The opinion of the court was delivered by: Lisa Pupo Lenihan Chief United States Magistrate Judge
Chief Magistrate Judge Lenihan
Presently before the Court is Defendant Timothy Liller's ("Defendant" or "Liller") Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5), 41(b), and 12(b)(6). (ECF No. 13.) Defendant's Motion will be granted in part and denied in part. Defendant's Motion will be granted as it relates to any First Amendment claim, and denied in all other respects.
The above-captioned Complaint was filed on November 11, 2010. (ECF No. 1.) On August 3, 2011, Plaintiff moved for an extension of time to serve the Complaint. (ECF No. 2.) The Court granted Plaintiff's Motion for Extension of Time on August 4, 2011, and ordered that the time for serving the Complaint be extended an additional 30 days. (ECF No. 3.) Defendant was served on August 11, 2011. (ECF No. 6.)
Thereafter, on August 22, 2011, the parties entered into a "Stipulation for Extension of Time" to answer, move or otherwise respond. (ECF No. 7.)
Plaintiff had filed a previous case arising out of the same facts and circumstances against the Big Beaver Falls Area School District only at Civil Action No. 08-776. On November 12, 2009, this Court dismissed that case with prejudice, granting the Big Beaver Falls Area School District's Motion to Dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. See Cole v. Big Beaver Falls Area Sch. Dist., 08-cv-776, 2009 WL 3807185 (W.D. Pa. Nov. 12, 2009) (Lenihan, J.).
Plaintiff, Joseph B. Cole ("Plaintiff" or "Cole") avers that on March 10, 2006, in the Industrial Materials Classroom of the Big Beaver Falls Area Senior High School, "through the actions of Defendant Liller, Plaintiff Cole was directed to execute a blind and particularly difficult cut on a ten-inch arbor table saw on the four edges of the box portion of a table Plaintiff Cole had constructed." (Complaint, ECF No. 1 at && 3-5, hereinafter "ECF No. 1 at & __".) Plaintiff continues that "[i]n so directing the Plaintiff Cole to execute this cut, Defendant Liller also directed the removal of a guard on the saw blade, which guard was otherwise designed and intended to protect the Plaintiff Cole from injury." (ECF No. 1 at & 7.) While Plaintiff was executing the four different cuts that required several minutes each to complete, Plaintiff avers that "Defendant Liller walked away from the saw and ceased supervising the Plaintiff Cole." (ECF No. 1 at && 8-9.) Next Plaintiff alleges that "[i]n so directing the Plaintiff Cole to execute the four cuts without the blade guard in place and absent any supervision by his instructor, the Defendant Liller acted with deliberate indifference to the rights and personal safety of the Plaintiff . . . ." (ECF No. 1 at & 11.) Finally, the Plaintiff avers that "Defendant Liller affirmatively acted to cause the harm which would otherwise not have existed had the Defendant Liller not directed the cuts absent a blade guard and adequate supervision." (ECF No. 1 at & 12.) Relatedly, Plaintiff continues as follows:
Defendant Liller placed the Plaintiff Cole in a dangerous position by:
a. Instructing the Plaintiff to remove the guard from the saw blade.[sic]
b. Directing the removal of the guard on the saw to protect Plaintiff and others using the saw for classes sponsored by the School District;
c. Permitting Plaintiff and others similarly situated to utilize the table saw without a guard on the blade;
d. Ignoring notice, actual and/or constructive, of the absence of the guard on the saw that this would create a dangerous condition and should have realized that it presented an unreasonable risk of harm to the students;
e. Failing and neglecting to give due notice or warning to the Plaintiff or others of said hazardous, dangerous and unsafe condition;
f. Failing to adequately inspect the table saw in order to discover the defect;
g. Permitting negligent care, custody and control of the saw that created a dangerous condition;
h. Instructing students to make cuts on the table saw when said saw lacked a blade guard that could be engaged during this particular cut or type of activity;
i. Providing inexperienced or novice woodworking students with a table saw that lacked adequate safety devices.
In conclusion, Plaintiff alleges that his injuries "were the foreseeable result of the deliberate indifference of the Defendant Liller as set forth above, which constitutes a state-created danger . . . ." (ECF No. 1 at & 14.)
LEGAL STANDARDS and ANALYSES
Motion to Dismiss Pursuant to Fed. R. Civ. ...