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Rivera v. Thomas

United States District Court, E.D. Pennsylvania

March 27, 2017

VICTOR MANUEL RIVERA, Plaintiff,
v.
JOHN C. THOMAS, et al., Defendants.

          MEMORANDUM

          Paul S. Diamond, J.

         After severing part of his finger during a prison softball game, inmate Victor Manuel Rivera alleges that the Pennsylvania Department of Corrections and several prison officials violated his constitutional rights and acted negligently in tethering the softball bat that caused his injury. (2d Am. Compl., Doc. No. 20.) Defendants urge that because Plaintiff has failed to state a constitutional claim, I should dismiss for lack of subject-matter jurisdiction and transfer his negligence claims to state court. (See Defs.' Mot. to Dismiss, Doc. No. 23.) I agree.

         I. BACKGROUND

         I have accepted as true Plaintiff's factual allegations and disregarded mere conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (conclusory allegations or mere elements recitation properly not credited on motion to dismiss); Petruska v. Gannon Univ., 462 F.3d 294, 299 n.1 (3d Cir. 2006) (“[T]he standard is the same when considering a facial attack under Rule 12(b)(1) or a motion to dismiss for failure to state a claim under Rule 12(b)(6).”); see, e.g., Tucker v. Bernzomatic, No. 09-5881, 2010 WL 1838704, at *4 (E.D. Pa. May 4, 2010) (to survive motion to dismiss, “[m]ore is required than an unadorned assertion that defendants ‘knew' [something] was unsafe”). I have also considered the DOC Safety Memorandum Plaintiff refers to in his Second Amended Complaint (and Defendants attached to their Motion). (Safety Mem., Ex. 1, Defs.' Mot. to Dismiss; see 2d Am. Compl. ¶¶ 11-12, 20, 84); see Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004) (I may consider undisputedly authentic documents without converting a dismissal motion into one for summary judgment).

         A. Factual Allegations

         Plaintiff is incarcerated at the State Correctional Institution of Chester in Delaware County, Pennsylvania. (2d Am. Compl. ¶ 3.) The DOC owns, operates, and controls the Prison. (Id. ¶¶ 9-10.) As Superintendent, Defendant John C. Thomas is responsible for the Prison's operations and the inmates' welfare. (Id. ¶ 4.) Defendant Petterece Jenkins, the Activities Manager, is responsible for equipment and safety when the inmates participate in activity programs. (Id. ¶ 5.) Reporting to Jenkins is Defendant Bobby Zankel, the Correctional Activities Supervisor, who manages the Prison's softball program. (Id. ¶ 6.) Defendant Peter Abhulimen, the Facility Maintenance Manager, maintains Prison equipment. (Id. ¶ 7.) Defendant Paul Humphrey is the Prison's Maintenance Welder. (Id. ¶ 8.) As alleged, these Individual Defendants collectively are responsible for the safety of all welded equipment. (Id.)

         On June 26, 2013, the DOC issued a Safety Memorandum instructing its correctional facilities to tether and secure all bats to the baseball fields' backstops. (Id. ¶ 11; see Safety Mem., Ex. 1, Defs.' Mot. to Dismiss.) The Memorandum included a diagram illustrating an appropriate way to tether the bats. (2d Am. Compl. ¶ 12.) After Thomas and Jenkins received the Memorandum, Jenkins prepared a Work Order that included the diagram. (Id.) Jenkins gave the Work Order to Abhulimen and instructed him to construct the tether as depicted in the diagram. (Id. ¶ 14.) Abhulimen put Humphrey in charge of fabricating and installing the tether. (Id. ¶ 15.) Humphrey, in turn, assigned the project to an inmate who worked in the welding shop. (Id. ¶ 16.)

         The fabrication instructions in the Work Order and those Humphrey provided to the inmate were not the same. (Id. ¶ 17.) The Work Order called for the tether to be attached to the backstop, but Humphrey instructed the inmate instead to fasten the tether to a locked, metal apparatus in the ground several feet behind home plate. (Id. ¶ 20.) This method of anchoring the tether was the only difference between the Work Order specifications and the tether as actually installed. (See id.) The Work Order called for the tether to wrap around the handle of the bat and be secured by two “C-clamps.” (Id. ¶ 19.)

         The tether immediately created difficulties: inmates playing softball became entangled in it. (Id. ¶ 22.) Although Plaintiff and other inmates informed SCI-Chester staff that the tether was not “safe, ” they never specified a dangerous condition, referring only to inmates becoming tangled in the tether. (See, e.g., id. ¶¶ 21, 22, 61.) Plaintiff further alleges that Zankel had seen several inmates become entangled and asked Jenkins to order a replacement tether. (Id. ¶¶ 22, 24.) Jenkins and Abhulimen knew about the entanglement complaints. (Id. ¶¶ 23, 56-57, 61.) Nowhere does Plaintiff allege that anyone knew of any hazard created by the C-clamps or the possibility that the clamps might catch a batter's finger. Nor does Plaintiff allege that the manner by which the tether was anchored somehow made the C-clamps more dangerous. Although the tether remained unchanged, inmates continued to use the bat.

         On July 9, 2014-over a year after the tether's installation-Plaintiff was batting in a softball game and caught his right pinky finger in a gap between the bat and a C-clamp. (Id. ¶¶ 26-29.) To stop the bleeding, Plaintiff applied pressure to his finger; he then realized that the finger was severed from the second joint. (Id. ¶¶ 30-31.) Plaintiff recovered the fingertip and was immediately was treated by Prison medical staff and taken to Crozer Chester Medical Center, where he was kept waiting for almost 3 hours. (Id. ¶¶ 33-39.) Once the doctors finally saw Plaintiff, they were unable to reattach the fingertip. (Id. ¶¶ 39-42.)

         B. Procedural History

         After exhausting his remedies through the Prison's grievance system, on April 6, 2016, Plaintiff filed a pro se Complaint in this Court. (Id. ¶¶ 41-49; see Pro Se Compl., Doc. No. 3.) At Plaintiff's request, I referred his case to the Pro Se Prisoner Panel for appointment of counsel. (Doc. Nos. 1, 6.) On July 28, 2016, I appointed lawyers from the Morgan Lewis firm. (Doc. No. 9.)

         On August 29, 2016, Plaintiff filed a counseled Amended Complaint. (Doc. No. 12.) Both the Individual Defendants and the DOC moved to dismiss for lack of subject-matter jurisdiction and for failure to state a § 1983 claim. (Doc. Nos. 13, 16); Fed.R.Civ.P. 12(b)(1), (6). In his consolidated Response, Plaintiff stated “[i]f the Court is inclined to grant Individual Defendants' motion to dismiss Plaintiff's § 1983 claim, Plaintiff requests leave to amend his Complaint to assert additional facts in support of this claim, in particular, to demonstrate each Individual Defendant's personal involvement in the conditions that resulted in Mr. Rivera's injury.” (Doc. No. 17 at 15.) With my permission, Plaintiff then filed the instant counseled Second Amended Complaint. (Doc. Nos. 18-20.)

         Plaintiff alleges that: Jenkins, Zankel, Abhulimen, and Humphrey violated the Eighth Amendment (Count I); Jenkins, Zankel, Abhulimen, and Humphrey violated the Fourteenth Amendment (Count II); all Individual Defendants were negligent (Count III); and the DOC was also negligent (Count IV). In addition to compensatory and punitive damages, Plaintiff seeks a “mandatory injunction requiring Defendants to alter the tethering apparatus . . . to comply with the original Work Order diagram to ensure the safety of Plaintiff and all SCI-Chester inmates moving forward.” (2d Am. Compl. at 13 (Prayer for Relief).)

         All Defendants have again moved to dismiss the Second Amended Complaint in its entirety for want of jurisdiction and for failure to state a claim. (Defs.' Mot. to Dismiss, Doc. No. 23); see Fed. R. Civ. P. 12(b)(1), (6). The matter has been fully ...


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