pro se complaint. The basis of Ryan's pending motion for summary judgment is the absence of state action in that she was the employee of an independent contractor, not a state or local agency, when plaintiff's injuries occurred. Although plaintiff was unaware of the involvement of Personnel Management Services, Inc., the corporation certainly had notice of the action from the outset through Ryan, its employee. Moreover, Personnel Management must certainly have been aware of the fact that, but for plaintiff's lack of sophistication in pleading, it would have been joined as a party as soon as it was identified as Ryan's true employer.
Although the joinder of the Prison Board and the assertion of additional constitutional claims against it also arose out of the same incident, the Court cannot conclude that it had notice of the action before the statute of limitations expired. Our initial dismissal of prison officials occurred before the complaint was served upon those prison employees originally named in the complaint. Plaintiff has made no attempt to show that the Prison Board was aware of the suit before the statute of limitations ran.
In the absence of such notice, the amendment to the complaint seeking to join the Prison Board and assert new claims against it does not relate back to the date of the original pleading. Schiavone v. Fortune, 750 F.2d 15 (3d Cir. 1984), Britt v. Arvanitis, 590 F.2d 57 (3d Cir. 1978).
To summarize, we have thus far considered only the merits of plaintiff's motion to amend the complaint and have concluded that, although the proposed amended complaint was neither presented to the Court nor served upon the defendant prior to the expiration of the statute of limitations, Fed. R. Civ. P. 15(c) requires that we consider whether it should relate back to the date of the original, timely complaint. We have further concluded that insofar as the amended complaint seeks to join defendant Ryan's employer, Personnel Management Services, Inc., and to assert claims for negligence and for punitive damages against Ryan and her employer, the requirements of Rule 15(c) have been fulfilled and plaintiff will be allowed to amend his complaint in those respects. However, insofar as plaintiff seeks to assert claims against the Prison Board, we have concluded that the requirements for relation back have not been fulfilled. Consequently, we will deny plaintiff's motion to amend in those respects.
Next, we consider Ryan's pending motion for summary judgment. Although our decision to allow plaintiff to amend the complaint to assert additional claims and join an additional party would normally prompt us to deny the motion without prejudice to its later renewal, the present posture of this case requires that we follow a different course. Ryan's principal basis for judgment is that she was not a state actor for § 1983 purposes.
Nothing in the amended complaint alters this contention. Indeed, plaintiff's allegations admit that Ryan was the employee of an independent contractor, now named as a party defendant. Thus, Ryan's argument that state action is lacking applies with equal force to Personnel Management Services. It is obvious that, based upon the same arguments as the pending motion for summary judgment, both defendants could now file a motion to dismiss the amended complaint. Moreover, in this circuit, the Court may dismiss a case sua sponte when the complaint "affords a sufficient basis for the court's action". Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980).
Because we have declined to allow the plaintiff to amend his complaint by asserting claims against the Prison Board, unless the complaint and amended complaint suffice to state a claim for the violation of constitutional rights under color of state law against Ryan and her employer, only state law negligence claims remain. Thus, in the interest of judicial economy, it is appropriate to consider whether state action exists. It is an issue that has been raised, that remains a likely basis for a motion to dismiss or for summary judgment, and it is an issue that we could, in any event, consider sua sponte.
State action is an essential element of a claim under the Civil Rights Acts because those statutes are intended to redress the abuse of official position by someone clothed with the authority of the state. Davidson v. O'Lone, 752 F.2d 817 (3d Cir. 1984). Plaintiff does not allege that Ryan and Personnel Management Services, Inc., were acting under color of state law in their treatment of his medical needs. He does not allege that they were clothed with the power and authority of the state, nor that they had the discretion to transfer him to the hospital, but did not do so pursuant to a prison policy which amounts to a deliberate indifference to serious medical needs.
Plaintiff does not even allege that Ryan and her employer acted with deliberate indifference to his serious medical needs.
Plaintiff alleges only that the defendants were negligent in their diagnosis and treatment of his condition and that they negligently failed to appreciate the seriousness of his condition in time to alert prison officials so that those officials could order a transfer to the hospital early enough to avert the harm which plaintiff allegedly suffered. Since the allegations against the defendants sound in negligence only, they fail to meet the standards necessary to sustain a § 1983 action.
In light of our conclusion that the complaint and amended complaint fail to state a cognizable federal claim, we decline to retain jurisdiction of the pendent state claims. However, since Pennsylvania provides for the transfer to state court of claims erroneously filed in federal court, 42 Pa. Con. Stat. Ann. § 5103(a) and (b), we will not dismiss the complaint outright. Instead, we will transfer the action to the appropriate state court.
Weaver v. Marine Bank, 683 F.2d 744 (3d Cir. 1982).
AND NOW, this 8th day of May, 1986, upon consideration of plaintiff's motion to amend the complaint and defendant's response thereto, IT IS ORDERED that the motion is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that the complaint is AMENDED by the addition of Count I, paras. 1 - 8, Count I, paras. 9 - 18, and Count III, paras. 24 and 25, provided that references to Delaware County Prison and The Board of Prison Supervisors in paras. 24 and 25 are DELETED.
IT IS FURTHER ORDERED that the caption of the case be AMENDED to read as follows: DAVID R. ESNOUF, SR. v. JOYCE J. RYAN and PERSONNEL MANAGEMENT SERVICES, INC.
IT IS FURTHER ORDERED that, there appearing to be no federal claims upon which to base the jurisdiction of this Court, the Clerk is directed to TRANSFER the above captioned action to the Court of Common Pleas of Delaware County.