as a result of the deprivation without due process. 885 F.2d 1099 at 1113.
Although a municipality of governmental entity generally cannot be held liable under § 1983 on a respondant superior theory or solely because it employs a tortfeasor, liability can attach against such an entity for someone else's constitutional tort where the entity itself "caused" the plaintiff to be subjected to the constitutional violation. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978). Stated otherwise, municipal liability attaches only when "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the inquiry. Id ., at 694, 98 S. Ct. at 2037-2038; Bielevicz v. Dubinon, 915 F.2d 845, 850 (3rd Cir. 1990). See Also : Hafer v. Melo, U.S. , 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991) (A suit against a state official in her official capacity should be treated as a suit against the State.)
A government policy or custom, in turn, can be established in two ways. For one, policy may be made when a "decision-maker possessing final authority to establish municipal policy with respect to the action" issues an official proclamation, policy or edict. Pembaur v. Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292, 1299, 89 L. Ed. 2d 452 (1986). A course of conduct is considered to be a "custom" when, though not authorized by law, such practices of state officials [are] so permanent and well settled as to virtually constitute law. Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3rd Cir. 1990). In either of these cases, a plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well established custom. Bielevicz v. Dubinon, supra, at 850; Andrews v. City of Philadelphia, supra, at 1480 both citing Jett v. Dallas Independent School District, 491 U.S. 701, 109 S. Ct. 2702, 2723, 105 L. Ed. 2d 598 (1989).
It is equally well established that the eighth amend- ment affords an inmate a right to be protected from violence and physical harm inflicted by other inmates. Young v. Quinlan, 960 F.2d 351, 361 (3rd Cir. 1992); Riley v. Jeffes, 777 F.2d 143, 147 (3rd Cir. 1985). To make out such an eighth amendment claim, an inmate must prove both an objective element--that the deprivation was sufficiently serious and a subjective element--that a prison official acted with a sufficiently culpable state of mind. Where the alleged eighth amendment violation concerns a prisoner's conditions of confinement or protection provided him against other inmates, the requisite state of mind is that of deliberate indifference. Wilson v. Seiter, 501 U.S. 294, 111 S. Ct. 2321, 2326, 115 L. Ed. 2d 271 (1991); Young v. Quinlan, supra, at 360.
Uner Young, it is the law of the Third Circuit that a prison official is deliberately indifferent when he knows or should have known
of a sufficiently serious danger to an inmate. 960 F.2d at 360-361.
The objective component of an eighth amendment claim, on the other hand, is contextual and responsive to contemporary standards of decency. There is thus no requirement that a plaintiff sustain some arbitrary quantity of injury in order to maintain a suit for relief. Hudson v. McMillian, U.S. , 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156 (1992) citing Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976).
Accordingly, a § 1983 cause of action will therefore not lie under either the eighth or the fourteenth amendments where a government official is merely negligent in causing the injury. See : Davidson v. Cannon, 474 U.S. 344, 347, 106 S. Ct. 668, 670, 88 L. Ed. 2d 677 (1986); Daniels v. Williams, 474 U.S. 327, 333-334, 106 S. Ct. 662, 666, 88 L. Ed. 2d 662 (1986).
Applying all of the preceding legal principles to the case at bar, we note that the essence of plaintiff's complaint is that the defendants violated his constitutional rights to due process of law and to be free from cruel and unusual punishment by failing to keep Brian Sanders, whom they knew to be extremely dangerous and violent, segregated at all times from any and all other prisoners. Insofar as the due process claims are con-cerned, we have no difficulty finding that Mr. Schwartz has proven (1) that there was an infringement of his right to be free from cruel and unusual punishment; (2) that that deprivation occurred without due process of law; (3) that the defendants were acting under color of state law at all times relevant to these proceedings and (4) that he was injured, all as a result of the attack by Brian Sanders. Similarly, with respect to his eighth amendment claim, the evidence presented at trial supports a finding that Mr. Sanders' attack and attempted strangulation of Mr. Schwartz constitutes a serious deprivation of his right to be free from cruel and unusual punishment and his right to be protected form the violent acts of other inmates. These findings notwithstanding, it is somewhat more problematic for this Court to find that these defendants possessed the sufficiently culpable state of mind that is the pre-requisite to finding that they caused the plaintiff to be subjected to a deprivation of his constitutionally-protected rights.
To be sure, the record clearly evinces that the defendants knew that Brian Sanders had a long history of violent, anti-social and sociopathic behavior both within their prison facility and other state and county facilities and that he posed a serious danger to the staff, other inmates and the security of their institution. The evidence further demonstrates, however, that as a result of this knowledge, the defendants not only classified Mr. Sanders a maximum security inmate who was locked down 22 out of every 24 hours, but also imposed additional restrictions on him such that he was supposed to have only been permitted to recreate alone under the supervision of a prison supervisor and a correctional officer and was supposed to have been accompanied by a supervisor and an officer anytime he left his cell.
Unfortunately for Mr. Schwartz, however, Assistant Warden Algarin's instructions were either not properly communi-cated to or not properly followed by Lt. Rizzutto and Officer Davenport with the result that Mr. Sanders was released from his cell without the appropriate escorts while Mr. Schwartz was still in the unit. While it is obvious to this Court that the defen-dants breached the duty of care which they owed to ensure Mr. Schwartz' safety, we cannot find that their conduct rose beyond the level of negligence to that of deliberate indifference to either the risk of harm posed by Mr. Sanders or to Mr. Schwartz' safety and physical well-being. Likewise, although it is equally apparent to this Court that MCCF's recreation and classification policies and procedures are in need of clarification and improve-ment particularly in the manner by which they are communicated to the prison's personnel, we cannot find that the policies them-selves are responsible for the harm suffered by Mr. Schwartz. Rather, it was the means by which those procedures and policies were followed (or not followed) which caused the complained of injuries. So saying, we are unable to enter an award in favor of the plaintiff on Counts I and II of his complaint.
Turning now to Count III of the complaint, which seeks damages from defendants for assault and battery, intentional infliction of emotional distress, outrageous conduct, negligence, gross negligence and invasion of privacy, we find that the plain-tiff presented no evidence whatsoever that these defendants intentionally inflicted emotional distress upon him, assaulted him, invaded his privacy or were guilty of outrageous conduct. Accordingly, judgment shall be entered in favor of the defense as to those common law claims as well.
The remainder of the claims in that count, however, sound in negligence, in response to which the defendants have asserted that they are immune from suit by virtue of the pro-visions of the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541, et. seq.
42 Pa.C.S.A. § 8541 sets forth the general rule that "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 an employee thereof or any other person." Under 42 Pa.C.S.A. § 8501, a "local agency" is said to be "[a] government unit other than the Commonwealth government. The term includes an inter-mediate unit." Section 8542, in turn, delineates the exceptions to the general rule of governmental immunity and states the following in that regard:
(a) Liability imposed. - A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the fol-lowing conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immu-nity generally) or section 8546 (relating to defense of official immunity); and