RIVERA v. THOMAS et al
MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE PAUL S. DIAMOND ON 3/27/17. 3/27/17 ENTERED AND COPIES E-MAILED TO COUNSEL, 1 COPY TO LEGAL BIN. (pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
VICTOR MANUEL RIVERA,
JOHN C. THOMAS, et al.,
Civ. No. 16-1493
March 27, 2017
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 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).
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.)
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.
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 briefed. (See Pl.’s Resp., Doc. No. 26;
Defs.’ Reply, Doc. No. 27.)
Lack of Subject-Matter Jurisdiction
In opposing a Rule 12(b)(1) motion to dismiss, the plaintiff must show that the court has
jurisdiction. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991);
Johnsrud v. Carter, 620 F.2d 29, 32 (3d Cir. 1980); Fed. R. Civ. P. 12(b)(1).
“State governments and their subsidiary units are immune from suit in federal court under
the Eleventh Amendment.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 253 (3d Cir.
2010); see U.S. Const., amend. XI; see also Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690,
693 n.2 (3d Cir. 1996) (motion to dismiss based on Eleventh Amendment immunity is properly
brought under Rule 12(b)(1)). “The Supreme Court extended the Eleventh Amendment’s reach to
suits by in-state plaintiffs, thus barring all suits against non-consenting States in federal court.”
Lombardo v. Pa. Dep’t of Pub. Welfare, 540 F.3d 190, 194 (3d Cir. 2008). State officials acting
in their official capacities receive the same protection from suit as the governmental entity
employing them. See Hafer v. Melo, 502 U.S. 21, 25 (1991). Eleventh Amendment immunity
extends to state law claims brought in federal court pursuant to supplemental jurisdiction. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984).
Although Pennsylvania has waived immunity for certain negligence claims brought in state
court, it has explicitly retained its Eleventh Amendment immunity from suit in federal court.
Compare 42 Pa. C.S. § 8522(b) (nine exceptions to Commonwealth’s immunity from suit for
negligence claims), with id. § 8521(b) (“Nothing contained in this subchapter shall be construed
to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the
Eleventh Amendment to the Constitution of the United States.”).
Failure to State a Claim
A defendant moving under Rule 12(b)(6) must show that the plaintiff has failed to state a
claim. See Kehr Packages, Inc., 926 F.2d at 1409. To survive a motion to dismiss, a complaint
must provide more than labels, conclusions, or formulaic recitations of a claim’s elements: it must
“state the grounds of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted). Each claim must be plausible. See Iqbal, 556 U.S. at 679 (citing Twombly,
550 U.S. at 556)). The plaintiff must thus demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id. at 678.
This provision protects individuals from “unnecessary and wanton infliction of pain.”
Whitley v. Albers, 475 U.S. 312, 319 (1986), abrogated on other grounds by Wilkins v. Gaddy,
559 U.S. 34 (2010). Accordingly, prison officials must, inter alia, “take reasonable measures to
guarantee the safety of inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). To state an Eighth
Amendment claim, a plaintiff must show that the defendants were deliberately indifferent to a
substantial risk of serious harm. See id. at 828; Betts, 621 F.3d at 258 (“Life is fraught with risk
of serious harm,” so an Eighth Amendment violation may be predicated only on exposure to a
“substantial” risk of harm).
“In the Eighth Amendment context, deliberate indifference is a subjective standard of
liability consistent with recklessness as that term is defined in criminal law.” Parkell v. Danberg,
833 F.3d 313, 335 (3d Cir. 2016) (internal quotation marks omitted). “[A] defendant prison official
must both know of and disregard an excessive risk to inmate health or safety.” Beers-Capitol v.
Whetzel, 256 F.3d 120, 133 (3d Cir. 2011) (internal quotation marks omitted). A plaintiff may
establish deliberate indifference by showing that the risk of harm was “longstanding, pervasive,
well-documented, or expressly noted by prison officials in the past” so that they “must have
known” about the risk. Farmer, 511 U.S. at 842-43. “[A] defendant can rebut a prima facie
demonstration of deliberate indifference . . . by establishing that he did not have the requisite level
of knowledge or awareness of the risk.” Beers-Capitol, 256 F.3d at 133.
To establish that there was a substantial risk of harm, a plaintiff must show that: 1) the
injury he sustained was serious; 2) there was a sufficient likelihood that his injury would result
from the conditions that caused it; and 3) the risks associated with the existing conditions violate
contemporary standards of decency. See Betts, 621 F.3d at 257. In cases where a sufficient
likelihood of serious harm has been found, “prisoners were subjected to horrible conditions of
filth, undernourishment, exposure, and the like.” Batton v. State Gov’t of N.C., Exec. Branch, 501
F. Supp. 1173, 1179 (E.D.N.C. Nov. 26, 1980). In deciding whether a risk violates contemporary
standards of decency, I must determine whether the risk is so grave that society refuses to tolerate
it. See Helling v. McKinney, 509 U.S. 25, 36 (1993); Betts, 621 F.3d at 258; see, e.g., Wilkins,
559 U.S. at 37 (2010) (prison official sadistically and maliciously punching, kicking, and choking
prisoner); Farmer, 511 U.S. at 833 (allowing prisoner to be raped and beaten); Estelle v. Gamble,
429 U.S. 97, 104 (refusing to treat a prisoner’s serious medical needs).
Substantive Due Process
“A violation of the Fourteenth Amendment right to substantive due process may be shown
by a government actor’s conduct that ‘shocks the conscience.’” Robinson v. Hicks, 450 F. App’x
168, 174-75 (3d Cir. 2011) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998)).
“Negligent conduct falls beneath this constitutional due process threshold.” Id. at 174 (quoting
Lewis, 523 U.S. at 846-47).
“Noting its ‘reluctan[ce] to expand the concept of substantive due process,’ the Supreme
Court has established the ‘more-specific-provision rule.’” Betts, 621 F.3d at 260 (quoting Lewis,
523 U.S. at 843-44). I may not address a substantive due process claim if another Constitutional
provision provides an explicit source of protection against the misconduct alleged. See United
States v. Lanier, 520 U.S. 259, 272 n.7 (1997); Graham v. Connor, 490 U.S. 386, 395 (1989); see
also Betts, 621 F.3d at 256-60.
This doctrine provides an affirmative defense that “gives government officials breathing
room to make reasonable but mistaken judgments, and ‘protects all but the plainly incompetent or
those who knowingly violated the law.’” Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (quoting Ashcroft
v. al-Kidd, 563 U.S. 731, 743 (2011)). Government officials are protected “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231
(2009); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). I must consider whether: 1) the facts
alleged make out a constitutional violation; and 2) the right at issue was clearly established at the
time of the alleged misconduct. See Pearson, 555 U.S. at 236. A right is clearly established if it
would be clear to a reasonable officer that his challenged conduct was unlawful. See Reedy v.
Evanson, 615 F.3d 197, 224 (3d Cir. 2010).
“This inquiry turns on the objective legal
reasonableness of the action, assessed in light of the legal rules that were clearly established at the
time it was taken.” Pearson, 555 U.S. at 244. If a plaintiff fails to make out a prima facie
constitutional claim, I need not determine whether a defendant is entitled to qualified immunity.
See Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 n.2 (3d Cir. 2006) (“Because we conclude the
Kauchers have not alleged a constitutional violation, our [qualified immunity] inquiry proceeds no
Defendants argue that because they enjoy Eleventh Amendment immunity, this Court is
without jurisdiction to hear Plaintiff’s negligence claims. (Doc. No. 23 at 17-19); see U.S. Const.
amend. XI; 42 Pa. C.S. § 8521(b) (retaining Eleventh Amendment immunity in federal civil
actions); Halderman, 465 U.S. at 121 (extends to state law claims brought in federal court); Hafer,
502 U.S. at 25 (individual state officials acting in their official capacity are also entitled to Eleventh
Amendment immunity). I agree. Indeed, Plaintiff concedes that the Commonwealth has expressly
retained its Eleventh Amendment immunity with respect to claims brought in federal court. (Pl.’s
Resp. at 15-16.) Because Defendants enjoy immunity in this Court, I will allow Plaintiff to transfer
his negligence claims to the appropriate state court. See 42 Pa. C.S. § 5103(b) (permitting such
transfer); (Pl.’s Resp. at 16 (asking me to permit transfer if I were inclined to dismiss negligence
claims for want of jurisdiction).)
Failure to State a Claim
Plaintiff has failed to allege plausibly that Defendants Jenkins, Zankel, Abhulimen, and
Humphrey violated Plaintiff’s right to be free from “unnecessary and wanton infliction of pain.”
Whitley, 475 U.S. at 319.
First, Plaintiff has not made out that these Defendants knew of and disregarded an
excessive risk to inmate safety and thus acted with deliberate indifference. Plaintiff alleges only
that Jenkins, Zankel, Abhulimen, and Humphrey “knew that the tethering mechanism was not
prepared according to the original Work Order specifications,” and that the risk of becoming
entangled was “longstanding, pervasive, well-documented, or expressly noted by prison officials
in the past.” Farmer, 511 U.S. at 842-43; (see 2d Am. Compl. ¶ 58.) Plaintiff does not allege that
anyone knew that the tether posed a risk to a batter’s hands or posed an actual threat to inmate
Plaintiff argues that because the tether as installed varied from the Work Order
specifications, this necessarily created a substantial risk of harm. (2d Am. Compl. ¶ 58; Pl.’s Resp.
at 6-7.) This is incorrect. See Abjul-Hadi v. Dittsworth, No. 11-1263, 2012 WL 3260361, at *4
(W.D. Pa. Aug. 8, 2012) (“[S]imply because the state mandates that certain procedures be
complied with does not mean thereby that those procedures are of constitutional significance.”).
Indeed, as alleged, the only difference between the tether as ordered and the tether as built was the
way it was anchored. (2d Am. Compl. ¶ 20.) The C-clamp “hazard” would have been the same
even if the Work Order specifications had been followed. Accordingly, Plaintiff has alleged only
that Defendants Jenkins, Zankel, Abhulimen, and Humphrey knew that prisoners had become
tangled in the tether, not that these Defendants were “deliberately indifferent to a substantial risk
of serious harm.” See Farmer, 511 U.S. at 828; Betts, 621 F.3d at 256.
The Seventh Circuit’s decision in Christopher v. Buss is especially instructive. See 384
F.3d 879, 880-83 (7th Cir. 2004). Inmate Christopher injured his eye during a state prison softball
game when the ball bounced off of a “protrusive lip” on the field that the prison had failed to
remove. Id. at 880. As alleged, the prison knew about the defect because another inmate had been
injured in precisely the same way. See id. The Seventh Circuit upheld the district court’s dismissal
for failure to state an Eighth Amendment claim against the prisoner and various prison personnel:
Even if the defendants knew about the field condition . . . and purposefully ignored
it, Christopher would not be entitled to relief. A “protrusive lip” on a softball field,
even if hazardous when a ball hits it in a certain way, does not amount to a condition
objectively serious enough to implicate the Eighth Amendment. Such “lips” where
the infield joins the outfield doubtless exist on subpar fields across the country. To
say that “exposure” to such a field could violate the Eighth Amendment would be
to imply that prison officials violate the Eighth Amendment by letting inmates play
sports at all, because the risk of injury, even serious injury, is inherent. Cf. James
v. Hillerich & Bradsby Co., 299 S.W.2d 92, 94 (Ky. 1957) (negligence case noting
“ordinary risks of personal injury involved in a baseball or softball game”).
Id. at 882. Plaintiff’s Eighth Amendment claim fails for the same reasons. Tethering a bat with
C-clamps—which prisoners used for a year without incident—“does not amount to a condition
objectively serious enough to implicate the Eighth Amendment.” Id.
Moreover, although Plaintiff’s injury was serious, he has not adequately alleged that there
was a likelihood that the tethered bat would sever his finger. See Betts, 621 F.3d at 257;
Christopher, 384 F.3d at 880-82. Once again, the bat had been in use for a year before Plaintiff
sustained his injury. (2d Am. Compl. ¶¶ 11, 21, 24-26.) Using C-clamps did not subject
SCI-Chester prisoners to “horrible conditions of filth, undernourishment, exposure, and the like.”
Batton, 501 F. Supp. at 1179; cf. Hope v. Pelzer, 536 U.S. 730, 738 (2002) (handcuffing shirtless
prisoner to hitching post in hot sun for seven hours without allowing bathroom breaks); Chavarriga
v. N.J. Dep’t of Corr., 806 F.3d 210, 228 (3d Cir. 2015) (denying prisoner potable water for two
days); Villegas v. Metropolitan Gov’t of Nashville, 709 F.3d 563, 574 (6th Cir. 2013) (shackling
pregnant detainees while in labor); McElligot v. Foley, 182 F.3d 1248, 1256-57 (11th Cir. 1999)
(prison doctors ignoring prisoner’s severe abdominal pain, physical deterioration, and weight loss).
Indeed, the injunctive relief Plaintiff seeks—installation of a tether consistent with the Work
Order—would leave the C-clamps in place. (See 2d Am. Compl. at 13 (Prayer for Relief).)
Similarly, using C-clamps to tether a bat cannot be said to violate contemporary standards
of decency. See Betts, 621 F.3d at 258 (playing tackle football without protective equipment does
not violate contemporary standards of decency); James, 299 S.W.2d at 94 (“[T]he ordinary risks
of personal injury involved in a baseball or softball game . . . are such that a defective bat cannot
be said to materially increase the risk, or . . . to create an unreasonable risk.”) (internal quotation
In sum, I will dismiss Plaintiff’s § 1983 claim against Defendants Jenkins, Zankel,
Abhulimen, and Humphrey because he has failed to state a plausible Eighth Amendment claim.
Substantive Due Process
Plaintiff bases his Eighth and Fourteenth Amendment claims on “his conditions of
confinement and an alleged failure by Defendants to ensure his safety.” Betts, 621 F.3d at 260.
The Eighth Amendment, however, “provides an explicit textual source of constitutional
protection” against the wrongdoing alleged here. Lanier, 520 U.S. at 272 n.7; Graham, 490 U.S.
at 395. Plaintiff’s substantive due process claim is thus barred by the more-specific-provision rule.
Betts, 621 F.3d at 259-60 (the rule applies even if the plaintiff has failed to state an Eighth
Because I ruled that the facts as alleged do not make out a constitutional violation, it would
appear that Defendants are entitled to qualified immunity. See Pearson, 555 U.S. at 236. In light
of my Eighth Amendment ruling, however, I will not address the qualified immunity argument
further. See Kaucher, 455 F.3d at 423 n.2.
Plaintiff has sought to transform a negligence claim into one of constitutional dimension.
Courts have repeatedly held, however, that such “constitutional” claims are not cognizable. See
Whitley, 475 U.S. at 322 (negligence is insufficient to sustain an Eighth Amendment claim);
Parkell, 833 F.3d at 337 (same); Abjul-Hadi, 2012 WL 3260361, at *4 (same); see also
Christopher, 384 F.3d at 880-83. Moreover, I am without jurisdiction to hear Plaintiff’s remaining
claims, which are barred by Eleventh Amendment Immunity.
Accordingly, I will dismiss
Plaintiff’s Second Amended Complaint and allow him to transfer his negligence claims to state
An appropriate Order follows.
/s/ Paul S. Diamond
Paul S. Diamond, J.
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