The opinion of the court was delivered by: Anita B. Brody, District Judge.
When the events giving rise to this suit took place,
plaintiff John Johnson was a prisoner in the custody of the
Pennsylvania Department of Corrections ("DOC"), placed in the
Onwards, Inc. facility ("Onwards"), a Community Contract
Facility located in the City of Philadelphia. While housed at
Onwards, plaintiff observed numerous
fire code and safety violations, which he reported to various
city officials. In addition, plaintiff injured his ankle during
a fire drill, because furniture had been left in the hallway
while renovations were being done on the facility. Plaintiff
brought this pro se action under 42 U.S.C. § 1983 against the
Mayor of the City of Philadelphia Edward Rendell; Thomas
Donovan, Captain of the Fire Code Unit of the City of
Philadelphia Fire Department; and Bennitt Levin, Commissioner
of the Philadelphia Bureau of Licenses and Inspections
(collectively the "City Defendants"), alleging that those
defendants violated his Eighth and Fourteenth Amendment rights
by allowing the unsafe environment at Onwards to exist and
persist after notification.
Johnson has also sued Walter Nelson, a former Contract
Facilities Coordinator for the Pennsylvania Department of
Corrections Community Corrections Center, Region I ("Nelson").
Johnson claims, among other things, that defendant Nelson
retaliated against him for filing a grievance complaining about
the living conditions at Onwards.*fn1 The defendants have
filed motions for summary judgment, and Johnson has not
responded to these motions.*fn2
Summary judgment is appropriate if "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). The party moving for summary judgment must
inform the district court of the basis for its motion, and
identify those portions of record "which it believes
demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). When the moving party does not bear the
burden of persuasion at trial, as is the case here, its burden
may be met by pointing out "an absence of evidence to support
the nonmoving party's case." Id. at 325, 106 S.Ct. 2548.
Once the moving party has filed a properly supported motion,
the burden shifts to the nonmoving party to "set forth specific
facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). The nonmoving party "may not rest upon the
mere allegations or denials of the [nonmoving] party's
pleading," id., but must support its response with affidavits,
depositions, answers to interrogatories, or admissions on file.
See Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Schoch v. First
Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). The
"evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor." Anderson,
477 U.S. at 255, 106 S.Ct. 2505; see also Big Apple BMW, Inc.
v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
In order to bring a successful § 1983 claim, a plaintiff must
demonstrate (1) that the challenged conduct was committed by a
person acting under color of state law, and (2) that the
conduct deprived the plaintiff of a right, privilege, or
immunity secured by the Constitution or federal law. See
Parratt v. Taylor, 451 U.S. 527, 535,
101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Piecknick v.
Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994); Carter v.
City of Philadelphia, 989 F.2d 117, 119 (3d Cir. 1993).
Claims Against the City Defendants
In this case, plaintiff alleges that the City Defendants
deprived him of rights protected by the Eighth and Fourteenth
Amendments of the United States Constitution, by failing to
remedy unsafe and unsanitary conditions at the Onwards
facility. The City Defendants move for summary judgment,
arguing that Johnson has failed to allege facts that
demonstrate a violation of his constitutional rights. Their
argument is twofold: (1) they are not liable to plaintiff under
the Eighth Amendment because plaintiff was not in their custody
at the time of his injury; and (2) at most, plaintiff's
complaint alleges negligence against them, which is an
insufficient basis to establish liability under § 1983.
The Eighth Amendment protects those convicted of crimes, who
are in the custody of the state, from cruel and unusual
punishment. The City Defendants argue that they cannot be
liable to plaintiff for any Eighth Amendment violations he may
have suffered because he was not in their custody at the time
of his injuries. They have offered evidence that Onwards
operated pursuant to a private contract with the Pennsylvania
Department of Corrections, not with the City of Philadelphia.
Attached to their motion for summary judgment is an affidavit
by John E. Daughen, Deputy Commissioner for Administration for
the City of Philadelphia Prison System. Mr. Daughen states that
the City does not have a contract for services with Onwards,
nor did it have such a contract in 1995, at the time of
Plaintiff's injuries. Plaintiff has offered no evidence to
refute this. Because Johnson was in the custody of the
Pennsylvania Department of Corrections, not the City of
Philadelphia, he has failed to state a claim under the Eighth
Amendment against the City Defendants.
Plaintiff also claims that he was injured when, during a
late-night fire drill, he tripped over furniture placed against
a hallway wall. The furniture was in the hallway while
renovations were being done to the Onwards facility. Plaintiff
does not allege that any of the City Defendants placed the
furniture in the hallway. Instead, he alleges that he
complained about the conditions at Onwards to the City
Defendants, and that they failed to properly investigate his
complaints and remedy alleged fire code and safety regulations.
He believes that this inaction violated his right to be free
from the City Defendants' failure to perform their official
duties and enforce the City's fire code and zoning laws, and
that he was injured as a result of their inaction. The City
Defendants argue that, at most, their conduct amounts to
negligence, which does not constitute a violation of the
Fourteenth Amendment.*fn3 I agree with the City Defendants.
Taking Johnson's factual allegations as true, his claims
against them amount to no more than negligence on their part,
and do not state a constitutional violation. See Daniels v.
Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)
(Fourteenth Amendment does not provide a remedy where deputy's
negligence in leaving a pillow on a prison stairway caused
plaintiff to fall and sustain injuries). Because Johnson has
failed to establish any claim against the City Defendants under
§ 1983, I will grant summary judgment in their favor on all
Claims Against Defendant Walter Nelson
Johnson brings two claims against defendant Walter Nelson:
(1) that Nelson violated Johnson's due process rights by
issuing a misconduct report against Johnson after Johnson had
been paroled and was no longer subject to the rules of Onwards;
and (2) that Nelson issued a misconduct against Johnson in
retaliation for Johnson's filing of a grievance complaining of
the conditions at Onwards. The relevant facts are as follows.
On September 11, 1995, Johnson failed to return to Onwards by
his 11:00 PM curfew time. On September 12, Richard Warner, the
Assistant Director of Onwards, issued a Report of Extraordinary
Occurrence, noting: (1) Johnson's failure to return on
September 11th; (2) the efforts made to locate Johnson; and (3)
that Johnson had not yet been found. On September 13th, Warner
issued a second Report of Extraordinary Occurrence, noting that
Johnson had called Onwards that morning to report that he was
in Episcopal Hospital being treated for heart problems. Also on
September 13th, Nelson issued a misconduct report against
Johnson, charging him with failure to return for curfew and
with being AWOL. That same day, Johnson was taken from Onwards
and placed in Graterford prison, to await a hearing on that
misconduct. A hearing was held on September 15th, and Johnson
was found guilty of the misconduct. Johnson appealed to the
Program Review Committee, which sustained the actions of the
hearing examiner on September 22, 1995.
Johnson makes two claims against Nelson based on this series
of events. First, he claims his due process rights were
violated when Nelson issued the misconduct report, because he
had been granted parole on August 22, 1995, and was no longer
subject to a curfew or curfew violations at Onwards on
September 11, 1995. His second claim is that Nelson issued the
misconduct report in retaliation for Johnson's filing a
grievance on September 10, 1995, complaining about the
conditions at Onwards.
Defendant Nelson is entitled to summary judgment on
Plaintiff's due process claim that the misconduct report was
invalid because Johnson was on parole on September 11, 1995,
when the curfew violation took place. A predicate to Johnson's
constitutional claim is that he was on parole when Nelson
issued the misconduct report. He was not.*fn4 When Johnson
violated his Onwards curfew, he had not yet achieved the status
of a parolee. Under Pennsylvania law, an inmate does not
achieve the status of a parolee until a parole board's grant of
parole is executed. See Johnson v. Pennsylvania Bd. Probation &
Parole, 110 Pa.Cmwlth. 142, 532 A.2d 50 (Pa. Commw. Ct. 1987).
A parole order is executed when "there is an order granting a
prisoner's release and the prisoner signs an acknowledgement of
the conditions of parole." Shaw v. Pennsylvania Bd. Probation &
Parole, 671 A.2d 290 (Pa. Commw. Ct. 1996). Although Johnson
correctly notes that on August 22, 1995, the Board rendered a
decision granting him parole to the intensive supervision
diversion program, he does not offer any evidence that the
Board issued an order based on that decision, set a date for
his parole, or that he signed an acknowledgment of the
conditions of parole. In addition, the decision of the Board
appears to have been a conditional, and not a final grant of
parole. The decision states "Parole. . . . providing there are
no misconducts, you remain involved in required programs, and
you have submitted a minimum of five letters of
employment/vocational training/education inquiry, ...