HomeMy WebLinkAbout2008-6175 Civil
JAMES A. PALUCH, JR., : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
PA. DEPARTMENT OF :
CORRECTIONS, ET AL., :
DEFENDANTS : 08-6175 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS
TO PLAINTIFF’S COMPLAINT
OPINION AND ORDER OF COURT
Bayley, April 9, 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 the following employees at the State
Correctional Institution at Camp Hill: Donald L. Kelchner, Superintendent, Richard
Southers, Unit Manager, Robert Kreider, Lieutenant and Supervisory Administrator,
Mark Simpson, Adam Huber, Eric Kline, Matthew Yohn and Edward Ayers, Correction
Officers, and Zachary Moslak, Hearing Examiner. The allegations in plaintiff’s
complaint can be summarized as follows. He was issued a false misconduct report and
1
was later found guilty of some of the charges by Hearing Examiner Moslak. Hearing
2
Examiner Moslak denied him due process in connection with a misconduct hearing.
__________
1
Paragraphs 25-38.
2
Paragraphs 27, 31, 41, 42 and 61.
08-6175 CIVIL TERM
3
Yohn and Ayers have yelled, sworn and threatened him. Ayers once took plaintiff’s
handcuffs and “spitefully pulled them up causing him to experience physical pain and
4
red marks on his wrists.” Ayers once “gripped and pushed him extremely roughly”
56
while he was attempting to go to yard, and Ayers once denied him a meal. Kline and
Huber confiscated three of his photographs depicting “two young adult females kissing
7
and performing cunnilingus on each other.” Simpson made sexual noises and
8
caressed his hands during a strip search of his cell. Kelchner, Southers and Kreider
failed to protect him from this alleged abuse committed by the other defendants.
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 Kelchner, Southers and Kreider must be dismissed because the
allegations against them are based solely on their supervisory capacity. The doctrine
of respondeat superior does not apply to causes of action brought for a violation of civil
3
Paragraphs 15, 16, 17, 19 and 22.
4
Paragraph 18.
5
Paragraph 20.
6
Paragraph 58.
7
Paragraphs 44-50.
8
Paragraphs 52-56.
-2-
08-6175 CIVIL TERM
Wilson v. Horn,
rights. 971 F.Supp. 943 (E.D. Pa. 1997), aff’d 142 F.2d 430 (3d Cir.
1998). The complaint against the Hearing Examiner Moslak must be dismissed
Harper v.
because he has immunity in the performance of his adjudicative duties.
Jeffries,
808 F.2d 281 (3d. Cir. 1986). A civil rights action is not a forum to relitigate
the validity of misconduct reports.
The allegations set forth in the complaint whereby plaintiff alleges that correction
officers Yohn and Ayers yelled and swore and threatened him do not give rise to a
Wilson v. Horn, supra
cognizable claim of violation of civil rights. . The allegations
against Ayers regarding his once using handcuffs causing him pain and red marks, and
pushing him extremely roughly on one occasion, and denying him a meal on one
Hudson v. McMillian,
occasion do not give rise to a cognizable civil rights action. 503
Id.
U.S. 1 (1992). These allegations are legally de minimis. Nor does the allegation
Id.
against Simpson involving sexual noises and caressing his hands.
We are not prepared to say that there is a cognizable civil right action against
Kline and Huber based on their confiscation of three photographs depicting two young
adult females kissing and performing cunnilingus on each other.
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,
-3-
08-6175 CIVIL TERM
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
-4-
JAMES A. PALUCH, JR., : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
PA. DEPARTMENT OF :
CORRECTIONS, ET AL., :
DEFENDANTS : 08-6175 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