The complaint names these defendants as J. J. Morgan, 1

J. Dombrosky, and Desau, respectively.

The complaint names these defendants as Daniel 2

DiGugliemo, Murray, and Robert J. Duprey, respectively. 

-1-

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRANDON BAKER : CIVIL ACTION

:

v. :

:

J. J. MORGAN, et al. : 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. He also 1

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. The plaintiff further alleges that 2

defendant Dr. Richard Kosierowski failed to treat his injuries

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 1 of 21
The complaint names Dr. Kosierowski and Mr. Pisano as 3

Richard Koserowski, M.D. and Michael Pisano, M.D. 

The Commonwealth Defendants have not attempted to 4

“institute” the Commonwealth of Pennsylvania as a defendant in

-2-

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

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 2 of 21
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.

-3-

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

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 3 of 21
When considering a motion to dismiss under Fed. R. Civ. 5

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-

was housed in SCI-Graterford’s Restricted Housing Unit. On 5

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

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 4 of 21
-5-

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. (Id. ¶ 31.)

II. 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. 

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 5 of 21
-6-

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. West v.

Atkins, 487 U.S. 42, 48 (1988). 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

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 6 of 21
In his opposition brief to the Commonwealth Defendants’ 6

motion to dismiss, the plaintiff argues that the defendants

violated his “1 Amendment procedur[al] due process right, to st

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.

-7-

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. 

 

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 7 of 21
-8-

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

reasonable opportunity to do so. Smith v. Mesinger, 293 F.3d

641, 650 (3d Cir. 2002). The Commonwealth Defendants have not

moved to dismiss the excessive force claims against the three

correctional officers. These claims go forward. 

2. 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. Farmer v. Brennan, 511 U.S.

825, 837 (1994). 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. (Compl. ¶

29). To the extent that the plaintiff bases his claim on what

Superintendent DiGuglielmo actually knew about the risk to the

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 8 of 21
-9-

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. See Farmer, 511 U.S. at 843.

3. 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. Reading the pro

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 9 of 21
In his opposition to the Doctor Defendants’ motion to 7

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.)

In his Traverse to the Commonwealth Defendants’ Motion 8

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.) 

-10-

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. (Compl. ¶¶ 34, 36.) 7

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. Nor 8

does the complaint allege that either of these defendants knew of

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 10 of 21
The Court addresses the conspiracy allegations in 9

Section E, below.

The plaintiff also alleges that Ms. Knauer conspired 10

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.

-11-

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. (Compl. ¶ 10

33.) 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. Spruill v. Gillis, 372 F.3d 218, 236 (3d

Cir. 2004). The plaintiff has not alleged that Ms. Knauer had

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 11 of 21
-12-

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

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 12 of 21
In his traverse to the Commonwealth Defendants’ motion 11

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.

-13-

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. (Pl.’s Traverse to Defs.’

Mot. to Dismiss at 8.) 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

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 13 of 21
-14-

 

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

violation. See, e.g. Young v. Medden, 03-CV-5432, 2006 U.S.

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. 

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 14 of 21
The plaintiff does not state a claim for conspiracy 12

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).

-15-

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. (Compl. ¶¶ 23-24, 28, 30, 32-

33, 35.) 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,

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 15 of 21
-16-

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. Smith v.

Mensinger, 293 F.3d 641, 654 (3d Cir. 2002). 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

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 16 of 21
-17-

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

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 17 of 21
The Doctor Defendants argue that the plaintiff is 13

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).

-18-

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

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 18 of 21
The Doctor Defendants have not argued that they are 14

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.

-19-

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. Will v. Michigan Dep’t of

State Police, 491 U.S. 58, 71 (1989). Each of the Commonwealth

Defendants are state officials. 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,

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 19 of 21
-20-

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.

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 20 of 21
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRANDON BAKER : CIVIL ACTION

:

v. :

:

J. J. MORGAN, et al. : 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.

Case 2:05-cv-03690-MAM Document 29 Filed 05/05/06 Page 21 of 21