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THOMPSON v. MONTEMURO

October 23, 1974

RENEE THOMPSON, a Minor, and JOHN AND DORINE THOMPSON, her parents and natural guardians, Plaintiffs
v.
THE HONORABLE FRANK J. MONTEMURO, Individually and as Administrative Judge of the Family Division, Philadelphia Court of Common Pleas, and EUGENE J. MONTONE, individually and as Executive Director of the Youth Study Center of the City of Philadelphia, and JESSICA McCLENDON, ANNIE R. POWELL, EMMA CLARK, JUANITA STEVENS, MARGARET WICKES, and HAROLD PALMER, individually and as Supervisors at the Youth Study Center of the City of Philadelphia, and ESTHER BOYER, a nurse at the Youth Study Center of the City of Philadelphia Defendants



The opinion of the court was delivered by: DITTER

 This civil rights action was brought to recover damages allegedly suffered by a minor while detained at a juvenile institution. Presently before the court are defendants' motions to dismiss.

 I. Introduction and Facts

 From May 4, 1973, until June 15, 1973, the plaintiff, Renee Thompson, was confined at the Philadelphia Youth Study Center on a charge of having run away from home. In the complaint filed on her behalf and that of her parents, it is alleged that she was mistreated and denied her civil rights in violation of 42 U.S.C. § 1983. The named defendants include the several employees actually alleged to have mistreated the plaintiff, the executive director and "head supervisor" of the Youth Study Center, and the Honorable Frank J. Montemuro, Administrative Judge of the Family Court Division of the Philadelphia Court of Common Pleas.

 Presently before the court are defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12 (b) (6) on the grounds that: (1) the complaint merely alleges tortious conduct and fails to state a cause of action cognizable under the Civil Rights Act; (2) the complaint lacks the factual specificity necessary to state a Civil Rights action in this Circuit; (3) Judge Montemuro and the acting and executive directors of the Youth Study Center are shielded from suit under the doctrines of judicial immunity and/or quasi-judicial immunity; (4) Judge Montemuro and the executive and acting directors of the Youth Study Center cannot be held liable for acts committed by others under the doctrine of respondeat superior ; and (5) in the absence of a substantial federal claim there exists no basis for the exercise of pendent jurisdiction by this court. For the reasons expressed herein, I conclude that defendants' motion should be granted with respect to the defendants, Palmer and Judge Montemuro, but that in all other regards, the motion must be denied.

 It is hornbook law that in considering a motion to dismiss for failure to state a claim for which relief can be granted, a court will consider as admitted and view in the light most favorable to the plaintiff all facts contained within the complaint and every inference fairly deducible therefrom. Melo-Sonics Corp. v. Cropp, 342 F.2d 856, 858-59 (3d Cir. 1965). And a complaint should not be dismissed unless it appears to a legal certainty that the plaintiff would not be entitled to relief under any set of facts which could be proved in support of his claim. Jenkins v. McKeithen, 395 U.S. 411, 422, 89 S. Ct. 1843, 1849, 23 L. Ed. 2d 404 (1963). Bearing in mind these principles, I shall deal with defendants' contentions seriatem.

 II. Failure to State a Claim Under the Civil Rights Act

 Broadly stated, defendants' first contention is that the conduct complained of is not sufficient to constitute a claim under 42 U.S.C. § 1983. I disagree. Plaintiff alleges, inter alia, that without provocation she was assaulted by personnel of the Youth Study Center with a shoe and a blackjack, that she was denied medical treatment for asthma and for injuries sustained in the previously-alleged assaults, that she was placed in solitary confinement without reason, and that the Center's officials and Judge Montemuro conspired to "cover-up" the facts of plaintiff's alleged mistreatment.

 While prison officials have wide discretionary authority to exercise disciplinary control over inmates, Wilson v. Prasse, 325 F. Supp. 9, 12 (W.D. Pa. 1971), affirmed 463 F.2d 109 (3d Cir. 1972), it is well-settled that persons in jails, penitentiaries, and other places of confinement have a federal Constitutional right to be free from beatings, physical torture, and maltreatment by custodial officials and employees, and that this right can be vindicated in an action under Section 1983, Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973); Brown v. Brown, 368 F.2d 992 (9th Cir. 1966). *fn1"

 The leading case concerning abuse of unconvicted suspects or prisoners in this circuit is Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972). There the plaintiff, a diabetic, *fn2" who was being detained after arrest but before conviction, alleged that police officers beat him with a blackjack and a wooden plank. The court held that even if the plaintiff was resisting the officers, the allegations went far beyond the pale of permissible police conduct in contravention of the Eighth Amendment and constituted a prima facie case of cruel and unusual punishment against any identifiable participating officers.

 In Buszka v. Johnson, 351 F. Supp. 771 (E.D. Pa. 1972), Judge Newcomer had occasion to review the tests devised by other courts in deciding when tortious conduct gave use to a Section 1983 claim. He stated:

 
Many cases describe the necessary conduct as "exceptional circumstances." See, Henderson v. Pate, 409 F.2d 507, 508 (7th Cir. 1969); United States ex rel. Lawrence v. Ragen, 323 F.2d 410 (7th Cir. 1963); Eaton v. Ciccone, 283 F. Supp. 75 (W.D. Mo. 1966). Other courts require that the alleged conduct be "barbaric." Ford v. Board of Managers of New Jersey State Prison, supra, 407 F.2d at 940. Still another court has characterized conduct as being cruel and unusual punishment when it shocks the general conscience or is intolerable to fundamental fairness. Jordan v. Fitzharris, 257 F. Supp. 674, 679 (N.D. Cal. 1966).

 351 F. Supp. at 773-74. Under any of these tests, I am unwilling to hold as a matter of law that the beatings allegedly inflicted upon the plaintiff do not state a claim within the comprehension of the Civil Rights Act.

 With respect to plaintiff's allegation of a denial of medical care, a formidable burden must be surmounted in order to establish a cause of action for improper treatment of a prisoner in this circuit. See Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970). Nevertheless, I am unable to conclude that the confinement of a fifteen year old complaining of asthma, headaches, dizziness, and a heat rash, in a totally unventilated room for three days during an early summer heat-wave, during which she was offered only two aspirin as treatment for her symptoms, does not rise to the level of "conduct so cruel or unusual as to approach a violation of the Eighth Amendment's prohibition of such punishment". Gittlemacker v. Prasse, supra; see also Brown v. Cliff, 341 F. Supp. 177 (E.D. Pa. 1972).

 Although solitary confinement is not in and of itself violative of the Eighth Amendment, Ford v. Board of Managers of New Jersey State Prison, 407 F.2d 937 (3d Cir. 1969); Buszka v. Johnson, supra at 773, the transfer of a prisoner from the general prison population to solitary confinement without either notice of the charges or a hearing does not comport with minimal due process requirements absent unusual circumstances, Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972). Plaintiff, a juvenile committed into the hands of the state for psychological testing on a noncriminal charge of running away from home, was at least as ...


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