United States District Court, E.D. Pennsylvania
S. Diamond, J.
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.
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
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.)
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.)
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.)
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.
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.
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.)
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.
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).)
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 ...