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Scindo v. Simpson

February 2, 2009

SUSAN SCINDO, PLAINTIFF,
v.
DANA SIMPSON, ET AL., DEFENDANTS



The opinion of the court was delivered by: Yvette Kane, Chief Judge Middle District of Pennsylvania

(Chief Judge Kane)

MEMORANDUM

Before the Court is a motion to dismiss a portion of Susan Scindo's counseled civil rights complaint filed pursuant to 42 U.S.C. § 1983 filed on behalf of Defendants David G. Keenhold, Daniel B. Slashinski, Robert Nothstein, Donna M. Asure, Suzanne F. McCool, Monroe County and the Monroe County Prison Board.*fn1 For the reasons discussed below, the motion will be granted.

I. BACKGROUND

Plaintiff brings this action against Monroe County, Pennsylvania, the Monroe County Prison Board, Monroe County Commissioners Robert Nothstein, Donna M. Asure and Susan F. McCool, and Monroe County Prison employees Warden David G. Keenhold, Security Officer Daniel B. Slashinski and Correctional Officer Simpson, for damages sustained when Simpson sexually assaulted and harassed her. Specifically, Plaintiff contends that during her incarceration at the Monroe County Prison, which began in June of 2006, Defendant Simpson made sexual remarks toward her, continuously flirted with her and had unwanted sexual intercourse with her.

She claims that Simpson would give preferential or non-preferential treatment to her based upon her compliance with his demands.

Plaintiff further alleges that the other named Monroe County Prison Defendants were deliberately indifferent to her vulnerability and failed to protect her by allowing Simpson to remain in contact with her when they knew or should have known she was in danger based upon prior complaints they had received. She further claims that Defendants failed to supervise as well as intervene to prevent the constitutional violations which occurred. It is further alleged that all eight Defendants participated in a conspiracy to engage in a sexual assault upon Plaintiff.

Liability on the part of Monroe County and the Monroe County Prison Board is also asserted on the basis they developed and maintained policies or customs exhibiting deliberate indifference to the constitutional rights of persons in Monroe County or the Monroe County Prison by inadequately and improperly investigating complaints of correctional officer misconduct and tolerating acts of misconduct including complaints of sexual misconduct. It is further alleged that these entities failed to properly screen during hiring, as well as train and supervise its officers. In addition to the above claims, Plaintiff raises claims of assault and battery, intentional infliction of emotional distress and negligent infliction of emotional distress against all named Defendants.

As relief, Plaintiff seeks compensatory and punitive damages, as well as attorneys fees and costs. She further requests injunctive relief in the form of a court order enjoining Defendants from engaging in this type of conduct in the future and requiring Defendants Monroe County and the Monroe County Prison Board to adopt and enforce policies to preclude the conducted alleged above.

Pending is a motion to dismiss filed on behalf of all Defendants except Simpson. In the motion, Defendants seek to dismiss the following claims: (1) conspiracy; (2) punitive damages against Monroe County and the Monroe County Prison Board; (3) assault and battery; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress ; and (5) injunctive relief.

II. STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. In reviewing a motion to dismiss, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)(quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002). Although the court is generally limited in its review to the face of the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1997); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Although the moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2007), the plaintiff has an obligation to allege facts sufficient to "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (internal citations omitted). Furthermore, "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, Id. at 1960. When evaluating a motion to dismiss, a court need not "credit a complaint's 'bald assertions' or 'legal conclusions.'" Evancho v. Fisher, 423 F.3d 347, ...


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