The opinion of the court was delivered by: D. BROOKS SMITH
In late July, 1990, plaintiff John Fay, Jr., submitted a pro se civil rights complaint alleging that his Eighth Amendment and Fourteenth Amendment rights were being violated by the Pennsylvania State Police, the Pennsylvania Department of Corrections, Somerset County and Bedford County, Pennsylvania, the warden and deputy warden of the Somerset County Jail, the warden of the Bedford County Jail, the commissioner of the Pennsylvania Department of Corrections and the superintendent of the State Correctional Institution at Dallas, Pennsylvania. Plaintiff's complaint had two general themes: first, that in March, 1989, he volunteered to do undercover work for the Pennsylvania State Police in exchange for which he was promised that he would be confined in a county prison rather than a maximum security state prison and that he would be allowed furloughs or work release; and, second, that not only did he not receive the benefits he had been promised, he had been exposed to such mistreatment after his undercover assignment was completed that it constituted cruel and unusual punishment.
The Bedford County defendants and the Somerset County defendants filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), which were granted. Memorandum Order of July 17, 1991. After the Marshal served the Pennsylvania State Police, that defendant filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), which was granted. Memorandum Order of August 31, 1992.
The parties were ordered to complete discovery and were required to file pretrial statements on or before July 1, 1992, listing each party's proposed witnesses and providing a brief description of their testimony. Plaintiff complied; defendant Ryan did not provide a description of his proposed witnesses' testimony. The matter was tentatively scheduled for trial in the fall of 1992, but was continued due to defendant Ryan's counsel's other trial commitments. Defendant Ryan was thereafter granted leave to file a motion for summary judgment concerning plaintiff Fay's claim that defendant Ryan in his personal capacity was liable for any Eighth Amendment violation. Memorandum Order of October 27, 1992. At the same time, I cautioned plaintiff that the issue of his general conditions of confinement in various state prisons was not before the Court. Id., at 3, n.2. Plaintiff responded by filing a motion to amend his complaint, docket no. 56, later withdrawn, docket no. 59.
Upon consideration of defendant Ryan's motion for summary judgment, I determined that there was no genuine dispute of fact relevant to plaintiff Fay's claim that defendant Ryan was personally responsible for any Eighth Amendment violation alleged in his complaint, and entered summary judgment in favor of defendant Ryan. Memorandum Order of December 16, 1992.
The Department of Corrections thereupon moved to dismiss the remainder of plaintiff Fay's complaint for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), for failure to state a claim, Fed.R.Civ.P. 12(b)(6), and for insufficiency of service, Fed.R.Civ.P. 12(b)(5). Docket no. 62. Notably, the Department of Corrections briefed the issues of subject matter jurisdiction and sufficiency of process, but did not challenge Fay's allegations and relegated the entire discussion concerning the failure to state a claim to a footnote. See Brief, docket no. 63, at 3, n.1. I denied the motion to dismiss. Memorandum Order of December 16, 1992. I pointed out that the Department of Corrections was not a party in this matter, but that under the legal fiction established by Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), relief could be ordered against defendant Ryan in his official capacity as an official of the Department of Corrections. Therefore, although the Department of Corrections' objections to subject matter jurisdiction and service as to the Department of Corrections were well taken, they did not alter the scope of this action or this Court's jurisdiction. See Memorandum Order of December 16, 1992. In fact, I had not ordered service on the Commissioner of the Department of Corrections or the Department of Corrections itself at the beginning of this matter, see Memorandum Order of August 9, 1990, precisely because they were both not subject to the jurisdiction of this Court and redundant of defendant Ryan's presence.
This matter was tried on February 4, 1993. Plaintiff presented his own testimony and certain documents, chiefly newspaper articles. Although I denied defendant Ryan's motion to reconsider the sanction imposed by the Memorandum Order of January 21, 1983, I did ask counsel to proffer what the defendant's witnesses would testify to if he were allowed to present testimony. Counsel proffered only the testimony of Superintendent Ryan. Counsel for defendant also moved for judgment on partial findings, Fed.R.Civ.P. 52(c), which I took under advisement. I enter the following findings of fact and conclusions of law:
In 1989, plaintiff John Fay, Jr. was serving a 15-35 year aggregate sentence for a second degree murder committed in about 1973 in Cambria County and an armed robbery committed in about 1984 in Somerset County. Fay was incarcerated at S.C.I. Dallas, a maximum security institution, because of the seriousness of his crimes and because he had escaped from prison twice before and was considered an escape risk. In March, 1989, Fay was temporarily being held in the maximum security area of the Somerset County Jail pending a hearing on a PCRA petition, 42 Pa.C.S. § 9541 et seq., attacking his armed robbery conviction, when he came into contact with James Perkowski and Ed Rasanen. Perkowski and Rasanen had recently been arrested and were being held for trial in Somerset County after a cross-state crime spree that had begun with an armed robbery outside of Philadelphia and ended with an armed robbery at the Somerset Holiday Inn.
Perkowski and Rasanen, in their early 20's, approached Fay, now 49, and asked if he wanted to escape with them. It transpired that the two had associates outside of prison, particularly one Thomas Hill, who were planning to assist Perkowski and Rasanen by kidnapping Ronald Delano, the Sheriff and Warden of Somerset County and his wife, and using them as hostages to free Perkowski and Rasanen. After freeing the two, the conspirators planned to kill the hostages.
Fay contacted John Mastillo, the deputy warden/deputy sheriff on duty at the Somerset County Jail the next morning and related the existence of the proposed escape plan. Mastillo contacted Delano who conferred with officers of the ...