HomeMy WebLinkAbout01-1139IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
FRANKLIN SUTTON :
PLAINTIFF :
-VS- :
MARTIN F. MORN, individually and :
in his official capacity :
ROBERT SMANNON, individually and :
in his official capacity :
MARTIN DRAGOVI6'M, individually and :
in his official capacity :
RA19~OND J. COLLERAN, individually :
and in his official capacity :
DONALD FISRE, individually and in :
his official capacity :
MARVA CERULLO, individually and in :
her official capacity :
MILTON FRIEDMAN, individually and :
in his official capacity :
JOMNDOE, individually and in :
his official capacity :
DEFENDANTS :
COMPLAINT
CIVIL ACTION NO. 0%--~%%~
(CIVIL RIGHTS)
JURISDICTION
1. As a general rule, the Courts of Common Pleas have
unlimited original jurisdiction of all actions and proceedings
pursuant ot Pa. Const. Art. V Section 5(b); 42 Pa.C.S.A. Section
931(a) (Purdon 1981).
PLAINTIFF
2. Plaintiff, FRA~NKLIN SUTTON, is and were at all times
mentioned herein, a prisoner of the State of Pennsylvania, in the
custody of the Pennsylvania Department of Corrections. He is
currently confined at the State Correctional Institution Mahanoy,
301 Morea Road, Frackville, PA 17932.
DEFENDANTS
3. Defendant, MARTIN F. HORN,
Department of Corrections. He is
operation of the
is Secretary of Pennsylvania's'
legally responsible for the overall
Department and each institution under its jurisdiction,
including SCI Waymart and SCI Mahanoy.
4. Defendant, ROBERT SHANNON, is Superintendant at SCI Mahanoy.
He is legally responsible for the operation of SCI Mahanoy and for
the welfare of all the inmates of that prison.
5. Defendant, MARTIN DRAGOVICH, was at the time of
Plaintiff's injury the Superintendant at SCI Mahanoy. He was legally
responsible for the operation of SCI Mahanoy amd for the welfare
of all the inmates of that prison.
6. Defendant, RAYMOND J. COLLEHAN, is the Superintendant at
SCI Waymart. He is legally responsible for the operation of SCI Waymart
and for the welfare of all the inmates of the
7. Defendant, DONALD FISKE, is the Health
at SCI Waymart. He is legally responsible for
of all the inmates at that prison.
8. Defendant, MARVA CERULLO, is the Health
at SCI Mahanoy. She is legally responsible for
of all the inmates at that prison.
9. Defendant, MILTON FRIEDMAN, is the
Waymart's (L-],L-2/M-1,M-2) housing units. He
the welfare of all the inmates housed on
prison.
Care Administrator
the health care needs
Care Administrator
the health care needs
Unit Manager at SCI
is legally responsible for
these Units.
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10. Defendant, John Doe, is a Correctional Officer of the
Pennsylvania Department of Corrections who at all times mentioned
in this complaint was assigned to SCI Waymart on L-1 unit. He is
legally responsible for the care custody and control of all inmates
assigned to his unit.
FACTS
11. On Wednesday, February 9, 2000, Plaintiff was transferred
from SCI .~ahanoy to SCI Waymart to participate in a S.O.P. Program.
12. On February 16, 2000, Plaintiff submitted an inmate request
to staff to Defendant Donald Fiske expressing his concerns about the
accommodations for inmates with disabilities, Plaintiff's left leg is
amputated above the knee and his balance is very poor and is considered
handicapped. Plaintiff's inmate request to staff to Defendant
Donald Fiske went unanswered.
14. On February 28, 2000, Plaintiff submitted an inmate request
to staff to Defendant Donald Fiske expressing his concerns about the
accommodations for inmates with disabilities.
15. On March 2, 2000, Defendant Fiske responded to Plaintiff's
February 28, 2000, request to staff member stating the following:
"SCI-Waymart is not a handicapped assessable facility, If you
feel your needs cannot be met here, please sign-up for sick call
and request a transfer to a more appropriate facility. Please
inform me on what you would like to do."
16. On March 6, 2000, Plaintiff submitted an inmate request to
Defendant Friedman conveying the problem with the plumbing in the
handicap shower. The water was scolding hot and Petitioner was forced
to use the adjacent shower. Plaintiff requested that a work order be
submitted to have the handicapped shower repaired.
'17. On March 21, 2000, Plaintiff submitted a second request to staff
to Defendant Friedman complaining about the handicapped shower and again
requested that it be repaired.
18, On March 27, 2000, the tradesmen at SCI Waymart shut off the
water to the handicapped shower because of plumbing problems.
19. On March 28, 2000, at approximately 8:35 p.m., Plaintiff fell in
the General Population shower that did not have a hand rail and injured him-
self and was treated by the medical staff at SCI Waymart after
Officer McGrath called over to medical and had inmate Griffin, CF-7176 push
Plaintiff over to medical in a wheelchair. The nurse wrote-up an incident
report and asked Plaintiff if I felt the need to stay overnight, gave him
three (3) Advil 200 mg tablets and told him to sign-up for Sick Call for the
next day.
20. On March 29, 2000, Plaintiff reported to Sick Call at SCI Waymart
and X-Rays were taken of his back and a three (3) days supply of Advil was
given to Plaintiff along with a three (3) days medical lay-in.
21. On April 1, 2000, Officer Parma had inmate Griffin push me over
to medical in a wheelchair where I was seen by Ms. Sally who told me that my
X-Ray showed that Plaintiff had a muscle spasm in his back that was causing
the pain. Plaintiff was given a seven (7) day supply of Motrin 600 mg tablets
and told to sign-up for sick call if I had any further complications.
22. On April 3, 2000, Plaintiff submitted an inmate request to staff
to Defendant Fiske informing him about the injury resulting from his fall in
the shower.
23. On April 5, 2000, Defendant Fiske offered the following reply to
Plaintiff's April 3, 2000, request:
"I have spoken with Mr. Friedman concerning a second
I have also spoken with our Central Office.
mattress.
You will be transferred soon."
24. On April 5, 2000, Plaintiff went to sick call and was seen by
Mr. Heffernan, PA who also told Plaintiff that his X-Rays showed that he was
suffering from muscle spasm. He also explained the effects of muscle spasm
and how the muscle will tighten up on the back. Plaintiff was given a seven
(7) day supply of Robaxin 500 mg tablets.
25. On April 10, 2000, Plaintiff again informed the Unit Manager and
Unit Counselor by way of inmate's request to staff member that the shower
wHth the rail is still out of order.
26. On April 10, 2000, Plaintiff went to sick call because his back
pain was unbea~able and having trouble Sleeping. He was seen by
Mr. Heffernan, PA and requested an additional mattress to help minimize the
pain. Plaintiff also informed Mr. Heffernan that he would bs transferred
back to SCI Mahanoy soon. He said that he would not authorize an extra
mattress because Plaintiff may be transferred any day.
27. On April 13, 2000, Plaintiff went to sick call and requested ~to
see his X-Ray, was refused and again requested a second mattress.~ Mr. Hughs
said that "under the guidelines that he nor, Mr. Fiske mannot authorize
a second mattress. In order for him to obtain a second mattress, Plaintiff
would have to have had surgery or a serious injury, Something of that~
nature." Plaintiff was given a seven day supply of Robaxin 500 mg tablets.
28. On April 14, 2000, Plaintiff was given an additional mattress
until transfer.
29. On April 21, 2000, PIaintiff submitted a memorandum to Defendant~
Colleran informing him of the injuries he sustained on March 28, 2000, due
to negligence and requested the status of his transfer.
30. On April 26,~2000,.Plaintiff was transferred ba~k to SCI Mahanoy.
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31,
April 25, 2000,
inmate transfers.
Plaintiff received Robert S. Bitner, Chief Hearing Examiner's
memorandum informing that he "have nothing to do with
And further informed Plaintiff "you need to work with
the staff at Waymart to pursue a transfer.
32. On April 27, 2000, Plaintiff was told that he had to report to
Chronic Clinic, at which time he requested a wheelchair. His need for a
wheelchair was documented in his medical records. Plaintiff was prescribed
a twenty-eight (28) day supply of Naproxen 375 mg tablets, his blood
pressure was 134/96 and he weighed 254 lbs.
33. On April 28, 2000, Plaintiff went to sick call seeking medical
attention for his pain. He was seen by Mr. Ignatius Hall (PA) who told him
that muscle spasm could last for up to two (2) years or more. A request
was made for a wheelchair and Plaintiff was told "it is written down in
your medical records and it will be taken care of." Plaintiff was given a
seven (7) day supply of Motrin 400 mg tablets because he could not pick up
the Naproxen 375 mg tablets previously order until April 29, 2000.
34. On May 3, 2000, during my visit to sick call, Plaintiff was
seen by Mr. Joseph Rush (PA). I requested to be seen by a Doctor and was
denied stating there was no need. He prescribed a ten (10) day supply of
Methocarbamol (Robaxin) 750 mg tablets for my back pain.
35. On May 8, 2000, Plaintiff submitted an inmate request to staff
member Marva Cerullo, Facility ADA Coordinator informing of his accident at
SCI Waymart and the treatment he has been receiving. Plaintiff also
requested the use of a wheelchair and an explanation of the treatment being
administered.
36. On May 8, 2000, Defendant Cerullo conveyed that she did not
know about the danger of muscle spasm or the proper treatment and suggested
that I ask at Sick Call.
57. On May 10, 2000, Defendant Cerullo further conveyed that she is hot
licensed to prescribe, and if a wheelchair is necessary it will be ordered.
Ms. Cerullo further explained that basin's, which was confiscated from Plaintiff
upon his return to SCI Mahanoy, are not allowed in the institution and that she
did not see why that should be changed.
38. On May 22, 2000, Plaintiff submitted an inmate request to staff
member Mr. Anthony L.~Petruccio and Mr. Edgar M. Kmeiss, Deputy Superintendent's
for Facility Management and Centralized Services respectfully concerning the
basin confiscated from Plaintiff which he used to soak his foot.
39. On May 22, 2000, Plaintiff went to sick call again seeking medical
attention for his back pain. He was seen by Ms. Hoch (PA), who examined him by
having him raise his arms, leg, and neck rotations. Plaintiff was given a three
(3) day supply of Acetaminophen (Tylenol) 325 mg tablets. Start 5/22/00 End
5/26/00.
40. On May 23, 2000, Deputy Kneiss responded by stating that" the tub
is not allowed here unless medical determines you need it.'~
41. On May 24, 2000, Deputy Petruccio responded by stating "Deputy
Kneiss will arrange the return of your basin."
42. On May 24, 2000, Plaintiff again submitted an inmate request to
staff Defendant Marva Cerullo informing that the proper medical attention is
being denied.
43. On May 25, 2000, Defendant Cerullo offered her medical opinion as to
the seriousness of my injuries and concluded that I did not need to be seen by a
doctor.
44. On May 30, 2000, Plaintiff went to sick call because his pain had
spread to his right arm, shoulder, and neck. Plaintiff was also experiencing a
tingling feeling in his right thumb. He was also seen by Mr. Rush (PA) who gave
him a reflex examination and prescribed a ten (10) supply of Baclofen
(Lioresal) 10 mg tablets, one (i) by mouth three (3) times daily.
45. On May 31, 2000, Plaintiff, unsatisfied with the last response from
Defendant Cerullo regarding being seen by a Doctor submitted another inmate's request
to staff member and received Defendant Marva Cerullo's June 2, 2000, response stating
that his "Neurological evaluations are within normal limits".
46. On June 6, 2000, Plaintiff was given an annual physical. He was seen by
Mr. Hall (PA), who he had informed about his back pain and how the pain had spread to
his right arm, shoulder, and neck and about the tingling feeling in his thumb. He
was told that if I continued to have these pains to sign-up for sick call. He was
given a reflex examination and a work restriction of no work requiring standing or
bending. Blood pressure which was 134/84, pulse 76, and Plaintiff weighed 260 lbs.
47. June 12, 2000, Plaintiff went to sick call and was seen by Mr. Hall, (PA)
requesting test to find the source of the pain in his right arm, shoulder, and neck.
He said that X-Rays will be taken on Friday, June 16, 2000. He also told Plaintiff
that he has a degenerate bone disease which was determined when Plaintiff was seen by
Mr. Rush, Mr. Hall gave Plaintiff a three (3) day supply of Ibuprofen (Motrin) 400
mg tablets to be taken three (3) times daily. He also ordered a ten (10) day supply
of Motrin 600 mg tablets to be taken by mouth three (3) times daily for ten (10) days
until completed.
48. On June 16, 2000, Plaintiff went to medical where two (2) X-Rays were
taken, by a Mr. Guy, of Plaintiff's shoulder. He reviewed the X-Rays and determined
that none of Plaintiff's joints were dislocated. He also said that the radiologist
would examine the X-Rays and make a report of the results. Plaintiff's pain at this
time is continuing.
49. On June 19, 2000, Plaintiff submitted an inmate request to staff member
Marva Cerullo informing her of the preliminary X-Ray findings and informing her of
chronic pain.
50. On June 20, 2000, Defendant Cerullo responded informing Plainiff
that "you need to follow-up with sick call please".
51. On June 23, 2000, Plaintiff went to sick call and was seen by
Mr. Ignatius Hall (PA). The report from the (2) X-Rays taken of Plainiff's
shoulder on 6/16/00 were not available in Plaintiff's medical file. Mr. Hall
prescribed a ten (10) day supply of Robaxin 750 mg tablets and a ten (10) day
supply of Motrin 600 mg tablets to be taken once by mouth three (3) times
daily. He also referred Plaintiff to be seen by the Doctor.
52. On June 29, 2000, during Plaintiff's visit to the M.D. line
Plaintiff was seen by Dr. Markosi. Plaintiff explained his symptoms and the
pain that he was experiencing in his right arm, shoulder, and neck. Plaintiff
also told the Doctor about the tingling in his thumb that has been travelling
through his right arm. The Doctor proceeded to massage Plaintiff's shoulder
and neck. He also examined Plaintiff's upp~r back and both · wrists~
Dr. Markosi said that the problem is not in Plaintiff's shoulder, but in his
spinal cord which is causing the pain in the neck. When Plaintiff asked the
Doctor how he was making this determination, he informed "by the symptoms and
the examination that Plaintiff was just given. He said that he was scheduling
Plaintiff for X-Rays of his neck. Plaintiff was told to sign-up for sick call
and the previous medication was continued.
53. On June 30, 2000, Plaintiff went to medical to have the X-Rays
taken of his neck. A Mr. Joe took the X-Rays and informed Plaintiff that the
radiologist will examine the X-Rays and make a report of the results.
54. On July 3, 2000, Plaintiff went to sick call and was seen by
Mr. Rush, (PA) and was informed that the results from the X-Rays of his neck
have not been returned. Plaintiff was also told that he is suffering from
arthritis. Mr. Rush also asked Plaintiff if he ever had an injury to his arm
in the past. He then prescribed a ten (10) day supply of Robaxin 750 mg
tablets and a ten (10) day supply of Motrin 600 mg tablets.~ He also added
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Petitioner's name to the M.D. line to be seen by the Doctor.
55. On July 13, 2000, Plaintiff went to M.D. line and was seen by
Dr. Markosi and was informed that his spine was not straight and will therefore,
have these complications.
56. On July 21, 2000, Plaintiff submitted an inmate request to staff
member Defendant Cerullo informing her of his continued
injury from the SCI Waymart fall and informed her that
administered was not working.
57. On July 24, 2000, Defendant Cerullo informed
response that she is not a doctor, therefore she will have
suffering due to his
the medication being
Plaintiff in her
to rely upon the
a diet to lose
judgement of those who are and suggested that Plaintiff go on
weight.
58. On July 26, 2000, Plaintiff went to sick call and was seen by
Mr. Joseph Rush, (PA) attempting to address the areas of his pain. He informed
Plaintiff that he was aware of his problem and that he was notified by
Dr. Markosi to treat the pain and recommended physical therapy. Plaintiff
informed him that the Motrin tablets was beginning to effect his stomach so he
changed the Motrin to Tylenol. He prescribed Robaxin 750 mg, one (1) tablet
three (3) times daily for fourteen (14) days, and Tylenol 325 mg, two (2) tablets,
three (3) times daily for fourteen (14) days. He informed Plaintiff that he could
pick up the medication at the pill window on July 28, 2000. Plaintiff informed
him that he was in pain now and needed medication immediately and was told that he
could not give him medication because it had to be approvmd by the physician.
59. On August 1, 2000, Plaintiff went to physical therapy and was seen by
Mr. Matt Hoppel. I told him the areas that I was having pain. He informed
Plaintiff that the Doctor had recommended that he examine Plaintiff's prosthesis.
No treatment for pain was administered.
-lO-
60. On August 3, 2000, Plaintiff again went to Physical Therapy and was
again seen by Mr. Matt Hoppel who said that he spoke with Dr. Markosi who
recommended that Plaintiff prosthesis be examined by the Orthopedic Appliance
person. Still no treatment for Plaintiff's spine or the pain. He advised
Plaintiff to sign-up for sick call to have the Doctor recommend treatment.
61. On August 7, 2000, Plaintiff went to sick call to seek physical
therapy treatment and was seen by Mr. Joseph Rush, (PA) who said taht physical
therapy was not for persons with chronic care but for serious injuries.
Plaintiff informed him that his injuries sustained at SCI Waymart was causing
enormous pain. Mr. Rush said the Doctor would have to make treatment
determinations.
62. On August 10, 2000, Plaintiff went to M.D. line and was seen by
Dr. Markosi and informed him about the physical therapy problem. Dr. Markosi
said he would not recommend the treatment because I did not have any broken
bones. Dr. Markosi said that my spinal cord is not straight and they have done
all that they can and that they did not want to see Plaintiff anymore.
Dr. Markosi prescribed a thirty (30) day supply of Robaxin 750 mg tablets and
Tylenol 325 mg tablets twice daily.
63. On August 17, 2000, Plaintiff submitted inmate request to staff
member Defendant Cerullo and informed her about my 8/10/00 visit with Dr. Markosi
and she stated "the M.D. has the final say".
64. On August 29, 2000, Plaintiff submitted an Official Inmate Grievance
concerning the medical treatment that he was receiving at SCI Mahanoy for the
injuries received at SCI Waymart. This Grievance was assigned No. aAH-0427-00.
65.
Assistant
66.
Review response to Plaintiff's
On August 31, 2000, Ms. Carol Dotter, Corrections Superintendent
responded to Plaintiff's grievance informing of grievance procedure.
Plaintiff received Defendant Cerullo's September 8, 2000 Initial
grievance.
g7. On September 22, 2000, Plaintiff submitted his appeal to Superintendent
Shannon a defendant in this matter.
68. On October 2, 2000, Plaintiff submitted an inmate's request to staff
member Defendant Shannon inquiring about his appeal submitted to him on
September 22, 2000.
69. Defendant Shannon's October 2, 2000, responded An appeal to my office
was never received".
70. On October 3, 2000, Plaintiff submitted an inmate's request to staff
member Defendant Robert Shannon acknowledging his 10/2/00 reply and forwarded a copy
of his September 22, 2000, appeal for response in the event his initial appeal had
been misplaced or lost.
71. On October 4, 2000, Defendant Shannon responded to Plaintiff's appeal
of Grievance No. MAH-0427-00 wherein he advises Plaintiff to follow the advice of
the Doctor's prognosis and denied my appeal. Nowhere does any response to this
grievance address the issue of my continued pain and suffering.
72. On October 8, 2000, Plaintiff submitted his final appeal to the Chief
Counsel of the Department of Corrections for review and remedial action.
73. On November 9, 2000, Plaintiff received response from Thomas L. James
to his final appeal stating "I concur with the responses already provided at the
institution level. Accordingly, your appeal to final review must be denied."
LEC. AL CLAIM
74. At all times defendants had under their care, supervision,~control,
maintenance, and/or was responsible for the handicapped shower located at
SCI Waymart which contained the missing handrail mentioned in the complaint.
75. Defendants had, or should have had knowledge and/or notice of the
existence of the defects, and the defendants was obligated to remedy, repair,
and/or eliminate them.
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76. The injuries that Plaintiff sustained as a result of his fall
were caused by the negligence, carelessness, and recklessness of the defendants,
his agents, servants, and/or employees, which included the following:
(a) failing to ues due care and to employ reasonable skill in
the performance of their duties and in their duty of care toward
Plaintiff;
(b) failing to exercise the judgement, care, and skill of reasonable
persons under similar circumstances;
(c) permitting the handicapped shower, mentioned in this complaint,
to remain in an unsafe, unusable and dangerous condition, despite
knowledge of the defect;
(d) failing to take reasonable prudence or care in maintaining
the shower, mentioned in this complaint, and failing to maintain the
shower in a safe condition;
(e) failing to warn Plaintiff Franklin Sutton of the defects;
(f) unreasonably exposing Plaintiff Franklin Sutton to a dangerous
condition;
(g) permitting the shower, mentioned in this complaint, to remain
in a dangerous, unsuitable and unsafe condition;
(h) failing to maintain proper and safety precautions in and around
the area where plaintiff fell;
(i) failing to correct, remedy, repair, and/or to eliminate the
dangerous condition and defects;
(j) failing
Franklin Sutton
conditioms were
(k) failing
conditions for
to install handrails in the shower where Plaintiff
fell for handicapped persons to utilize until proper
available;
to provide an appropriate shower with reasonably safe
handicapped persons to use;
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(1) otherwise conducting themselves in a negligent, careless and
reckless manner.
77. As a result of the negligence of the defendants, his agents, servants,
and/or employees, Plaintiff Franklin Sutton has suffered certain injuries
including:
(a) Back spasms, misaligned spine and a severe shock to his nervious
system, all of which may be permanent and will continue to cause Plaintiff
igfeat pain and'suffering.
78. As a result of the negligence of the defendants, their agents,
servants and/or employees, Plaintiff Franklin Sutton has undergone severe
physical pain and mental anguish, and he will continue to endure the same
for an indefinite time in the future and after he is released from his place of
confinement, to his great detriment and loss.
79. As a result of the negligence of the defendants, their ~gent~,
servants and/or employees, Plaintiff Franklin Sutton was unable and has been
unable to attend to his usual daily duties and affairs, and he will be unable to
attend to them for an indefinite time in the future and aftsr he is released from
his place of confinement, to his great detriment and loss.
80. The medical care of Plaintiff Franklin Sutton by defendants was in
such a negligent and careless manner as to cause and continue the plaintiff
serious and severe injuries set forth more fully below.
81. The defendants was negligent in the care and treatment of Plaintiff
Franklin Sutton after his fall, inter alia, as folios:
(a) Failure to properly advise and inform Plaintiff of all the risk
and consequences of, and alternatives to the
and treatment for his injuries;
(b) Failure to take steps necessary to
proposed medical procedures
identify and protect the
plaintiff's back during his treatment for the back injure;
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(c) Failure to perform medical treatment in such a manner as ~o
avoid firther injury to Plaintiff's back;
(d) Failure to conform to the requisite standards of ~s~m~hte
medical care in treatment of back injuries;
(e) Failure to promptly take steps and perform tests necessary ~o
diagnose and treat the ills caused to Plaintiff Franklin Sutton by ~e
injury to his back from the fall;
(f) Failure to conform to the requisite standards of ~eas~nabte
medical care;
(g) Failure to provide and render reasonable medical care .~nder
the circumstances;
(h) Negligence as a matter of law.
82. As a result of the negligence of the defendants, his agents,
servants, and/or employees, Plaintiff Franklin Sutton has suffered back spasms,
spine misalignment, continued pain, physical discomfort, emotional distress,
anguish, and apprehension, some or all of which may be continuing or have
continuing effects.
89. As a result of the negligence and carelessness of the defendants
herein, as describeed above, the Plaintiff was caused to undergo tests and
various procedures including X-Rays, Massages.
84. As a further result of the aforementioned injuries, the Plaintiff
was unable to attend to his usual and daily occupations, duties, labors and
avocations, and he will be unable to attend to them for an indefinite time in
the future and after he is released from his place of confinement, to his great
detriment and loss.
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CLAII~FORR~LIEF
WHEREFORE, Plaintiff respectfully pray that this Court enter judgement
granting Plaintiff:
1. A declaratory judgement that Defendant's act, omissions, policies
and practices described herein violated Plaintiff's rights under the
PA and U.S. Constitutions.
2. Conpensatory damages in excess of $10,000.00 to Plaintiff from
each Defendant.
3. Punitive Damages in excess of $10,000.00 to Plaintiff from each
Defendant.
4. Trial by jury on all issues triable by jury.
5. Plaintiff's cost of this suit.
6. That the Summons and Complaint be served upon the Defendant's by the
appropriate means and process of Service be ordered complete.
7. That the Plaintiff be permitted to proceed with this cause of
action, In Forma Pauperis Status for filing of Complaint, and other
necessary pleadings.
8. That Plaintiff's Complaint be treated by this Honorable Court
according to the legal standards promulgated by the U.S. Supreme Court in
the cases of Haines v. Kernel, 404 U.S. 519, 92 S Ct.
Pro Se litigants; and Hughes v. Rowe, U.S. 5, 101A Ct.
Pro Se Complaints. And that Plaintiff be granted leave to proceed
Pauperis, forthwith.
9. Such other and further relief deemed necessary, just and
by this Honorable Court
relief requested herein.
594 (1972) regarding
173 (1980) regarding
In Forma
in instant cases. Plaintiff prays
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equitable
for the
VERIFICATION
I have read the foregoing Complaint and hereby verify that the
matter alleged therein are true, except as to matters alleged on
information and belief, and, as to those, I beleive them to be true.
I certify under the penalty of prejury that the foregoing is true
and correct.
Respectfully submitted,
Franklin Sutton, Pro Se Plaintiff
No. BV-9496
SCI Mahanoy
301 Morea Road
Frackvflle, PA 17932
Dated:
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THE COURT OF COMMON pLa_~.S OF
CUMBERLAND
FRANKLIN SUTTON
PLAINTIFF
rS,
PENNSYLVANIA DEPARTMENT
OF CORRECTIONS, ET ALi
DEFENDANT
COUNTY, PENNSYLVANIA
AND NOW, this 2~ . day of .. ~ , -2E.r~
it is hereby Ordered that the applicant's Petition For Lmve To Proc.~d In Forma
Pzuperis i~ Grant~.
CUMBERLAND
FRANKLIN SUTTON
PLAINTIFF
VS.
PENNSYLVANIA DEPARTMENT
OF CORRECTIONS, ET AL.
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
COUNTY, PENNSYLVANIA
No.
:
:
:
PETITION AND AFFIDAVIT FOR
LEAVE TO PROCEED
IN FORMA PAUPERIS PURSUANT TO I~a.R.C.P. 240
Pe,l,lomr, Franklin Sutton , ~y r~t$
tlmt mi~, Honorable Court ~ him leave m proceed in forum p~uperis pursm~ to
Pennsylvania Pule of Civil Procedm~ 240.
Frankl in Sutton { ~ ~ l)~ltleS provided by
18 Pa.C.$. § 4~ (~o~r-i..- {mswora falsific~li{m to auli~ol~ti{s) thai:
1. I am the Plaintiff in the ~bove ~ction ,,a because of my
fumm~l co-ii,ion em umble to p~y fees mi co~ or to ~ ~cutiu therefore.
2. The followin~ d~laration mLuin~ to my ~bility to [my ft~ ,,,a eom i~ uae
(a)
(2) lamcurre~lypaid~,tl~rateof$ . .19¢ ~r~%fffor 7 ho~perday.
(b) Within th~ pasl twelve mon~, I have mX received my income from a
profession or og~r form of ~lf~mploym~nl, or. in th~ form of ~ payroll,
dividends, p~sions, anm,!ties, social security ~fits, supper payrolls or other mu~es.
(c) Apart fl'om $ 76. 96 in my i~,,- ~.mtux ~ mi, itmimfion, I do nm own
~ycash or ch~ckingormvin~¢coun~' Other than a savings account with less
than $160.00.
(d) I do no~ own any mai ~ate, stocks, bonds, no~s, automobiles, or o~her vab,~bl~
property (except ordinary household funfishil~ mi clothing).
(e) I hav~ no dependent.
(0 I hav~ no d~lm and obli~iom.
3. I understand tlmt a fnls~ stat~n~nt or amw~r to any qu~sti~m in this verified smnnem
will subject n~ to tl~ l~malties provided by law (mi,~a.,~aor oftha s~.omi degz~e).
Whe~fore, for the foregcir, g masons, petitioner rests*fully mluests tint this
Honorable Court grant him leave to proceed in fonna [mUl~iS.
Dam: 2-- 2.1--
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff
-VS- : No. 01-1139
MARTIN HORN, et al. :
Defendants :
MOTION FOR LEAVE TO AMEND COMPLAINT
AND NOW comes Plaintiff, Franklin Sutton, Pro Se, and files
this Motion fo= Leave to Amend ~%is Complaint, statin6 in support
thereof as fellows:
1. Plaintiff Franklin Sutton commenced this action a~ainat
the d~fendant~ MARTIN F. HORN, ROBERT SHANNON, MARTIN DRAGOVICH,
RAYMOND J. COI,LERAM, DONALD FISKE, HARVA CERULL9 MILTON FREIDMAN,
and JOHN DOE, employees of the Commonwealth of Pennsylvania,
Department of Corrections for Negli~enne whereby a h~%dinap shower
was not properly maintained and inadequate reed inal care after
Plaintiff suffered injuries from a fall in the ne61ected handicap
at SCI Waymart.
The Defendants complaint was filed on February 27, 2001.
shower
2.
3.
Plaintiff was granted
bi order of February 28. 2001.
4. On March 22, 200~,
Defendants was made by Sarah
5. On Januarf 7, 2002,
Court requested ~he status of
leave to proceed In forma Pauperis
an entry of a~pearanee
C. Yer6er, Esquire.
Plaintiff bf letter to the
for the
Clerk of
above captioned Civil action.
5. Plaintiff received a Civil ca~e inquiry relative to ~he
shove captioned case dated January 14, 2002~ which revealed that
Defendants Prsltminary Objections ~ere filed on March 26, 200~.
7. On January ~7, 2002, ?laintiff informed the Clerk of
Court that he was never served Preliminary Objecctions filed on
behalf of the Defendants end ~equested a copy of same.
8. Plaintiff submitted an inmate request to the Institution
Mail Supervisior on Jamuary 29~ 2002, concerned§ the alleged
service of the Preliminary Objections. Plaintiff received a ~rint
out of his legal receipts from January 19, 2001 through and
including September 7, 2001, which showed one legal receipt by
Defendant's counsel which was entry of appearance dated 3/22/0l.
9. On February 20, 2002, Plaintiff
serving Defendants. counsel with a
10. Plaintiff received
dated February 22, 2002, with
Objections attached.
filed Notice of Default,
copy.
response from the Defendants counsel
a copy of the Defendants Prelimina~y
11. By this motion, Plaintiff respectfully request leave of
this Honorable Court to file an Amended Complaint.
12. The filing of an Amended Complaint will not delay the
trial of this act io~% or prejudice the Defendants because this
case has not been placed at i~sue nor has discovery been ordered.
WHEREFORE, Plaintiff, Franklin Sutton, respectfully requests
that this Honorable Court grant him leave to file an Amended
Complaint in the form attached hereto.
Franklin SuttOn, Pro Se Plaintiff
No . BV-9496
SCI Mahanoy
30 I Morea Road
F~ac~ville, PA i7932
-2-
IN THE COURt OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
FRANKLIN SUTTON : COMPLAINT
Plaintiff :
:
-VS- : Civil Action No. 01-1139
:
MARTIN F. HORN, individually
and in his official capacity : (CIVIL RIGHTS3
ROBERT SHANNON, individually
and in his off icial capacity
MARTIN DRAGOVICH, individually :
and in his official capacity :
RAYMOND J. COL~ERAN, individually :
and in ~]is official capacity :
DONALD FISKE, individually and in :
his official capacity
MARVA CERULLO, individually and :
in her official capacity
MILTON FRIEDMAN, individually and
in his official capaci~
30HN DOE, individually an~ in his :
official capacitf :
Defendants
1. Plaintiff,
state as follows:
PLAINTIFF'S AMENDED COMPLAINT
Franklin Sutton, pro se for his complaint
II. JURISDICTION AND VENUE
2. This action arises under and is brought pursuant to the
Courts of Common Pleas unlimited original jurisdiction of all
actions and proceedings under the Pa. Const. Art. ¥ Section 5(b);
42 Pa.C.S.A. Section 931(a) (Purdon 1981).
III. PARTIES
3. Plaintiff, FRANKLIN SUTTON, was at all times mentioned
herein, a prisoner of the State of Pennsylvania, in the custody of
the P~nnsflvania Department of Corrections . ~le i$ eurr en tly
confined at the State Correctional Institution at !~ahanoy,
301 Morea Road, Frackville, PA 17932 at inmate No. $V-9496.
4. Defendant, MARTIM F. HORN, was at all times mentioned
herein the Secretary of the Pennsylvania Department of
Corrections. He was legally responsible for the overall operation
of the Department and each institution under its jurisdiction and
· the welfare of all the inmates of Pennsylvania. His office was
located at 2520 Lisburn Road, PO Box 598, Camp }{ill PA 17001-0598.
He is sued in both his individual and official capacities.
5. Defendant, ROBERT SHANNON, was at all times mentioned
herein an employee of the Pennsylvania Department of Corrections
sucoeed Martin Drasovich as Superintendent at
and
was legall3~ responsible for the operation of SCI
the welfare of all the inmates of that prison .
located at 301 Morea Road, Frackville PA 17932.
SCI Mahanot. He
Mahanoy and for
His office was
He is sued in
SCI Wa/mart, P.O. Box
in both his individual
256, Rt. 6 Waymart PA 18472-0256o
and official capacities.
He ~s ~ued
times men tioned
of Corrections
responsible for
both his individual and official capacities.
6. Defendant, MARTIN DRAGOVICH, was at all times mentioned
herein an employee of the Pennsylvania Department of Corrections
and preceeded Robert Shannon as Superintendent at SCI Mahanoy. He
was legally responsible for the operation of SCI Mahanoy and for
the welfare of all the inmates of that prison. His office was
located at 30~ Morea Road, Frackville PA 17932. He is sued in
both his individual and official capacities.
7. Defendant, RAYMOND 3, COLLERAN, was at all
herein an employee of the Pennsylvania Department
as Superintendent at SCI Watmart. He was legally
the operation of SCI Wajzmar t and for the welfare of all the
inmates of that prison. His office was located on the eom~ouud at
8. Defendant DONALD FISKE, was at all times mentioned
herein an employee of the Pennsylvania Department of Corrections
as Health Care Administrator at SCI Wa/mart . He was legally
responsible for the ad~inistretion of the health care needs and
the medical welfare of all the inmates assi6ned to SCI Waymart
prison. His office is located at SCi Waymart, P.O. Box 256, Rt. 6
Waymart, PA i8472-0256. He is sued in both her individual and
official capacities.
9 . Defendant , MARVA CERULLO, was at all times mentioned
herein an employee of the Pennsylvania Department of Corrections
as Health Care Administrator at SCI Mahanoy. She was legally
responsible for the administration of the health care needs and
the medical welfare of all the inmates assisned to SCI Mahanoy
prison. Her office is located at SCI ~.fahanof, 301 Morea Road,
Frackville, PA 17932 . She is sued in both her individual and
official capacities.
10. Defendant, MILTPN FRIEDMAN, was at all times mer~tioned
herein an employee of the Pennsylvania Department of Corrections
as Unit Menager at SCI Watmart. He was le$&lly' responsible for
the operation L-l, L-2/M-1, M-2 housing units of SCI Waymart and
for the welfare of all the inmates of that Housing Unit. His
office was located at SCI
Pennsylvania 12472-0256.
official capacities.
11. Defsndant~ JOHN DOE,
;~a/mart, P.O. Box 256, Rt. 6 Waymar t
Me is sued ia both his individual and
wes at all times mentioned herein
an employee oF the P~nsylvania Department of Corrections assi6ned
to SCI W aymart. His responsibilities a re unknown ~o Plaintiff ~ He
is sued in both his individual and official ca~acities~
--3--
IV. PREVIOUS LAWSUITS
12. Plaintiff has filed no other lawsuits dealing with the
same facts involved in this action or otherwise relating to the
incident and treatment relating to the injury mentioned in this
complaint.
V. EXHAUSTION OF ADMINISTRATIVE REMEDIES
13. Plaintiff used the State prisoner grievance procedure to
try to resolve his problem. On August 29, 2000, Plaintiff
presented the facts relating to his complaint in his Official
Grievance No. MAH-0427-O0 and appealed each decision to exhaustion
by Response of Thomas L. James to final appeal stating "I concur
with the responses already provided at the institution level.
v__z_.
14. On Wednasday, February 9, 2000, Plaintiff was
transferred from SCI Mahanoy to SCI Waymart to participate in a
S.O.P. program.
15. On February 16, 2000, Plaintiff submitted an inmate
request to staff to Defendant Fiske expressing his concerns about
the accommodations for inmates with disabilities. Plaintiff's
left leg is amputated above the knee and his balance is very poor
and is considered handicapped. Plaintiff's inmate request to
staff to Defendant Fiske went unanswered .
16. On February 28, 2000, Plaintiff again submitted a inmate
request to staff to Defendant Fiske expressin~ concerns about the
accommodations for inmates with disabilities.
27. On March 2, 2000, Defendant Fiske responded statin6 "SCI
Wa~mar t is not a handicapped assessable fac iliads. If you feel
your needs cannot be met here, please sign-up for sick-call and
--4--
request a transfer to a more appropriate facility. Please
me on what ]ou would lille to do ."
~$. On March 6, 2000, Plaintiff ~ubmitted an inmat~
inform
to Defendant Friedman
the hanidcap shower,
was forced to use the
conveyina the problem with the plumbing in
Th-~ ~ater was scaldins hot and Petitioner
adjacent shower. Plaintiff requested that a
work order be submitted to have the handicapped shower repaired.
19. On March 21, 2000. Plaintiff submitted a second request
to staff to Defendant Priedman com~lainin~ about the handicapped
shower and a~ai~l requested that it be repaired,
20. On March 27, 2000, the tr~esmen at S01%4aymart shut off
the wa~er to the handicapped, showe~ because of plumbins problems.
21. On March 28, 2000, at approximatalf 8.'35 p.m. Plaintiff
fell in the Gen,~al Population shower that did not have a handrail
and injured himself and was treated by' ~he Medical staff at SCI
Waymar t after Officer Mc GraPh called over to medical and had
inmate Griffin CF-7176 ~ush ?lai,~t if~ over to mediaal in a
wheelchair, The nurse ;~rote -up an incident report and asked
Plaintiff if he felt the need to sta~ overni~h~, Gave him three
(3) advil 200 mS tablets and told him to si6n-up for Sick Call for
the next day.
22. On March 29 ~ 2000, Plaintiff reportud to Sick Call at
SCI Waymart where X-Rays were taken of his back and a three day
supply of advil was ~iven to him alon~ ~ith thre~ (3) days medical
9_3~ On ~pril t, 2090, Officer Parma had inmate Griffin push
?laint~ff over to ,medical iu a wheelchair where he was seen by
Ms. Sally ~,~ho told hi.m that his X-Ray showed tha~ Plaintiff had a
given a seven (7) daf supply of motrin 600 mg tablets and
sign-up for Sick Call if he had any further complications.
24. On April 3, 2000, Plaintiff submitted an inmate
to staff to Defendant Fiske informing him about
resulting from his fall in the shower.
25. On April 5, 2000, Defendant Fiske
reply to Plaintiff's April 3, 2000, request:
spasm in his back that was causing the pain. Plaintiff was
told to
request
the injury
offered the following
minimize the pain. Plaintiff also informed Mr. Heff erman
he would be transferred back to SCI Mahanoy soon. He said
thst he would not authorize an extra mattress because Plaintiff
may be transferred any day.
29. On April 13, 2000,
requested to see his
Plaintiff went to sick
X-Ray, was refused and again
--6--
call and
requested a
member that th~ shower with the rail was still out of order.
28. On April 10, 2000~ Plaintiff went to sick call because
his back pain was unbearable and herin§ trouble sleeping. ~e was
seen by Mr. Heffe?:mar~, P.A and requested an additional mattress to
help
that
the effects of muscle spasm and how the muscle will tighten up on
the back. Plaintiff was given a seven (7) day supply of Robaxin
500 mg tablets.
27. On Apr%l lC, 2000, Plaintiff again informed the Unit
Manager and Unit Counselor by way of inmate request to staff
" I have spoken with Mr. Friedman concerning a second
mattress. I have also spoken with our Central Office. You
will be transferred soon."
26. On April 5:. 2000, Plaintiff went to sick call and was
seen by Mr. Hefferman, PA who also told Plaintiff that his X-Rays
showed that he was suffering from muscle spasm. He also explained
second mattress, Mr. Hu&hs said that "under guidelines that he
nor Mr. Fiske cannot authorize a second mattress o In order for
him to obtain a second mattress, Plaintiff would have to have had
sur/~ery or a serious injury, somethin& of that mature." Plaintif£
was ¢iven a seven day supply of Robaxin 500 mg tablets,
30. On April 14, 2000, Plaintiff was given an additional
mattress until transfer.
31. On April 21, 2000, Plaintiff submitted a memorandum to
Defendant Colleran informing him of the injuries he sustained on
March 28~ 2000, due to negligence and requested the status of his
transfer.
32. On April 26, 2000, Plaintiff was transferred back to SCI
Mahanpy.
34. On April 28, 2000, Plaintiff went tc sick call seeking
medical attention for his back pain. He was seen be Mr. I~natius
Hall [PA) who told him that muscle spasm could last for up to two
[2) years or more. A request was made for a wheelchair and
Plaintiff was told "it is written down in your medical records and
it will be taken care: Of." Plaintiff was given a seven (7) day
supply of Motrin 400 mg tablets because he could not pick up the
Naproxen 375 md tablets previously ordered April 29, 2000.
35. May 3, 2000, during his visit to sick call, Plaintiff
--7--
33. On April 27, 2000, Plaintiff was told that he h~ to
report ot Chronic Clinio, at which time he requested a wheelchair.
His need for a wheelchair was documented in his medical records.
Plaintiff was prescribed a twenty-et&hr (28) day supply on
Naproxen 375 mg tablets, his blood pressure was 134/96 and he
wei&hed 254 lbs.
was seen by Mr, Joseph Ruch
Doctor and was denied
tan (10) da3 supplj
his back
36.
Defendant t
accident
Plaintiff
(PA). He requested to be seen by a
statin~ there was no need. He prescribed a
of Methoc.'-zrb~%mol {Robaxio) 750 lag tablets for
On May 8, 2000, Plaintiff submitted an inmate request to
~[arva Cerullo, Facility AhA Coordinator in,coming of his
at SCI Waymart and the treatment he has been reeeivin6.
also requested the use of a wheelchair and an
she
explanation of the treatment being administered.
i%7o O~ MaM 8, 2000, Defendant Cerullo conveyed that she did
not know ebout the danger of muscle spasm or the proper treetment
and sug~ested that I ask at sick call.
38. On May 10~ 2000, Defendant Cerullo further conveyed that
is not licensed to prescribe and if s wheelchair is n~.eessary
will be ordered. Defendant Cerullo further expl aimed that
basin's, which wss confiscated from Plmintiff upon his return to
SCI Makanoy, are not allowed in the institution and that she did
not see wh~ that should be changed.
39. 0n May 29., 2000, Plaintiff submitted an inmate request
to ~taff member Mr. Anthony L. Patrucc!o and Mr. Edgar M. Kneiss,
Deputy Superintendent 's for Facility Management and Centrallized
Services respectively concerning the basin confiscated from him
which he used to soak his foot.
40. On May 22, 2000, Plaintiff went to sick call a~ain
seeking medical attention for his back pain. He was seen by
Ms, Hooh (PA), who examined him by havin6 him raise his arm, leg,
and neck rotations. Plaintiff was 6iven a three (3) day supply of
Acetaminophen (Tylenel) 325 m~ tablets. Start 5/22/00-End 5/26/00.
"the
it ."
41. On May 23, 2000, Deputy ~neiss responded by stating that
tub is not allowed here unless medical determines you need
42. On May 24, 2000, De~ut>' Patruccio responded bi stating
"Deputy Kneiss will arrange the return of your basin."
43 . Oil May 24, 2000, Plaintiff again submitted an inmate
request to staff member Defendant Cerul lo in formin~ that the
proper medical attention is being denie~.
44. On May 25, 2000, Defendant Cerullo offered her medical
opinion as to the serio usa. ess on Plaintiff's injuries
concluded that he did not need to be seen hy a Doctor.
45. On May 30, 2000, Plaintiff went to sick call becaus~ his
~ain had s~raad to ~is right arm, shoulder~, and neck. Plaintiff
was also experiencin~ a tinslin~ feelins ia his ri&hr thumb. He
was also s~en b~ Mr. Ru~h (PA) who gave him a reflex examination
and prescribed a ten (10) day supply of Baclofen (Lioresal) 19 mg
tablets, cica (1) by mouth th. rea <3) times daily.
46 . On May 31, 2000, Plaintiff unsatisfied with the last
response from Defendant Cerul]o regarding being seen by e Doctor
submitted another inmate request to staff member an~! recsived
Defendant geru!lo's June 2, 2000, response ~tatinA that his
"Neurological evaluation are within normal limits."
~7. On June 2, 2000, Plaintiff was given an annual
physical. He was seen by Mr. Hall (PA), who he had informed about
his bec'& psin and how the pain had spread to his right arm,
shoulder, and neck and about the tin~ling feeli~ in his thumb
He was told that if I continue to have these pains to sign-up for
sick ceil. He was ~iven a reflex examinati, on and a work
restriction of no work requiring standing or bending. Blood
pressure was 134/84, pulse 76, and wei8ht 260.
48. On 3une 12, 2000, Plaintiff went to sick call and was
seen by Mr. Hall, (PA) requesting test to find the source of the
pain in his right arm, shoulder, and neck. He said that X-Rays
will be taken on Friday, June 16, 2000. He also told Plaintiff
that he has a degenerate bone disease which was determined when
Plaintiff was seen by Mr. Rush. Mr. Hall gave Plaintiff a three
(3) day supply of Ibupropfen (Motrin) 400 mg ablets to be taken
three [3) times daily. He also ordered a ten (kO) day supply of
Motrin 600 mg tablets to be taken by mouth three (3) times daily
for ten (10) days until completed.
49. On 3une 16, 2000, Plaintiffn went to medical where two
(2) X-Rays were taken, by a Mr. Guy, of Plaintiff's shoulder. He
reviewed the X-Rays and determined that none of Plaintiff's joints
were dislocated. He also said that the radiologist would examine
the X-Rays and make a report of the results. Plaintiff's pain at
this time was continuing.
50. On 3uns 19, 2000, Plaintiff submitted an inmate request
to Defendant Cerullo informing her of the preliminary X-Ray
findinss and informins her of the chronic pain.
51. 0n 3une 20, 200d~, Defendant Cerullo responded informinE
Plaintiff that "you need to follow-up with sick call please."
52. On 3une 23, 2000, Plaintiff went to sick call and was
seen by Mr. Isnatius Hall (PA). The report from the two (2)
X-Rays taken of Plaintiff's shoulder on 6/16/00 were not available
in Plaintiff's medical file. Mr. Hall prescribed a ten (10) day
supply of Robaxln 750 ma tablets and a ten (10) day supply of
Motrin 600 mg tablets to be taken once by mouth three (3) times
daily. He also referred Plaintiff to be seen by the Doctor.
53. On June 29, 2000, during Plaintiff' s vieit to the
M.D. line he was seen by Dr. Markosi. Plaintiff explained hie
symptoms and the pain that he was expa rieneing in his right
arm, shoulder, and neck. Plaintiff also told the Doctor about the
tin~lin~ in hie thumb that has ben travelin~ through his right
arm. The Doctor proceeded to massage Plaintiff' s shoulder and
neck. He also examined Plaintiff's upper back and both wrists.
Dr. Markosi said that the problem is not in Plaintiff's shoulder,
but in this spinal cord which is causing the pain in the neck.
When Plaintiff asked the Doctor, how he was makin ~ this
determination? he informed "by the symptoms and the examination
that Plaintiff was just given. He said that he was scheduling
Plaintiff for X-Rays of his neck. Plaintiff was told to sign-up
for sick call and the previous medication was continued.
54. On June 30, 2000, Plaintiff went to medical to have the
X-Rays taken of his neck. A Mr. 3ce took the X-Rays and informed
Plaintiff that the radiologist will examine the X-Rays and make a
report of the results.
55. On 3ulj 3, 2000, Plaintiff went to sick call and was
seen by Mr. Rush [PA) and was informed that the results from the
X-Rays of his neck have not been returned. Plaintiff was also
told that he is suffering from arthritis. Mr. Rush al so asked
Plaintiff if he ever had an injury to his arm in the past. He
then prescribed a ten (t0) day supply of Robaxin 750 m~ tablets
and a ten (10) day supply of Motrin 600 ms tablets. He also added
Petitioner's name to the M.D. line to be seen by the Doctor.
56. On July 13, 2000 Plaintiff went to M.D. line and was
seen by Dr. Markosi and was informed that his spine was not
straY&hr and will therefore, have these complications.
57. On July 21, 2000, Plaintiff submitted an inmate request
to Defendant Cerullo informin& her of his continued sufferinM due
to his injury from the SCI Wa~mart fall and informed her that the
medication beins administered was not working.
58. On July 24, 2000, Defendant Cerullo informed Plaintiff
in her response that she is not a Doctor, therefore, she will have
to rely upon the judMement of those who are and suggested that
Plaintiff Mo on a diet to lose weiMht.
59. 0n 3ely 26, 2000, Plaintiff went to sick call and was
seen by Mr. 3oseph Bush (PA) attemptinM to address the areas of
his pain. He informed Plaintiff that he was aware of his problem
and that he was notified by Dr. Markosi to treat the pain and
recommended physical therapy . Plaintiff informed him that the
Motrin tablets was be~innin~ to effect his stomach so he changed
the Motrin to Tylenol. He prescribed Robaxin 750 ms one (17
tablet three (3) times daily for fourteen (14) days, and Tylenol
325 mM two (2) tablets three times daily for fourteen (14) days.
He informed Plaintiff that ha could pick up the medication at the
pill window on July 28, 2000. Plaintiff informed him that he was
in ~ain now and needed medication immediately and was told that he
could not Mire him medication because it had to be approved by the
physician.
60. On August k, 2000, Plaintiff went to physical therapy
and was seen by Mr. Matt Hoppel. Plaintiff told him tbs areas
that he was herins pain. He informed Plaintiff that the Doctor
-12-
had
treatment for pain was administered.
61. On August 3, 2000, Plaintiff again went to Physical
th%rapy and was again seen by Mr. Matt Hoppel who said that he
spoke with Dr. Markosi who recommended that Plaintiff's prosthesis
be examined by the Orthopedic Appliance person. Still no
treatment for Plaintiff's spine or pain. He advised Plaintiff to
siEn-up for sick call to have the Doctor recommend treatment.
62. On August 7, 2000, Plaintiff went to sick call to seek
physical therapy treatment and was seen by Mr. 3oseph Rush (PA)
who said that physical therapy was not for persons with chronic
care but for serious injuries. Plaintiff informed him that his
recommended that he examine Plaintiff's prosthesis, No
63. On August 10, 2000, Plaintiff went to M.D. line and was
seen by Dr. Markosi and informed him about the physical therapy
problem. Dr. Markosl said he would not recommend the treatment
because I did not have any broken bones. Dr. Markosi said that my
spinal cord is not straight and they have done all that they can
and that they did not want to see Plaintiff anymore. Dr. Markosi
prescribed a thirty (30) day supply of Robaxin 750 mE tablets and
Tylenol 325 mg tablets twice a daily.
64 · On
request to
visit with
say ."
65.
August 17, 2000, Plaintiff submitted an
Defendant Cerullo and informed her about his
Dr. Markosi and she stated "the M.D. has
On August 29, 2000, Plaintiff submitted an Official
-
in ma t e
8/~o/oo
the final
injuries sustained at SCI Waymart was causing enormous pain.
Mr. Rush said the Doctor would have to make treatment
determinations.
Inmate Grievance concerning the medical treatment that he was
receiving at SCI Mahanoy for the injuries received at SCI Waymart.
This Grievance was assigned No. MAH-0427-00.
66. On August 31, 2000, Ms. Carol Dotter, Corrections
Superintendent Assistance responded
informing of grievance procedure.
67. Plaintiff received Defendant
Initial Review response to Plaintiff's
to Plaintiff' s grievance
Cerullo's September 8, 2000
gr ie vance .
68. On September
Defendant Shannon, SCI
69. On October
22, 2000, Plaintiff submitted his appeal to
Mahanoy Superintendent.
2, 2000, Plaintiff submitted an inmate
request to Defendant Shannon
to him on September 22, 2000.
70. Defendant Shannon's
inquiring about his appeal submitted
October 2, 2000, response informed
that "an appeal to my office was never received."
71. On October 3, 2000, Plaintiff
request to Defendant Shannon acknowledging
forwarded a copy of his September 22, 2000,
submitted an inmate
his i0/2/00 reply and
appeal for response in
the event his initial appeal had been misplaced or lost.
72 . On October 4, 2000, Defendant Shannon responded to
Plaintiff's appeal of Grievance No. MAH-0427-00 wherein he advises
Plaintiff to follow the advice of the Doctor' s prognosis and
denied his appeal. Nowhere does any response to this grievance
address the issues of Plaintiff's continued pain and suffering,
73. On October 8, 2000,
to the Chief Counsel of the
and remedial action.
74. On November
Plaintiff submitted his final appeal
Department of Corrections for review
9, 2000, Plaintiff received response from
- 14 -
Thomas L. James to his final appeal stating "I concur with the
responses already provided at the institutional level.
Accordingly, your appeal to final review must be denied."
VII. STATEMENT OF CLAIM. S_
.COUNT ONE: NEGL. IG~ENT__F_~ILUR_E TO MAINTAIN HANDICAP SHOWER
75. Plaintiff incorporates the allegations contained in
paragraphs 1 through 74, inclusive, as thoush set forth at length.
76.
through its
employees,
employment.
At all material times, the defendants acted by and
duly authorized agents , servants , workmen and/or
acting within the scope of their authority and
At all material times, the defendants had under its
care, supervision, control and maintenance the defective handicap
shower located on the block at SCI Waymart where Plaintiff was
housed. On March 28, 2000, Plaintiff slipped and fell.
77. As as result of slipping
shower which did not have a handrail,
and suffered back injuries.
in the 6eneral population
plaintiff fell to the floor
78.
the defendants, Plaintiff has been
attention and care for the injuries
controll of the Defendants.
Solely as a result of the negligence and carelessness of
obliged to receive medical
he suffered also under the
WHEREFORE, Plaintiff demands judgement in his favor and
aEainst the defendants in an amount in excess ,~f $20,000.00 plus
interest and cost.
COUNT ~EO!._._~A~_~F_._~I_ TO PROTECT
79. Plaintiff incorporates the allegations contained in
paragraphs 1 through 78, inclusive, as though set forth at length.
80. The Defendants exercised deliberate indifference to
-15-
Plaintiff's health and safety by failing t~ protect him from an
unsafe environment even though they had been informed of the
unsafe environment and threat to Plaintiff's health and safety.
The Defendants received several requests from Plaintiff informin§
them of the damaged handicap shower which Plaintiff needed to use.
81. As a result of the delibera%e indifference exercised by
the aforementioned Defendants, Plaintiff suffered serious harm and
injuries and extreme emotional distress from the incident.
WHEREFORE, Plaintiff demands judgement in his favor and
against the defendants in an amount in excess of $20,000.00 plus
interest and cost.
COUNT THREE:
82. Plaintiff
INADEQUATE__AND NEGLIG_E__NT_ MEDICAL CARE
paragraphs 1 through 81, inclusive,
83. The Defendants exercised
the allegations contained in
as though set forth at length.
deliberate indifference tO
Plaintiff's health by failin~ to provide adequate medical care to
him following bis fall in the shower. Petitioner was denied a
double matresses until he was within days of transfer back to SCI
Mahanoy. Once at SCI Mahanoy Plaintiff was denied a wheelchair,
and adequate medical attention to the pain he was sufferin~ from
the fall at SCI Waymart.
84. The negligence and/or recklessness
acting as aforesaid, consisted, inter alia, of
(a) Negligence and/or recklessness
(b) Otherwise failing to use
circumstances.
85. As a result
condition, Plaintiff
of the Defendants
the
at law~ and
due care under the
of the deliberate indifference to Plaintiff
suffered further pain and mental anguish. He
continue to suffer back pain and general pain throughout his body,
and the Defendants refused to provide adequate pain medication.
WIIEREFORE, Plaintiff demands judgement in his favor and
in an amount in excess of $20,000.00 plus
a~ainst the defendants
interest and cost.
VIII.
WHEREFORE,
PRAYER FOR OTHER RELIEF
Plaintiff respectfully pray that this Honorable
Court enter further judgement granting
86. A judgement
omissions,
Plaintiff's
87. A
declaratory
policies and practices described herein
rights under the PA and US Constitutions;
trial by jury on all issues triable by jury;
Plaint iff:
that the Defendant's acts,
vio 1 ate d
88. That the Complaint be served upon the Defendant's by the
and process of Service be ordered complete;
proceed with this cause
the filing of this
appropriate means
89. That Plaintiff be permitted to
of action, In Forma Pauperis Status for
Complaint and other necessary pleadings~
(2980) regarding Pro Se litigants. And that Plaintiff be 6ranted
leave to proceed In Forma Pauperis, forthwith.
91. Such other and further relief deemed necessarf, just and
equitable bI this Honorable Court in iastant cases. Plaintiff
prays for the relief requested herein.
VERIFICATION
I have read the foresoing Amended Complaint and hereby verify
-17 -
90. That this Complaint be treated by this Honrorable Court
according to the legal standards promulgated by the U.S. Supreme
Court in the cases of Haines v. ~erner, 92 S.Ct. 594 [1972)
regarding Pro Se litigants; and ~hes v. Rowe, 101 S.Ct. 173
that the matters alleged therein are true, except as to matters
alleged on information ,and belief, and as to those, I believe them
to be true. I certify undar the peaalty of perjury that the
foregoing is true and corr--ct.
Franklin Su%ton, Pro Se
No. BV-9495
SCI M&hanoy
301 bio,rea Road
Fraokville, PA t 7932
Plaintiff
-18-
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff
-VS -
MARTIN HORN, et al.
Defendants
No. 0]-1139.
VERIFICATI ON
r, Franklin Sutton., Plaintiff herein do make verification and
state that the averments of fact set forth in the foregoin~
Petition are true and correct to the best of my knowledge,
information and belief.
I understand that the statements therein are made subject to
the penalties of 18 Pa.C.S. § 4904 relating to unsworn
falsification to authorities.
anklin Sutton, Pro Se
No. BV-9496
SCI Mahanoy
301 Morea Road
Frackville, PA 17932
Plaintiff
-3-
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN BUTTON
Plaintiff
-VS- : No. 0!-i139
MARTIN HORN, et al. :
Defgndants :
CERTIFICATE OF SERVICE
! hereby certify that I am this day serving the foregoing
MOTION FOR LEAVE TO AMEND COMPLAINT upon the person(s) ann in the
manner indicated below:
SERVICE BY FIRST CLASS U.S. Mail ADDRESSED AS FOLLOWS:
Sarah C. Yerger
Deputy Attorney General
Office of Attorney General
15th Fl., Strawberry Square
Harrisburg, PA 17120
Franklin Sutton, fro Se
No. BV-9496
SCI Mahanoy
301 Morea Road
Frackville , PA 17932
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff,
V.
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS, et al.
Defendants,
No. 01-1139
ENTRY OF APPEARANCE
Please enter my appearance in the above-captioned action on behalf of the defendants.
Respectfully submitted,
D. MICHAEL FISHER
Attorney General
Office of Attorney General
15*h Fl., Strawberry Square
Harrisburg, PA 17120
Direct: (717) 705-2503
Date: March 21, 2001
BY:
SUSAN FORNEY
Chief Deputy Attorney General
Litigation Section
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff,
V.
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS, et al.
Defendants,
No. 01-1139
CERTIFICATE OF SERVICE
I, SARAH C. YERGER, Deputy Attorney General, hereby certify that on this date
I caused to be served a copy of the foregoing Entry of Appearance by placing it in the United
States Mail, postage prepaid, first class, in Handsburg, PA, addressed to each of the following:
Franklin Sutton, BV-9496
SCI-Mahanoy
301 Morea Road
Frackville, PA 17932
DATE: March 21, 2001
Deputy Attorne3~-General
IN THE CODRT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLYANIA
FRANKLIN SUTTON .'
Plaintiff ~
M&RTIN HORN, et al. ~
Defendant s :
No. 01-1139
CERTIFICATE OF SERVICE
I, Franklin Sutton, hereby certify that I am this day serving
the fo~egoin~ NOTICE upon the person and in the manner indicated
below, which service satisfies the requirement of Pa.R.C.P.
SERVICE BY FIRST CLASS U.S. MAIL ADDRESSED AS FOLLOWS:
Sarah C. Yer6er
Deputy Attorney General
Office of Attorney General
15th Fl., St rawberry Square
Harrisburg, PA 17120
No. BV-9496
SCI Mahanoy
301 Morea Road
Fraekvtlle, PA 17932
IN THE COURT OF COMMON FLEAS OF CUMBERLAND COUNTY, FENNSYLVANIA
FRANKLIN SUTTON
Plaintiff
-VS-
MARTIF HORN, et al.
Defendants
No. 01-1139
TO: Sarah C. Yerser Date: February 20, 2002
Deputy Attorney General
Office of Attorney General
15th Fl., Strawberry Square
Harrisburg, PA I7120
IMPORTANT NOTICE
YOU ARE IN DEF&ULT BECAUSE YOU HAVE FAILED TO TAKE ACTION
REQUIRED OF YOU IN THIS CASE. YOU HAVE NOT SERVED PLAINTIFF WITH
A COFY OF YOUR ANSWER REQUIRED BY Pa.R.C.F. 1026. PLAINTIFF
RECEIVED A COPY OF COUNSEL'S MARCH 21, 2001, ENTERY OF APPEARANCE
AND NO OTHER FILING BY THE DEFENDANTS OR COUNSEL. UNLESS YOU ACT
WITHIN TEN (10) DAY FROM THE DATE OF THIS NOTICE, 3UDGEMENT MAY BE
ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE FROFERTY OR
OTHER IMFORTANT RIGHTS.
Franklin Sutt6n,ZPr~--S~ Plaintiff --
No. BV-9496
SCI Mahane y
301 Morea Road
Frackville~ PA 17932
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff,
V.
MARTIN HORN, et al.
Defendants,
NOTICE TO PI,EAD
TO:
Franklin Sutton
SCI-Mahanoy
301 Morea Road
Frackville, Pennsylvania 17932
You are hereby notified to file a written response to the enclosed Preliminary Objections,
within twenty (20) days from service hereof or a judgment may be entered against you.
Respectfully submitted,
Office of Attorney General
15th Floor, Strawberry Square
Han'isburg, PA 17120
PHONE: (717) 705-2503
FAX: (717) 772-4526
By:
D. MICHAEL FISHER
Attorney General
Deputy Attorney Genial'~
Attorney I.D. #70357v
SUSAN J. FORNEY
Chief Deputy Attorney General
Chief, Litigation Section
DATE: March 22, 2001
2
FRANKLIN SUTTON
Plaintiff,
1N TIIE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
;
: No. 01-1139
;
V. ;
;
MARTIN HORN, et al. :
Defendants, :
;
DEFENDANTS' PRELIMINARY OBJECTIONS
TO THE AMENDED COMPLAINT
Defendants, by their attorneys, hereby file the following preliminary objections:
I. DEMURRER
1. Plaintiff in this case is Franklin Sutton, an inmate at the State Correctional
Institution at Mahanoy (SCI-Mahanoy) in Frackville, Pennsylvania.
2. Defendants are Martin Horn, Robert Shannon, Martin Dragovich, Raymond
Colleran, Donald Fiske, Marva Cerullo, Milton Friedman and John Doe, employees of the
Commonwealth of Pennsylvania, Department of Corrections.
3. Plaintiff alleges in his complaint that defendants violated his rights, and he seeks
damages for allegations of an injury caused by negligence on the part of the institution in which he
was incarcerated, and for violations of his constitutional rights for failing to properly treat his
injuries. See Complaint ¶ 75-78.
4. Plaintiff seeks damages for unspecified violations of law possibly implicating the
Eighth Amendment to the Constitution of the United States, i.e. failure to provide medical
treatment and deliberate indifference to health and safety of an inmate under breach of duty of
care.
3
5. Although not explicitly stated in the complaint, this appears to be a federal civil
fights action under 42 U.S.C. § 1983 and a state law tort claim.
6. In support of a Section 1983 action, plaintiff must allege that (1) defendant acted
under color of state law, and (2) defendants' conduct deprived plaintiff of a fight, privilege or
immunity secured by the Constitution or laws of the United States.
7. The complaint fails to state a claim upon which relief may be granted as plaintiff
has not stated facts which suggest which constitutional protections have been violated by
defendants' conduct. "
8. The constitutional allegations in the complaint should be dismissed as plaintiff
has failed to aver with particularity the exact and specific actions taken by the defendants which
allegedly deprived him of his civil rights, and the exact and specific law which was violated.
9. Additionally, assuming an Eighth Amendment violation is being claimed, no facts
are alleged to demonstrate that any of the defendants was deliberately indifferent to a serious
medical need of Sutton.
10. Defendants Horn, Shannon, Dragovich, and Colleran were not providers of
medical treatment to Sutton and therefore are being sued under a theory of respondeat superior.
That theory is not permitted in claims brought pursuant to 42 U.S.C. § 1983.
WHEREFORE, the defendants respectfully request the Court to dismiss the federal
constitutional claims against them for failing to state a claim upon which relief can be granted.
II. DEMURRER
11. Defendants incorporate paragraphs 1-10 herein as if set forth in full.
4
12. Plaintiff alleges that the defendants violated his fights and caused him injury
through their negligence.
13. As Commonwealth employees acting within the scope of their duties, they are
entitled to sovereign immunity pursuant to 42 Pa C.S. § 8502, et sea_. Any claim based on
Pennsylvania law is barred by sovereign immunity.
II. IACK OF JURISDICTION/IMPROPER SERVICE OF A COMPLAINT
14. Pennsylvania Rule of Civil Procedure 400 requires that "original process shall be
served within the Commonwealth by the sheriff." Pa.R. Civ. P. 400(a).
15. The original complaint and the amended complaint in this matter were not served
on the defendants as prescribed by the role but was sent via first class mail.
16. The Court lacks personal jurisdiction over the defendants.
WHEREFORE, the defendants respectfully request that the Court sustain the preliminary
objection and dismiss the complaint.
Office of Attorney General
15th Fl., Strawberry Square
Harrisburg, PA 17120
Direct: (717) 705-2503
Date: March 22, 2001
Respectfully submitted,
D. MICHAEL FISHER
Attorney General ~ ;
Deputy Attorney Genial
Attorney I.D. # 70357
SUSAN J. FORNEY
Chief Deputy Attorney General
Litigation Section
IN TlqE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff,
MARTIN HORN, et al.
Defendants,
CERTIFICATE OF SERVICE
I, SARAH C. YERGER, Deputy Attorney General for the Commonwealth of
Pennsylvania, Office of Attorney General, hereby certify that on March 22, 2002, I caused to be
served a tree and correct copy of the foregoing document entitled Preliminary Objections of
Defendants, by depositing a copy of same in the U.S. Mail, postage prepaid to the following:
Franklin Sutton, BV-9496
SCI-Mahanoy
301 Morea Road
Fmckville, PA 17932
Deputy Attorney
Attorney ID #70357
Date: March 22, 2002
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff,
MARTIN HORN, et al.
Defendants,
No. 01-1139
NOTICE TO PLEAD
TO:
Franklin Sutton
SCI-Mahanoy
301 Morea Road
Frackville, Pennsylvania 17932
You are hereby notified to file a wr/tten response to the enclosed Preliminary Objections,
within twenty (20) days from service hereof or a judgment may be entered against you.
Respectfully submitted,
Office of Attorney General
15t~ Floor, Strawberry Square
Harrisburg, PA 17120
PHONE: (717) 705-2503
FAX: (717) 772-4526
By:
D. MICHAEL FISHER
Attorney General
Deputy Attorney Genial'~
Attorney I.D. #7035'~
SUSAN J. FORNEY
Chief Deputy Attorney General
Chief, Litigation Section
DATE: March 22, 2001
2
FRANKLIN SUTTON
Plaintiff,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
;
No. 01-1139
V. ;
;
;
;
DEFENDANTS' PRELIMINARY OBJECTIONS
TO THE AMENDED COMPLAINT
Defendants, by their attorneys, hereby file the following preliminary objections:
L DEMURRER
1. Plaintiff in this case is Franklin Sutton, an inmate at thc State Correctional
Institution at Mahanoy (SCl-Mahanoy) in Frackville, Pennsylvania.
2. Defendants are Martin Horn, Robert Shannon, Martin Dragovich, Raymond
Colleran, Donald Fiske, Matra Cemllo, Milton Friedman and John Doe, employees of the
Commonwealth of Pennsylvania, Department of Corrections.
3. Plaintiff alleges in his complaint that defendants violated his rights, and he seeks
damages for allegations of an injury caused by negligence on the part of the institution in which he
was incarcerated, and for violations of his constitutional fights for failing to properly treat his
injuries. See Complaint ¶ 75-78.
4. Plaintiff seeks damages for unspecified violations of law possibly implicating the
Eighth Amendment to the Constitution of the United States, i.e. failure to provide medical
treatment and deliberate indifference to health and safety of an inmate under breach of duty of
MARTIN HORN, et al.
Defendants,
care.
5. Although not explicitly stated in the complaint, this appears to be a federal civil
rights action under 42 U.S.C. § 1983 and a state law toa claim.
6. In support of a Section 1983 action, plaintiffmust allege that (1) defendant acted
under color of state law, and (2) defendants' conduct deprived plaintiff of a right, pr/vilege or
immunity secured by the Constitution or laws of the United States.
7. The complaint fails to state a claim upon which relief may be granted as plaintiff
has not stated facts which suggest which constitutional protections have been violated by
defendants' conduct.
8. The constitutional allegations in the complaint should be dismissed as plaintiff
has failed to aver with particularity the exact and specific actions taken by the defendants which
allegedly deprived him of his civil rights, and the exact and specific law which was violated.
9. Additionally, assuming an Eighth Amendment violation is being claimed, no facts
are alleged to demonstrate that any of the defendants was deliberately indifferent to a serious
medical need of Sutton.
10. Defendants Horn, Shannon, Dragovich, and Colleran were not providers of
medical treatment to Sutton and therefore are being sued under a theory of respondeat superior.
That theory is not permitted in claims brought pursuant to 42 U~S.C. § 1983.
WHEREFORE, the defendants respectfully request the Court to dismiss the federal
constitutional claims against them for failing to state a claim upon which relief can be granted.
H. DEMURRER
11. Defendants incorporate paragraphs 1-10 herein as if set forth in full.
4
12. Plaintiff alleges that the defendants violated his fights and caused him injury
through their negligence.
13. As Commonwealth employees acting within the scope of their duties, they are
entitled to sovereign immnnity pursuant to 42 Pa C.S. § 8502, et seq. Any claim based on
Pennsylvania law is barred by sovereign immunity.
II. I,ACK OF JURISDICTION/IMPROPER SERVICE OF A COMPLAINT
14. Pennsylvania Rule of Civil Procedure 400 requ/res that "original process shall be
served within the Commonwealth by the sheriff." Pa.R.Civ. P. 400(a).
15. The original complaint and the amended complaint in this matter were not served
on the defendants as prescribed by the rule but was sent via first class mail.
16. The Court lacks personal jurisdiction over the defendants,
WHEREFORE, the defendants respectfully request that thc Court sustain the preliminary
objection and dismiss the complaint.
Office of Attorney General
15th Fl., Strawberry Square
Harrisburg, PA 17120
Direct: (717) 705-2503
Date: March 22, 2001
Respectfully submitted,
BY:
D. MICHAEL FISHER
Attorney Ge, neral~ i i
ffAI~AH C. YERGER~
Deputy Attorney Genial
Attorney I.D. # 70357
SUSAN J. FORNEY
Chief Deputy Attorney General
Litigation Section
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff,
MARTIN HORN, et al.
Defendants,
CERTIFICATE OF SERVICI~
I, SARAH C. YERGER, Deputy Attorney General for the Commonwealth of
Pennsylvania, Office of Attorney General, hereby certify that on March 22, 2002, I caused to be
served a true and correct copy of the foregoing document entitled Preliminary Objections of
Defendams, by depositing a copy of same in the U.S. Mail, postage prepaid to the following:
Franklin Sutton, BV-9496
SCI-Mahanoy
301 Morea Road
Frackville, PA 17932
Deputy Attorney G~..~t'al
Attorney ID #70357
Date: March 22, 2002
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff,
V.
MARTIN HORN, et al.
Defendants,
No. 01-1139
NOTICE TO PLEAD
TO:
Franklin Sutton
SCI-Mahanoy
301 Morea Road
Frackville, Pennsylvania 17932
You are hereby notified to file a written response to the enclosed Preliminary Objections,
within twenty (20) days from service hereof or a judgment may be entered against you.
Respectfully submitted,
Office of Attorney General
15~h Floor, Strawberry Square
Harrisburg, PA 17120
PHONE: (717) 705-2503
FAX: (717) 772-4526
By:
D. MICHAEL FISHER
Attorney General
Deputy Attorney Gen~aF
Attorney LD. #70357~
SUSAN J. FORNEY
Chief Deputy Attorney General
Chief, Litigation Section
DATE: March 22, 2001
2
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON :
Plaintiff, : No. 01-1139
_.
V.
MARTIN HORN, et al. :
Defendants, :
_.
DEFENDANTS' PRELIMINARY OBJECTIONS
TO THE AMENDED COMPLAINT
Defendants, by their attorneys, hereby file the following preliminary objections:
I. DEMURRER
Plaintiff in this case is Franklin Sutton, an inmate at the State Correctional
Institution at Mahanoy (SCI-Mahanoy) in Frackville, Pennsylvania.
2. Defendants are Martin Horn, Robert Shannon, Martin Dragovich, Raymond
Colleran, Donald Fiske, Marva Cerullo, Milton Friedman and John Doe, employees of the
Commonwealth of Pennsylvania, Department of Corrections.
3. Plaintiff alleges in his complaint that defendants violated his rights, and he seeks
damages for allegations of an injury caused by negligence on the part of the institution in which he
was incarcerated, and for violations of his constitutional rights for failing to properly treat his
injuries. See Complaint ¶ 75-78.
4. Plaintiff seeks damages for unspecified violations of law possibly implicating the
Eighth Amendment to the Constitution of the United States, i.e. failure to provide medical
treatment and deliberate indifference to health and safety of an inmate under breach of duty of
care.
3
5. Although not explicitly stated in the complaint, this appears to be a federal civil
rights action under 42 U.S.C. § 1983 and a state law tort claim.
6. In support of a Section 1983 action, plaintiff must allege that (1) defendant acted
under color of state law, and (2) defendants' conduct deprived plaintiff of a right, privilege or
immunity secured by the Constitution or laws of the United States.
7. The complaint fails to state a claim upon which relief may be granted as plaintiff
has not stated facts which suggest which constitutional protections have been violated by
defendants' conduct.
8. The constitutional allegations in the complaint should be dismissed as plaintiff
has failed to aver with particularity the exact and specific actions taken by the defendants which
allegedly deprived him of his civil rights, and the exact and specific law which was violated.
9. Additionally, assuming an Eighth Amendment violation is being claimed, no facts
are alleged to demonstrate that any of the defendants was deliberately indifferent to a serious
medical need of Sutton.
10. Defendants Horn, Shannon, Dragovich, and Colleran were not providers of
medical treatment to Sutton and therefore are being sued under a theory of respondeat superior.
That theory is not permitted in claims brought pursuant to 42 U.S.C. § 1983.
WHEREFORE, the defendants respectfully request the Court to dismiss the federal
constitutional claims against them for failing to state a claim upon which relief can be granted.
II. DEMURRER
11. Defendants incorporate paragraphs 1-10 herein as if set forth in full.
4
12. Plaintiff alleges that the defendants violated his rights and caused him injury
through their negligence.
13. As Commonwealth employees acting within the scope of their duties, they are
entitled to sovereign immunity pursuant to 42 Pa C.S. § 8502, et seq. Any claim based on
Pennsylvania law is barred by sovereign immunity.
II. LACK OF JURISDICTION/IMPROPER SERVICE O1~ A COMPLAINT
14. Pennsylvania Rule of Civil Procedure 400 requires that "original process shall be
served within the Commonwealth by the sheriff." Pa.R.Civ. P. 400(a).
15. The original complaint and the amended complaint in this matter were not served
on the defendants as prescribed by the role but was sent via first class mail.
16. The Court lacks personal jurisdiction over the defendants.
WHEREFORE, the defendants respectfully request that the Court sustain the preliminary
objection and dismiss the complaint.
Office of Attorney General
15th Fl., Strawberry Square
Harrisburg, PA 17120
Direct: (717) 705-2503
Date: March 22, 2001
Respectfully submitted,
BY:
D. MICHAEL FISHER
Attomey Ge, neral ~ ,
S/AI~AIt C. YERGEI~\ /i
Deputy Attorney Genbrokl ~d
Attorney I.D. # 70357
SUSAN J. FORNEY
Chief Deputy Attorney General
Litigation Section
5
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON :
Plaintiff, : No. 01-1139
:
V. .'
:
MARTIN HORN, et al. :
Defendants, :
:
CERTIFICATE OF SERVICE
I, SARAH C. YERGER, Deputy Attorney General for the Commonwealth of
Pennsylvania, Office of Attorney General, hereby certify that on March 22, 2002, I caused to be
served a true and correct copy of the foregoing document entitled Preliminary Objections of
Defendants, by depositing a copy of same in the U.S. Mail, postage prepaid to the following:
Franklin Sutton, BV-9496
SCI-Mahanoy
301 Morea Road
Frackville, PA 17932
Date: March 22, 2002
Deputy Attorney Ge~.~raf~
Attorney ID #70357
IN TI-W~ COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff,
MARTIN HORN, et al.
Defendants,
No. 01-1139
NOTICE TO PI~EAD
TO:
Franklin Sutton
SCI-Mahanoy
301 Morea Road
Frackville, Pennsylvania 17932
You are hereby notified to file a written response to the enclosed Preliminary Objections,
within twenty (20) days from service hereof or a judgment may be entered against you.
Respectfully submitted,
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
PHONE: (717) 705-2503
FAX: (717) 772-4526
By:
D. MICHAEL FISI~ER
Attorney General
c. YeRC P. ,/ /
Deputy Attorney General''~
Attorney I.D. #7035~-~
SUSAN J. FORNEY
Chief Deputy Attorney General
Chief, Litigation Section
DATE: March 22, 2001
2
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON :
Plaintiff, : No. 01-1139
:
V. :
:
MARTIN HORN, et al. :
Defendants, :
_.
DEFENDANTS' PRELIMINARY OBJECTIONS
TO THE AMENDED COMPLAINT
Defendants, by their attorneys, hereby file the following preliminary objections:
I. DEMURRF. R
1. Plaintiff in this case is Franklin Sutton, an inmate at the State Correctional
Institution at Mahanoy (SCI-Mahanoy) in Frackville, Pennsylvania.
2. Defendants are Martin Horn, Robert Shannon, Martin Dragovich, Raymond
Colleran, Donald Fiske, Marva Cerullo, Milton Friedman and John Doe, employees of the
Commonwealth of Pennsylvania, Department of Corrections.
3. Plaintiff alleges in his complaint that defendants violated his rights, and he seeks
damages for allegations of an injury caused by negligence on the part of the institution in which he
was incarcerated, and for violations of his constitutional rights for failing to properly treat his
injuries. See Complaint ¶ 75-78.
4. Plaintiff seeks damages for unspecified violations of law possibly implicating the
Eighth Amendment to the Constitution of the United States, i.e. failure to provide medical
treatment and deliberate indifference to health and safety of an inmate under breach of duty of
3
5. Although not explicitly stated in the complaint, this appears to be a federal civil
fights action under 42 U.S.C. § 1983 and a state law tort claim.
6. In support of a Section 1983 action, plaintiffmust allege that (1) defendant acted
under color of state law, and (2) defendants' conduct deprived plaintiff of a right, privilege or
immunity secured by the Constitution or laws of the United States.
7. The complaint fails to state a claim upon which relief may be granted as plaintiff
has not stated facts which suggest which constitutional protections have been violated by
defendants' conduct.
8. The constitutional allegations in the complaint should be dismissed as plaintiff
has failed to aver with particularity the exact and specific actions taken by the defendants which
allegedly deprived him of his civil rights, and the exact and specific law which was violated.
9. Additionally, assuming an Eighth Amendment violation is being claimed, no facts
are alleged to demonstrate that any of the defendants was deliberately indifferent to a serious
medical need of Sutton.
10. Defendants Horn, Shannon, Dragovich, and Colleran were not providers of
medical treatment to Sutton and therefore are being sued under a theory of respondeat superior.
That theory is not permitted in claims brought pursuant to 42 U.S.C. § 1983.
WHEREFORE, the defendants respectfully request the Court to dismiss the federal
constitutional claims against them for failing to state a claim upon which relief can be granted.
II. DEMURRER
11. Defendants incorporate paragraphs 1-10 herein as if set forth in full.
4
12. Plaintiffalleges that the defendants violated his fights and caused him injury
through their negligence.
13. As Commonwealth employees acting within the scope of their duties, they are
entitled to sovereign immunity pursuant to 42 Pa C.S. § 8502, et seq. Any claim based on
Pennsylvania law is barred by sovereign immunity.
II. LACK OF JURISDICTION/IMPROPER SERVICE OF A COMPLAINT
14. Pennsylvania Rule of Civil Procedure 400 requires that "original process shall be
served within the Commonwealth by the sheriff." Pa.R.Civ.P. 400(a).
15. The original complaint and the amended complaint in this matter were not served
on the defendants as prescribed by the rule but was sent via first class mail.
16. The Court lacks personal jurisdiction over the defendants.
WHEREFORE, the defendants respectfully request that the Court sustain the preliminary
objection and dismiss the complaint.
Office of Attorney General
15th Fl., Strawberry Square
Harrisburg, PA 17120
Direct: (717) 705-2503
Date: March 22, 2001
Respectfully submitted,
BY:
D. MICHAEL FISHER
Atto~n~eY Ge~neral ~
S~ARAH C. yERGER\
Deputy Attorney Genial
Attorney I.D. # 70357
SUSAN & FORNEY
Chief Deputy Attorney General
Litigation Section
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff,
V.
MARTIN HORN, et al.
Defendants,
CERTIFICATE OF SERVICE
I, SARAH C. YERGER, Deputy Attorney General for the Commonwealth of
Pennsylvania, Office of Attorney General, hereby certify that on March 22, 2002, I caused to be
served a tree and correct copy of the foregoing document entitled Preliminary Objections of
Defendants, by depositing a copy of same in the U.S. Mail, postage prepaid to the following:
Franklin Sutton, BV-9496
SCI-Mahanoy
301 Morea Road
Frackville, PA 17932
Deputy Attorney G6~W
Attomey ID #70357
Date: March 22, 2002
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff,
V.
MARTIN HORN, et al.
Defendants,
No. 01-1139
NOTICE TO PLEAD
TO:
Franklin Sutton
SCI-Mahanoy
301 Morea Road
Frackville, Pennsylvania 17932
You are hereby notified to file a written response m the enclosed Preliminary Objections,
within twenty (20) days from service hereof or a judgment may be entered against you.
Respectfully submitted,
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
PHONE: (717) 705-2503
FAX: (717) 772-4526
By:
D. MICHAEL FISHER
Attorney General
SUSAN J. FORNEY
Chief Deputy Attorney General
Chief, Litigation Section
DATE: March 22, 2001
2
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON :
Plaintiff, : No. 01-1139
V. -'
..
MARTIN HORN, et al, :
Defendants, :
:
PRELIMINARY OBJECTIONS OF
DEFENDANTS
Defendants, by their attorneys, hereby file the following preliminary objections:
I. DEMURRER
1. Plaintiff in this case is Franklin Sutton, an inmate at the State Correctional
Institution at Mahanoy (SCI-Mahanoy) in Frackville, Pennsylvania.
2. Defendants are Martin Horn, Robert Shannon, Martin Dragovich, Raymond
Colleran, Donald Fiske, Marva Cerullo, Milton Friedman and John Doe, employees of the
Commonwealth of Pennsylvania, Department of Corrections.
3. Plaintiff alleges in his complaint that defendants violated his rights, and he seeks
damages for allegations of an injury caused by negligence on the part of the institution in which
he was incarcerated, and for violations of his constitutional rights for failing to properly treat his
injuries. See Complaint p. 14-16.
4. Plaintiff seeks damages for unspecified violations of law possibly implicating the
Eighth Amendment to the Constitution of the United States, i.e. failure to provide medical
treatment.
3
5. Although not explicitly stated in the complaint, this appears to be a federal civil
rights action under 42 U.S.C. § 1983 and a state law tort claim.
6. In support of a Section 1983 action, plaintiffmust allege that (1) defendant acted
under color of state law, and (2) defendants' conduct deprived plaintiff of a right, privilege or
immunity secured by the Constitution or laws of the United States.
7. The complaint fails to state a claim upon which relief may be granted as plaintiff
has not stated facts which suggest which constitutional protections have been violated by
defendants' conduct.
8. The constitutional allegations in the complaint should be dismissed as plaintiff
has failed to aver with particularity the exact and specific actions taken by the defendants which
allegedly deprived him of his civil rights, and the exact and specific law which was violated.
9. Additionally, assuming an Eighth Amendment violation is being claimed, no facts
are alleged to demonstrate that any of the defendants was deliberately indifferent to a serious
medical need of Sutton.
10. Defendants Horn, Shannon, Dragovich, and Colleran were not providers of
medical treatment to Sutton and therefore are being sued under a theory of respondeat superior.
That theory is not permitted in claims brought pursuant to 42 U.S.C. § 1983.
WHEREFORE, the defendants respectfully request the Court to dismiss the federal
constitutional claims against them for failing to state a claim upon which relief can be granted.
II. DEMURRER
11. Defendants incorporate paragraphs 1-10 herein as if set forth in full.
4
12. Plaintiff alleges that the defendants violated his rights and caused him injury
through their negligence.
13. As Commonwealth employees acting within the scope of their duties, they are
entitled to sovereign immunity pursuant to 42 Pa C.S. § 8502, et seq. Any claim based on
Pennsylvania law is barred by sovereign immunity.
II. LACK OF JURISDICTION/IMPROPER SERVICE OF A COMPLAINT
14. Pennsylvania Rule of Civil Procedure 400 requires that "original process shall be
served within the Commonwealth by the sheriff." Pa.R.Civ. P. 400(a).
15. The complaint in this matter was not served on the defendants as prescribed by the
rule but was sent via first class mail.
16. The Court lacks personal jurisdiction over the defendants.
WHEREFORE, the defendants respectfully request that the Court sustain the preliminary
objection and dismiss the complaint.
Office of Attorney General
15th Fl., Strawberry Square
Harrisburg, PA 17120
Direct: (717) 705-2503
Date: March 22, 2001
Respectfully submitted,
BY:
D. MICHAEL FISHER
Attorney General
c.
Deputy Attorne3LGenlgrJal
Attorney I.D. # 70357
SUSAN J. FORNEY
Chief Deputy Attorney General
Litigation Section
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff,
V.
MARTIN HORN, et al.
Defendants,
: No. 01-1139
CERTIFICATE OF SERVICE
I, SARAH C. YERGER, Deputy Attorney General for the Commonwealth of
Pennsylvania, Office of Attorney General, hereby certify that on March 22, 2001, I caused to be
served a tree and correct copy of the foregoing document entitled Preliminary Objections of
Defendants, by depositing a copy of same in the U.S. Mail, postage prepaid to the following:
Franklin Sutton, BV-9496
SCI-Mahanoy
301 Morea Road
Frackville, PA 17932
Attomey ID #70357
Date: March 22, 2001
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
FRANKLIN SUTTON
Plaintiff
~ -VS-'
MARTI~ HORN, et al.
Defemdants
No. 01-1139
CERTIFICATE OF SEMVICE
I, Franklin Sutton, hereby certify that I am this day serving
the foregoing NOTICE upen the person and in the manner indicated
below, which service satisfies the requirement of Pa,R.C.P.
SERVICE BY. _F--I--RST-- _ CLASS=_ ---U'--S' --MAIL--__ADDRESSED=~--___OL--~----AS FOL OWS:
Sarah C. Yerser
Deputy Attorney General
Office of Attorney General
15~h Fl., Strawberry Square
Harriehurg, PA 17120
Franklin Sutton, Pro Se PLaintiff
Luzerne II ~.'fF-C.,OR (135G)
600 East Luzerne Street
Philadelphia, PA 19124
LUZERNE II HTP-COR (135G)
600 EAST LUZERNE STREET
PHILADELPHIA, PA 19124
(215) 634-8960
January 23, 2003
Sarah C. Yerger
Deputy Attorney General
Office of Attorney General
15th Fi., Strawberry Square
Harrisburg, PA 17120
RE: Sutton, Franklin v. Horn, et al.
No. 01-1139
Dear Hrs. Yerger:
This letter is being forwarded in regards to Notice of Plaintiff's
New Mailing Address. Please forward all future documents and information
pertaining to the Civil Action Case No. 01-1139 to the new address listed
below.
Dated:
Sincerely,
Franklin Sutton, Pro Se Plaintiff
Luzerue II ~TP-COR (135G)
600 East Luze~'ne Street
Philadelphia, PA 19124