IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRANDON BAKER
:
:
:
:
:
v.
J. J. MORGAN, et al.
CIVIL ACTION
NO. 05-3690
MEMORANDUM AND ORDER
McLaughlin, J.
May 4, 2006
This case arises from a physical altercation on
September 14, 2003 between the pro se plaintiff, then an inmate
at SCI-Graterford, and one or more correctional officers.
The
plaintiff alleges that defendants Jeffrey Morgan, Jason
Dombrowsky, and Steven DeSau (the “correctional officers”) used
or condoned the use of excessive force against him.1
He also
alleges that defendants David DiGuglielmo, the Superintendent of
SCI-Graterford, John Murray, the Deputy Superintendent for
Facilities Management, and Robert Duprey, a retired State Police
Captain, failed to investigate or take any action against the
correctional officers.2
The plaintiff further alleges that
defendant Dr. Richard Kosierowski failed to treat his injuries
1
The complaint names these defendants as J. J. Morgan,
J. Dombrosky, and Desau, respectively.
2
The complaint names these defendants as Daniel
DiGugliemo, Murray, and Robert J. Duprey, respectively.
-1-
properly, and that defendants Michael Pisano, a physician’s
assistant, and Julie Knauer, the prison’s health care
administrator, conspired with Dr. Kosierowski to cover up that
failure.3
The plaintiff has asserted claims against all of the
defendants in their individual and official capacities under 42
U.S.C. § 1983, for violations of his First, Eighth, and
Fourteenth Amendment rights.
The plaintiff has also asserted
civil rights conspiracy claims against all of the defendants.
The plaintiff nominally asserted state law claims in the
complaint, but has voluntarily dismissed any state law claims
against most of the defendants.
The plaintiff seeks a
declaratory judgment that the defendants violated his Eighth
Amendment rights, as well as compensatory and punitive damages
from each defendant.
There are two motions pending before the Court: a
Motion to Dismiss filed by Dr. Kosierowski and Mr. Pisano (the
“Doctor Defendants”), and a Partial Motion to Dismiss filed by
the three correctional officers, Superintendent DiGuglielmo,
Deputy Superintendent Murray, Captain Duprey, and Ms. Knauer (the
“Commonwealth Defendants”).4
3
The complaint names Dr. Kosierowski and Mr. Pisano as
Richard Koserowski, M.D. and Michael Pisano, M.D.
4
The Commonwealth Defendants have not attempted to
“institute” the Commonwealth of Pennsylvania as a defendant in
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The Court concludes that the following claims will be
dismissed: (1) the First Amendment claims against all defendants;
(2) the Eighth Amendment claims against Deputy Superintendent
Murray, Captain Duprey, and Ms. Knauer; (3) the Fourteenth
Amendment equal protection claims against all defendants; (4) the
Fourteenth Amendment due process claims against all defendants;
(5) the civil rights conspiracy claims against defendants other
than the correctional officers; (6) any state law claims against
any defendants; and (7) claims for money damages against the
Commonwealth Defendants in their official capacities.
The Court concludes that the following claims will go
forward: (1) the Eighth Amendment claims against the correctional
officers, Superintendent DiGuglielmo, and Dr. Kosierowski; and
(2) the civil rights conspiracy claim against the correctional
officers.
I.
Facts
Accepting the facts alleged in the complaint as true,
at the time of the events giving rise to this case, the plaintiff
this case, as the plaintiff believes. (See Pl.’s Opp’n to Comm.
Defs.’ Mot. to Dismiss at 11-12.) The term “Commonwealth
Defendants” refers to the seven named defendants other than Dr.
Kosierowski and Mr. Pisano. The Court will use this term for
ease of reference.
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was housed in SCI-Graterford’s Restricted Housing Unit.5
On
September 14, 2003, the three defendant correctional officers
escorted the plaintiff to a shower that did not work.
The
plaintiff informed the block sergeant of the problem and was told
that he would be taken to a working shower.
Nevertheless, the
officers subsequently told the plaintiff that he had to return to
his cell without showering because his shower time was up.
(Compl. ¶¶ 14, 21.)
The plaintiff, wearing only shower shoes and a towel,
was handcuffed behind the back.
As the officers were escorting
the plaintiff back to his cell, he looked over his right shoulder
to attract the block sergeant’s attention.
The officers grabbed
the plaintiff around the legs and threw him to the floor, head
first.
The plaintiff lost consciousness and sustained a cut on
his forehead.
When the plaintiff regained consciousness, he was
lying naked in a pool of blood.
(Id. ¶¶ 14, 22.)
Later that day, Officer Morgan issued the plaintiff a
misconduct report for attempting to pull away from and kick the
5
When considering a motion to dismiss under Fed. R. Civ.
P. 12(b)(6), a court accepts all facts and allegations listed in
the complaint as true and construes them in the light most
favorable to the plaintiff. H.J. Inc. v. Nw. Bell Tel. Co. , 492
U.S. 229, 249 (1989); Rocks v. City of Philadelphia , 868 F.2d
644, 645 (3d Cir. 1989). “[A] complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v. Gibson, 355 U.S.
41, 45-46 (1957).
-4-
officers.
The misconduct report indicated that the plaintiff had
been seen by prison medical staff.
(Id. ¶ 23, Ex. A.)
Dr. Kosierowski stitched up the plaintiff’s head
wound, but the stitches fell out within twenty-four hours.
The
plaintiff’s wound reopened, eventually leaving a large scar.
When the plaintiff filed a grievance complaining about the
stitches falling out, Ms. Knauer replied that the stitches were
only meant to be temporary.
(Id. ¶¶ 33-34.)
The plaintiff also experienced a loss of vision in his
right eye.
Dr. Kosierowski did not look into the plaintiff’s
complaints, however, and the plaintiff was not seen by an eye
specialist for over one month.
The plaintiff lost vision in his
right eye for approximately three weeks.
(Id. ¶ 36.)
The plaintiff filed a grievance alleging that the
correctional officers assaulted him, but the grievance was
denied.
Superintendent DiGuglielmo rejected the plaintiff’s
subsequent appeal.
II.
(Id. ¶ 31.)
Analysis
The primary question before the Court is whether the
plaintiff has stated a claim under 42 U.S.C. § 1983 for a
deprivation of his constitutional rights.
The Court must also
determine whether the plaintiff has stated any claims under state
law.
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To state a claim under 42 U.S.C. § 1983, a plaintiff
must allege the violation of a right secured by the Constitution
or laws of the United States, and show that the deprivation was
committed by a person acting under color of state law.
Atkins, 487 U.S. 42, 48 (1988).
West v.
Here, the plaintiff has alleged
that the defendants violated his First, Eighth, and Fourteenth
Amendment rights, and engaged in various civil rights
conspiracies against him.
The defendants do not dispute that
they were state actors, but argue that the plaintiff has failed
to state a claim for any deprivation of his constitutional rights
other than an Eighth Amendment claim against the correctional
officers.
A.
First Amendment Claims
Even reading the pro se complaint liberally, the
plaintiff has not stated a First Amendment claim.
The plaintiff
has not alleged any facts showing that the defendants restrained
his freedom of speech or retaliated against him in violation of
the First Amendment.
At most, the plaintiff claims that he
“feared [the correctional officers] knew he was pressing charges
and would attempt to harm him in order to stop him from pursuing
said charges.”
(Compl. ¶ 36 (emphasis added).)
To state a First Amendment retaliation claim, however,
the plaintiff must not only allege that he engaged in
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constitutionally protected conduct; he must allege that he
suffered some adverse action at the hands of prison officials as
a result.
Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).
The
plaintiff has not alleged that any of the defendants actually
took any adverse action against him after he pressed charges.6
B.
Eighth Amendment Claims
The plaintiff has alleged that each of the defendants
violated his Eighth Amendment rights by use of excessive force,
deliberate indifference to his health or safety, and/or failure
to provide adequate medical care.
The Eighth Amendment claims
against the correctional officers, Superintendent DiGuglielmo,
and Dr. Kosierowski will go forward.
6
In his opposition brief to the Commonwealth Defendants’
motion to dismiss, the plaintiff argues that the defendants
violated his “1st Amendment procedur[al] due process right, to
present evidence, to call witnesses and to testify before a
prison hearing examiner, by use of assaultive measures with no
due process before he was slammed to the cement floor.” (Pl.’s
Opp’n to Comm. Defs.’ Mot. to Dismiss at 11.)
It is not clear whether the plaintiff is referring to
the alleged assault by the correctional officers, the issuance of
the misconduct, and/or prison officials’ treatment of his
grievance. In any event, the plaintiff has not stated a First
Amendment claim. Any claim arising out of the alleged use of
excessive force is more properly analyzed under the Eighth
Amendment. Any claim arising out of the misconduct or grievance
proceedings is more properly analyzed under the Fourteenth
Amendment.
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1.
Correctional Officers Morgan, Dombrowsky, and
Desau
Prison officials are liable under the Eighth Amendment
for using excessive force against a prisoner, or failing to
intervene in the use of excessive force when they have a
Smith v. Mesinger, 293 F.3d
reasonable opportunity to do so.
641, 650 (3d Cir. 2002).
The Commonwealth Defendants have not
moved to dismiss the excessive force claims against the three
correctional officers.
2.
These claims go forward.
Superintendent DiGuglielmo
Prison officials may also be liable under the Eighth
Amendment if they are deliberately indifferent to an excessive
risk to inmate health or safety.
825, 837 (1994).
Farmer v. Brennan, 511 U.S.
Deliberate indifference is a subjective, not
objective, standard; to be held liable, “the official must both
be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.”
Id.
The plaintiff alleges that Superintendent DiGuglielmo
acted with deliberate indifference because he knew or should have
known that the plaintiff’s life was in danger in the Restricted
Housing Unit, but failed to remove him from that area.
29).
(Compl. ¶
To the extent that the plaintiff bases his claim on what
Superintendent DiGuglielmo actually knew about the risk to the
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plaintiff’s safety, the plaintiff has stated sufficient facts to
survive a motion to dismiss.
The plaintiff need not allege that
Superintendent DiGuglielmo knew that this inmate in particular
was at risk of harm by these particular correctional officers; it
is sufficient for the plaintiff to allege that Superintendent
DiGuglielmo knew that prisoners in the plaintiff’s situation
faced this type of risk.
3.
See Farmer, 511 U.S. at 843.
Dr. Kosierowski
The plaintiff has also stated an Eighth Amendment claim
against Dr. Kosierowski.
Deliberate indifference to a prisoner’s
serious medical needs constitutes a violation of the Eighth
Amendment.
West v. Atkins, 487 U.S. at 48.
A prison official
acts with deliberate indifference if he or she ignores objective
evidence that a plaintiff has a serious need for medical care, or
delays necessary medical treatment for non-medical reasons.
Natale v. Camden County Correctional Facility, 318 F.3d 575, 582
(3d Cir. 2003).
Allegations of negligence or medical malpractice
alone, however, do not constitute deliberate indifference.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Rouse v. Plantier,
182 F.3d 192, 197 (3d Cir. 1999).
The plaintiff alleges that Dr. Kosierowski failed to
stitch up his head wound properly, as evidenced by the fact that
the stitches fell out within twenty-four hours.
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Reading the pro
se complaint liberally, the plaintiff has also alleged that Dr.
Kosierowski knew about the plaintiff’s loss of vision, but failed
to act on it for over one month.7
(Compl. ¶¶ 34, 36.)
Although some of the plaintiff’s allegations appear to
sound in negligence, the Court finds that the plaintiff has made
sufficient allegations regarding Dr. Kosierowski’s failure to
respond to the plaintiff’s serious medical needs to survive a
motion to dismiss.
4.
Deputy Superintendent Murray and Captain Duprey
The plaintiff has not stated an Eighth Amendment claim
against Deputy Superintendent Murray or Captain Duprey, however.
The complaint does not allege that either of these defendants
participated in, or had a reasonable opportunity to intervene
against, any excessive use of force against the plaintiff.8
Nor
does the complaint allege that either of these defendants knew of
7
In his opposition to the Doctor Defendants’ motion to
dismiss, the plaintiff also argues that the defendants were
deliberately indifferent when they failed to re-close the wound
after it reopened. (Pl.’s Opp’n to Doctor Defs.’ Mot. to Dismiss
at 3.)
8
In his Traverse to the Commonwealth Defendants’ Motion
to Dismiss, the plaintiff alleges that “Defendant Murray is
directly involved[,] knew and should have known of the assault.”
The plaintiff’s reference to a letter he wrote to Deputy
Superintendent Murray on September 15, 2003, however, shows only
that the plaintiff informed and tried to involve Deputy
Superintendent Murray the day after the correctional officers’
alleged use of excessive force. (Pl.’s Traverse to Defs.’ Mot.
to Dismiss at 9 and Ex. H.)
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an excessive risk to the plaintiff’s safety.
At most, the
complaint claims that these defendants conspired with other
defendants in failing to investigate after the alleged assault.
(Compl. ¶¶ 24, 32.)9
5.
Health Care Administrator Julie Knauer
Nor has the plaintiff stated an Eighth Amendment claim
against Ms. Knauer.
The plaintiff alleges that when he filed a
grievance about his stitches falling out, Ms. Knauer responded
that the stitches were only meant to be temporary.10
33.)
(Compl. ¶
In his response to the Commonwealth Defendants’ motion to
dismiss, the plaintiff adds that Ms. Knauer did not assist him
when he wrote to her.
(Pl.’s Opp’n to Comm. Defs.’ Mot. to
Dismiss at 6.)
When a prisoner is under the care of a physician, nonmedical prison officials can be charged with deliberate
indifference only if they believe or have a reason to believe
that the physician or physician assistants are mistreating or not
treating a prisoner.
Cir. 2004).
Spruill v. Gillis, 372 F.3d 218, 236 (3d
The plaintiff has not alleged that Ms. Knauer had
9
The Court addresses the conspiracy allegations in
Section E, below.
10
The plaintiff also alleges that Ms. Knauer conspired
with Dr. Kosierowski and Mr. Pisano to cover up Dr. Kosierowski’s
failure to properly stitch up the plaintiff’s wound; the Court
addresses these conspiracy allegations in Section E.
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any reason to believe that the medical staff was not treating or
mistreating him.
6.
Physician’s Assistant Michael Pisano
Finally, the plaintiff has not stated an Eighth
Amendment claim against Mr. Pisano.
The plaintiff’s sole
allegation against Mr. Pisano is that he “conspired with
defendant Koserowski to cover up the actions or inactions to
properly close plaintiff’s head wound . . . .”
(Compl. ¶ 35.)
The plaintiff has not alleged that Mr. Pisano himself was
deliberately indifferent to the plaintiff’s serious medical
needs.
C.
Fourteenth Amendment Equal Protection Claims
The plaintiff has broadly asserted that each of the
defendants violated his Fourteenth Amendment rights.
Even
reading the complaint liberally, however, the plaintiff has only
arguably asserted an equal protection claim against Captain
Duprey, and due process claims against the correctional officers,
Superintendent DiGuglielmo, Deputy Superintendent Murray, and
Captain Duprey.
To bring a successful § 1983 action based on the denial
of equal protection, a plaintiff must prove the existence of
purposeful discrimination, i.e, that he was treated differently
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from similarly situated individuals.
Shuman v. Penn Manor Sch.
Dist., 422 F.3d 141, 151 (3d Cir. 2005), citing Andrews v. City
of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990).
The complaint alleges that Captain Duprey discriminated
against the plaintiff by failing to investigate the alleged
assault “as is done in the case of similarly situated citizens
who make similar complaints.”
(Compl. ¶ 24.)
The complaint does
not posit any alleged basis for discrimination, however.
In his
traverse to the Commonwealth Defendants’ motion to dismiss, the
plaintiff argues that the state troopers discriminated against
him by refusing to investigate his assault allegations, even
though they regularly investigate allegations that an inmate
assaulted a guard or another inmate.
Mot. to Dismiss at 8.)
(Pl.’s Traverse to Defs.’
Even if the Court assumes that Captain
Duprey discriminated against the plaintiff on the basis of his
incarcerated status, the plaintiff has not stated an equal
protection claim because inmates are not a protected class.
See
Abdul-Akbar v. McKelvie, 239 F.3d 307, 317 (3d Cir. 2001).11
11
In his traverse to the Commonwealth Defendants’ motion
to dismiss, the plaintiff also argues that the correctional
officers discriminated against him when they threw him to the
floor because similarly situated “Black and Spanish prisoners”
were taken to the shower without being so treated. (Pl.’s
Traverse to Defs.’ Mot. to Dismiss at 18.) Even if the plaintiff
had made this allegation in the complaint proper, the plaintiff
would not have stated a equal protection claim against the
officers because the plaintiff has not alleged his own race.
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D.
Fourteenth Amendment Due Process Claims
The plaintiff also alleges that Superintendent
DiGuglielmo, Deputy Superintendent Murray, and Captain Duprey (in
conspiracy with the correctional officers) violated his
Fourteenth Amendment due process rights by failing to investigate
or prosecute the officers for the assault.
(Compl. ¶¶ 24, 30,
32.)
The plaintiff does not have a protected property or
liberty interest in having his complaints investigated or the
subject of his complaints prosecuted.
Prison officials’ failure
to respond to a grievance does not give rise to a due process
See, e.g. Young v. Medden, 03-CV-5432, 2006 U.S.
violation.
Dist. LEXIS 6885 at *63 (E.D. Pa. Feb. 23, 2006); Anderson v.
Pennsylvania, 03-CV-5058, 2005 U.S. Dist. LEXIS 35761 at *9 (E.D.
Pa., Dec. 21, 2005); Scantling v. Vaughn, 03-CV-0067, 2004 U.S.
Dist. LEXIS 1995 at *27 n. 9 (E.D. Pa., Feb. 12, 2004).
The plaintiff does have a constitutional right to have
meaningful access to the courts.
Lewis v. Casey, 518 U.S. 343,
350-55 (1996); Tourscher v. McCullough, 184 F.3d 236, 242 (3d
Cir. 1999).
To state a due process claim based on access to the
courts, an inmate must allege that the prison officials’ actions
actually interfered with his ability to pursue his legal claims.
Id.
The plaintiff has not made such an allegation here.
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E.
Conspiracy Claims
Throughout the complaint, the plaintiff alleges that
the defendants conspired with each other in various ways.
The
plaintiff alleges that the correctional officers conspired with
each other 1) to use excessive force against him, and 2) to
submit a false incident misconduct report to cover up their
excessive use of force.
The plaintiff also alleges that Captain
Duprey conspired with “other SCIG employee defendants” in failing
to investigate the incident, and that Superintendent DiGuglielmo
and Deputy Superintendent Murray conspired with the officers and
Captain Duprey in failing to prosecute the officers.
Finally,
the plaintiff alleges that Ms. Knauer and Mr. Pisano conspired
with Dr. Kosierowski to cover up his failure to close the
plaintiff’s head wound properly.
33, 35.)
(Compl. ¶¶ 23-24, 28, 30, 32-
The Court will treat these allegations as civil rights
conspiracy claims under 42 U.S.C. § 1983.12
Both groups of defendants have moved to dismiss the
conspiracy claims for failure to plead the conspiracies with
particularity.
Plaintiffs bringing civil rights claims are not
required to satisfy heightened fact-pleading requirements,
12
The plaintiff does not state a claim for conspiracy
under 42 U.S.C. § 1985 because he does not allege a conspiracy
(1) to prevent persons from holding public office, (2) to
intimidate federal court parties, witnesses, or jurors, or (3)
motivated by racial or other class-based animus. See Ridgewood
v. Bd. of Educ., 172 F.3d 238, 253 (3d Cir. 1999).
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however.
Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168 (1993); Alston v. Parker,
363 F.3d 229, 233 (3d Cir. 2004).
“[A] civil rights complaint is
adequate where it states the conduct, time, place, and persons
responsible.”
Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.
2005).
Even under the liberal notice pleading standard, only
one of the plaintiff’s conspiracy claims is viable – that against
the correctional officers for conspiring to use excessive force
against him.
The plaintiff has sufficiently stated the relevant
conduct, time, place, and persons responsible for that claim to
survive a motion to dismiss.
The plaintiff’s other claims are not viable because
they do not involve conspiracies to violate a constitutional
right.
Even if the correctional officers did file a false
conduct report to cover up their own excessive use of force, the
filing of a false misconduct report does not, in itself,
constitute a deprivation of a constitutional right.
Mensinger, 293 F.3d 641, 654 (3d Cir. 2002).
Smith v.
The plaintiff must
show that the false report resulted in the deprivation of a
protected liberty or property interest.
Here, the plaintiff has
not even alleged that the misconduct report resulted in any
disciplinary action against him.
Likewise, the plaintiff does not state a civil rights
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conspiracy claim against Superintendent Diguglielmo, Deputy
Superintendent Murray, and Captain Duprey because, as explained
above, the plaintiff does not have a constitutional right to have
his grievances or complaints investigated or prosecuted.
Finally, the plaintiff’s cover up conspiracy claim
against Ms. Knauer and the Doctor Defendant fails because an
attempt to cover up improper conduct does not, in itself,
constitute a constitutional violation.
It only rises to the
level of a constitutional violation if it implicates a
fundamental right, such as access to the courts.
See id.; Estate
of Smith v. Marasco, 318 F.3d 497, 511 (3d Cir. 2003).
Here, the
plaintiff has not alleged that Ms. Knauer and the Doctor
Defendants’ conspiracy to cover up Dr. Kosierowski’s improper
treatment of the plaintiff’s head wound was motivated by, or had
the effect of, depriving the plaintiff of meaningful access to
the courts, or any other fundamental right.
F.
State Law Claims
The complaint asserts that the Court has supplemental
jurisdiction over the plaintiff’s state law tort claims, but does
not explicitly set forth any state law causes of action.
The
plaintiff has voluntarily dismissed, with prejudice, any state
law claims against correctional officer Morgan, Superintendent
DiGuglielmo, Deputy Superintendent Murray, Captain Duprey, and
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Ms. Knauer (Doc. No. 21).
The plaintiff’s voluntary dismissal form did not
address correctional officers Dombrowsky and DeSau or the Doctor
Defendants.
It is not clear whether the plaintiff omitted these
defendants intentionally.
In any event, the plaintiff has not
stated any state law causes of action against them; the Court
will dismiss the claims against these defendants without
prejudice.13
G.
Claims Against the Commonwealth Defendants in Their
Official Capacities
The plaintiff has asserted claims against all of the
defendants in their official, as well as individual, capacities.
The Commonwealth Defendants have moved to dismiss the claims
13
The Doctor Defendants argue that the plaintiff is
barred from asserting any medical malpractice claims because he
has not filed a certificate of merit, as required by Rule 1042.3
of the Pennsylvania Rules of Civil Procedure. Even if the Court
were to assume that Rule 1042.3 applies to this action, the Rule
would not require the Court to dismiss the plaintiff’s putative
malpractice claims with prejudice. See Scaramuzza v. Sciolla,
345 F. Supp. 2d 508, 511 (E.D. Pa. 2004) (excusing plaintiff’s
delay in filing certificate because the United States Court of
Appeals for the Third Circuit has not expressly determined that
Pa. R. Civ. P. 1042 shall be applied as substantive law in
diversity actions); Rodriguez v. Smith, 03-CV-3675, 2005 U.S.
Dist. LEXIS 12237 at *29 (E.D. Pa. June 21, 2005) (finding that
prisoner plaintiff’s failure to timely file a certificate was
excusable “particularly in light of his pro se status” and
dismissing medical malpractice claim without prejudice).
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against each of them in their official capacities.14
The plaintiff’s claims for money damages against the
Commonwealth Defendants in their official capacities must be
dismissed.
States and state officials may not be sued as
“persons” for damages under § 1983.
State Police, 491 U.S. 58, 71 (1989).
Defendants are state officials.
Will v. Michigan Dep’t of
Each of the Commonwealth
See 71 P.S. § 61 (the
Pennsylvania State Police and the Department of Corrections
perform the executive and administrative work of the
Commonwealth); Scantling v. Vaughn, 03-CV-0067, 2004 U.S. Dist.
LEXIS 1995 at *29-30 (E.D. Pa. Feb. 12, 2004) (“State agencies,
such as the Department of Corrections [and] SCI-Graterford
. . . enjoy the same level of immunity as the state.”).
To the extent that the plaintiff has requested
prospective or injunctive relief from the Commonwealth Defendants
in their official capacities, however, these claims may go
forward.
See Will, 491 U.S. at 71 n. 10 (“[A] state official in
his or her official capacity, when sued for injunctive relief,
would be a person under § 1983 because official-capacity actions
for prospective relief are not treated as actions against the
State.”) (internal quotations omitted); Koslow v. Pennsylvania,
14
The Doctor Defendants have not argued that they are
state officials, and have not specifically moved to dismiss the
claims against them in their official capacities. Therefore,
these claims, to the extent that they are otherwise viable, will
go forward.
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302 F.3d 161, 168 (3d Cir. 2002) (purely prospective relief
against state officials for ongoing violations of federal law is
available under the “legal fiction” of Ex parte Young).
An appropriate Order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRANDON BAKER
v.
J. J. MORGAN, et al.
:
:
:
:
:
CIVIL ACTION
NO. 05-3690
ORDER
AND NOW, this 4th day of May, 2006, upon consideration
of defendants Richard Koserowski and Michael Pisano’s Motion to
Dismiss (Doc. No. 12), defendants J. J. Morgan, J. Dombrosky,
Desau, Robert J. Duprey, Julie Knauer, Daniel Digugliemo, and
Murray’s Motion to Partially Dismiss (Doc. No. 20), and the
plaintiff’s oppositions thereto, IT IS HEREBY ORDERED that the
motions are GRANTED, in part, and DENIED in part, consistent
with, and for the reasons stated in, a memorandum of today’s
date.
BY THE COURT:
/s/ Mary A. McLaughlin
MARY A. McLAUGHLIN, J.
