of plaintiff as Oleg Kis, and his presence at the cited property. Furthermore, at his appearance before Justice Moran, plaintiff identified himself as Oleg Kis and denied any receipt of a summons or citation. Plaintiff's subsequent pretrial detention was ordered pursuant to plaintiff's failure to post bond. We find no authority, and plaintiff cites none, that indicate that plaintiff was entitled to a probable cause determination upon arriving at the prison facility. Consequently, we find that plaintiff suffered no Constitutional injury with regard to this allegation.
(3) Failure to Offer Medical Evaluation or Assistance
The standard for medical care under the Eighth Amendment was articulated by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). Under Estelle, the plaintiff must establish a deliberate indifference on the part of municipal officials to a serious medical need in order to maintain an action for violation of his Constitutional rights. Id. at 104.
In the Third Circuit, the Estelle test was applied to pretrial detainees in Boring v. Kozakiewicz, 833 F.2d 468, 472-73 (3d Cir. 1987), cert. denied 485 U.S. 991, 108 S. Ct. 1298, 99 L. Ed. 2d 508 (1988). The court in Boring held that prisoners must evidence a serious illness or injury to satisfy the Estelle test, and that injuries plaintiffs in that case suffered did not rise to such a level. Id. at 473-74. Plaintiffs in Boring presented conditions including nerve damage to an arm, a scalp condition, and an injured knee, among other ailments. Id.
Here, although plaintiff suffers from chronic fatigue syndrome, he makes no allegations that he was in actual need of medical attention during his incarceration. He points to no instances, beyond the fact that he had to rest on his way home and that he had to take a nap when he arrived home, in which his health was impaired in any way. Plaintiff has not established a serious medical need under Estelle and we thus find that he has not suffered a Constitutional injury with regard to this claim.
(4) Failure to Allow Access to Phone During Isolation
Plaintiff alleges that he was denied the use of the phone during his two days of isolation. The prison policy is to allow detainees to make a phone call upon arriving at the prison facility, allow them no phone calls during the 48-hour isolation period, and then allow general usage of the phone within reason after release into the prison population. See supra note 10. This court has already held that this restriction, imposed on all inmates, is a "reasonable response to legitimate prison concerns," and does not rise to the level of a Constitutional violation. Newkirk v. Sheers, 834 F. Supp. 772 (E.D. Pa. 1993). We see no reason to hold otherwise in this instance and we find that plaintiff has not alleged a Constitutional injury.
(5) Failure to Promptly Transmit Bail Request
Plaintiff alleges that his Fourteenth Amendment due process rights were violated by a failure to promptly transmit his bail request.
Assuming plaintiff did file a written bail request on Thursday, October 31, 1991, and was not released until midday on Monday, November 4, 1991, we must determine whether this delay rises to the level of a Constitutional violation. We hold that it does not. First, plaintiff would have to allege that prison officials knew of his request on Thursday and ignored that request in deliberate indifference to plaintiff's Constitutional rights. See Wilson v. Seiter, 501 U.S. 294, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991) (holding that the "deliberate indifference" standard of Estelle v. Gamble applies to prisoner challenges of nonmedical conditions of confinement); Roa v. City of Bethlehem, 782 F. Supp. 1008, 1015 (E.D. Pa. 1991) (in plaintiff's challenge to his wrongful pretrial detention for over thirty days, court held that plaintiff would have to allege that officials acted intentionally, recklessly or in gross negligence to support a Constitutional violation). Second, even if plaintiff alleged knowledge and deliberate indifference on the part of prison officials, a delay of a few days during pre-trial detention does not rise to the level of a constitutional violation. Hodge v. Ruperto, 739 F. Supp. 873, 876 (S.D.N.Y. 1990) (2 1/2 day detention does not violate constitutional rights, but deprivation of food and water allowed inference of deliberate indifference). Consequently, plaintiff has not alleged a Constitutional violation in this regard.
Furthermore, even assuming that plaintiff had alleged a constitutional injury through any of these claims, he has certainly not offered evidence to indicate that Warden Kurtz had any knowledge of these occurrences. The record indicates that Warden Kurtz was away from the prison on Thursday, October 31, and Friday, November 1, 1991, at labor negotiations. See Affidavit of David Kurtz at 1-2. Kis admits that he never had any contact with Warden Kurtz and never attempted to contact him while he was incarcerated. See Deposition of Oleg Kis at 167-68. The fact that plaintiff complained to prison officials under the direct supervision of Kurtz is not enough. Payton, 798 F. Supp. 258, 260. Moreover, Mr. Kis has certainly not offered proof of a pattern of such occurrences to which Warden Kurtz could even evidence a deliberate indifference.
Consequently, seeing no proof of a violation of plaintiff's Constitutional rights, let alone proof of deliberate indifference, we grant defendant David Kurtz's Motion for Summary Judgment in his individual capacity.
(F) Schuylkill County
Local governments may not be held liable under § 1983 for the actions of their employees on a theory of respondeat superior, but they may be held to answer for Constitutional violations caused by official policy or custom of the municipality. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d 611 (1978). The Supreme Court defined such a municipal policy as a "statement, ordinance, regulation, or decision officially adopted and promulgated by [a local governing] body's officers." Id. at 690. A municipal custom for § 1983 purposes is "such practices of state officials . . . [as are] so permanent and well-settled as to constitute a 'custom or usage' with the force of law." Id. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S. Ct. 1598, 1613, 26 L. Ed. 2d 142 (1970)). "Municipal liability under § 1983 attaches where-and only where-a deliberate choice to follow a course of action is made from among various alternatives." Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S. Ct. 1292, 1300, 89 L. Ed. 2d 452 (1986).
The officials who can bind the municipality thus are those "whose edicts or acts may fairly be said to represent official policy." Monell, 436 U.S. at 694. Which official or officials has final policymaking authority for a municipality on a particular issue is a question of state law, to be decided by the judge by referring to state and local law, as well as custom or usage having the force of law. Jett v. Dallas Independent School District, 491 U.S. 701, 736-38, 109 S. Ct. 2702, 2723, 105 L. Ed. 2d 598 (1989). The Supreme Court has clearly stated that only those municipal officers and employees who have final policymaking authority can by their actions subject their municipal employers to § 1983 liability. Pembaur, 475 U.S. at 480.
Plaintiff states as the basis of his claim against Schuylkill County the alleged wrongful actions of Warden Kurtz. However, this court explicitly found in Newkirk v. Sheers, 834 F. Supp. at 786, that Warden Kurtz did not possess final policymaking authority under Pennsylvania law, even if his decisions are sometimes final in practice. We found that Schuylkill County employs both County Commissioners and a County Prison Board as official policymaking bodies within the County, and that "the existence of these bodies as overseers of the County prison system undermines the contention that the power to make final policy can be removed from them." Id. Under the dictate of Pembaur, then, we find that since Warden Kurtz was not the final policymaking authority, the County of Schuylkill cannot be held liable for any alleged Constitutional violations against the plaintiff. We accordingly grant summary judgment both to the County of Schuylkill and Warden Kurtz in his official capacity. See Will, 491 U.S. at 58.
(G) Pendent State Law Claims
Because summary judgment has been granted in full for defendants Murton, Griffiths, and Kurtz, there is no need to address the merits of the plaintiff's state law claims against these defendants. Since all federal claims against these three defendants have been dismissed, the decision to entertain or dismiss the pendent state law claims is within our discretion
Courts should ordinarily decline to exercise supplemental jurisdiction over state law claims when the federal claims are dismissed. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966).
In Count II, plaintiff alleges the state law claim of false arrest against Griffiths and Murton. In Count VI, he alleges the state law claim of false imprisonment against Kurtz. These state claims are related to the dismissed federal claims and share a "common nucleus of operative fact." Id. at 725. Retention of them would involve the presentation at trial of issues and facts that are wholly separate from the federal claim we retain jurisdiction over,
and would not be in the interest of judicial economy and fairness to the litigants. In addition, the potential for jury confusion in such a situation is great. See La Plant v. Frazier, 564 F. Supp. 1095 (E.D. Pa. 1983) (state law claims against officers dismissed when related § 1983 claims against them dismissed; court retained jurisdiction over § 1983 claim over another officer and related state claim); Allentown Racquetball & Health Club, Inc. v. Building and Construction Trades Council of Lehigh and Northhampton Counties, 525 F. Supp. 156 (E.D. Pa. 1981) (court granted partial summary judgment for defendants on newspaper advertising issue and dismissed plaintiff's state law claims to the extent that they were based on the newspaper advertisements).
Accordingly, we will decline to exercise supplemental jurisdiction over the plaintiff's state law claims in Count II and Count VI of his complaint and will dismiss them without prejudice to plaintiff's right to bring these claims in state court. We reserve jurisdiction over plaintiff's state law claim in Count IV against Spleen since we have not dismissed his related federal claim in Count III against defendants Spleen, Muldowney and the City of Pottsville.
Upon consideration of defendants' Motions for Summary Judgment, and for the reasons set forth in the foregoing Memorandum, we hold the following: Defendants Murton, Griffiths, Repp and Kurtz are granted full summary judgment in their official and individual capacities with regard to all federal claims against them in plaintiff's complaint; Defendant Schuylkill County is granted full summary judgment with regard to all federal claims against it in plaintiff's complaint; Defendant Muldowney is granted partial summary judgment in his official and individual capacity with regard to federal claims against him in Count I of plaintiff's complaint and any others that are based on the liability of defendant Murton; Defendant City of Pottsville is granted partial summary judgment with regard to federal claims against it in Count I of plaintiff's complaint and any others that are based on the liability of defendant Murton. We deny, without discussion, plaintiff's Motion to Strike. An appropriate order follows.
VAN ANTWERPEN, J.
October 25, 1994
AND NOW, this 25th day of October, 1994, upon consideration of Defendants' Motions for Summary Judgment, it is hereby ORDERED as follows:
1. Defendants Murton and Repp's Motions for Summary Judgment, filed on August 12, 1994, are GRANTED. Defendant Griffiths Motion for Summary Judgment, filed on August 1, 1994, is GRANTED. Defendants Kurtz and County of Schuylkill's Motions for Summary Judgment, filed on August 2, 1994, are GRANTED. Defendants Muldowney and City of Pottsville's Motions for Partial Summary Judgment, filed on August 12, 1994, are GRANTED.
2. When final judgment on this matter is entered, judgment will also be entered in the following manner:
a. Judgment will be GRANTED in favor of defendants Murton, Griffiths, Repp, and Muldowney in their individual and official capacities as to Count I, § 1983 claim.
b. Judgment will be GRANTED in favor of defendant City of Pottsville with regard to any claims against it based on the liability of defendants Murton and Repp.