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BARBER v. GROW

June 10, 1996

RICHARD I. BARBER
v.
WILLIAM GROW



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 Defendant William Grow has filed a Motion to Dismiss Plaintiff Richard I. Barber's claims against him. These claims are asserted under the Eighth Amendment of the United States Constitution via a Bivens claim and a 42 U.S.C. § 1983 claim. Grow's Motion also includes an alternative request for Summary Judgment and a request to substitute the United States as Defendant on any claims under the Federal Tort Claims Act, 28 U.S.C. §§ 2571-2680 (1994) (FTCA) and then to dismiss those claims as jurisdictionally premature.

  Barber is an inmate in a federal prison; he represents himself pro se in this action. For that reason, we hold his pleadings to a less stringent standard than that applied to lawyers. Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). In response to this Motion he has filed a response, an affidavit and a statement of disputed factual issues.

 According to Barber's Amended Complaint, in July, 1994, he was an employee of Unicor, the federal prisoner employment corporation. Grow was Barber's supervisor. One day, Barber was performing his job duties while seated in Grow's swivel desk chair. At some point, Grow approached Barber from behind and "without speaking a word and unseen by [Barber], did violently jerk the chair out from under [Barber]." Am. Complaint P 6. This allegedly caused Barber to fall, and resulted in broken skin, lacerations and severe bruising to his right forearm and right knee. Also according to the Amended Complaint, Grow's action was unnecessary and wanton.

 In considering a Rule 12(b)(6) motion, a court must primarily consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). The Court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). As the following discussion makes clear, we resolve this motion under Fed. R. Civ. P. 12(b)(6) and so do not relate the standard for judging a summary judgment motion.

 DISCUSSION

 Grow asserts that this Complaint is rightfully dismissed for a number of reasons. First, that Barber is limited to the relief provided for in the Federal Prison Industries Act, 18 U.S.C. §§ 4121-4128 (1985 & Supp. 1996), second, that Barber has failed to state an Eighth Amendment claim and finally, that the United States is the proper defendant and that Barber has failed to exhaust his administrative remedies under the FTCA.

 Eighth Amendment Claims

 First, we disagree that 18 U.S.C. § 4126 of the Federal Prison Industries Act is Barber's exclusive remedy in this action. It is true that § 4126 generally provides the exclusive remedy for injuries sustained by working prisoners. United States v. Demko, 385 U.S. 149, 17 L. Ed. 2d 258, 87 S. Ct. 382 (1966). This is because § 4126 is a statute designed to provide worker's compensation-type remedies to employee-prisoners. Id. at 151-52. At least one authority has held, however, that this statute does not apply to injuries sustained as the result of intentional conduct. Scott v. Reno, 902 F. Supp. 1190, 1193 (C.D. Cal. 1995). Here, a fair reading of Barber's Amended Complaint demonstrates that Barber alleges that Grow intended to injure Barber. For this reason, we rule that Barber's claim is not pre-empted by § 4126.

 That being said, we now turn to Barber's Amended Complaint to determine whether it states an Eighth Amendment claim. Barber alleges that Grow intentionally pulled a chair out from under him. The Eighth Amendment guards against "the 'unnecessary and wanton infliction of pain.'" Ingraham v. Wright, 430 U.S. 651, 670, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977) (quoting Estelle v. Gamble, 429 U.S. 97, 103, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976)). Whether an act is wanton varies depending on the exigency of the situation. Wilson v. Seiter, 501 U.S. 294, 302, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). For this reason, even serious harm, such as a gun-shot wound, can be Constitutionally inflicted so long as the harm is inflicted with a good intent, such as to suppress a prison riot. Whitley v. Albers, 475 U.S. 312, 326, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986).

 In contrast, any injury, even if insignificant, violates "contemporary standards of decency," and therefore the Eighth Amendment, if it is the result of a "malicious[] and sadistic[] use [of] force." Hudson v. McMillian, 503 U.S. 1, 9, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992). It is important to remember, though, that not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id. (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973), cert. denied, 414 U.S. 1033 (1973)). What is enough to support a common law tort claim is not necessarily enough to support an Eighth Amendment claim. Brown v. Vaughn, No. 91-2911, 1992 Westlaw 75008 (E.D. Pa. March 31, 1992) (citing Williams v. Mussomelli, 722 F.2d 1130, 1133 (3d Cir. 1983)). The Constitution accepts a de minimis amount of force so long as that use is "not of a sort '"repugnant to the conscience of mankind."'" Hudson, 503 U.S. at 9 (citations omitted). In addition, several courts have held that isolated and unauthorized incidents do not violate the Eighth Amendment. See e.g. Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985), cert. denied, 479 U.S. 816, 93 L. Ed. 2d 28, 107 S. Ct. 71 (1986); George v. Evans, 633 F.2d 413, 416 (5th Cir. 1980); Johnson, 481 F.2d at 1032.

 We compare this case with Hudson, where the Court found an Eighth Amendment claim. There, the inmate was beat by two prison guards while he was shackled and hand-cuffed. A prison supervisor observed the beating but simply told the guards not to "have too much fun." 503 U.S. at 2. The Court held that this conduct, in combination with the less than severe, but more than minor, nature of plaintiff's injuries constituted an Eighth Amendment violation.

 In contrast, courts in this district have frequently dismissed claims for their failure to allege more than minimal injury or the requisite state of mind. Collins v. Bopson, 816 F. Supp. 335, 340 (E.D. Pa. 1993) (any injuries sustained by being held up against a wall were de minimis); Brown, 1992 Westlaw 75008 (guard struck plaintiff on chest and spit on him); Lenegan v. Althouse, No. 87-6820, 1988 U.S. Dist. LEXIS ...


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