HomeMy WebLinkAbout01-4718IN THE COURT OF C05~K)N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JOHN L. PORTER, JR.
PLAINTIFF,
VS
EARL REITZ, WARDEN;
JANET SCOTT, DEPUTY WARDEN OF
OPERAT IONS;
MICHAEL CAREY, DEPUTY WARDEN OF
SECURITY;
CUMBERLAND COUNTY PRISON BOARD, et.
al.;
COUNTY OF CUMBERLAND, PA;
DEFENDANTS.
civ ACTION N0, o/- i
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 he entered against you by the
Court without further notice for any money claimed in the c~mplaint 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 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
OPERATIONS;
MICHAEL CAREY, DEPUTY WARDEN OF
SECURITY;
CUMBERLAND COUNTY PRISON BOARD, et.
al.;
COUNTY OF CUMBERLAND, PA;
DEFENDANTS.
C(~ I~ 'l~lE PL~rAMF, Jo~ L. P~ 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
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 Plaintiff)
2. Defendant, Earl Reitz, is the Warden of the Cumberland County
Prison with a current address of 1101Claremont Road, CarlYle, Pa. 17013
3. Defendant, Janet Scott, is the Deputy Warden of
the Cumberland County Prison with a current address of
Road, Car~sle, Pa. 17013.
Operations of
1101Claremont
4. Defendant, Michael Carey, is the Deputy Warden of Security of
the Cumberland County Prison with a current address of 1101Claremont
Road, Car~sle, 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" 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 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 leadin§ 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.
Currently,
his right wrist
away.
3
the Plaintiff still experiences
that the doctor at S.C.I Greene
constant numbness in
stated may never go
NEGLIGENT INTENTIONAL OR OTHERWISE TORTIOUS 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.
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 Co~ur~nwealth
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.
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 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 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.
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. Creamt
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); Balsh¥ 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
sensations frc~ 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.
· ~merefore, 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 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:
John L. Porter JR.
Plaintiff, Pro Se
IN THE COURT OF CO~ON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JOHN L. PORTER, JR.
PLAINTIFF,
VS
EARL REITZ, W~RDEN;
JANET SCOTT, DEPUTY WARDEN OF
OPEP~TIONS;
MICHAEL CAREY, DEPUTY WARDEN OF
SECURITY;
CUMBERLAND COUNTY PRISON BOARD, et.
al.;
COUNTY OF CUMBERLAND, PA;
DEFENDANTS.
: CIVIL ACTION NO.
The
matter.
Plaintiff demands a Jury Trial in
the above
- Captioned
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
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.
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
1101Claremont Road
CarlYle, Pa. 17013
Janet Scott, Deputy Warden of Operations
1101Claremont Road
Car~sle, Pa. 17013
Michael Carey, Deputy Warden of Security
1101Claremont Road
Car~le, Pa. ]7013
Office of Commissioners
1101Claremont Road
CarlYle, 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 Proqress Drive
Waynesburg, Pa. 15370
IN THE COURT OF CO~9{0N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JOHN L. PORTER, J~.
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.
I hereby certify that the facts set forth in the fore(~oing
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 are made subject to the penalty of § 9014 of
the Crimes Code relating to unsworn falsification to Authority.
ReSpectfully submitted by:
John L. Porter Jr.
Plaintiff, Pro Se
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
REITZ EARL the
DEFENDANT , at 0835:00 HOURS,
at 1101 CLAREMONT ROAD
CARLISLE, PA 17013
EARL REITZ
a true and attested copy of
on the 16th day of August , 2001
by handing to
COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18 00
3 25
00
10 00
00
31 25
Sworn and Subscribed to before
me this ,~D ~ day of
~-~_~3- ~e,~f A.D.
/P~othonot ary '
So Answers:
R. Thomas Kline
08/17/2001
SCI GREENE
SHERIFF'S RETURN -
CASE NO: 2001-04718 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
PORTER JOHN L
VS
REITZ EARL ET AL
REGULAR
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
SCOTT JANET the
DEFENDANT , at 0835:00 HOURS,
at 1101 CLAREMONT ROAD
CARLISLE, PA 17013
EARL REITZ
on the 16th day of August , 2001
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 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me this ~ day of
0j~,,~- ~_~( A.D.
/ ~rothonotary
So Answers:
R. Thomas Kline
08/17/2001
SCI GREENE
SHERIFF'S RETURN
CASE NO: 2001-04718 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLkND
PORTER JOHN L
VS
REITZ EARL ET AL
- REGULAR
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
CAREY MICHAEL the
DEFENDANT , at 0835:00 HOURS, on the 16th day of August
at 1101 CLAREMONT ROAD
, 2001
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 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me this 3~ ~ day of
A.D.
I~r/~hon0ta~- ,
So ~knswers:
R. Thomas Kline
08/17/2001
SCI GREENE
By:
SHERIFF'S
CASE NO: 2001-04718 P
COMMONWEALTH OF PENNSYLVANIA:
cOLrNTY OF CUMBERLAND
PORTER JOHN L
VS
REITZ EARL ET AL
RETURN - REGULAR
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
OFFICE OF THE COMMISSIONERS the
DEFENDANT , at 0810:00 HOURS,
at ONE COURTHOUSE SQUARE
CARLISLE, PA 17013
JANET WALTER (PARALEGAL)
on the 16th day of August , 2001
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
Sworn and Subscribed to before
me this 3~-~ day of
~, .... ~ ..Z¢.~ I A.D.
~dt ho~A~ary ' ~
So Answers:
R. Thomas
08/17/2001
SCI GREENE
By:
Kline
SHERIFF'S RETURN
CASE NO: 2001-04718 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
PORTER JOHN L
VS
REITZ EARL ET AL
- REGULAR
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
at C/O ROBERT SAIDIS, SOLICITOR 1 COURTHOUSE SQUARE
, 2001
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
Sworn and Subscribed to before
me this 3~'-- day of
~,~/~4~ ~ [ A.D.
P~0~honotary
So Answers:
R. Thomas Kline
08/17/2001
SCI GREENE
By:
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
CUMBERLAND COUNTY PRISON BOARD the
DEFENDANT , at 0835:00 HOURS,
at 1101 CLAREMONT ROAD
CARLISLE, PA 17013
EARL REITZ
on the 16th day of August , 2001
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 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me this ,~ - day of
P~Fofhonot ary
So Answers:
R. Thomas Kline
08/17/2001
SCI GREENE
DATE OF NOTICE: ~F~-~e'- /i~ ~ ~tO~]
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 JUDGMENT 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
BY: ~
JOI-II~L. PORTER, JR.
PLAINTIFF, PRO SE
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
JOHN L. PORTER, JR.,
PLAINTIFF,
VS.
Earl Reitz, Warden;
Janot Scott, Deputy Warden of Operations;
Mic~aal Carney, Deputy Warden of Security;
Cumberland County Prison Board, et.al.;
County of Cumberland, Pennsylvania;
DEFENDANTS
CIVIL ACTION NO. 01-4718
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 /0 ~ DAY OF
~ 2001.
EARL REITZ
1101 CLAREMONT ROAD
CARLISLE, PA 17013
JANET SCOTT
1101 CLAREMONT ROAD
CARLISLE, PA 17013
OFFICE OF THE COMMISSIONERS
ONE COURTHOUSE SQUARE
CARLISLE, PA 17013
COUNTY OF CUMBERLAND, PA
C/O ROBERT SAIDIS, SOLICITOR
ONE COURTHOUSE SQUARE
CARLISLE, PA 17013
CUMBERLAND COUNTY PRISON BOARD
1101 CLAREMONT ROAD
CARLISLE, PA 17013
MICHAEL CARNEY
1101 CLAREMONT ROAD
CARLISLE, PA 17013
JOHN L. PORTER, JR.
D.O.C. NO. EA-8952
175 PROGRESS DRIVE
WAYNESBURG, PA 15370
IN THE COURT OF COMlVION PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
JOHN L. PORTER. JR.,
PLAINTIFF,
VS.
Earl Rcitz, Warden;
Janet Scott, Deputy Warden of Operations;
Michael Carney, Deputy Warden of Security;
Cumberland County Prison Board, et. al.;
County of Cumberland, Pennsylvania;
DEFENDANTS
CIVIL ACTION NO. 014718
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.
DATE:
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 Caraey, Deputy Warden of Security;
Cumberland County Prison Board, et. al.;
County of Cumberland, Peamylvania;
DEFENDANTS
CIVIL ACTION NO. 01-4718
TO:
EARL REITZ ~
1101 CLAREMONT ROAD
CARLISLE, PA 17013
JANET SCOTT
1101 CLAREMONT ROAD
CARLISLE, PA 17013
MICHAEL CARI~EY
1101 CLAREMONT ROAD
CARLISLE, PA 17013
OFFICE OF THE COMMISSIONERS
ONE COURTHOUSE SQUARE
CARLISLE, PA 17013
COUNTY OF CUMBERLAND, PA
C/O ROBERT SAIDIS, SOLICITOR
ONE COURTHOUSE SQUARE
CARLISLE, PA 17013
CUMBERLAND COUNTY PRISON BOARD
1101 CLAREMONT ROAD
CARLISLE, PA 17013
DATE OF NOTICE:
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The JS- ' sheet a~d me infon'nation c~ ~min n~er fep~ ~ supple~ ~e filing ~d se~ of p~ad~ or oth~ p~ ~ requlrec
o~e C~ d ~ ~ ~ P~ d m~ the ~ d~
L (a) P~IN~FFS DEFENO~
JOHN PORTER, JR.
Cumberland County Prison
1 Courthouse Square
Carlisle, PA 17013
(EXCEPTINU,S. PLAINTIFF CASES
Fc'o - $/---
COUNTY OF CUMBERLAND
I COURTHOUSE SQUARE .
CARLISLE, PA 17013
(IN..I~.S. _I~.A~NllFF CASES ONL~
ANDREA L. BENNETT
DEVLIN & DEVINE, 100 W. Elm Street, Ste. 200
Conshohocken, PA 19148
II. BASIS OF JURISDICTION
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VII. REQUESTED IN CHECK iF THiS iS A CLASS ACTION JURY DEMAND:
.COMPLAINT:. o U~OER F.R.C.~. 2~
VIII.RELATED CASE(S) (s~ in~uc~ons): IF ANY
IN THE UNITED STATES DISTRICT 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.:
:
01-,16:76
FILED
SCRANTON
AUG 3 0 2001
NOTICE OF REMOVAL PER
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:
1. The above captioned mat~er 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 187 I, .as mmende.d_, 42
U.S.C. §1983. (See Exhibit "A").
3. As the United States District Court for the Middle Dis~ct of Pennsylvania
has original jurisdiction over cases founded on a claim or right ~8~c~l~d~tl~lhO.
--~-
constitution, treaties or laws of the United States, it is remo.vabl~ (vithout regard to the
citizenship or residence of the parties. 28 U.S.C. §1441.
DEVLIN AND DEVINE
~William J. Devlin, Esquire
Andrea L. Bennett, Esquire
Attorneys for Defendants
100 West Elm Street, Suite 200
Conshohocken, PA 19428
(610) 397-4600
IN THE UNITED STATES DISTRICT COURT'
FOR THE MIDDLE DISTRICT OF PEI~INSYLVANIA
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 DF 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 ~7 , 2001:
Janet A. Walter '-
County of Cumberland
1 Courthouse Square
Carlisle, PA 17013
John L. Porter, Jr.
County of Cumberland Prison
1 Courthouse Square
Carlisle, PA 17013
Court of Common Pleas
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
By:
DEVLIN & DEVINE
William J. Devlin, Jr.
Andrea L. Bennett
Attorneys for Defendants
EXHIBIT "A"
08/17/2001 02: 42: 30-PM
0~/17/01 FRI 14:§9 FAX ?17
INS. C.HILL
~** ST PAUL PUBCLMS
IN TH~ COURT OF CO~{0N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL Au'rlON - LAW
JO~N L. PORTER, JR.
,.,;.:.. : ¢7/
'"' '- VS : CIVIL ACTION N0*
EARL REITZ, WAP. DEN; :
JANET SCOT~, DEPUTY WARDEN 0P :
OPERATIONS; :
MICHAEL CAREY, DEPUTY W~DEN OP :
SECURITY; :
CI~BEI~_4tND COL~FI~f PRI~SON ~OARD,
al.; - ' :'
COUNTY OF CUMBEP. LAND, PA; :
DEFENDANTS. :
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 serve~l by entering.
a written appearance personally or by attorney and filing in writing
%vith the Court your defense or ~bjections to the claims set forth
against you. You are %-arned that if yon fai~' to do so, the case may
proceed wlthoub you, and a judgement may be entered against you by the
Court without further notice for eny.money claime~ in the complaint or
relief requested by the Plaintiff. You may lose money or property or
other rights importent to you.
have
forth
YOU '~h~ t~ke ~his paper to your la.yea: at once. If you do not
a lamqrer or cannot afford one, go to or telephone the offi~, se~_t
below to find where you can ~et legal help.
Legal Services, Inc.
8 Irwin Row
Carlisle, Pa. 17013
(717) 243-9400
TRUE. COPY FROM RF:CORD
tn Testimony whe,"ec, f, I here unto set my har~
and the seal of said Ci~url~ ~t Carlisle, P'~._
~/f,'.,~ ~4~ C~,.. IA~a.n', /~r~---
08/17/2001 O2: ~:2: 30-~P~ ....
0~/17/0~. FRI 15:00 FAX 7~.7 7; ']972 ~' INS. C.H~'LL -~.*.~ ST PAUL PUBCI~S
IN TH~ COURT OF CO~ON PLEAS OF CUMBERLAND COUNTY, P~NNSYLVANIA
CIVIL ACTION - LAN
J0~N L. PORTER, JR.
PLAINTIFF,
VS
~/EARL REITZ, WA~DEN;
/JANET SCOTT, DEPUTY WARDEN OF
OPERATIONS;
/MICFJtEL CAREY, D~PUTY WARDEN OF
SECURITY;
CUMBERLAND COUNTY PRISON BOARD,
al.;
/-COUNTY OF CUMBERLAND, PA;
DEPENDANTS.
: CIVIL ACTION NO.
~ ~ '~- PL~]~%~]i~E, J~ Lo P(3xl;er Jr., 13to ~, who
respectfully files with this Honorable Court this complaint pursuant to
42 Pa, C.S.A. § 931 and in suppor~ thereof sets forth the following:
1. Plaintiff, John L. Por~er Jr.', pro se, is a citizen of the
Commonwealth of Pennsyllrania ~ritb a current address of 175 Progress
Drive, Waynesburg, Pa. 15370, and is curre~tly incarcerated on a
non~relate~ criminal conv~ction. (Hereafter referred to as. Plaintiff)
2. .DefendanB, Earl Reitz, is the Warden Of the Cumberland Co%~3ty
Prison with a ct~rrent' address of 1101 Claremont Road, Car33sle, Pa. 17013
3. Defendant, Janet Scott, is the Deputy Warden of Operations of
the Cua93erland County Prison with a c~rrent address of ll01 Claremont
Road, Car/~le, Pa. 17013.
4. Defendant, Michael Carey, is the Deputy Warden of Security of
the CumberLand Cota%ty Prison %rith a current address of 1101 Claremont
Road, Car~sle, Pa. 17013.
08/17/2001 02: i2: 30~PM
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INS. C.HiLL ~ - '"'~-' ST PAUL PUBCI..II$ ~1006
2 ~
5. ~fe~ants, Cumberland Count Prison Board, et. al., are
responsible for overall policy promulgation and operations within the
Cumberland County Prison with a current address of I 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" Block, in cell D~mher eight
(8), which is located on the Lower Tier.
Around 2:30 PM on this
acta'varies. Upon exiting the
flight of approximately five (5)
Plai~tiffwms housed.
As the Plaintiff reached
date, Plaintiff took a shower after Gym
shower, the Plaintiff had to descend
steps to reach the Lower Tier where the
the third st~p, 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 reache~ for the
yellow safety rail located on his right side. The 'Plaintiff grabbed the
rall in an attempt to hreak his fall. In the process, the Plaintiff
injured his right arm, causing numbness and tingling sensations
traveling from the Plaintiff's right .ring and pi.r~y fingers, ~o through
his right wrist a~d elbow, all the w~y to his shoulder.
At this time, the Plaintiff recovered his footing to see the
puddle of %rater, with no "Wet Floor" si~n 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 proce~%t~e by
attending the next available sick call on September 24, 1999.
08/17/2001 02: ,~2: 3('~.PM .. _
'" ~$/'~?/0~. ~RI 15:00 FA~ 717 7 0972 r INS. C.I~ILL -*,.** ST P~UL PUBCL~$ ~007
Currently,
his right wrist
a~-ay.
the Plaintiff .still experiences constant numbness in
that the doctor at S.C.I Greene stated may never go
CO~%~f i
NEGLIGENT 1/vr~NTIONAL OR OTHERWISE T6RTIOUS 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. ~.S.A.
§ 5524, to receive damages for injury to the person whichis founded on
negligent, lntentio~al or otherwise tortious conduct.
11. The County and/or Prison Board owns or leases the property on
whichthe injur!; occurred and the injuries were caused by a dangero~
condition, and/or artificial condition, and were facilitated by the
actions and/or inactions of the' Defendants. The Defendants breached
their duty as owners/lessers of the real property.
12. The Defendants failed to make or maintain safely certain
improvements to the steps on "F" Block leading to the Lowsr Tier by not
placing a slip-resistant material on each step that would have saved the
Plaintiff from harm or ~njury.
13. Plaintiff would be able to recover damages under Coa~nw~alth
Law and/or Statute due to the dangerous condition deriving and
originating from, or having its so~rce in the County's Realty. The
unsafe ~ondltion 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, end supervise employees
by not placing a "Wet Floor" sign on the problem area, ~hen they,knew or
should have known an unsafe condition existed.
08/17/200/ 02: ~2: 30-.PM
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r INS. C.HILL .... *-~* ST PAUL PUBCLMS
15. The Defendants have breached a direct and/or imputed duty of
care, un/stody, and control based on a legal relationship ~etween the
putties 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 reasoaable safe improvements to County
Realty, existing as unsafe, dangerous, or defective condition, where
Defendants knew or shou3[d have know~ that the aforesaid conditions would
result in injury. The Plaintiff's rights were violated as 9uarant.eed by
the 8th Amendment to %he U.S. Constitution, and Article I, Section 13 of
the Pennsylwania C6nsbitution. The Defendants were required to ensure
that their property was kept in a reasonable, safe, and usable
condition ·
VIOLATION OF CIVIL RIGHTS
17. Paragraphs 1 through 16 inclusive ~re
reference and made a part hereof.
iacofDorated herein by
18. The Plaintiff invokes Jurisdiction within this Honorable Court
to the extent that this claim se~s forth violation of Plaintlff's Civil
Rights under Title .42 U.S.C. § 1983. This Court has J~risdiction
adjudicate such claims. See Co~onwealth Ex. Rel. Suanderrs v. Cream~
354 A. 2d. 702, at 703-704, note 3 (PA 1975); Coffma~ v. Wilson Police
Department, 739 F, Supp. 257, at 267-268 (Ed. PA 1990); Fawber v. Cone-n,
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).
19. As direct result of the Defendants' actions, oadssions,
inaction and or failttres, the Plaintiff suffered n~mbness and tingling
08/17/2001 02: ~2: 30,,PM --
(J$/17/01 FRI 15:01 FA~ 717 7 0972 f' ' INS. C..HiLL" -*-*-* ST PAUL PUBCLMS ~]009
sensations frc~ his right ring' and pinky fingers, up through his right
wrist and' elbow, to his shoulder. The Plaintiff is partially disabled
and imas limited use of his right wrist. The Plaintiff continues to
enq~-rience numbness, mental anguish, physical pain and suffering, and
disability as a result of the injury. The Plalntif£ also experiences
difficulty sleeping due to the numbness in his right wrist.
Whe~afoz~, The Plaintiff, John L. Porter Jr-, pro se, is s~eking
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 es.ch Defendant for me~t&l an~ish, physical pain a~d suffering, and
disability; and,
B. Punitive Damages in an amount in excess of $100,000.00 from
each Defendant for deliberate indifference, the ~nnecessary and %ranton
infliction of pain, wtllful M/$conduct, negligent, intentional, or
tortious conduct and malice; and, ~
C. Nominal Damages in an amount in excess of $100,000.00 from
each Defendant for re~o~e damages; and,
D. Grant any other damages and relief deemed just and prOper by
the Court ~
Respectfully submitted by:
John L. Porter JR.
Plaintiff, Pro Se
· 08/17/2001 02:~2:30_PM
0~/17/01 FRI 15:01 FA~ 717 7 0972 r INS. C.HiLL '~ ~** ST PAUL PUBCL~S ~010
IN THE COURT OF CO~40N PLEAS OF CUMBERLAND COb/VI"f, PENNSYLVANIA
CIVIL ACTION - LAW
J0~N L- PORTER, JR.
PLA/RT IFF,
VS
EARL REITZ, WARDEN;
JANET SCOqT, DEPUTY WkRDEN OF
OPERATIONS;
MICHAEL C/tREY, DEPUTY WARDEN OF
SECURITY;
CUMBERLAND COUNTY PRISON BOARD, et'.
al.;
COUNTY OF CUMBEi~39~D, PA;
DEFENDANTS.
: CI%riL ACTION NO.
T~e Plaintiff demands a Jui-y Trial in
ma~ter.
the above - Captioned
Respectfully s.~itted by:
John L. Porter Jla.
Plaintiff, Pro Se
08/17/2001 02:42:30 PM _.
0~/17/01 FRI 1S:01 FAX 717 71 ~972 r ' INS. C.I{ILL ' -~* ST PAUL PUBCL~S [~011
IN THE COURT OF C0~ON PLEAS OF CUMBF. RI~U~D COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JOHN L. POl~r=~, JR.
PLAINTIFF,
VS
EARL REITZ, WARDEN;
JANET SCOTT, DEPUTY WARDF/g OF
OPERATIONS;
MICHAEL CAREY, DEPUTY WARDEN OF
SECURITY;
CUMBERLAND cOUNTY PR~$0N BOARD,
al.;
COUNTY OF CUMBEP~AND, PA;
DEFENDANTS.
: CIVIL ACTION NO,
~ hereby certify that a true and correct copy of the foregoing
notice to Defend, Compl&tnt, and Demand for Jury Trial will be / has
been served via Firs~ Cl&ss Prepaid U.S. Mail upon the below written.
Defendants on this /~T% day Of ~' . , 2~001 for service
by the Sherriff's Office per Rule 400 (a), PA. Rules of Civil Procedure.
~.'
Earl Rei~z, Warden
1101. Clar~nut Ro&d
Car~sle, Pa. 17013
Janet Scott, Deputy Warden of Operations
1101. Claremont Road
Carl. sle, Pa. 17013
Michael Carey, Deputy warden of Security
1101. Claremont Road
Carl$1e, Pa. 17013
Office of Co~issioners
1107 Cl&remont Road
Carlsle, Pa. 17013
Cumberland County Prison Board, et. al.
Cumberland County Court House
1 Courthouse Square
Carlisle, Pa. 17013
' 08/17/2001 02:~2:3~. PM
O~?i?/OX FRI 1S:01 FAX 717 ~ 09?2
2
.-,~' ST PAUL PUBCLMS
~]012
County of Cumberland, Pennsylvania.
e/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
Waynesburg, Pa. 15370
· 08/17/2001 02: &2: 30~PM
· '$8/7.7/01 FRI 15:01 FAX 717 ? 0972 (" INS. C.HiLL" ~ -~-*-* ST PAUL PUBCLI/S [~013
IN THE COURT OF CO~ON PLEAS OF CUMBeRLaND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JO~N L. PORTER, JR.
PLAINTIFF,
EARL REITZ, WARDEN;
JANET SCOTT, DEPUTY WARDEN OF
OPERATIONS;
MICHAEL CAREY, DEPUTY WARDEN OF
S~CURITY;
CL~4BF~RLAND COUNTY PRISON BOAi~D, et.
al.;
COUNTY OF CUMBERLAND, PA;
DEFENDANTS.
CIVIL ACTION NO.
'dl - V 7/8
¥~A~ACATION
I' hereby certify that the facts set forth in the foregoing
complaint and proof of service are tr~e and corre=~ to the best of my
personal knowledge and informa~io~ or belief and that any false.
statement contained therein are made subjec~ to the penglty of § §014 of
the Crimes Code relating to unsworn falsification to Authority.
_ Res~ec~ful. ly submitted by:
John L. Porter Jr.
Plaintiff, Pro Se
DEVLIN AND DEVINE
BY: Andrea L. Bennett, Esquire
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. :
Attorney for Defendants
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 01-4718
ORDER
AND NOW, this 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.
Jo
DEVLIN AND DEVINE
BY: Andrea L. Bennett, Esquire
ID#: 74991
Suite 200, 100 West Elm Street
Conshohocken, PA 19428
(610) 397-4605
Attorney for Defendants
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
PRELIMNARY OBJECTIONS OF DEFENDANTS~ EARL REITZ~ JANET SCOTT~
MICHAEL CAREY~ CUMBERLAND COUNTY PRISON BOARD AND CUMBERI,ANr~
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, flied 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 fights
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 fight ann 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 plaintiffpleads 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, arc
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 ora 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. Montgomery, 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:
DEVLI~ ~AN~ DEVINE
Andrea L. Ben6e~ /
Attorney for Defendants
Suite 200, 100 West Elm Street
Conshohocken, PA 19428
DEVLIN AND DEVINE
BY: Andrea L. Bennett, Esquire
ID#: 74991
Suite 200, 100 West Elm Street
Conshohocken, PA 19428
(610) 397-4605
Attorney for Defendants
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
MEMORANDUM OF LAW IN SUPPORT OF PRE!.IMNARY 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 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 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 fight ann in the process. (See paragraph 8 of Exhibit "A").
Count I of Plaintiff's Complaint is entitled '2qegligent, Intentional or Otherwise Tortious
Conduct." The plaintiffspecifically alleges that the defendants I) failed to place a slip-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 may be 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 Alleoino. an Intentional Tort Must Be
Dismissed~ As The Plaintiff Offers No Facts To Suggest That the Defendants
Acted Intentionally; Assumine ~lnruendo that Plaintiff States a Claim for an
Intentional Torh That Claim Must Be Dismissed as against The Prison and t~-e
Prison Board~ as They Are Immune From Such Clalma 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 plaintiffalleges 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.
Mellod¥, 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 may be 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 Coml~laint Alle~in~ NeeHeence Must Be Dismissed~ As the
Alleged Facts Do Not Bring The Case Within Any of the Exceptions to the
Political Subdivision Tort Claims Act Immunity.
In the present case, if all of the allegations of the plaintiff's Complaint are assumed to be true,
Count I alleging negligence must be dismissed, as Cumberland County, its Prison Board, and its
employees, enjoy statutory immunity pursuant to the Political Subdivision Tort Claims Act. 42 Pa.
C.S.A. sec. 8542
The Political Subdivison Tort Claims Act provides that liability may be imposed against a local
agency and its employees if 1) the 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 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 plaintiffproves 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. Cit¥ 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 of slip-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 plalntiffalleges 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 offarea must
have tiles with non-slip properties in order to be safe for its particular use. 674 A.2d 363,365.
(Pa. Commw. 1996). However, the facts of the present case are distinguishable. The plaintiff
has not alleged that he slipped in a drying off area, 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. Pennsbury 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 Damages Must Be Dismissed, as There Are No
Allegations To Support the Conclusion That Defendants' Actions Were
Reekless~ Wiilful~ Wanton or Outrageous.
In the concluding paragraphs of plaintiff's Complaint, the plaintiff seeks "Punitive
damages in an amount in excess of $100,000.00 from each defendant for deliberate indifference,
the unnecessary and wanton infliction of pain, willful Misconduct, negligent, intentional or
tortuous conduct and malice." (See Wherefore paragraph of Exhibit "A"). An essential element
to support a claim for punitive damages is that the conduct must have been outrageous.
Outrageous conduct is an act done with a bad motive or with reckless indifference to the interests
of others. Chambers v. Montgomery, 411 Pa. 399, 192 A.2d 355 (1933)-, Focht v. Rabada. 217
PA. Super. 35, 38, 268 A.2d 157 (1970). Plaintiff has failed to allege in his Complaint any facts
whatsoever that moving defendant's conduct was reckless, willful, wanton or outrageous. If all
of the allegations ofplalntiWs Complaint were true, they at best state a claim for failure to act
with reasonable care. Accordingly, the plaintiff's claim for punitive damages must be dismissed.
III. CONCLUSION.
For the reasons discussed above, plaintiff's Complaint must be DISMISSED.
RESPECTFULLY SUBMITTED:
A~-a~trea L. Bennett
Attorney for Defendants
Suite 200, 100 West Elm Street
Conshohocken, PA 19428
610-397-4635
Attorney ID # 74991
EXHIBIT "A"
08/17/2001 02: ~-2: 30g?M
08/17/01 FRI 14:59 F,~X 717 ?: ]9?2
INS. C.~ILL
"'"~ ST PAUL PUBCL~$
LN THE COURT OF CO~40N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JOHN L. PORTER, J~.
Pr. AI2q~IFF,
EARL REITZ, WARDEN;
JANET SCOTT, DEPUTY WARDEN OF
0PEPATIONS;
MICHAEL CAREY, REPUTY WARDEN OF
S~C~RITY;
CUMBeRlAND COUNTY PRISON BOARD, et.
al.;
COUNTY OF CUMB~ItLAND, PA;
DEFENDANTS. ,,
NOTICE TO bzx~RD
You have been sued in Co,rt. If you wish to defend against the
c/aims set forth in the following pages, you must take action within
twenty (20) days after this complaint and notice are served by enterin9
a written appearance personally or by attorney a~d filing in writing
with the Court your defense or Objections to the claims set forth
against you. You are w~-nad that if you fail,' to do so, the case may
procee~ without you, and a Judgement may be entered against you by the
Court without further notice for anymoney claimed in the c~plaint or
relief requested by the Plaintiff. You may lose money or property or
other rights important ~o you.
forth
You "sh0%i~ ~ke ~his paper to your lawyer at once. If you do not
a la%fret or cannot afford one, go to or telephone the offi4~, se~t
~1~ tO find ~ere y~ c~..get 1~1 help. ~ t~ ..... ~. '.
~al Se~ices, Inc. ~-. ,~ - ~
C~lisle, ~. 17013 ~c.
(7~7) 243-9400 ~ u:.. .~b'~
TRU~ COPY FROM RECORU, ~ = ~2~
tn Testimony where, I here unto set my ha~
and the s~ 0% ~d Ce~ ~ ~rllsle. ~.. ~
.
08/17/2001 O2: 42: 30,-PM
05/17/01 FRI 15:00 FAX 717 7': ]972 f' INS. C.HILL ..,..,.,, ST PAUL PUBCLHS ~005
IN T~E COURT OF COMMON PI2~%S OF CUMBERLAND COUN~Sf, PENNSlT~VANIA
CIVIL ACTION - LAW
J0~N L. PORTER, JR.
PLA INTIFF,
VS .' CIVIL ACTION NO.
~/EARL :
i~ITZ, WA~DEN; :
/JANET SCOTT, DEPUTY WARDEN OF :
OPERATIONS; :
-/~CHAEL CAREY, DEPr. FI"f WARDEN OF :
SECURITY; :
CUMBERLAND COUNTY PRISON BOARD, et. :
~ -COUNTY OF CUMBERLAND, PA; :
Ol-.
~ 1~ '&~ PIAINTIFF, J~ L. ~ Jr., pro se, who
res~ect£ully f~les w~th this Honorable Court this complaint pursuant to
42 Pa. C.S.A. § 931 and in support thereoff sets forth the following:
1. Plaintiff, John L. Por~er Jr.', pro se, is a citizen of the
Commonwealth of Pe~syl~rania ~rith a current add'ess of 175 Progress
Drive, Waynesburg, Pa. 1§370, and is currently incarcerate~ on a
non-related criminal conviction. (Hereafter referred to as.Plaintiff)
2. .Defendant, Earl Reitz, is the Warden of the Cumberland Co%~nty
Prison with a curren6 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, CarlYle, Pa. 17013.
4. Defendant, M/chael Carey, is the DeDuty Warden of Security of
the Cumberland County Prison %rith a current address of 1101 Claremont
Road, Car~sle, l~a. 17013.
08/17/2001 02:42:30 PM
08/17/01 FRI 15:00 FA~ 717 7 0972 ¢ INS. C.HILL .*.*-. ST PAUL PUBCL~S ~]006
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 i Courthouse Square,
Carlisle, Pa. 17013.
6. Defendant, County of Cumberland, Pennsylvania, is a Political
subdivision Entity with a current address of I Courthouse Square,
Ca:lisle, Pa. 170~3.
7. The Defendants are sued directly and/or indirectly in their
Professional end/or Personal capacities.'
8. On or about September 22, 1999, Plaintiff was incarcerated in
the Cumberlan~ Coun6y Prison, housed on "F" Block, in cell n,~her eight
(8), which is located on the Low~r 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 w~s housed.
As the Plaintiff reached the third step, ~-re was a puddle of
water, which the Plaintiff did not notice. Th~ Plaintiff steppe~in the
puddle, lost his footing, and fell. The Plaintiff reached for the
yellow safety rail located on his right side. ThePlaintlff 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 pi~ky fingers, up through
his right wrist ar~ elhew, 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
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 Segtember 24, 1999.
08/17/2001 02:42:30- PM
08/17,/01 FR,I I$:00 FA~ 717 ? 09?2 r INS. ¢.EILL .-,-,,-, ST PAUL PUBCLMS [~007
Currently,
his right wrist
a~ay.
3
the Plaintiff .still experiences
that the doctor at $.C.I Greene
constant numbness in
stated may never go
NEGLIGENT IN'L'~NTION-AL OR OTHERWISE T6RTIOUS CONDUCT_
9. Paragraphs
made a part hereof. '
i through 8 are incorporated herein by reference
!0. Plaintiff files this Complaint pursuant to Tt%te 42 Pa. C..$.A.
§ §524, to receive damages for injury to the person which is founded on
negligent, intentional or otherm-ise tortious conduct,
11. The County and/or Prison Board owns or leases the property on
which the inJur~ occurre~ ~nd 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 92~e real property.
12. The Defendants failed to make or ma.~ntain 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 fro~ harm or injury.
13. Plaintiff would be able to reoover damages under Commonwealth
Law and/or Statute due to the dangerous condition deriving -~nd
originating from, or having itl source in the County's Realty. The
unsafe ~ondltion Of the unsafe steps caused or facilitated the
Plaintiff's injuries.
14. The Plaintiff ' s injuries were also facilitated by the
Defendants~ failure to 9roperly train, inst~cuc~, and eupervise employees
by not placing a "Wet ~loor" sign on the probl~n area, when they ,k~ew or
should have known an unsafe condition existed.
08/17/2001 02:42:30 PM
08/17/,01 FR.~ 15:00 FA~ ?17 ? 0972 r INS. C.HILL -~ ST PAUL PUBGL~S ~005
4
15. The Defendants have breached a direct and/or imputed duty of
care, custody, a~d control based on a legal relationship batw~en the
parties and/or because of a failure to. discover or correct ~ defect or
remedy a dangerous condition of their Real Estate.
16. The Defendants were directly responsible because the injtLry
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 conditiou, where
Defendants knew or should have known that the aforesaid conditions would
result in injury. The Plaintiff's rights were violated as ~uarantged by
the 8th Amendment to the U~S. Constitution, and Article I, Section 13 of
the Pennsy~%~ania Cdnstitution. The Defendants w~re required to ensure
that their property was kept in a reasonable, safe, and usable
condition.
VIOLATION OF CIVIL RIG~iTS
17. Paragraphs 1 through 16 inclusive ~re
reference ~ndmade a part herecf.
incorporated herein by
18. The Plaintiff invokes Jurisdiction within this Honorable Court
to the extent that tb/s 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 Conm~nwealth Ex. Rel. Strand. errs 'v. Creator
354 A. 2d. 702, at 703-704, no{e 3 (PA 1975); Coffma.n v. Wilson Police
Department, 739 F, Supp. 257, at 267-268 (Ed. PA 1990); Fawbar v. Cohen,
516 PA. 353, 532, A. 2d 429 (I98.7); Balshy v. Rank, 507 PA. 384, 490
A. 2d 415 (1985); Martinez v. Califor~la, 444 U.S. 277, t00 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
08/17/~01 FRI, 15:01 FA~ 717 7 0972 ~ INS. C..HILL .+-~, ST PAUL PUSCL~S [~009
sensations from his right ring and pinky fingers, up through his right
wrist and' slbow, to his shoulder. The Plaintiff is partially disabled
and has limited use of his right ~rist. The Plaintiff continues to
emperience numbness, mental anguish, physical pain and suffering, and
disability as a result of the injury. The Plaintif£ also experiences
difficulty sleeping due to the numbness in h/s right m-fist.
~er~fore, The Plaintiff, John L. Porter Jr., pro se, is seeking
d'~the following damages a~d/or Judp]~e~ts against the Defendants, plus
fees, Attorney Fees, and costs associated w~th the fillng and service of
the complaint, and,
A. Cc~penSato'ry 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 indiffere~%ce, the unnecessary and ~anton
infliction of pain, willful Misconduct, negligent, intentional, or
tortious conduc~ and malice; and, ~
C. Nominal Damages in an amount in excess of $100,000.09~ from
each Defendant for remote damages; and,
D. Grant any other damages and relief deemed just and proper by
the Court.
Res~ectfully submitted
John L. Porter JR.
Plaintiff, Pro Se
08/17/2001 02:42:30 PPi
08/17/01 FRI 15:01 FAX 717 7 0972 r INS, C.HILL .~ ST PAUL PUBCL~S [~OlO
IN THE COURT OF COMMON FLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JOt{N L. PORTER, JR. : PLAINTIFF,
VS : CIVIL ACTION NO.
T~e Plalntiff d~m~nds a Jtlry Trial in
matter.
the above
Respectfully submitted by:
John L. Por~er JR. ~
Plaintiff, Pro Se
08/17/2001 02:{2:30 PM
08/17/~1 FRI. lS:01 FAX 717 Ti ~972 P INS. C.HILL ~*~ ST PAUL PUBCL~S ~011
IN THE COURT OF CO~0N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAw
JOHN L. PORr~, 07{. .' PLAINTIFF,
VS : CIVIL ACTION NO,
EARL REITZ, WA~DEN; .'
JANET SCOt'f, DEPtFfY WARD?N OF
OPERATIONS;
MIC~L%EL CAREY, DEPUTY WA~DEN OF :
~.~' SECURITY;
· CUMBERLAND COUN~fY PR~SON BO~%D,
COUNTY OF ~, PA; :
DEFENDANTS. , .'
~ hereby certify that a trum and correct copy of the foregoiD~3
notice to Defend, C~plmint, an~ Demand for Jury Trial w~ll be / has
bee~ served via First Class Prepaid U.S. Mail upon the below written
Defendants on this /~T~ day of ~¢~' , 2~001 for service
by the Sherriff's Office per R~&e 400 (a), PA. Rules of Civil P~ucedure.
~..
Earl l{eitz, Warden
1101 Clar~nt Road
Car~'sle, Pa. 17013 ~
Janet Scott, Deputy
1101. Claremont Road
Carl. sle, Pa. 17013
Warden of Operations
Michael Carey, Deputy Ward~of Security
1101. Claremont Road
Carlsle, Pa. 17013
Office of Co~issioners
110% Claremon~ Road
Carlsle, Pa. 17013
Cumberland County Prison Board, et. al.
Cumberland County Court House
1 Courthouse ,.Square
Carlisle, Pa. 17013
08/17/2001 02:&2:30 PM
08/17/,01 FR.I 15:01 FA]: 717 ~ 0972 r INS. C.HILL *-+-+ ST PAUL PI.~BCL~S ~]012
County of Cumberland, Pennsylvania.
c/o Robert Saidis, County Solicitor
Cumberland County cour~ House
1 Courthouse Square
Carlisle, Pa. 17013
. Respec=fully submitted by:
John L. Porter, Jr.
EA-8952
175 Progress Drive
Waynesbur~,. Pa. 15370
08/17/2001 02:42:30_ PM
08/17/~1 FRI 15:01 FAX ?17 ? 09?2 C INS. C.HILL - **~ ST PAUL PUBCL~S ~013
IN THE COURT OF CO~ON PLEAS OF CUMBERLAND COUNTY, PENNS~fLVANIA
CIVIL ACTION - LAW
J0~N L. PORTER, JR. :
PLAINTIPF, :
VS : CIVIL ACTION NO. Ol- ~!7/~
EARL REITZ, WARDEN; :
JANETSCOTT, DEPUTY WARDEN 0F :
OPERATI(~$; :
MICHAEL CAREY, DEPUTY WARDEN OF :
4' SE~ORITY; :
CUMBERLAND COUN~f PRISON ~OARD, et.
al.; :
COUNTY OF CUMBEP/~%ND, PA; :
DE~'~J4DAIFfS. . :
I hereby certify that the facts set forth in the foregoing
complaint and proof of service are trl/e and correc~ to the best of my
personal knowledge and information or belief and that any false
statement contained therein are made subjec~ to the ~en~lty of § g014 of
the Cr4m~s Code relating to u/lswor~ falsification to Authority.
Respecbful, ly s~tmlitted by:
John L. Porter Jr.
Plaintiff, Pro Se
EXHIBIT "B"
UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT Or PENNSYLVANIA
JOHN L.
PORTER, JR.,
Plaintiff
EARL REITZ,
ET AL.,
Defendant~
CIVIL NO.
(Judge
MEMORANDUM AND ORDER
3:CV-01-1676
Conaboy)
FILED
NTON
r 0 3 2001
OEPUTYCLERK
John L. Porter, Jr., an inmate confined at the Cumberland
County Prison, Carlisle, Pennsylvania, initiated this oro s__e civil
complaint in the Cumberland Court of Common Pleas on August 9,
2001. Named as Defendants are Cumberland County, tH~ 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
of 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
Pennsylvania state law on the basis that his injury was cause~,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.
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 i_~n ~orma DauDeris. § 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.
(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 § 191SA(b) (1), a district court may summarily dismiss
any claims that are f.mivolous, 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%.
Jeffes, 904 F.2d !92,
Snow, 894 F.2d 1277,
194 (3d Cir. 1990) (quoting ~
1278 (llth 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.,,
1080, 1083 (3d Cir. 1995),'
frivolousness determination is
Deutsch v. United State~, 67 F.3d
It also has been determined that "the
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.
With respect to § 1983 allegations regarding Cumberland
County and the Cumberland County Prison Board, a municipal body or
other local governmental
Amendment purposes, is a "person" subject to
1983. Monell v. DeDartment of Social Servs.,
(1978):
unit, not part of a state for Eleventh
suit under 42 U.S.C.
436 U.S. 658, 690-91
Congress di~ 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 § !983
'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); ~ ~
County Comm'rs of Br~an County, OKL. v. Bro~n, 520 U.S.
Ct. 1382, 1388-89 (1997); Roman v. Jef es, 904 F.2d 192,
Cir. 1990); Illiano v. Clay Town,hiD, 892 F. Supp. 117,
397, 117 S.
196-97 (3d
121 (E.D.
4
1995). However, it has also been repeatedly held Uhat a
municipality may not be subjected to § 1983 liability on a theory
of resDondeat superior. ~, 117 S. Ct. at 1388; City of
Canton v. Harris, 489 U.S. 378, 392 (1989); CitV of St. Louis v.
~, 485 U.S. 112, 121-22 (1988); Pembaur v. Cincinnati, 475
U.S. 469, 478-79 (1986); Oklahoma City v. Turtle, 471 U.S. 808,
reh' denied, 473 U.S. 925 (1985); Monell, 436 U.S. at 691;
Pittsburgh. 89 F.3d 966, 971 (3d Cir. 1996), cerz.
!151 (1997); Andrews v. Cizv of Philadelphia, 895
(3d Cir. 1990). Rather,
... a plaintiff seeking
to impose liability on a municipality under § 1983 [is require] to
identify a municipal 'policy' or 'custom' that caused the
818,
Beck v. City of
denied, 519 U.S.
F.2d 1469, 1480
plaintiff's injury." ~, 117 S. Ct. at 1388; B$ck, 89
F.3d at 971. In ~, 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 KneimTM 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 injurl;.,. Andrews, 895
F.2d at 1480 (citing ~onell, 436 U.S. at 694). For purposes of
imposing § I983 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 o~
~, 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. a~ 2035 (quoting
Adicke~ 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
~, 790 F.2d 1063, 1067 (3d Cir.
1986), ~, 479 U.S. 949, 107 S.
Ct. 434, 93 L. Ed. 2d 384.
Id.; ~ Beck, 89 F.3d at 971; Fletcher v. O'Donn~l], 867 F.2d
791, 793-94 (3d Cir.), ~, 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 dep~ived the plaintiff of a right, privilege, or
immunity secured by the Constitution or Iaws of the United States.
Groman v. TownshiQ of ManalaDan, 47 F.3d 628, 638 (3d Cir. 1995);
Shaw by Strain v. Strackhous~, 920 F.2d 1135, 1141-42 (3d Cir~
1990
As noted earlier, claims brought under § 1983 cannot be
premised on a theory of resoondeat
~, 845 F.2d 1195, 1207
named defendant must be shown, via
superior. Rode v.
(3d Cir. 1988). ~%ather, each
the complaint's allegations, to
have been personally involved in the events or occurrences which
underlie a claim. See v~~, 423 U.S. 362 (1976); MamD~on
v. Molmesbur~ Pr%son Offi$ials, 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
allegaZions 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.
Ouinlan,
F.2d 143,
¥ou~c v.
960 F.2d 351, 361 (3d Cir. 1992); Riley v. Jelled, 777
147 (3d Cir. 1985). Mere negligent conduct that leads to
serious injury of a ~isoner 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. ~,
511 U.S. at 837.
The remaining Defe. ndants 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 Uhat Uhis 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 CaDone.
Since Plaintiff,s § 1983
indisputably meritless legal theory,,,
legally frivolous under § 191SA(b) (1).
claims are
"based on an
they will be dismissed as
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 distric~ court may decline to exercise
supplemental jurisdiction'6ver 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.
THAT:
AND NOW THIS DAY OF OCTOBER, 2001 IT IS HEREBY ORDERED
Plaintiff's civil rights claims are dismissed, as
legally frivolous, under 28 U.S.C. § 19!SA(b) (1).
Jurisdiction is declined over the Plaintiff's pendent
state law claims. See 28 U.S.C. § 1367(c) (3).
The remainder of Plaintiff's action is remanded to the
Cumberland County Court of Common Pleas.
'The Clerk of Court
case.
Any appeal from this
frivolous, without probable cause
in good faith.
is directed to close this
order will be deemed
and not taken
RICHARD p. CONABOY
United States District Judge
FILED"
R~,RANTON
OCT 0 3 ZOO1
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 tree 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 unswom falsification to authorities.
/
Andrea L. Bennett, Esquire
DEVLIN AND DEVINE
BY: Andrea L. Bennett, Esquire
ID#: 74991
Suite 200, 100 West Elm Street
Conshohocken, PA 19428
(610) 397-460S
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;
Attorney for Defendants
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 01-4718
DEFENDANTS.
CERTIFICATE OF SERVICE
I hereby certify that service of a tree 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 Fmman Highway
Waynesburg, PA 15370
DEVLIN AND DEVINE
Attorney for Defendants
ORIGINAL
UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN L.
PORTER, JR.,
Plaintiff
EARL REITZ,
ET AL.,
Defendants
: (Judge Conaboy)
CIVIL NO. 3:CV-01-1676
MEMORANDUM AND ORDER
FILED
"'"'qANTON
]CT 0 3 2001
Backqr0und
John L.
County Prison,
W=~ OEPU Y~CLERK
Porter, Jr., an inmate confined at the Cumberland
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,
2001,
the reasons outlined below, Porter's federal claims will be
dismissed as frivolous pursuant to § 191SA(b) (1)
of his action will be remanded to state court.
and Deputy Warden of Security Michael Carey. On August 30,
the Defendants removed Plaintiff's action to this court. For
and the remainder
Certified,from ~he record
· t~,a~ E, D'Andrea, Cle~
Plaintiff
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 i__n forma DauDeris. § 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
states that on or about September 22, 1999, he was
(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 ~
Snow, 894 F.2d 1277, 1278 (llth 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,
consideration, or trivial."
1080, 1083 (3d Cir. 1995).
or importance, not worthy of serious
Deutsch v. United States, 67 F.3d
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 sucha
custom has not received formal approval
through the body's official decisionmaking
channels.
Internal Citations and Footnotes Omitted); ~ Bo_~
County Comm'r$ of Brvan County, OKL. v. Brown, 520 U.S. 397, 117 S.
Ct. 1382, 1388-89 (1997); ~eff s, 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 resDondeat superior. ~, 117 S. Ct. at 1388; City of
Canton v. Harris, 489 U.S. 378, 392 (1989); City of St. Louis v.
~, 485 U.S. 112, 121-22 (1988); Pembaur v. Cincinnati, 475
U.S. 469, 478-79 (1986); Oklahoma City v. Turtle, 471 U.S. 808,
818, reh'~, 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 required] to
identify a municipal 'policy' or 'custom' that caused the
plaintiff,s injury.,, ~, 117 S. Ct. at 1388; Beck, 89
F.3d at 971. In ~, 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 Knei v. T dder, 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
~, 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. ~, 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 Ariel v. Cit of
Wildwood, 790 F.2d 1063, 1067 (3d Cir.
1986), ~, 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'Donnel], 867 F.2d
791, 793-94 (3d Cir.), ~, 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 M~nalapan, 47 F.3d 628, 638 (3d Cir. 1995);
Shaw by Strain v. Strackhous~, 920 F.2d 1135, 1141-42 (3d Cir.
1990).
As noted earlier, claims brought under §
1983 cannot be
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. G od , 423 U.S. 362 (1976); Hampton
v. Holmesburq 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
Dellarci r re, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each
premised on a theory of resDondeat superior. Rode v.
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. Younq v.
Ouinlan, 960 F.2d 351, 361 (3d Cir. 1992); Rile v. J ffes, 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 CaDone.
Since Plaintiff's § 1983 claims are "based on an
indisputably meritless legal theory,', they will be dismissed as
legally frivolous under § 191SA(b) (1). Wilson, 878 F.2d at 774.
As a result of this court's determination that Porter's federal
constitutional claims are meritless,
jurisdiction over his pendent state
1367(c) (3) (1997) (a district court may decline to exercise
it will not exercise
law claims. See 28 U.S.C. §
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
THAT:
AND NOW THIS DAY OF OCTOBER, 2001 IT IS HEREBY ORDERED
o
o
Plaintiff's civil rights claims are dismissed,
legally frivolous, under 28 U.S.C.
Jurisdiction is declined over the
as
§ 1915A(b) (1).
Plaintiff's pendent
state law claims. See 28 U.S.C. § 1367(c) (3).
The remainder of Plaintiff's action is remanded to the
Cumberland County Court of Common Pleas.
The Clerk of Court is directed to close this
case.
Any appeal from this order will be deemed
frivolous, without probable cause and not taken
in good faith.
RICHARD P. CONABOY
United States District Judge
FILED
R RANTON
OCT 0 3 2001
10
DEVLIN AND DEVINE
BY: Andrea L. Bennett, Esquire
ID#: 74991
100 West Elm Street, Suite 200
Conshohocken, PA 19428
(610) 397-4605
JOHN L. PORTER, JR.
PLAINTIFF,
VS.
EARL REITZ, WARDEN;
JANET SCOTT, DEPUTY WARDEN OF
OPERATIONS;
MICHAEL CAKEY, DEPUTY WARDEN OF
SECURITY;
CUMBERLAND COUNTY PRISON BOARD;
COUNTY OF CIJMBERLAND, PA;
DEFENDANTS.
Attorney for Defendants
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY
: NO. 01-4718
MOTION OF DEFENDANTS TO OVERRULE PLAINTIFF'S
OBJECTION TO THE ISSUANCE OF A SUBPOENA
And now, defendants, Earl Reitz, Janet Scott, Michael Carey, Cumberland County
Prison Board and County of Cumberland, by and through thek 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 frivolous and declined jurisdiction over plaintiff' s pendent
state law claims. Judge Conaboy remanded the~7~aainder 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 thkd step. The plaintiff alleges that he then
reached for a yellow safety rail to his right and injured his right ann in the process. (See
paragraph 8 of Exhibit "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 ora 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.
Andrea L. Bennett, Esquire
Attorney for Defendants
08/17/2001 02: 42:30_pM
08/~?/01 FIJi 14:$9 FAI ?I? ?: )972
INS. C,HILL
· +-*-* ST PAI[L PUBCL]I$
IN THE COURT OF COk~40N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
~]00~
:.. JOHN L. PORTER, JR.
,j:.-./. PLAINTIFF,
EARL REITZ, WARDfZ{;
JANET SCOTT, DEPUTY WA!~F~ OF
OPERATIONS; .'
MICHAEL CAREY, DEPUTY ~RDEN OF
SECURITY;
C~Em~ND COUNTY P~fsoN ~0ARb, et.
.aI.;
COUNTY OF CUMBERLAND, PA;
DEFENDANTS.
You have been sued in Court. If you wish to defend agalns~ the
claims set forth in the following pa~es, you must take action within
twenty (20) days after ttds complaint a~d no~ice are served by en~erln9
a written appearance ~ersonally or by attorney and filing in writing
with the Cour~ your defense or ~bJec~ions to the claims se~ forth
against you. You ~re %~-ned that if you fai%' to do so, the case may
proceed without you, and a Judgement may be entered against you by the
Court w~thout further notice for ~nymoney cla~me~ ~n the complaint or
relief requested by the Plaintiff. You msy lose money or property or
other rights important to ~ou.
have
forth below to find where you can ~et 1~3al help. ',,.~
Legal Services, Inc. ~ ~:.'
8 Ir~rln Row
Carlisle, Pa. 17013
(717) 243-9400
TRUt~ COPY F~OM RECORO
In Testimony whereof, I here unto s~t my hane
and the seal of said Ci~urt at C~rllsle,
Thi~day ~~'~..~.
You '~h6~i~ t~ke {his ~aper to your lawyer at once. If you do not
& lawyer or cannot afford one, go to or telephone the off~ s~_e~._.
08/17/2Q01 02 :t2:30.-PM
05/17,/01 F1},I I$:00 FAI 717 ?; ~972
INS. C.HILL
~ ST PAUL PUBCLM$ ~]005
INTER COURT OF CO~{~ON PLPAS OF CUMBERLAND COUNTY, p~%5~LVANIA
CIVIL ACTION - LAW
J.0~L. PORTER, ~.
PLAI~I~,
VS
~/~ARL RRITZ, WARDEN;
/JANET SCOTT, DEPUTY ~ARDEN OF :
,,~ OPERATiONS; .' ' :
CHAEL CAREX, DEPUTY WARDEN OF ' :
SECURITY; -'
CUMBERLAND COUNTY PRISON BOARD, et. :
.al.; :
~-COUNTY OF CUMBERLAND', PA; :
DEFENDANTS. .'
CIVIL ACTION N0... 0[-'.
O~fES N(F~ 'Z~ ~, Jo~, L. Porter Jr., pro se, %mo
respect£ully files with this Honorabl~ Court this complaint pursuant to
42 Pa. C.S.A. § 931 and in support thereof sees forth the following:
1, Plaintiff, John L. Por~er Jr.', pro se, is a citizen of the
Commonwealth of Pennsylvania with a Current add~ess of 175 Progress
Drive, Waynesburg, Pa. 15370, and is currently incarcerated On a
non-related criminal con%-iction. (Hereafter referred to as.Plaintiff}
2. .Defendant, Earl Reitz, is the Warden ~f the Cumberland Co~ty
Prison with a curren~ address of 1101Clar~mont Road, CarlYle, Pa. 17013
3. Defendant, Janet Scott, is the Deputy Warden of operations of
the Cua%berland County Prison with a c~/rrent address of 1101Claremon~
Road, CarlYle, Pa. 17013.
J
4. Defendant, M/chael Carey, is the Deputy Warden Of Security of
~he Cumberland Co~ty Prison with a current nddress of 1101Claremont
Road, Car~sle, Pa. 17013. '
08/17/2(~01 02 :~2:30 .PM
05/17~'01 R~.I 15:00 FAX 717 ? 0972
INS, C.HILL -*'** ST PAUL PUBCL~$ [~006
2
5. Defendants, Cumberland County Prison Board, et. al., are
responsible for overall policy promulgat$on and operations wXthin the
Cumberland County Prison w£th a current address of i Courthouse Square,
Carlisle, Pa. 17013. ~-~-'J
6. Defendant, County of Cumberland, Pennsylvania, is a Political
subdivision Entity with a current address of i Courthouse Square,
Carlisle, Pa. 170X~.
7. The Defendants are sued directly and/or indirectly in their
Professional and/or PersOnal capauities.
8. On or about September 22, 1999, Plaintiff ~as incarcex~ted in
the Cumberland County Prison, housed on "F" Block, in cell Dum~er eight
(8), which is located on the Lo,er Tier.
Around 2:30 PM on this date, Plaintiff took a shower after Gym
acti'vities. Upon exiting the shower, the Plaintiff had to descend a
flight of approximately five (5) steps to reach the Lower Tier ~here the
Plaintiff was housed. ..
As the Plaintiff re~ched the third step, there wes a puddle of
water, ~hich the Plaintiff did no~ notice. The Plaintif~ stepped in the
puddle, lost his footing, and fell. The Plaintiff reached for the
yellow safety rail located On his right side. The 'Plaintiff g~abbed the
rail in an attempt to break his fall. In the' process, the Plaintiff
injured his right arm, causin~ numbness and tingling sensations
traveling from the Plaintiff's right .ring and pi*~k~ fingers, ~p through
his right wrist and elbow, sll the ~ay to his shoulder.
At this time, the Plaintiff recovered his footing to see the
puddle of ~ater, with no ,'Wet Flocr" si~n posted on the steps lea~ing to
the Lower Tier. There was no slip-reSistant material on the s~eps.
The PlaintXff reporbed the incident and followed proce~.u~e by
attending 8he nex~ available sick =all o~ September 24, ~999.
08/17/2001 02:42: 30-PM
08/17/01 FRI 15:00 FA~ 717 7 0972
INS. C.HILL
*~ ST PAUL PUBCLII$ [~007
3
Currently, the Plaintiff .still experiences
his right wrist that the doctor at $.C.I Greene
away.
constant numbness in
stated may never go
NEGLIGENT INTENTIONAL OR OTHERWISE T6RTIOU$ 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. ~.$.A,
§ 5524, to receive damages for injury %o the person which is founded on
negligent, intentional or otherwise tortious conduct.
11. The County and/or Prison Board owns or leases the property on
which the injury occurre~ and the injuries were caused by a dangerous
condition, and/or artificial conditioa, ~nd were facilitated by the
actions and/or inactions of the' Defendants. The Defendants breached
their duty as owners/lessers of the real property.
12. The Defendants failed to make Or ma,intain safely certain
improvements to the steps on "F" Block leading to the Lower Tier by not
placing a slip-resistant materlal on each step that would have saved the
Plaintiff fr(~n harm or injury.
i
13. Plaintiff would b e able to recover damages under Coa~onwealth
Law and/or Statute due to the dangerous condition deriving and
originating from, or having its source in the County's Realty. The
unsafe ~ondltlon of the unsafe steps caused or facilitated the
Plaintiff's injuries.
14. The Plaintiff's injuries' were also facilitated by the
Defendants' failure to properly train, instruct, and supervise employees
by not placing a ,'Wet Floor" sign on the problem area, ~henthey,kne~ or
should have known an unsafe condition existed.
08/17/2001 02:42:30 PM
05/177/01 . F~I 15:00 FAT 71'7 ? 09772
INS, C,HILL -~-~-~ ST PAUL PUBCL~$ [~]000
4
15. The Defendants have breached a direct and/or imputed duty of
care, c~stody, and control based on a legal relationship ~etw~en the
parties and/or because of a failure to. discover, or correct a defect or
remedy a dangerous condition of their
16. The Defendants were directly res.Donslble because the injury
suffered by the Plaln~iff would not have come about but for their
negligent, intentional, or otherwise tortious conduct in that they
failed to maintain or make reasomable safe improvements to County
Realty, existing as unsafe, dangerous, or defective condition, where
Defendants knew or should have kno~i~ that the aforesaid conditions would
result in injury. The Plaintiff's rights were violated as 9~arant.eed by
the 8th Amendment to the U.S. Cons%itutlon, and Article I, Section 13 of
the Pen~%sylwania Cdns~itution. The Defendants were required to ensure
that their property was kept in a reasonable, safe, end usable
condition.
CO~T IX
VIOLATION OF CML RIGHTS
17. Paragraphs 1 through 16 inclusive Are iacorporated herein by
reference ~nd m~de a par~ hereof.
18. The Plaintiff invokes Jurisdic~ion 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 c~mnnwealth Ex. Re1. Sua~derrs'v. Cre~m~
354 A. 2d. 702, at 703-704, note 3 (PA 1975); Coffman v. Wilson Police
Department, 739 F, Sup9. 257, at 267-268 (Ed. PA 1990); Fawber v. Cohen,
516 PA. 353, 532, A. 2d 429 (1987); Balsh¥ v. Rank, 507 PA. 384, 490
A. 2d 415 (1985); Martinez v. California, 444 U.S. 277, ~00 S. Ct. 553,
atS~8 n. 7 (1980).
19. As direct result of the Defendants, actions, om~,ssions,
inacSion and or fail,res, the Plaintiff suffered numbness and tingling
08/17/2001 02:~2:30. PM
08/17,/01 FRI 15:01 FAX 717 ? 09?2 I' INS. C..ltlLL -,.-,.*, ST PAUL PUBCLI[S ~lO09
5
sensations from his right ring' and pinky fingers, up through b/s right
wrist and' elbow, to his shoulder. The Plaintiff is partially disabled
and has limited use of his right wist..' The Plaintiff continues to
experience nt~6oness, mental anguish, ~al pa~n and suffering, and
disability as a result Of the injury. The Plaintiff also experiences
difficulty sleeping due to the numbness in his right wrist.
Wbex~for~, The Plaintiff, John L. Porter Jr., pro se, is seeking
the following damages and/or Judgn~nts against the Defendants, plus
fees, Attorney Fees, and costs associated with the filing and service Of
the complaint, and,
A. Com~ensato'r~ Damages in an ~unount in excess of $100,000.00
from eac/~ Defendant for mental anguish, physical pain and suffering, and
disability; and,
B. Punitive Damages in an ~mount in ~xcess of $100,000.00 from
each Defendant for deliberate indifference, the ~nnecessary and ~nton
infliction of pain, willful Misconduct, negligent, intentlon~l, or
tortious conduct and malice; and, ~
C. Nominal D~nages in an amount in excess of $100,000.00 from
each Defendant for re~ote damages; and,
D. Grant any other damages and relief deemed Just and proper by
the Court.
Respectfully st~bmitted by~
John L. Porter {PR.
Plaintiff, Pro Se
08/17/2001 02:42:30 PM
08/17/.01 FRi /.5:01 FAX 7],? ? 0972
r INS. C,HILL
pA[IL PUBCI.~S ~lOlO
IN THE COU~T OF COM~(N~ PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JOHN L. PORTER, JR,
PLAINTIFF,
VS
EARL REITZ, WARDEN;
J~NET SCOTT, DEPUTY W-ARDEN OF
OPERATIONS;
MICHAEL CAREY, DEPUTY WARDEN OF
SECURITY;
CIE~BERLAND COUNTY PRISON BOARD, et'.
COUNTY OF CU~ERI~, PA;
DEFENDANTS ·
CIVIL ACTION NO.
ol-.Y71'&
T~e Plaintiff demands a Jury Trial in the above
matter.
- Captioned
Respectfully ;n~itte~ by:
John L. Por~er ~R.
Plain~iff, Pro Se
08/17/2001 02:42:30 DM
08/17/01 FRI 15:01 FAX 717 7:. ~972
INS, C.HILL
-~** ST PAUL PUBCLIIS [~]011
IN TH~ COURT OF CC~ION PLEAS OF CUMBERIAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JOIiNL. PORr~, JR.
PLAINTIFF,
VS
EARL REITZ, WARDEi~;
JANET SCOTT, DEPUTY WARDEN OF
OPERATIONS; .
14ICHAEL CAREY, Ds~WA'~ ~IXI~D~N OF
SECURITY;
CUMBERLAND cOUNTY PR~SON BOARD, et.
al.;
COUNTY OF CUMBERLAND, PA;
DEFENDANTS -
CIVIL ACTION NO.
Oi -~i71f)
PROOF OF~wlC~
~ hereby certify that a tr%le and correct copy of the foregoing
notice to Defend, Cc~plaint, ~uld Demand for Jury Trial will be / has
bee2a served via First Class Prepaid U.S. Mail upon the ~elow written
Defendants on this /3T~ day of ~ulr , 2~001 for service
by the Sherriff's Office per Rule 400 (a), PA. Rules of Civil Procedure.
Earl Reitz, warden
ll01. ClaremontRoad
Car~sle, Pa. 17013
Janet Scott, Deputy
1101. Claremont Road
Car~sle, Pa. 17013
warden of Operations
Michael Carey, Deputy Warden of Security
1101Claremont Roafl
CarlYle, Pa. 17013
Office of Commaissioners
110% Clsremon% Road
Carlsle, Pa. 17013
Cumberland County Prison Board, et. al.
Cumberland County Court House
I Courthouse Square
Carlisle, Pa. 17013
08/17/2001 02:42:30 PM
08/17/01 FRI 15:01 FAT 717 ~ 0972
INS, C,HILL
~*~ ST PAUL PUBCL~S ~1012
2
County of Cumberland, Pennsyl%-~nia.
e/o Robert Saidls, County Solicitor
Cumberland Counby Court Rouse .~w~.~.-.-
1 Courthouse Square
Carli~le, Pa. 17013
· Respectfully su~mltted by:
John L. Porter, Jr.
EA-8952
175 Progress Drive
Waynesb~r~, Pa. 15370
08/17/2001 02:a. 2:30 PM
08/1'7/01 FAX 15:01 FAX 717 '7 09'72
~' INS, C.HILL
- *-~-~ ST PAUL PUBCL~$ ~01~
IN THE COURT OF C0~TK)N FLEAS OF CUMBEPJ~AND COUNTY, p~NS~LVANIA
CIVIL ACTION - LAW
JO~N L. PORTER, JR.
PLAINTIFF,
VS
EAP~ REITZ, ~-ARDEN;
JANET SCOTT, DEPUTY WARDEN OF
OPERATI(ANS;
MICHAEL CAREY, DEPUTY WARDEN OF
SECURITY;
CUMBERLAND COUNTY PRISON BOARD, et.
al.;
COUNTY OF CUMBERLAND, PA;
DEPENDANTS.
I' hereby certify that the facts set forth in the foregoing
complaint and proof of ser%-ice are t~-Qe and correct to the best of my
personal knowledge and inform~tion or belief and that any false
statement contained therein are made suhjec~ to the men~lty of § 9014 of
the Crimes Code relating to unsworn falsification to Authority.
%
Respectful. ly stz~mltted by:
John L. Porter Jr.
Plaintiff, Pro Se
JOHN L.
UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICTOF PENNSYLVANIA
PORTER, JR.,
Plaintiff
EARL REITZ,
Backqround
John L.
County Prison,
ET AL.,
Defendants
CIVIL NO.
(Judge Conaboy)
MEMORANDUM AND ORDER
3:CV-01-1676
FILED
"'"= NTON
JOt 03 2001
OEPU y~y-"ly CLERK
Porter, Jr., an inmate confined at the Cumberland
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 § 191SA(b) (1) and the remainder
of 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
~yel~ow safety rail" and in the process "injured his right ~r~."
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 cause~,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 DauDeris.
provides in pertinent part:
§ 1915A
(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.
(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 § 191SA(b) (1), a district court may summarily ~ismiss
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
Jeffes, 904 F.2d 192,
Snow, 894 F.2d 1277, 1278
for the Third Circuit has
lacks an arguable basis in law." Roman%.
194 (3d Cir. 1990) (quoting Sultenfuss v.
(llth Cir. 1990)). The Court of Appeals
stated that "the plain meaning of
'frivolous'
little or no weight, value,
consideration, or trivial."
1080, 1083 (3d Cir. 1995).
authorizes the dismissal of claims that . are of
or importange, not worthy of serious
Deutsch v. United States, 67 F.3d
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.
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. Denartment 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 §
t983 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 Comm'rs of Bryan County, OKL. v. Brown, 520 U.S. 397, 1!7 S.
Ct. 1382, 1388-89 (1997); oma v. Je , 904 F.2d 192, 196-97 (3d
Cir. 1990); Illiano v. C1~¥ 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 resDondeat superior. Bryan County, 117 S. Ct. at 1388; City of
Canton v. Harris, 489 U.S. 378, 392 (1989); City of St. Louis v.
PraDrotnik, 485 U.S. 112, 121-22 (1988); Pembaur v. Cincinnati, 475
U.S. 469, 478-79 (1986); Oklahoma City v. Turtle, 471 U.S. 808,
818, _reh'a denied, 473 U.S.
Beck v. City of Pittsburgh,
925 (1985); Mone!l,.436 U.S~. at~69~;
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 require] 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 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.
Id. at 1388; see i v. e d r, 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,~89~
F.2d at 1480 (citing MQnell, 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[lng] 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. Edl 2d 384.
Id.; see also Beck, 89 F.3d at 971; Fletcher v. O'Donnet~, 867 F.2d
791, 793-94 (3d Cir.), ~, 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 9~y 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,
premised on a theory of resDondeat superior.
Dellarciprete, 845 F.2d 1195,
named defendant must be shown,
claims brought under § 1983 cannot be
RQde v.
1207 (3d Cir. 1988). Rather, each
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. Holmesbura Prison Officials, 546 F.2d 1077 (3d Cir. 1976). As
explained in Rode:
A defendant in a ~ivil 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
Rode,
cruel
deliberate indifference,
acquiescence, however, must be made with
appropriate particularity.
845 F.2d at 1207. -~'
Prison officials violate an inmate's right to be free from
and unusual punishment when, through intentional conduct or
they subject the inmate to harm. Young v.
Quinlan, 960 F.2d 351, 361 (3d Cir. 1992); Riley v. Jeffes, 777
F.2~ 143, 147 (3d Cir. 1985). Mere negligent conduct that?le~ds to
serious
official to liability under § 1983. Cannon, 474
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
injury of a prisoner by a prisoner does not expose a prison
Davidson v.
8
facts alleged which could establish that this purportedly unsafe
condition was anything more tha~-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 td protect claim. At best, the complaint asserts
claims of negligence which under Davidson, are insufficient for
purpbses of § 1983. Additionally, it equally appears that ~orter
is attempting to establish'§ 1983 liability against the remaining
Defendants solely on the basis of their supervisory capacities,
which is barred under CaDone. ·
·
Since Plaintiff's § 1983 claims are "based on an
indisputably meritless legal theory," they will be dismissed as
legally frivolous under § 191SA(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
THAT:
AND NOW THIS
o
DAY OF OCTOBER, 2001 IT IS HEREBY ORDERED
Plaintiff's civil rights claims are dismissed, as
legally frivolous, under 28 U.S.C. § 191SA(b) (1).
J~risdiction is declined over the Plaintiff's pendent.
state law claims. See 28 U.S.C. § 1367(c) (3).
The remainder of Plaintiff's action is remanded to the
Cumberland county Court of common Pleas.
The Clerk of Court is directed to close this
case.
Any appeal from this order will be deemed
frivolous, without probable cause and not taken
in good faith.
RICHARD P. CONAB~Y
United States District Judge
FILED
RANTON
OCT 0 3 ZOO1
10
MEDICAL LEGAL REPRODUCTIONS, INC.
Main Oft'we Phone: (21S) 33S-3212 Jefferson Bldg., Suite 926
4940 Dlsston Street Fax: (21S) 338-2980 101S Chestnut Street
Philadelphia, Pa. 19135 E-mall Address: legal~medl~g, com Philadelphia, Pa. 19107
Oct 25, 2001
CUMBEPJ~D/qD CO PRISON
1101 CI~%REMONT
CARLISLE PA 17013
ATTN: MEDICAL RECORDS DEPT
Re: JOHN L PORTER, JR
CaPtion: 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 requestea:
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 GREENE INMATE 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.
Vez7 truly yours,
Jacqueline Ciarrocchi
MEDICAL LEGAL REPRODUCTIONS
(215) 335-4907
CC: ANDREA L BENNETT, ESQ
100 W ELM ST
SUITE 200
CONSHOHOCKEN, PA 19428
ST PAUL INS CO
PO BOX 188
HARRISBURG PA 17108
Attn: JAMES F~%RKINS
Claim #: GP0900064009T021
DEVLIN AND DEVINE
BY: Andrea L. Bennett, Esquire
!1~: 74991
100 West Elm Street, Suite 200
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.
Attorney for Defendants
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY
: NO. 01-4718
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 7 ,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
DE...VL~.II:I) AND DEVINE
BY: Andrea L. Befnett, EsquireX~
Attorney for Defendants
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 31st 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.
BY THE COURT,
J?esleyOl ,~- J.~
John L. Porter, Jr., EA-8952
SCI Greene
169 Progress Drive
Waynesburg, PA 15370
Plaintiff, Pro Se
ViNVA'IA~NN_~cJ
AINNO0
90 :~; ~,l,J ~- N¥~' ~0
X~¥1Of',~O;.-i.t~.}!:!,,~, ~!.Lk
Andrea L. Bennett, Esq.
100 West Elm Street
Suite 200
Conshohocken, PA 19428
Attorney for Defendants
:rc
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.
Sworn to and subscribed
before me this ~ ~'[ day
of ~ ,2002.
Notary Public
Notarial Sea
Sue E.Tumer, Notary public
Franld n Twp., Greene County
Commission Expires June 10, 2002
ANDREA L. BENNETT
JOSEPH R. D'ANNUNZIO
EVELYN R. DEVINE
WILLIAM J. DEVLIN, JR.
MARK F. DIGIOVANNI
WILLIAM G, DOWNEY
DAVID P. KARAMESSINIS
JOSEPH MCALEER
RAMON D. TOWNSEND
DEVLIN &; DEVINE
ATTORNEYS AT LAW
100 WEST ELM STREET, SUITE 200
CONSHOHOCKEN, PA 19428
(610) 3974600
FAX: (610) 3974629
May 15, 2002
PARALEGAL
RODERICK MITCHELL
Direct Dial Number (610) 397-4605
Office of the Prothonotary
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
John Porter, Jr. v. County 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
cc: John L. Pgrter, Jr. (w/o enc.)
0-
Devlin & Devine is not a partne~hip or professional corporation; all attorneys
are employees of The SL Paul F~re & Marine Insurance Company