Even if a constitutional deprivation had been made out, no claim is stated against the named Prison defendants. To make out a case under § 1983, the plaintiff must show actual participation in the unlawful conduct, or actual knowledge of and acquiescence in that conduct. Goode v. Rizzo, 506 F.2d 542 (3d Cir. 1975), rev'd on other grounds, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976); Bracey v. Grenoble, 494 F.2d 566 (3d Cir. 1974); Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973), cert. denied, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974).
In his affidavit, defendant Aytch denies any personal knowledge of the events leading to Roach's complaint. This is not disputed by any countervailing evidence submitted by the plaintiff. Instead, Roach argues that the close supervision and control Aytch claims to exercise over medical experiments at Holmesburg prison is sufficient evidence of personal involvement.
The difficulty with this argument is, if the plaintiff does not rely on some direct participation by the defendants in the improper medical treatment, the defendants may well be cloaked in qualified official immunity. Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The test for whether official immunity applies is whether the defendants knew or reasonably should have known that the action they took within the sphere of their official responsibility would violate the constitutional rights of the plaintiff, or whether they took action with the malicious intention to cause a deprivation of constitutional rights or other injury to the plaintiff. O'Connor v. Donaldson, 422 U.S. 563, 577, 45 L. Ed. 2d 396, 95 S. Ct. 2486 (1975).
There is no evidence in the record of malice on the part of these defendants. Quite to the contrary, the record shows that the primary purpose of allowing the medical experiments is to provide a source of income for the inmates. (Aytch affidavit, para. 19). This particular test was reviewed by an outside doctor, before approval. (McBride deposition, page 40). Finally, the nature of the claim itself is medical, and yet none of the Prison defendants is a doctor. Nothing in the record suggests that the Prison defendants knew or had reason to know that the prison doctor, the guards, or Ivy Research would even be negligent toward the plaintiff, let alone subject him to cruel and unusual punishment. The most that can be said of the Prison defendants on this record is that they were negligent in their supervision. It is not enough for the plaintiff to characterize this negligence in a conclusory fashion as "gross" or "reckless" or "malicious", and then claim this gives rise to a constitutional deprivation. Section 1983 is not designed to be a "font of federal tort law" and the fact that a tort may have been committed by state officials does not mean a federal right has been invaded. Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405, 44 U.S.L.W. 4337, 4339 (1976).
Since there is no constitutional deprivation to be found in the record of this case, I will also decline to exercise pendent jurisdiction over the state claim for trespass. Pendent jurisdiction is a doctrine of discretion, not of the plaintiff's right. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Moor v. County of Alameda, 411 U.S. 693, 712, 36 L. Ed. 2d 596, 93 S. Ct. 1785, reh. denied, 412 U.S. 963, 93 S. Ct. 2999, 37 L. Ed. 2d 1012 (1973). Even though there is power to hear pendent state claims, I will, as a matter of discretion, decline jurisdiction because the federal claims have been dismissed, and because of the plain predominance of state issues. See Gibbs, supra, 383 U.S. at 726-27; Smith v. Spina, 477 F.2d 1140, 1143 (3d Cir. 1973).
In a letter dated March 22, 1976, plaintiff's counsel has raised a claim of jurisdiction against the defendant City of Philadelphia under 28 U.S.C. § 1331, while conceding that no jurisdiction would lie against the City under 28 U.S.C. § 1343(3), (4) and 42 U.S.C. § 1983. The Third Circuit has recently indicated that § 1331 jurisdiction may well lie against subdivisions of states for constitutional deprivations, Skehan v. Board of Trustees of Bloomfield State College, 501 F.2d 31 (3d Cir. 1974), vacated, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975); Rotolo v. Borough of Charleroi, supra, notwithstanding the fact that such entities cannot be made parties to a suit under § 1983. Moor, supra, 411 U.S. at 698-710.
It is not clear from those opinions whether the possible tension between the jurisdictional statute, 28 U.S.C. § 1331, and the cause of action statute, 42 U.S.C. § 1983, was called to the court's attention. However that may be, it is not necessary to resolve the question in this case because I am granting summary judgment for failure to state a cause of action, either under § 1983, or directly under the Eighth Amendment, and not on jurisdictional grounds.
In conclusion, the record in this case establishes precisely the opposite of what the plaintiff contends at each of the three critical points in time when a constitutional deprivation might have occurred.
There was no "coercion" to enter into the medical experiment for three reasons. First, the uncontradicted affidavit of the defendant Aytch establishes that the primary purpose of the medical experiments was to provide a source of income for inmates. Second, while plaintiff may not have been supplied with certain "minimal needs and comforts" by the defendants, neither was he denied access to them. He could purchase them at the prison commissary. Third, he was offered other opportunities to earn money but he declined to consider them.
There was certainly no denial of medical care once Roach became ill during the experiment, and there is nothing to indicate an intent to harm Roach, or a callous indifference to his condition. When he complained to the prison doctor of a sore throat, he was given penicillin. That may have been inappropriate treatment under the circumstances, but it hardly amounts to callous indifference or reckless disregard of the plaintiff's welfare. Similarly, although Prison defendants' failure to supervise the experiment more closely might be characterized as negligence, it cannot amount to "cruel and unusual punishment" where the nature of the experiment had been approved by an independent doctor.
Finally, when Roach returned from PGH, his own deposition conclusively establishes that he was not denied medical treatment, but that he missed sick call because he was asleep or did not want to stand in line. As to the cold and leaky cell, the plaintiff's deposition establishes that he did not ask to be moved; the Aytch affidavit establishes that if the plaintiff was in such a cell, Aytch did not know about it and it was contrary to his instructions.
For all of the foregoing reasons, the motion of the Prison defendants and the City of Philadelphia for summary judgment will be granted as to the civil rights and constitutional claims. The pendent state law claims against all said defendants will be dismissed.
This 30th day of April, 1976, it is
ORDERED that the Motion of defendants Louis S. Aytch, Angelo J. Galeone, Marion Sprague, Artis Ray, Jr., Ralph Ritter, Abraham Needleman, Michael J. Stack, Jr., Joseph S. Wnukowski, Charles Clayton Holt, III, and City of Philadelphia is GRANTED as to the civil rights and constitutional claims. It is
FURTHER ORDERED that the pendent state law claims against all said defendants are DISMISSED.
Alfred L. Luongo / J.