this case, defendants knew or should have known that inmate Callaway was a threat both to plaintiff and other persons who resided in her house, particularly Callaway's daughter. Combined with the immediacy with which Callaway acted, defendants' knowledge of the danger Callaway posed is sufficient to state a cause of action pursuant to § 1983.
Defendants next contend that plaintiff's §§ 1985 and 1986 claims must fail because there are no allegations that defendants conspired to discriminate against plaintiff's minor because she was black. In order to state a claim pursuant to 42 U.S.C. § 1985(3), plaintiff must allege that defendants conspired to deprive her minor of equal protection of the law. To state a § 1986 claim, plaintiff must further allege that defendants knew of the § 1985(3) conspiracy, was in a position to prevent or help to prevent the deprivation caused by the conspiracy, and nevertheless failed to do so.
In count two of her complaint, plaintiff alleges that defendants Leroy Beans and Timothy Carver, "acting as agents of, and with the approval and acquiescence of, Defendants Bausch and County of Lehigh, colluded, connived, and conspired to deprive Plaintiff of her fundamental right to liberty including her freedom of bodily security and integrity, and of equal protection of the laws, because of her race." As presently worded, this allegation does not state a cause of action pursuant to §§ 1985 and 1986 for purposes of this case because it does not allege a conspiracy directed at plaintiff's minor. Rather, count two merely constitutes a restatement of the allegations plaintiff made in her related case, civil action number 83-2988.
Moreover, defendants contend that they could not have conspired against someone they did not know and someone who sustained no injury as a result of the incident. Plaintiff has, however, alleged that her minor suffered damages from the trauma to which she was exposed as a result of the attack by Callaway. This is sufficient to state a claim. Defendants, however, are correct that a necessary element of a conspiracy for purposes of a § 1985 action is that the conspirator act knowingly and willfully and with the intent to deprive the plaintiff of equal protection of the laws. There is no allegation that defendants Beans and Carver, or Bausch knew of plaintiff's minor's existence, or that they acted knowingly and willfully, in concert to deprive her of her rights.
Therefore, plaintiff's § 1985 claim on her behalf of her minor must fail.
In order to state a § 1986 claim, plaintiff must first properly allege a § 1985 claim. Because plaintiff's § 1985 claim fails, her § 1986 claim must also fail.
Plaintiff alleges in her complaint that defendants' conduct was willful, outrageous and egregious and therefore entitles her to an award of punitive damages. Defendants, in response, contend that they are immune from punitive damages claims.
In Newport v. Fact Concerts, Inc., 453 U.S. 247, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981), the Court held that municipalities are immune from punitive damages claims pursuant to § 1983. Accordingly, plaintiff may not claim punitive damages from the County of Lehigh. The holding of Newport, however, does not necessarily extend to protect officials and employees of the County. The Third Circuit, in Cochetti v. Desmond, 572 F.2d 102, 106 (3d Cir. 1978), adopting the test enunciated by Justice Brennan in Adickes v. Kress & Co., 398 U.S. 144, 233, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), held that punitive damages may be awarded if the defendant acted with actual knowledge that he was violating a federally protected right or with reckless disregard of whether he was doing so. See also DiGiovanni v. City of Philadelphia, 531 F. Supp. 141, 145 (E.D. Pa. 1982).
Applying the Cochetti test to this case, the motion for summary judgment as to the punitive damages claim against the individual defendants must be denied because there is a factual question as to whether the defendants acted with knowledge that they were violating plaintiff's rights or with reckless disregard of her rights. Plaintiff alleges that defendants knew that she was black and that Callaway had threatened her and that they deliberately ignored her complaint, at least in part because she is black and permitted Callaway to take his forty-eight hour furlough. Therefore, plaintiff has alleged facts sufficient to send this question to the trier of fact.
Political Subdivision Tort Claims Act
Defendants contend that plaintiff's state law claim must be dismissed as barred by the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. § 8541 et seq.2 In response, plaintiff contends that although the Act may immunize the County of Lehigh from liability for the pendent state claim, there is a statutory exception to immunity for officer misconduct which applies to the individual defendants in this action.
Section 8541 states in pertinent part:
Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or any employee thereof or any other person.
42 Pa. C.S.A. § 8541. Section 8542 then lists eight negligent act exceptions to governmental immunity. Because none of the exceptions apply in this case, the pendent state claim against Lehigh County may be dismissed.
Section 8545 provides that an official or an employee of a local agency is liable to the same extent as his employing local agency. An exception to official immunity, however, is provided in section 8550 which states in pertinent part:
In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally) . . . shall not apply.