HomeMy WebLinkAbout01-1792Office of Attorney General Steven C. Gould
Torts Litigation Section Deputy Attorney General
15th Floor, Strawberry Square Direct Dial 717-783-8035
Harrisburg, PA 17120
CHRISTOPHER SMITH : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v. : CIVIL ACTION- LAW
:
KYLE KENNETH, SUPERINTENDENT :
MS. TYSON, UNIT MANAGER, C.O. :
LIEUTENANT FLOWERS, and C.O. :
SERGEANT EWAN, of the STATE :
CORRECTIONS INSTITUTION :
at CAMP HILL :
Defendant :
: NO. 01-1792
NOTICE TO PLEAD
TO: CHRISTOPHER SMITH, EM-4550
P.O. BOX 1000
HOUTZDALE, PA 16698-1000
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,
D. MICHAEL FISHER
Atto~ General
By:
STEVEN C. GOULD ID #80156
Deputy Attorney General
Torts Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
717-783-8035 - Direct Dial
DATED: May 3,2001
Office 'of Attorney General Steven C. Gould
Torts Litigation Section Deputy Attorney General
15th Floor, Strawberry Square Direct Dial 717-783-8035
Harrisburg, PA 17120
CHRISTOPHER SMITH · IN THE COURT OF COMMON PLEAS OF
Plaintiff · CUMBERLAND COUNTY, PENNSYLVANIA
:
v. :CIVIL ACTION- LAW
:
KYLE KENNETH, SUPERINTENDENT :
MS. TYSON, UNIT MANAGER, C.O. :
LIEUTENANT FLOWERS, and C.O. :
SERGEANT EWAN, of the STATE :
CORRECTIONS INSTITUTION :
at CAMP HILL :
Defendant :
: NO. 01-1792
ENTRY OF APPEARANCE
Please enter my appearance on behalf of the Defendants, Kenneth Kyle, Ms.Tyson,
Lieutenant Flowers and Sergeant Ewan in the above-captioned action.
Respectfully submitted,
D. MICHAEL FISHER
Attorney General
By:
STEVEN C. GOULD ID #80156
Deputy Attorney General
DATED' APRIL 27, 2001
CER TIFICA TE OF SER VICE
I hereby certify that I am this day serving an Entry of Appearance upon the person(s) and
in the manner indicated below:
SER VICE B Y FIRST CLASS MAlL
POSTA GE PREPAID
ADDRESSED AS FOLLOWS:
CHRISTOPHER SMITH, EM-4550
P.O. BOX 1000
HOUTZDALE, PA 16698-1000
By:
STEVEN C. GOULD ID #80156
Deputy Attorney General
Torts Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
717-783-8035 - Direct Dial
DATED: APRIL 27, 2001
Office of Attorney General Steven C. Gould
Torts Litigation Section Deputy Attorney General
15th Floor, Strawberry Square Direct Dial 717-783-8035
Harrisburg, PA 17120
CHRISTOPHER SMITH : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
· ~
v. : CIVIL ACTION- LAW
:
KYLE KENNETH, SUPERINTENDENT :
MS. TYSON, UNIT MANAGER, C.O. :
LIEUTENANT FLOWERS, and C.O. :
SERGEANT EWAN, of the STATE :
CORRECTIONS INSTITUTION :
at CAMP HILL :
Defendant :
:NO. 01-1792
PRELIMINARY OBJECTIONS OF THE
COMMONWEALTH DEFENDANTS
AND NOW the above-named defendants, Kenneth Kyle, Superintendent of SCI-of Camp
Hill Diagnostic Center; Ms. Tyson, Unit Manager, Correctional Officer Lieutenant Flowers, and
Correctional Officer Sergeant Ewan (hereinafter "Commonwealth Defendants"), by and through
the Office of the Attorney General, hereby files preliminary objections to Plaintiff s Complaint
pursuant to Rule 1028 of the Pennsylvania Rules of Civil Procedure, and in support thereof avers
as follows:
1. The pro se Plaintiff, Christopher Smith, presently an inmate at the State
Correctional Institution at Camp Hill (hereinafter "SCI-Camp Hill"), commenced the instant
action by Complaint (hereinafter "Complaint") filed in the Court of Common Pleas of
Cumberland County on March 27, 2001, a copy of which is attached hereto as Exhibit A.
2. Plaintiff's Complaint arises out of allegedly being assaulted by another inmate
while incarcerated at SCI-Camp Hill on February 12, 2001. (See, Complaint).
3. Plaintiff alleges that the Commonwealth Defendants "wantonly, knowingly,
deliberately, maliciously and unlawfully allow inmate William Clegg... to inflict bodily harm
and injuries on this plaintiff..." (Complaint paragraph 7).
4. Plaintiff requests punitive damages.
I. DEMURRER TO PLAINTIFF'S COMPLAINT FOR FAILING TO STATE A
CAUSE OF ACTION UNDER THE SOVEREIGN IMMUNITY ACT-NO
EXCEPTION
5. The Commonwealth Defendants hereby incorporate paragraphs 1-4 of these
Preliminary Objections by reference as though set forth herein at length.
6. Defendants Kenneth Kyle, Ms. Tyson, Correctional Officer Lieutenant Flowers,
and Correctional Officer Sergeant Ewan were "Commonwealth Parties" within the meaning of
section 8501 of the Judicial Code, 42 Pa.C.S. § 8501, when the alleged conduct complained of
took place.
7. As Commonwealth parties, they are immune from suit except as specifically
waived by the General Assembly. See 1 Pa.C.S. § 2310; 42 Pa.C.S. § 8501 et seq.
8. There are nine specific instances enumerated in section 8522(b) of the Sovereign
Immunity Act, 42 Pa.C.S. § 8522(b), where the General Assembly has waived immunity thereby
allowing a Commonwealth party to be sued for its negligence.
9. In order to state a cause of action against the Commonwealth Defendants, Plaintiff
must allege that the acts complained of fall within one of the exceptions to sovereign immunity
set forth in §§ 8522(b)(1)-(9).
! ·
10. Clearly, there is no waiver of sovereign immunity for the allegations of
misconduct of the named Commonwealth Defendants in the instant Complaint.~
WHEREFORE, the Commonwealth Defendants respectfully request this Honorable
Court to grant their demurrer to the Complaint for failing to state a cause of action upon which
relief could be granted pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure.
H. DEMURRER TO PLAINTIFF'S COMPLAINT FOR FAILING TO STATE A
CAUSE OF ACTION UNDER THE SOVEREIGN IMMUNITY ACT--NOT
LIABLE FOR INTENTIONAL ACTS
11. The Commonwealth Defendants hereby incorporate paragraphs 1-10 of these
Preliminary Objections by reference as though set forth herein at length.
12. PlaintifFs Complaint only sets forth intentional allegations on the part of the
Commonwealth Defendants. No ordinary negligence allegations are set forth in Plaintiff's
Complaint.
13. As stated above, this action against the Commonwealth Defendants are controlled
by the Sovereign Immunity Act, 42 Pa. C.S. §8521 et seq.
14. The Pennsylvania Legislature, in relevant part, has created exceptions to
sovereign immunity for "...damages arising out of a negligent act..." See 42 Pa.C.S. §8522(a).
15. When the Sovereign Immunity Act was drafted, liability based on intentional tons
~ Section 8522(b), provides that the defense of sovereign immunity cannot be raised by a
Commonwealth party for damages arising out of a negligent act involving the following: (1) Vehicle
liability; (2) Medical-professional liability; (3) Care, custody or control of personal property;
(4) Commonwealth real estate and sidewalks; (5) Potholes and sinkholes and other natural conditions of
Commonwealth real estate; (6) Care, custody, control of animals; (7) Liquor store sales; (8) National
Guard activities and (9) Toxoids and vaccines.
of Commonwealth parties was considered and rejected. The Joint State Government Commission
set forth ten specific areas where sovereign immunity was not waived. A copy of the relevant
portion of the Commission's RepOrt is attached hereto as Exhibit B. The Commission stated:
The task force specifically rejected waiving sovereign immunity for claims
arising out of:
(1) Intentional torts such as assault and battery, false imprisonment,
false arrest, malicious prosecution, abuse ofprivac libe
slander, misrepresentation a,~,,,,;,: .... .Y' 1 and
, "~,-~t, m~erterence with contract fights,
fraud and the invasion of privacy
Commission Report, p. 15.
16. Accordingly, Plaintiff's allegations of intentional misconduct cannot form the
basis for a civil action against a Commonwealth Defendants acting within the scope of their
employment.
17. Moreover, since Plaintiff's alleged injur/es were caused by the intentional and
criminal acts of a third party, the Commonwealth Defendants are insulated from all liability for
the harm caused by such a party. Mascaro v. Youth Study Center, 514 Pa. 353, 361,523 A. 2d
1118, 1123 (1987).
WHEREFORE, the Commonwealth Defendants respectfully request this Honorable
Court to grant their demurrer to the Complaint for failing to state a cause of action upon which
relief could be granted pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure.
III. MOTION TO STRIKE FOR FAILURE TO CONFORM TO LAW OR RULE OF
COURT OR, IN THE ALTERNATIVE, MOTION FOR MORE SPECIFIC
PLEADING PURSUANT TO Pa.R.C.P. 1028(a)(2) & 0).
18. The Commonwealth Defendants hereby incorporate paragraphs 1-17 of these
Preliminary Objections by reference as though set forth herein at length.
4
19. Plaintiff s averments against the Commonwealth Defendants are set forth in
Plaintiff s Complaint in only one paragraph. Specifically, in paragraph 7, Plaintiff alleges the
following'
"7. Plaintiff avers that Defendants, Sergeant Ewan, Lieutenant Flowers,
Unit Manager Ms. Tyson, and Superintendent Kenneth Kyle [sic], did
wantonly, knowingly, deliberately, maliciously and unlawfully allow
inmate William Clegg D.O.C. # EL-8513 to inflict bodily han~ and
injuries on this plaintiff, Christopher Smith, when knowingly that a
conflict existed, and could had been prevented."
20. According to Rule 1019(a) of the Pennsylvania Rules of Civil Procedure, Plaintiff
must specifically plead each material fact upon which a claim is based.
21. Plaintiff violates Rule 1019 by failing to plead any material facts upon which to
base the above-quoted claims.
22. Plaintiff fails to plead material facts to identify how the Commonwealth
Defendants caused Plaintiffs injures.
23. Rather than pleading specific facts, the Plaintiff has elected to plead general,
open-ended and vague accusations, assumptions and opinion leaving the Commonwealth
Defendants uninformed as to what they must defend.
24. These allegations fail to conform to the Pennsylvania Rules of Civil Procedure
and must be stricken or, in the alternative, a more specific Complaint must be filed.
WHEREFORE, the Commonwealth Defendants request that this Honorable Court enter
an Order striking Plaintiffs Complaint or, in the alternative, requiting Plaintiff to file a more
specific Complaint.
IV. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE
PLAINTIFF'S CLAIM FOR RELIEF IN THE NATURE OF PUNITIVE
DAMAGES
25. The Commonwealth Defendants hereby incorporate paragraphs 1-24 of these
Preliminary Objections by reference as though set forth herein at length.
26. In subparagraph "b" of a paragraph captioned "RELIEF REQUESTED" in
Plaintiff's Complaint, Plaintiff requests relief requests relief in the nature of punitive damages.
27. As Commonwealth parties within its definition found at section 8501 of the
Judicial Code, 42 Pa.C.S. § 8501, damages recoverable in this action are specifically limited by
the Sovereign Immunity Act, 42 Pa.C.S. § 8528(c).
28. Plaintiff's request for punitive damages in his Complaint is not enumerated as a
recoverable damage against a Commonwealth party at section 8528(c) of the Judicial Code, 42
Pa.C.S. § 8528(c).
29. Accordingly, this Honorable Court should strike the portions of Plaintiff's
Complaint requesting the aforementioned relief.
WHEREFORE, the Commonwealth Defendants respectfully request this Honorable
Court to grant their preliminary objection in the nature of a motion to strike Plaintiff's claim for
relief in the nature of punitive damages.
V. MOTION TO STRIKE THE PORTION OF PLAINTIFF'S COMPLAINT
BROUGHT AGAINST THE COMMONWEALTH DEFENDANTS IN THEIR
INDIVIDUAL CAPACITIES
30. The Commonwealth Defendants hereby incorporate paragraphs 1-29 of these
Preliminary Objections by reference as though set forth herein at length.
31. In subparagraphs "b" and "c" of a paragraph captioned "RELIEF REQUESTED"
in Plaintiff s Complaint, Plaintiff requests relief against the Commonwealth Defendants in their
individual capacities.
32. There is no allegation in the Complaint that the Commonwealth Defendants were
acting outside their course and scope of employment.
33. To the contrary, paragraphs 3 through 5 of Plaintiffs Complaint states that all
Commonwealth Defendants were employed at the State Correctional Institution at Camp Hill.
34. A Commonwealth party can only be sued for acts arising within the scope of
his/her employment as a Commonwealth party pursuant to sections 8501 et seq. of the Judicial
Code, 42 Pa.C.S. § 8501 et seq.
35. The portion in Plaintiffs Complaint suing the Commonwealth Defendants in their
individual capacities should be stricken pursuant to Rule 1028(a)(2) of the Pennsylvania Rules of
Civil Procedure, for failing to conform to law or Rule of Court.
WHEREFORE, the Commonwealth Defendants respectfully requests this Honorable
Court to strike the portion of Plaintiff s Complaint brought against the Commonwealth
Defendants in their individual capacities pursuant to Rule 1028(a)(2) of the Pennsylvania Rules
of Civil Procedure for failing to conform to law or rule of court.
VI. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKe,
PURSUANT TO PA.R.C.P. 1028(a)(2) FOR LACK OF CONFORMITY TO LAW
OR RULE OF CONDUCT.
36. The Commonwealth Defendants hereby incorporate paragraphs 1-35 of these
Preliminary Objections by reference as though set forth herein at length.
37. Plaintiff attempts to bring his cause of action against several Commonwealth
7
Defendants, but fails to state each cause of action against each defendant in a separate count
under a separate heading.
38. Plaintiff is required to set forth each cause of action against each defendant in a
separate count under a separate heading pursuant to Pa.R.C.P. 1020.
WHEREFORE, the Commonwealth Defendants respectfully request that Plaintiff s
Complaint be dismissed, or in the alternative, that he be required to file an amended complaint
setting forth each cause of action against each defendant in a separate count under a separate
heading.
Respectfully submitted,
D. MICHAEL FISHER
Attorney General
STEVEN C. GOULD ID #80156
Deputy Attorney General
Torts Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
717-783-8035 - Direct Dial
DATED' May 3,2001
iN THE COURT OF COHPION PLEAS Oir CUPlBEI~LAND COUNTY. PEIINSYLVANZA
CIVIL DIV'ISION
CHR I STOPHER SPll TH, :
Plltnttff :
·
Vs. : 'lie.. .
KYLE KENNETH.. SUP£RINT£PlD£BIT, :
HS. TYSON, UNIT KANAG~R, C.O, : . '
LIEUT[N.AKT FLOWERS, and C.O. :
SERGEANT [MAN, of the STATE :
CORRECTIONS INSTITUTION tt :
CAMP H~LL :
ICE TO DEFEND
Y-em have been sued tn court. If ye.u wtsh to defend
the cllt~s let forth tn the follovlng piges, you .must tike
vtthtn ZO dl.ys lftlr thts nottce compltlnt
I ffrttt.n ippei-rince personilly or b~ ittorney
ffrtttng fit. th the court ~our defense or obJectto.ns to the
you mutt de Il beclule the ctst cln proceed
Judgement -entered.
You should 'tike thts mottle ind complitnt to eR Ittornl.y
vlth ill d.u-.e speed ,nd ret, tn counsel te defend you t.n
mltter tf y-e'u de net h,ve in ,tt.erney you l'heuld centict
Carlisle, P~. ]7023
(7~ 7) 7S.S-847S
Dit~: 3/ J~/ /.~00~
Chrtstophe. r Smttli, EPl-4$SO
P.O. lex !000 / &.B. 04
H'eu-t zdi I ·, PI. ! $.S-~8-1000
'TRUE COPY FROM RECORD
In Tmltimony where~f~ I here unto set' my ~nd RECEIVED
and tl~se~l of said~ourf at ~rlide, Pa. Office of Attorney General
.... r,otl~onotarY'"! / / Torts Litigation
THE COURT OF CO##ON PLEAS OF CUNBERLA#D COUNTY, P'ENNSYLVANZA
CIVIL DIVISION
CHRISTOPHER SHITH.
KYL! KENN£TH, SUPE~J#TENDENT,
NS. TYSON, UNIT NA#AGER, C.O.
LIEUT.E.NA#T FLOWERS, t.nd .C.O.
SERGE.ANT E'¥AN, of tho STATE
CORRECTIONS I#STITUTION et
CAHP HILL
Defondiuts
CON'P'LAI.liT ! # IrOitHA
N£GL, I-.G~N? ~ 'OR... YRO#6.~UL --ACTS ~ AND -TOR~
To The Honori. ble, ~udges Of The Above Setd Court
Comes usu plitnttff Chrtstop#er Satt#, pro se l ttljeut to
the court Nit# this ctvtl comte of e.ctton agelns, t the above
· Baled defendents. In t..hts reglrd, be respectfully submits:
,J#RI SO. ICTiOJl
~urtsdtctto, o'f this court ts lnvok, od pursue#t te the
Pe.nnsylvo#to. Rules of Ctvll Procedures, Rule 10~7, ~007.1.
~_AUSE OF._.ACTION
OR February l~, ~)01, thts plaintiff, Chrtstoplmr Smtth Ns ~ 1itc at
t~ State C~rKton Instltutt~ (S.C.I.} bW Htll DtB~HIt~C Center, by
of ~tgm~ ~uflty C~~, ~ge La,eKe A. B~. ~ts plaintiff ~tle
restd.ent et ~ Htll vis issiult~ by 1wee ~tlltim Cl-~g O.0.C. ~EL-~3.
Thts plaintiff-suffered i Llseritton and Contusion to t~ up~r left side ef
the f~~eid, ~etvtng S stitches.
I) ~ ~lNIry ~4, ~l, tmt.e Cleog ~s Ilstgn~ to the sm ~u.stng
Untt, L B1Kk, B stale cell dZ6 is thti plltKtff's cellte (cell rote).
b) lite Cl-fl.g ~sent~ .htmelf vtth ~ tr~gint 8ttttude, end t~~,
t~mt, Clflg started mktng t~,ts t~r.ds thts pli'lntlff ~en this
e~essed vtth ,.s~t, th.it ~11 trig ~t t~ cell to ,Kther
c~nt ttm ~ld cluse i c~fltct beton thu tnd the CorrKtton 0fftc~s
~sstbly t~ ~th muld ~etve i mfSc~Kt.
C) ThtS plltnttff, ~e te t.mte Clflg's threats and
0fftc~ ~p,t ~lv, SOt. Shin tnf~ thtt plaintiff ~tt
t~ Iht fi ~ change t~ ~ spflk ~ t~ IK0~ shtft h~eeat, and ~1~
r~t to t~ ~tt ~.~gor ~. Tyson, for he could Nt eve onym f~ cell
to fl11. ~ts plaintiff dtd Bi tnitrKt..
d) ~ls plaintiff, ~en sK~ sh'ift irrtved, re,ed to
stressfl hts ~~ns 8~ut lite Clegg's threats. Stg.
sl~rl~ ~ts plltflttff IK 1itl ~~ Id ~tt h N.md hth tires to
e) ~.ts .plitKtff t~ tHk his c~lotflt to Lt~.~nt FI~I. Lt.
fl~ c~n~ ~t she~s Mt ~~ ~mke ~~ ~~ble
thtl ptltflttff ~ deal ~th hts M p~-lm htmlf.
i,st~tut~on (S,C.~,} ~,tzd~le, P~. se~ng t ~ to ~ y~tr sentence for
of ~vsble p~perty ~d ~e~vtng .stolen
3, ~feKant,-Sergetn~ [vtn ts I co~ectton Offtcer tt State Co, cottons
Institution (S.C.I.) Ci~ Htll Dtlgnosttc Center.
Co~ectton In, tttutten (S,C,T,) Cimp Htll 01ignestlc
5. ~fe~int. ~.. Tys~ ts t Ufltt Ha.eager at the Ste~ C~~tton
Instttgtt~ (S.C.t.) C.~ Htll Otlg'nosttc CKs.
6. ~fendeet. Kyle Kenneth ts the su~rlntlndeflt ef the Stlte Co~Ctt~
lflstttutten ($.C.I.) Ca~ H't1~ 0109Hsttc
~.~,.n6~ y~' de, ' *''" Y. m,,c,--s'Y'" un`' .ul,y ,11". ''"
ClOg O.O.C f [L-8'ST3 to t.n~lct bodtly he~ and tn3urtes ~ thts plaintiff.
ChrtS't~h~'~tth. ~~ ~n~t~lY the i ceflfl{ct extst~, end c~ld hid '~
prev~t~.
Yherefore. plaintiff preys that the fallowing tel tel be granted from t'~
d.efe~ents ~d he preys ~t thtl ~~~le CouK so grant ~:
b) Punitive damages agatnst each of the four defendant
fn both t'hetr fndfvfdu~Ts '
~n excess o~ S~.O,O~G.oo.; end of'ffcfiJ cip,cltfes~
· eats fn .both their fndfvt '
A-. __ - -----,vvv.--~ etc~;
d) ~.u such other reltef is ·
epproprtote t · st~ be nece
. n accordance w.. _ $~ory oRal/or
1th Justfce .afl~ the
ResPeCtful jj~ suba~tted,
/si C
P,O. Box ~000
-. #outzdaJ e., pa. ] 66~80 ] 000
I.
I, Chrlstopher sE!th, plaintiff hereby ce. rtlftes thtt I hive
ciuse served i true ,~d correc~ copy of th, for.egotng, document,
upon ~he following, on thts ~_, day of, ~arch, 2001, l.O.
Prot,h~.no~ary
One Courthouse Square
Cerllsle, Po. ~701.. 33
l, Chr1'stopher Smlth, do hereby v.ert'f~, tha~ ~he fac~s ,et
for~# ere true and correct to the best of my personal knowledge,
Information ~nd b~ltef, a~'d"thot any fa]se statements, herein irt
ends subject to the penaTt~es of sectton ~4g04 of the crimes
Code (~O PI. C.S. J 4~04), relottng to filstflcitto, to
authorities.
/s/ ............................................. _
Christopher Smtth, Affiant
negligence p_er se , with liability attaching if proximate
cause is proven;~-also see Section 497 of the Liquor Code for
applicable limitations.
_(8! N~ti0~£ G'u~d ActivitieS--This area of waiver acknow-
ledg e Mil
itary Code, August 1,
· 1975, P.L. 233, No. 92, 51 Pa.C.S. ~ 4108, with which it
should be read in p_ari materia_. That section provides that
The Commonwealth of Pennsylvania shall be
responsible for the payment of all judEments and
costs secured a§ainst a member of the Pennsylvania
Military Forces on State duty who was actin§ under
lawful orders or who in §ood faith relied on an
order which a reasonable person would consider to
be unlawful under the circumstances.6
In developing the eight previously discussed areas of
liability in which waiver of sovereign immunity is proposed,
the task force considered other areas of potential waiver
and determined to retain sovereign immunity. In evaluating
the areas rejected, the task force reviewed among other
materials the statutory exceptions provided in other juris-
dictions.
The task force specifically rejected waiving sovereign
immunity for claims arising out of:
(1) Intentional torts such as assault and battery,
false imprisonment, false arrest, malicious
° prosecution, abuse of privacy, libel and slander,
misrepresentation, deceit, interference with
contract rights, fraud and invasion of privacy.
(2) The improper assessment of taxes.
(3) Seizure and detention of personal property.
i.'
"' (4) Product liability.
i' (5). Civil rights and constitutional violations
~ ·
6. For a definition of Pennsylvania Military Forces, see 51
Pa.C.S. § 102.
CER TIFIC~4 TE OF SER PICE
I hereby certify that I am this day serving the Commonwealth Defendants' Preliminary
Objections upon the person(s) and in the manner indicated below:
SER VICE B Y FIRST CL4SS MAIL
POS T~4 GE PREPs4 ID
~4DDRESSED ~IS FOLLO WS:
CHRISTOPHER SMITH, EM-4550
P.O. BOX 1000
HOUTZDALE, PA 16698-1000
By:
STEVEN C. GOULD ID #80156
Deputy Attorney General
Torts Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
717-783-8035 - Direct Dial
DATED. MAY 3, 2001
v · · /'
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
CHRISTOPHER SMITH, .
Plaintiff ·
v~. : ,o.. 61-17~~_¢,'"~,'~_
KYLE KENNETH, SUPERINTENDENT, ·
MS. TYSON, UNIT MANAGER, C.O. ·
LIEUTENANT FLOWERS, and C.O. ·
SERGEANT EWAN, of the STATE ·
CORRECTIONS INSTITUTION at ·
CAMP HILL .
Defendants ·
ORDER
AND NOW, this ~~ day of
,.
- - - - .... ~._~, 2001; upon
consideration of the Plaintiff's Petition to Proceed In Forma
Pauperis is hereby GRANTED/IXEN.IE'-I)m_
By the Co-~rt,.':/
.
....
JUDGE ,½' ~
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
CHRISTOPHER SMITH, . Plaintiff ·
Vs. ' No..
KYLE KENNETH, SUPERINTENDENT, ·
MS. TYSON, UNIT MANAGER, C.O. ·
LIEUTENANT FLOWERS, and C.O. ·
SERGEANT EWAN, of the STATE ·
CORRECTIONS INSTITUTION AT ·
CAMP HILL .
Defendants ·
PETITION TO PROCEED IN FORMA PAUPERIS
1. I am the Plaintiff in the above matter and because of my financial
condition am unable to pay the fees and costs of prosecuting or defending the
action or proceedings.
2. I am unable to obtain funds from anyone including my family and associates
to pay the costs of litigation.
3. I represent that the 'information below relating to my ability to pay the
fees and costs is true and correct.
{a) Name. Christo her Smith EM-4550; Address- ~.0. Box 1000, S.C.I.
Houtzdale Pa. 16698-1000. Social Security Number. 194-58-7968.
(b) Employment. ~rison labor~ at...S.C.I. Houtzdale. -- "
,
{c) Other income in the past 12 month; None
{d) Other contributions to household support. ~one
{e) Property owed. Non..__~e
{f) Debts and obligations. ~ yes, C~ Costs $ 303.oo
{g) Persons dependent upon you for support. None
4. I understand that I have a continuing obligation to inform the court of
improvement in my financial circumstances which permits me to pay the costs
incurred herein.
5. I verify that the statements in this affidavit are true and correct. I
understand that false statements herein are subject to penalties of 18 Pa.
C.S. §4904 relating to unsworn falsification to authorities.
Date- March_~, 2001
Is~
Petitioner
·
·
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL" DIVISION
CHRISTOPHER SMITH, ·
Plaintiff ·
V s. : N o. · o/-/~~ ~~ '77,,~_- ~
KYLE KENNETH, SUPERINTENDENT, ·
MS. TYSON, UNiT MANAGER, C.O. ·
L'~EUTENANT FLONERS, and C.O. ·
SERGEANT ENAN, of the STATE ·
CORRECTIONS ~NST~TUT~ON at ·
CAMP H~LL .
Defendants ·
COMPLAINT IN FORMA -
NE.GI-'.,t.G,ENT OR WR_ON,.GFUL. A_C. TS AND TORT
....
-,
To The Honorable, Oudges Of The Above Said Court:
Comes now plaintiff Christopher Smith, pro se litigant to
the court with this civil cause of action against the above
named defendants. In this regard, he respectfully submits.
.JU.RISDICTtON
L
Jurisdiction of this court is invoked pursuant to the
Pennsylvania Rules of Civil Procedures, Rule 1017, 1007.1.
.C A U S E mO ~ mA m~ T t 0 N
On February 12, 2001, this plaintiff, Christopher Smith was an inmate at
the State Correcton Institution (S.C.I.) Camp Hill Diagnostic Center, by Order
of Montgomery County Court, Oudge L'awrence A. Brown. This plaintiff while a
resident at Camp Hill was assaulted by inmate William Clegg D.O.C. #EL-8513.
This plaintiff suffered a Laseration and C°ntusion to the upper left side of
the forehead, receiving 6 stitches.
a) On January 24, 2001, inmate Clegg was assigned to the same Housing
Unit, L Block, B side cell #26 as this plaintiff's cell ie {cell mate).
b) Inmate Clegg presented himself with an arrogant attitude, and there,
inmate Clegg started making threats towards this plaintiff when this plaintiff
expressed with respect, that yelling out the cell to another inmate during
count time would cause a conflict between them and the Correction Officers and
possibly they both would receive a misconduct.
c) This plaintiff, due to inmate Clegg's threats and arrogant attitude
took inmate Clegg's threats seriously and reported the threats to Correction
Officer Sergeant Shaw, Sgt. Shaw informed this plaintiff that it was time for
the shift to change and to speak to the second shift Sergeant, and write a
request to the Unit Manager Ms. Tyson, for he could not move anyone from cell
to cell. This plaintiff did as instructed.
d) This plaintiff, when second shift arrived, reported to Sergeant Ewan and
stressed his concerns about inmate Clegg's threats. Stg. Ewan refused to
separate this plaintiff and inmate Clegg and that he wanted both inmates to
fight so he could throw b°th inmates in the hole.
e) This plaintiff then took his complaint to Lieutenant Flowers. Lt.
Flowers commented that she was not there to make anyone comfortable and for
this plaintiff to deal with his own problems himself.
PARTIES TO SU)T
2. Plaintiff, Ch~istophe~ Smith is now an inmate at the State Co~ection
Institution (S.C.I.) Houtzdale, Pa. serving a I to 2 yea~ sentence fo~ theft
of movable p~ope~ty and.~ecetving stolen p~opePty.
3. Defendant, Sergeant Ewan is a Co~ection Office~ at State Co~ections
Institution (S.C.I.) Camp Hill Diagnostic Cente~.
4. Defendant, Lieutenant Flowers is a Co~ection Office~ at the State
Co~ection Institution (S.C.I.) Camp Hill Diagnostic Cente~.
5. Defendant, Ms. Tyson is a Unit Manage~ at the State Co~ection
Institution (S.C.I.) Camp Hill Diagnostic Cente~.
6. Defendant, Kyle Kenneth is the Superintendent of the State Co~ection
Institution (S.C.I.) Camp Hill Diagnostic Cente~.
AVERMENT,S
7. Plaintiff avers that Defendants, Sergeant Ewan, Lieutenant Flowers,
Unit Manager Ms. Tyson, and Superintendent Kyle Kenneth, did wantonly,
knowingly, deliberately, maliciously and unlawfully allow inmate William
Clegg D.O.C. # EL-8§13 to inflict bodily harm and injuries on this plaintiff,
Christopher Smith, Iwhen Knowingly that a conflict existed, and could had been
prevented.
RELtEI: REOUESTED
Wherefore, plaintiff prays that the following relief be granted from the
defendants and he prays that this Honorable Court so grant them'
a) A trial by jury;
b) Puntt~ve damages agatnst each of the four defendants,
tn both thetr Individuals and offtctal capacities,
tn excess of $~0,000 oo.
c) Compensatory damages against each of the four defend-
ants tn both thetr Individual and offtctal capacities
~n the spectf~c amount of $30,000.oo each;
d) And such other reltef as may be necessary and/or
appropriate in accordance with justtce and the law.
Respectfully submitted,
Christophe'r Smtth, EM-4550
P.O. Box 1000
Hout. zdale, pa. 16698-1000
_C-.ERTtF, t,¢AT,£ ._OF MAt.._L,i)NG
I, Christopher Smith, plaintiff hereby certifies that I have
cause served a true and corre!~copy of the foregoing, document,
upon the following, on this , day of, March, :>001, A.D.
Curt L. ong
Prothonotary
One Courthouse Square
Cumberland County Courthouse
Carlisle, Pa. 17013-3387
Christophe¥ Smith, Affian~
mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm
VERIFICATION
t, Christopher Smith, do hereby verify that the facts set
forth are true and correct to the best of my personal knowledge,
information and belief, and that any false statements herein are
made subject to the penalties of section §4904 of the crimes
Code {18 Pa. C.S. § 4904), relating to falsification to
authorities.
Christopher Smith, Affiant
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·
' SHERIFF' S RETURN - REGULAR
CASE NO' 2001-01792 p
COMMONWEALTH OF PENNSYLVANIA-
COUNTY OF CUMBERLAND
SMITH CHRISTOPHER
VS
KYLE KENNETH
CPL MICHAEL BARRICK , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
KYLE KENNETH SUPERINTENDENT
the
DEFENDANT , at 0014-55 HOURS, on the 9t_____h day of April , 2001
at SCI CAMP HILL 2500 LISBURN RD
CAMP HILL, PA
by handing to
BEN LIVINGOOD (SUPERINTENDANT)
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing Hi~s attention to the contents thereof.
Sheriff,s Costs- So Answers.
Docketing 18.00 ~~/~
Service 8.68
Affidavit .00
Surcharge 10.00 R. Th%mas Kline
.00
36.68 04/10/2001
Sworn and Subscribed to before By-
me this R¥ l~
~-- day of
·
SHERIFF ' S RETURN - REGULAR
CASE NO- 2001-01792 p
COMMONWEALTH OF PENNSYLVANIA.
COUNTY OF CUMBERL~D
SMITH CHRISTOPHER
VS
KYLE KENNETH
~PL. MICHAEL BARRICK
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
TYSON MS
~ the
DEFENDANT , at 0014.55 HOURS, on the 9th day of A_pril , 2001
at SCI CAMP HILL ~
2500 LISBURN ROAD
CAMP HILL, PA 17011
by handing to
BEN LIVINGOOD (SUP. ASST.)
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing Hi~s attention to the contents thereof.
Sheriff,s Costs.
So Answer
Docketing 6.00
Servi ce .00
Affidavit .00 · ·
Surcharge 10.00 R. Tho--~as Klin~-----
.00
16.00 04/10/2001
Sworn and Subscribed to before By-
me this ~ F-~--~ day of
SHERIFF, S RETURN - REGULAR
CASE NO- 2001-01792 p
COMMONWEALTH OF PENNSYLVANIA.
COUNTY OF CUMBERLAND
SMITH CHRISTOPHER
VS
KYLE KENNETH
CPL. MICHAEL BARRICK
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
FLOWERS LIEUTENANT
the
DEFENDANT , at ~014.55 HOURS, on the 9t_____h day of April , 200~1
at SCI CAMP HILL 2500 LISBURN ROAD
CAMP HILL, PA 17011
by handing to
BEN LIVINGOOD (SUP. ASST.)
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing Hi_~s attention to the contents thereof.
Sheriff,s Costs. So Answers.
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00 R. Thomas Kline
.00
6.00 04/ 0/200
Sworn and Subscribed to before By-
me this ~g--~ day of
------ , A.D.
.... SHERIFF' S RETURN - REGULAR
CASE NO' 2001-01792 P
COMMONWEALTH OF PENNSYLVANIA'
COUNTY OF CUMBERLAND
SMITH CHRISTOPHER
VS
KYLE KENNETH
CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
EWAN SERGEANT the
DEFENDANT , at 0014-55 HOURS, on the 9th day of April , 2001
at SCI CAMP HILL 2500 LISBURN ROAD
CAMP HILL, PA 17011 by handing to
BEN LIVINGOOD (SUP. ASST.)
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. So Answers-
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00 R. ~s Kline
.00
0 / 0/200
Sworn and Subscribed to before By.
me this ~g~ day of v p ~~riff
A.D.
~~thonotary
CHRISTOPHER SMITH, · IN THE COURT OF COMMON PLEAS OF
Plaintiff · CUMBERLAND COUNTY, PENNSYLVANIA
·
V. :
·
KYLE KENNETH, :
SUPERINTENDENT, MS. TYSON,: CIVIL ACTION - LAW
I/NIT MANAGER, C.O. :
LIEUTENANT FLOWERS, AND :
C.O. SERGEANT EWAN, OF :
THE STATE CORRECTIONS :
INSTITUTION AT CAMP HILL, :
Defendants : NO. 01-1792 CIVIL TERM
ORDER OF COURT
AND NOW, this 21st day of May, 2001, defendant havin~
filed a withdrawal of the within civil complaint a~ainst
defendants herein, it is ordered that the wi thin action, IS
DISMISSED.
By the_Courtw
Steven C. Gould, Esquire ~
Deputy Attorney General
Christopher Smith
Plaintiff
Sheriff
prs