-97 (3d ~~Cir. 1990); Illiano v. Clav Township, 892 F. Supp. 117, 121 (E.D. 4 Pa. 1995). However, it has also been repeatedly held that a municipality may not be subjected to ~ 1983 liability on a theory ..,~~-- of res~ondeat superior. Bryan County, 117 S. Ct. at 1388; City of Canton v. Harris, 489 U.S. 378, 392 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 121-22 (1988); Pembaur v. Cincinnati, 475 U.S. 469, 478-79 (1986); Oklahoma Citv v. Tuttle, 471 U.S. 808, 818, reh'g denied, 473 U.S. 925 (1985); Monel 436 U.S. at 691; Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996), cert. denied, 519 U.S. 1151 (1997); Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). Rather, "... a plaintiff seeking to impose liability on a municipality under § 1983 [is requir~el] to identify a municipal 'policy' or 'custom' that caused the plaintiff's injury." Bryan County, 117 S. Ct. at 1388; Beck, 89 F.3d at 971. In Bryan Countv, the United States Supreme Court elaborated on the showing required for municipal liability under § 1983, stating: . [I]t is not enough for a ~ 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. 5 Id. at 1388; see Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996). ...-' . The United States Court of Appeals for the Third Circuit has held that a municipality can be held liable under § 1983 "only when 'execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury."' Andrews, 895 F.2d at 1480 (citing Monell, 436 U.S. at 694). For purposes of imposing § 1983 liability, the Third Circuit added in An rew , there are two ways in which a governmental policy or custom is established: Policy is made when a 'decisionmaker possess[ing] final authority to establish municipal policy with respect to the action' issues an official proclamation, policy, or edict. Pembaur v. Citv of Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292, 1299, 89 L. Ed. 2d 452 (1986). A course of conduct is considered to be a 'custom' when, though not authorized by law, 'such practices of state officials [areJ so permanent and well settled' as to virtually constitute law. onell, 436 U.S. at 690, 98 S. Ct. at 2035 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S. Ct. 1598, 1633-14, 26 L. Ed. 2d 142 (1970)). Accord Anela v. Citv of Wildwood, 790 F.2d 1063, 1067 (3d Cir. 1986), cert. denied, 479 U.S. 949, 107 S. Ct. 434, 93 L. Ed. 2d 384. e~ Id.; see also Beck, 89 F.3d at 971; Fletcher v. O'Donnell, 867 F.2d 791, 793-94 (3d Cir.), cert. denied, 492 U.S. 919 (1989) ("Custom may be established by proof of knowledge and acquiescence."). 6 Since there are no allegations in the complaint that Plaintiff`s injury occurred as the result of any policy or custom, Cumberland ~~ County and the Cumberland County Prison Board are entitled to an entry of dismissal with respect to Porter's § 1983 claims. A plaintiff, in order to state a viable § 1983 claim, must plead two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that said conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Groman v. Township of Manalaoan, 47 F.3d 628, 638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir t 1990). As noted earlier, claims brought under § 1983 cannot be premised on a theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each named defendant must be shown, via the complaint's allegations, to have been personally involved in the events or occurrences which underlie a claim. See Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). As explained in Rode: A defendant in a civil rights action must have personal involvement in the alleged wrongs. . [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and 7 ~_ . acquiescence, however, must be made with appropriate particularity. Rode, 845 F.2d at 1207. .~,..- Prison officials violate an inmate's right to be free from cruel and unusual punishment when, through intentional conduct or deliberate indifference, they subject the inmate to harm. Young v. uinlan, 960 F.2d 351, 361 (3d Cir. 1992); Rilev v. Jeff es, 777 F.2d 143, 147 (3d Cir. 1985). Mere negligent conduct that 'leads to serious injury of a prisoner by a prisoner does not expose a prison official to liability under § 1983. Davidson v. Cannon, 474 u.S. 344, 347-48 (1986). ~ t To succeed, a prisoner must show that: (1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the defendant was "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists;" (3) the defendant actually drew this inference; and (4) the defendant deliberately disregarded-the apparent risk. Farmer, 511 U.S. at 837. The remaining Defendants are all identified as being supervisory officials at the Cumberland County Prison. There are no allegations that any of those officials had knowledge that a dangerous condition existed on the steps leading to the Lower Tier. The plaintiff also offers no indication as to the cause, or how long the puddle on the third step existed. Likewise, there are no 8 „_. . facts alleged which could establish that this purportedly unsafe condition was anything more than a one time, unforseen, temporary ~~ occurrence. Consequently, pursuant to the standards announced in Farmer, it is apparent that Porter has failed to assert a viable § 1983 failure to protect claim. At best, the complaint asserts claims of negligence which under Davidson, are insufficient for purposes of § 1983. Additionally, it equally appears that Porter is attempting to establish § 1983 liability against the remaining Defendants solely on the basis of their supervisory capacities, which is barred under Capone. ~ e Since Plaintiff's § 1983 claims are "based on an indisputably meritless legal theory," they will be dismissed as legally frivolous under § 1915A(b)(1). Wilson, 878 F.2d at 774. As a result of this court's determination that Porter's federal constitutional claims are meritless, it will not exercise jurisdiction over his pendent state law claims. See 28 U.S.C. § 1367(c)(3) (1997) (a district court may decline to exercise supplemental jurisdiction over a claim when the court has dismissed all claims over which it has original jurisdiction). The remainder of Plaintiff's action-shall be remanded to -the Cumberland County Court of Common Pleas. An appropriate order will enter. 9 i ~I AND NOW THIS / DAY OF OCTOBER, 2001 IT IS HEREBY ORDERED THAT: ~,,,_ 1. Plaintiff's civil rights claims are dismissed, as legally frivolous, under 28 U.S.C. ~ 1915A(b)(1). 2. Jurisdiction is declined over the Plaintiff's pendent state law claims. See 28 U.S.C. § 1367(c)(3). 3. The remainder of Plaintiff's action is remanded to the Cumberland County Court of Common Pleas. 4. The Clerk of Court is directed to close this case. 5. Any appeal from this order will be deemed frivolous, without probable cause and not taken in good faith. °e ~v~ ~ ` ~~ RICHARD P. CONABOY United States District Judge FILED ~r,RatvTOt~~ OCT 0 3 2001 rtn DEPUTY CLERK 10 M ( M L MEDICAL LEGAL REP~tODUCTlONS. INC. Mafia Ofl"ue Phone: (215) 335-3212 Tefferson Bldg., Saite 926 4940 Disston Staeet Fax: (215 338-2980 1015 Chestnut Strnet Philadelphia, Pa.19135 E-mail Address: Legal@medleg.com Philadelphia, Pa. 19107 ~ OCt 25, 2001 CUMBERLAND CO PRISON 1101 CLAREMONT _ CARLISLE PA 17013 _ ATTN: MEDICAL RECORDS DEPT Re: JOAN L PORTER, JR Captioa: PORTER, JR v. REITZ, ET AL Our File #: M280068-01 DEAR RECORD CUSTODIAN: Our records indicate that a subpoena/authorization for records of, the above captioned individual was delivered to-your office and that you have not responded to same. In order to assist you in responding to this request we are listing below the information requested: THE FOLLOWING: Any and all office records, including notes, correspon- dence, memoranda, x-ray reports, history notes, index cards, and any other information relating to any examinations or treatments rendered to: JOHN L PORTER, JR of SCI GREENS Ib1viATE EA8952 WAYNESBURG PA D.O.A. - 09/22/99 PLEASE NOTE INFORMATION REQUESTED IS DUE BY: 10/25/01 Please contact our office immediately upon receipt of this letter if you would like us to come to your office to copy the documents. If .you require additional information please contact the undersigned as soon as possible. Thanking you in advance for your anticipated cooperation. Very truly yours, ---~ cc: ANDREA L BENNETT, ESQ 100 W ELM ST SUITE 200 CONSHOHOCKEN, PA 19428 Y B -~- QCT 3 Q 2~Q1 '~! . (1 3 Jacqueline Ciarrocchi MEDICAL LEGAL REPRODIICTIONS (215) 335-4907 ST PAUL INS CO - PO BOX 188 HARRISBURG PA 17108 Attn: JAMES HARKINS Claim #: GP0900064009T021 a DEFENDANT'S EXHIBIT a a DEVLIN AND DEVINE BY: Andrea L. Bennett, Esquire Attorney for Defendants ID#: 74991 100 West Elm Street, Suite 200 Conshohocken, PA 19428 (610)397-4605 JOHN L. PORTER JR. : PLAIIVT'IFF, :COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. NO. 01-4718 EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD; COUNTY OF CUMBERLAND, PA; DEFENDANTS. CERTIFICATE OF SERVICE I hereby certify that service of a true and correct copy of the within pleading was sent to all parties on November ~ 2001, by United States' certified mail and first- class mail, postage pre-paid.. John L. Porter, Jr. SCI Greene Inmate #EA 8952 1030 E. Roy Fruman I~<ighway Waynesburg, PA 15370 BY: Andrea L. Befinett Attorney for Defendants E- ' - .. ~ -~ n -., rr~ _. ;,~r'_ ' JOHN L. PORTER, JR. EA-8952 S.C.I. GREEN 175 PROGRESS DRIVE WAYNESBURG, PA 15370 Pro Se Plaintiff JOHN L. PORTER, JR. PLAINTIFF, vs. EARL REITZ, WARDEN; JANET SCOTT, DEPUTY WARDEN OF OPERATIONS; MICHAEL CAREY, DEPUTY WARDEN OF SECURITY; CUMBERLAND COUNTY PRISON BOARD; COUNTY OF CUMBERLAND, PA; DEFENDANTS. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 01-4718 ORDER TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned matter as SETTLED, DISCONTINUED, and ENDED upon payment of your costs. ~~~~ ~,- J L. PORTER, Sworn to and subscribed before me this 4 ~h day of , 2002. ~ y Notarial Seal ~~~ ~,' ` V .i1~ Sue E.Turner, Notary Public Franklin Twp., Greene County Notary Public c- My Commission Expires June 10, 2002 .i ANDAEA L. BENNETT JOSEPH R. D'ANNUNZlO EVELYN R. DEVINE WE.LL4M ]. DEVLIN,JR. MARx F. DIGIOVANNI WILLIAM G. DOWNEY DAVID P. KARAMESSMtS JOSEPH MCALEER RAMON D. TOWNSENI~ Office of the Prothonotary Cumberland County Courthouse One Courthouse Squaze Carlisle, PA 17013 DEVLIN &DEVINE ATTORNEYS AT LAW 100 WEST ELM STREET, SUITE 200 CONSHOHOCKEN, PA 19428 (610)397-4600 FAx: (610) 397-4629 PARALEGAL RODERICK MITCHELL Direct Dial Number (610) 39711605 May 15, 2002 RE: John Porter, Jr. v. Couuty of Cumberland Cumberland Cty. CCP, No. 01-4718 Our File No.: PH-01387 Dear Sir/Madam: Enclosed please find an original and one copy of an Order to Settle, Discontinue and End for filing in connection with the above-referenced matter. As you will note, the plaintiff is proceeding pro se. Initially, your office had advised that an Order to Settle, Discontinue and End needed to be submitted in person by a pro se plaintiff. However, my office advised that this particular plaintiff is currently incarcerated in a state correctional institute. Your office then advised that it would accept a notarized Order. This Order is so notarized. Kindly file the original, and return the time-stamped copy to my attention in the enclosed, self-addressed, stamped envelope provided for your convenience. ALB:gh Enclosure V ry truly yo~ ~C'~'' p REA L. BENNETT cc: John L. Porter, Jr. (w/o enc.) Devlin & Devine is not a partnership or professional corporatloq all atmrnegs are employees of The St Paul Fhe & Marine Insurance Company rr ~) L~ i., 3 l r~+~' -~~ '~-' , ?_r. ,i 7 ~ i`:~ ~J~ _"_ {J I'~` ~' `a `'Ji 1 -c] l :..5 ~n i.-~ (_ .. 'J~ ,.1 JJ li ~Ta '-G V`1