The opinion of the court was delivered by: BECHTLE
On October 5, 1981, the Court entered an Order granting in part and denying in part defendants' motion to dismiss in this civil rights action brought under 42 U.S.C. § 1983 by a former prison inmate. The following Memorandum is entered in support of that Order.
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) should be granted only where it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 101, 2 L. Ed. 2d 80 (1957). All well-pleaded material allegations of the complaint must be taken as admitted. Miree v. DeKalb, 433 U.S. 25, 27 n. 2, 97 S. Ct. 2490, 2492 n. 2, 53 L. Ed. 2d 557 (1977); Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975); Walker v. Food Machinery, 382 U.S. 172, 174, 86 S. Ct. 347, 348, 15 L. Ed. 2d 247 (1965); 2A Moore's Federal Practice, P 12.08 (2d ed. 1980).
The plaintiff, Richard Sturts, was formerly an inmate at the Holmesburg Correctional Institution, Philadelphia, Pennsylvania. On April 27, 1980, plaintiff was attacked by another inmate, Allen Wimberly, with a razor blade while plaintiff was walking back to his cell. As a result of this attack, plaintiff sustained injuries to his neck, face and eye. Thereafter, plaintiff was taken to the Holmesburg Medical Center and was treated by defendant Ernest Williams and other members of the medical staff for his injuries. Plaintiff received stitches to his neck, face and eye.
Counts I-III of plaintiff's amended complaint are directed against the following defendants: City of Philadelphia; Holmesburg Correctional Institution; Thomas J. Kelly, Warden of Holmesburg Prison; David S. Owens, Superintendent of Philadelphia Prisons; Irene F. Pernsley, Commissioner of the Department of Public Welfare; Ernest Williams, Medical Director of Holmesburg Prison Health Services; and John Doe, Guard at Holmesburg Prison. In Counts I-III, plaintiff claims that these defendants inflicted "cruel and unusual punishment" under the Eighth Amendment because they acted "wilfully, knowingly and with specific intent" by failing to provide adequate security protection, supervision and control over inmates, thus permitting plaintiff to be attacked by the other inmate, Allen Wimberly. Plaintiff further alleges that defendants failed to segregate defendant Allen Wimberly from the general prison population because of his alleged reputation for violent and highly irrational behavior.
It has been a long-standing requirement "that a civil rights complaint contain a modicum of specificity, identifying the particular conduct of defendants that is alleged to have harmed" the plaintiff. Ross v. Meagan, 638 F.2d 646, 650 (3d Cir. 1981); Rotolo v. Borough of Charleroi, et al, 532 F.2d 920, 922-23 (3d Cir. 1976); Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967). This standard is necessary to "weed out the frivolous and insubstantial cases at an early stage in the litigation, and still keep the doors of the federal courts open to legitimate claims." Kauffman v. Moss, 420 F.2d 1270, 1276 n. 15 (3d Cir. 1970), cert. denied, 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84 (1970). Vague and conclusory allegations, such as "intentionally, wilfully and recklessly," are, without more, insufficient to make out a complaint under 42 U.S.C. § 1983. Curtis v. Everette, 489 F.2d 516, 521 (3d Cir. 1973); Esser v. Weller, 467 F.2d 949, 950 (3d Cir. 1972); Kauffman, 420 F.2d at 1275; Negrich, 379 F.2d at 215. Plaintiff is represented by legal counsel. Accordingly, his amended complaint need not be given the liberal construction normally applied to a pro se complaint. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595, 30 L. Ed. 2d 652 (1972); Conley, 355 U.S. at 47, 78 S. Ct. at 102; Maute v. Roth, 90 F.R.D. 174, 175 (E.D.Pa.1981).
Applying these standards to the proceeding sub judice, plaintiff's amended complaint-Counts I-III-must be dismissed with respect to all defendants against whom these claims were made. With respect to defendant City of Philadelphia, plaintiff states that defendant acted "recklessly, carelessly and negligently"
by failing to provide adequate protection for inmates and by failing to segregate inmate Allen Wimberly from the general prison population because of his alleged violent and irrational behavior. Plaintiff, however, sets forth no facts to support these broad conclusory allegations. See Ross, 638 F.2d at 650; Rotolo, 532 F.2d at 922-23; Negrich, 379 F.2d at 215. Section 1983 liability can only be imposed where the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or "custom" promulgated by those whose edicts or acts may fairly be said to represent official policy. Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Rizzo v. Goode, et al, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976). Nowhere in plaintiff's amended complaint does he allege facts that would enable this Court to formulate even an inference that defendant City of Philadelphia's actions are the result of any official policy or custom. Accordingly, Counts I-III of the amended complaint must be dismissed with respect to the City of Philadelphia.
With respect to defendants Holmesburg Prison, David S. Owens, Irene F. Pernsley, and Ernest Williams, Counts I-III of plaintiff's amended complaint must be dismissed because the averment that these defendants "wilfully, knowingly and with specific intent," deprived him of his constitutional rights are totally unsupported by facts which indicate that these defendants had knowledge of the threat of an attack or knowledge of a propensity by Wimberly to attack other inmates. Curtis, 489 F.2d at 521. See United States ex rel. Roncase v. Cuyler, No. 81-3168 (E.D.Pa., filed Nov. 3, 1981); Ressler v. Scheipe, 505 F. Supp. 155, 158 (E.D.Pa.1981). See also Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976).
With respect to defendants Thomas J. Kelly, Warden, and John Doe, Guard at Holmesburg Prison, plaintiff fails to set forth facts which would establish gross, reckless or intentional conduct essential to state a claim under § 1983. Farmer v. Kelly, et al, No. 81-1621 (E.D.Pa., filed Oct. 30, 1981); Thomas v. Estelle, 603 F.2d 488, 490 (5th Cir. 1979); Curtis, 489 F.2d at 518 and 521. See also Hampton, 456 F.2d at 1081; Ressler, 505 F. Supp. at 156. In United States ex rel Miller v. Twomey, et al, 479 F.2d 701 (7th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S. Ct. 900, 39 L. Ed. 2d 102 (1974), a prisoner brought a civil rights action under § 1983, alleging that he had been subjected to a violation of his constitutional rights resulting from an attack by a fellow inmate. The prisoner sought to impose § 1983 liability on the prison officials for the alleged failure to adequately supervise the cellblock and their failure to segregate the attacker from the general prison population. In affirming the lower court order dismissing the prisoner's complaint, the Court stated:
That Amendment (Eighth) may be violated either by the intentional infliction of punishment which is cruel or by such callous indifference to the predictable consequences of substandard prison conditions that an official intent to inflict unwarranted harm may be inferred ... Quite clearly the allegations that defendants ... were negligent in their supervision ... on one occasion is insufficient to establish that they inflicted "punishment" (on the prisoner).
479 F.2d at 719-20 (emphasis added). Plaintiff's amended complaint fails to set forth any facts which might establish that defendants had knowledge of the threat of an attack or a propensity of Wimberly to attack other inmates or, in this case, the plaintiff. Thus, plaintiff's claims are based solely on negligence. Therefore, his only recourse is to pursue this action in state court. Burke v. Wallenstein, No. 81-2893 (E.D.Pa., filed Oct. 30, 1981). Accordingly, the motion of defendants City of Philadelphia, Holmesburg Prison, Thomas J. Kelly, David S. Owens, Irene F. Pernsley, Ernest Williams, and John Doe to dismiss plaintiff's amended complaint was granted on October 5, 1981, with respect to Counts I-III.
Plaintiff, in Count IV of the amended complaint, claims that his constitutional rights were violated by defendants City of Philadelphia, Holmesburg Prison, Thomas J. Kelly, David S. Owens, Irene F. Pernsley, Ernest Williams, and John Doe by their failure to adequately treat and diagnose the injuries plaintiff sustained as a result of the attack. Specifically, plaintiff alleges that defendants acted "carelessly, recklessly and negligently" by failing to remove plaintiff's stitches from his eye, neck and face at an appropriate time, thereby allowing skin to form over the stitches, further scarring and aggravating his injuries. Defendants contend that, although Count IV of ...