The opinion of the court was delivered by: VANARTSDALEN
Plaintiff seeks leave to file a second amended complaint. The defendant township volunteer fire companies have filed motions to dismiss as to them.
Plaintiff, while serving a sentence imposed by the state courts, filed, pro se and in forma pauperis, a civil rights complaint against the State Commissioner of Corrections and the Superintendent and a Deputy Superintendent of the State Correctional Institution at Graterford. Plaintiff alleged that while he was a prisoner in Graterford, a fire broke out and that the prison authorities made no attempt to rescue him from the fire. He further alleged that he was finally rescued by other inmates and thereafter removed to Dallas prison against the orders of a physician. This original complaint, although perhaps not perfectly drawn, fully complied with Fed. R. Civ. P. 8(a) and was indeed a "short and plain statement" of the jurisdictional grounds, the factual basis of the claim and a clear demand for compensatory and punitive monetary damages.
Plaintiff requested appointment of counsel and the court appointed counsel from the Temple Law Center pursuant to Local Rule 9 1/2. Plaintiff then filed through appointed counsel an amended complaint.
The amended complaint essentially reasserted the original allegations which clearly set forth a civil rights cause of action. In addition it alleged common law negligence as to the state prison authorities in not having proper fire protection as to the building and its equipment, in not taking proper precautions to safeguard inmates in the event of a fire, and not adequately protecting the inmates against the fire, which negligence was alleged to be "reckless, wanton and wilful."
The amended complaint also joined two local fire companies, alleged to be nonprofit corporations who responded to the fire alarm. The fire companies are charged with negligently failing to promptly rescue plaintiff. The defendant fire companies moved to dismiss as to them asserting that (1) they were not "persons" within the context of the civil rights acts, (2) that the claims were solely for negligence as to them, and (3) that the complaint alleged no facts upon which there could be a finding of state action on the part of the fire companies. The amended complaint made no allegation of a conspiracy. Plaintiff's counsel filed an extensive brief, wherein it was agreed that the amended complaint "clearly alleged only tortious conduct" as to the fire companies "and that the allegation of violations of . . . constitutional rights . . . arises by implication only."
Thereafter, prior to any ruling on the motion to dismiss, plaintiff filed a motion for leave to file a second amended complaint. This second amended complaint seeks to do the following:
(1) Reassert all of the claims and allegations of the original and first amended complaint.
(2) Join as defendants under the name of "John Doe" all of the fire chiefs, officers, supervisors, commanders and individual firemen of both defendant fire companies.
(3) Join Dr. Gaffney, the physician who treated plaintiff after the fire. The claim against Dr. Gaffney is essentially that of negligence in permitting plaintiff to be placed back in the "smoke-filled, damp cell" after the fire, which is alleged to have violated plaintiff's fifth, eighth and fourteenth amendment rights under the United States Constitution.
(4) Assert by a generalized, non-specific allegation that all defendants conspired to defeat plaintiff's civil rights.
(5) Claim, in addition to monetary damages, the right to broad scale mandatory injunctive relief against all defendants including the fire companies, requiring these companies to formulate and impose fire regulations in the prison, train their volunteer firemen and cooperate with prison officials in inspections and fire prevention, including construction of buildings.
A final relevant fact is that plaintiff has since been discharged from prison and is now on parole. After being discharged, he was shot and his condition is such that he may be permanently paralyzed in the lower part of his body.
Under Federal Rule 15(a) the proposed second amended complaint may only be filed by leave of court or consent of the adverse party. The Rule further states that "leave [to amend a pleading] shall be freely given when justice so requires." In Foman v. Davis, 371 U.S. 178, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962), the Supreme Court stated that this language is a mandate to be heeded. There the Court announced certain "reasons" that would permit a refusal to allow an amendment of the complaint. They are (1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure ...