HomeMy WebLinkAbout2008-4835 Civil
JAMES A. PALUCH, JR., : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
PA. DEPARTMENT OF :
CORRECTIONS, ET AL., :
DEFENDANTS : 08-4835 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS
TO PLAINTIFF’S COMPLAINT
OPINION AND ORDER OF COURT
Bayley, April 16, 2009:--
Plaintiff, James A. Paluch, Jr., an inmate under the jurisdiction of the
Pennsylvania Department of Corrections, instituted this civil rights action against
defendants, PA Department of Corrections, and its following employees: Donald L.
Kelchner, Superintendent, Eugene Brannigan and David Patton, Deputy
Superintendents, Dick Southers, Unit Manager, Robert Kreider, Derek Zimmerman,
Mark Simpson, Edward Ayers, Matthew Yohn, Adam Huber, and “Klein,” Correction
Officers, Zachary Moslak, Hearing Examiner, Theresa Law, Corrections Healthcare
Administrator and Kristin Barbacci, Physician’s Assistant. The allegations in plaintiff’s
1
complaint can be summarized as follows. He was given false misconduct reports. He
was denied due process by a hearing examiner in connection with hearings on the
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1
Paragraphs 57, 58, 72, 100, 101, 111, 126, 127, 136, 142, 143 and 152.
08-4835 CIVIL TERM
2
alleged misconducts. He has “become a target of verbal harassment, retaliation,
hardships and other burdens.” Despite the 272 paragraphs in the complaint, it is hard
to categorize these allegations. Essentially, the retaliation alleged is the filing of false
misconduct reports and the corrections officers calling him inappropriate names and on
two occasions in August 2006 being denied a meal.
The complaint against the Pennsylvania Department of Corrections must be
Warren
dismissed because it is not a person subject to suit under the Civil Rights Act.
v. Pennsylvania Department of Corrections,
616 A.2d 140 (Pa. Commw. 1992). The
complaint against Donald L. Kelchner, Eugene Brannigan, David Patton and Dick
Southers, must be dismissed because the allegations against them are based solely on
their supervisory capacity. The doctrine of respondeat superior does not apply to
Wilson v. Horn,
causes of action brought for a violation of civil rights. 971 F.Supp. 943
(E.D. Pa. 1997), aff’d 142 F.3d 430 (3d Cir. 1998). The complaint against the Hearing
Examiner Moslak must be dismissed because he has immunity in the performance of
Harper v. Jefferies,
his adjudicative duties. 808 F.2d 281 (3d Cir. 1986). A civil rights
action is not a forum to relitigate the validity of misconduct reports. No matter what the
source of the alleged misconducts those issues were litigated by the hearing examiner.
Examining all of the allegations against the corrections officers’ we are
__________
2
Paragraphs 61-69, 78-83, 103-105, 107, 108, 129-135, 139, 141, 145, 147-151 and
154-163.
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08-4835 CIVIL TERM
satisfied that taken collectively they do not rise to a cognizable claim of a violation of
civil rights.
The complaint against the physician’s assistant Kristin Barbacci is that plaintiff
told her in August, 2006, after he had been denied one meal on August 4 and another
on August 9, that he is an epileptic and has to take medications to control his seizures
which requires that they be ingested with food. Barbacci told him “I have no control
over this, it’s a security issue.” It appears that the claim against Theresa Law, the
Healthcare Administrator, is that she authorized a deduction of $4 from plaintiff’s
prisoner account without his authorization. We are satisfied that these allegations do
not give rise to a cognizable claim for a violation of plaintiff’s civil rights.
For the foregoing reasons, the following order is entered.
ORDER OF COURT
AND NOW, this day of April, 2009, the preliminary objections of all
ARE SUSTAINED.IS DISMISSED.
defendants, The complaint against all defendants,
By the Court,
Edgar B. Bayley, J.
James Paluch Jr., BQ 3769, Pro se
SCI Smithfield
1120 Pike Street
Huntingdon, PA 16652-0999
Raymond W. Dorian, Esquire
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08-4835 CIVIL TERM
For Defendants :sal
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JAMES A. PALUCH, JR., : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
PA. DEPARTMENT OF :
CORRECTIONS, ET AL., :
DEFENDANTS : 08-4835 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS
TO PLAINTIFF’S COMPLAINT
ORDER OF COURT
AND NOW, this day of April, 2009, the preliminary objections of all
ARE SUSTAINED.IS DISMISSED.
defendants, The complaint against all defendants,
By the Court,
Edgar B. Bayley, J.
James Paluch Jr., BQ 3769, Pro se
SCI Smithfield
1120 Pike Street
Huntingdon, PA 16652-0999
Raymond W. Dorian, Esquire
For Defendants :sal