1. Plaintiff currently resides at 39 Wayne Street, West

Hazleton, Pennsylvania. 

2. Section 1915(e)(2) provides:

(2) Notwithstanding any filing fee, or any portion

thereof, that may have been paid, the court shall dismiss

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

HUBERT FONT, :

:

Plaintiff : No. 4:CV-05-1226

:

vs. : (Complaint Filed 06/20/05)

:

: (Judge Muir)

LUZERNE COUNTY, et al., :

:

Defendants :

ORDER

July 19, 2006

BACKGROUND

On June 20, 2005, plaintiff, an inmate formerly confined in

the Luzerne County Prison1, filed this pro se civil rights action

pursuant to 42 U.S.C. § 1983. The only named defendants were

Luzerne County, Pennsylvania and the Warden of the Luzerne

County Prison. Along with his complaint, plaintiff submitted an

application requesting leave to proceed in forma pauperis under

28 U.S.C. § 1915. 

By Order dated July 12, 2005, plaintiff's complaint was

screened pursuant to Section 1915,2 of the Prison Litigation

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the case at any time if the court determines that (A) the

allegation of poverty is untrue; or (B) the action or

appeal (i) is frivolous or malicious; (ii) fails to state

a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from

such relief. 

2

Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996)

Doc. No. 7). Plaintiff's motion to proceed in forma pauperis

was construed as a motion to proceed without full prepayment of

fees and costs and the motion was granted. Id. Finding that

plaintiff's complaint failed to properly aver any personal

involvement by any of the named defendants in the complaint, the

Court dismissed plaintiff's complaint, without prejudice, as

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Id.

On July 21, 2005, plaintiff filed a motion for

reconsideration of this Court’s July 12, 2005 Order. (Doc. No.

8). In his motion for reconsideration, plaintiff states that

“he could not at the time of filing, name the individual

corrections officers and medical personnel by name”, but

believes that he “should be given the chance to amend [his

complaint] and add the additional defendants.” (Doc. No. 8).

Thus, it appeared that the plaintiff in an amended complaint

could name and describe the defendants' personal involvement in

the alleged misdeeds, and an amended complaint may be filed once

as of right before an answer is filed. See Fed. R. Civ. P. 15.

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By Order dated August 11, 2005, plaintiff's motion for

reconsideration was granted and plaintiff was granted an

opportunity to file an amended complaint. (Doc. No. 14). 

On August 29, 2005, plaintiff filed an amended complaint.

(Doc. No. 16). He names as defendants Luzerne County, Gene

Fishi, Nurse Sherry, Corrections Officers John Does #1-4,

Physician's Assistant, John Doe #5, Doctor John Doe #6, Corey D.

Wetzel, and the Commonwealth of Pennsylvania. 

Presently before the court is plaintiff's proposed amended

complaint, and a motion to dismiss the amended complaint, filed

by defendants Wetzel and the Commonwealth of Pennsylvania.

(Doc. No. 18). Plaintiff concurs with the dismissal of the

Commonwealth of Pennsylvania. Thus, the Commonwealth of

Pennsylvania will be dismissed as a defendant in this action.

For the reasons set forth below, defendant Wetzel's motion to

dismiss will be granted, defendants Luzerne County and Warden

Fishy will be dismissed, and the remainder of plaintiff's

amended complaint will be consolidated into Font vs.

Pennsylvania State Police et al, Civil No. 4:05-CV-0277. 

Standard of Review

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Rule 12(b)(6) of the Federal Rules of Civil Procedure

provides for dismissal of claims that fail to assert a basis

upon which relief can be granted. See FED.R.CIV.P. 12(b)(6).

When deciding a motion to dismiss for failure to state a claim,

the court is required to accept as true all of the factual

allegations in the complaint and all reasonable inferences that

can be drawn therefrom. Langford vs. City of Atlantic City, 235

F.3d 845, 847 (3d Cir. 2000) (citing Nami vs. Fauver, 82 F.3d

63, 65 (3d Cir. 1996)). “The complaint will be deemed to have

alleged sufficient facts if it adequately put[s] the defendant

on notice of the essential elements of the plaintiff’s cause of

action.” Id. The court will not dismiss a complaint for

failure to state a claim unless it appears beyond a doubt that

“no relief could be granted under any set of facts that could be

proved consistent with the allegations.” Swierkiewicz vs.

Sorema N.A., 534 U.S. 506, 514 (2002). 

“In determining whether a claim should be dismissed under

Rule 12(b)(6), a court looks only to the facts alleged in the

complaint and its attachments without reference to other parts

of the record.” Jordan vs. Fox, Rothschild, O’Brien & Frankel,

20 F.3d 1250, 1261 (3d Cir. 1994). The court, however, need not

accept “bald assertions” or “legal conclusions.” Morse vs.

Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

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Likewise, the court need not “conjure up unpled allegations or

contrive elaborately arcane scripts” to breathe life into an

otherwise defective complaint. Gooley vs. Mobil Oil Corp., 851

F.2d 513, 514 (1st Cir. 1988). Consistent with these

principles, the court must grant leave to amend before

dismissing a complaint that is merely deficient. See Shane vs.

Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

Discussion

Defendant Wetzel contends that Font's complaint should be

dismissed as duplicative of Font vs. Pennsylvania State Police

et al, Civil No. 4:05-CV-0277. 

On February 8, 2005, plaintiff filed Civil No. 4:05-CV-0277.

The named defendants in Civil No. 4:05-CV-0277 are the

Commonwealth of Pennsylvania, the Pennsylvania State Police,

State Trooper Corey Wetzel and four John Doe Troopers. The

plaintiff's complaint in Civil No. 4:05-0277 centers around

plaintiff's June 20, 2003, arrest and alleged assault during his

arrest. Font claims that “after the assault, Trooper Corey

Wetzel, took [him] to the Luzerne County Prison to be

committed.” See Civil No. 4:05-0277, Doc. No. 1, complaint. He

states that “upon arriving there the medical staff noticed that

[plaintiff] had severe injuries and asked Trooper Wetzel if [he]

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had been taken to the hospital” and Trooper Wetzel responded

that “yes, he had personally taken [plaintiff] to a hospital.”

However, when asked if he had the paperwork from the hospital,

the Trooper responded that he did not have any paperwork.

Plaintiff claims that this is because Trooper Wetzel “never took

[plaintiff] to the a hospital and the medical staff at the

prison realized this immediately, so they took several

photographs of [plaintiff's] injuries to document that they had

occurred before [he] reached the prison.” Id. 

As a result of the alleged assault, plaintiff claims to have

“spent the several days following with blurred vision and months

with bad tremors and headaches” and has since been “diagnosed

with severe and permanent nerve damage.” Id. He also

“continues to have pain, numbness and weakness in [his]

extremities, blurred vision and headaches” and is still be

treated for “effects of the assault”. Id. 

In the amended complaint filed in the instant action,

plaintiff alleges that on June 20, 2003, after his arrest, he

was taken to the Luzerne County Prison by Trooper Wetzel, even

though he “had severe and obviously visible injuries including

bleeding, trauma to the head and seizures which were end result

of his arrest.” (Doc. No. 16). Plaintiff claims that “at no

time prior to taking plaintiff to 'LCCF' did defendant Wetzel

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attempt to or offer to provide plaintiff with medical treatment

in an obvious attempt to cover up the use of excessive force on

plaintiff by other troopers.” Id. Plaintiff claims that, once

at the prison, Wetzel “told defendant Sherry that he had

personally taken plaintiff to a hospital” Id. Plaintiff states

that “this is patently false” and that this “false statement

that [Wetzel] had taken plaintiff to a hospital was a deliberate

attempt to cover up the use of excessive force against plaintiff

and as such subjects defendant Wetzel to liability under §

1983.” Id.

Plaintiff claims that “defendant Sherry then cleaned

plaintiff's injuries and asked plaintiff how he sustained the

injuries, plaintiff informed her that he had been assaulted by

Troopers of the PA. State Police while handcuffed and shackled

to a bench.” Id. Plaintiff “contends that the obvious nature

of his injuries were recognized by defendant Sherry and at the

very least she should have directed that plaintiff be housed in

the prison infirmary or observation unit until it could be

determined that plaintiff was not in any immediate danger from

his head injuries, but instead defendant Sherry allowed

corrections staff to place plaintiff in a general population

housing unit with no notice to corrections staff that plaintiff

had incurred head trauma and could possibly have a concussion

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and should be periodically checked by corrections or medical

staff. Id. Thus, plaintiff believes that “as such, defendant

Sherry's actions further constitute deliberate indifference.”

Id. 

Plaintiff claims that while in general population he was

continually assaulted by other inmates. Id. He claims that

“after enduring numerous assaults over a period of more than 24

hours”, he was then “moved to safety” and placed in protective

custody. Id. For relief, plaintiff seeks compensatory and

punitive damages, as well as injunctive relief. 

Rule 42(a) of the Federal Rules of Civil Procedure states:

When actions involving a common question

of law or fact are pending before the

court, it may order a joint hearing or 

trial of any or all the matters in issue

in the actions; it may order all the

actions consolidated; and it may make

such orders concerning proceedings therein

as may tend to avoid unnecessary costs or

delay.

Fed. R. Civ. P. 42(a).

The allegations set forth in both of plaintiff's actions are

similar if not identical, and defendant Wetzel is named in both

actions. Consequently, since the actions contain common factors

of law and fact, defendant Wetzel's motion to dismiss the

complaint as duplicative will be granted and this court will

order the consolidation of the two actions pursuant to Rule

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42(a) and will proceed with the consolidated matter under

plaintiff's initially filed action, Civil No. 4:05-CV-0277.

Finally, with respect to defendants Warden Fishi and Luzerne

County, the plaintiff fails to allege that the Warden of the

Luzerne County Prison was personally involved in his medical

treatment. Neither has he alleged that the Warden had knowledge

of the prison medical staff’s treatment for him. Rather,

plaintiff premises the Warden's liability solely on the theory

of respondeat superior. As discussed in our Order of July 12,

2005, (See Doc. No. 7), liability under § 1983 cannot be based

on respondeat superior. Capone vs. Marinelli, 868 F.2d 102, 106

(3d Cir. 1989) (citing Hampton vs. Holmesburg Prison Officials,

546 F.2d 1077, 1082 (3d Cir. 1976)). Moreover, a claim of

deliberate indifference to the plaintiff’s medical needs cannot

lie against the Warden, a non-physician, because the plaintiff

alleges that he was under the care of a prison physician.

Durmer vs. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993). 

With respect to defendant, Luzerne County, although it is

recognized that the plaintiff is not held to a “heightened”

standard of pleading in his claim against the municipality,

Leatherman vs. Tarrant County, 507 U.S. 163 (1993); Verney vs.

Pennsylvania Turnpike Commission, 881 F. Supp. 145 (M.D. Pa.

1995), the plaintiff’s amended complaint once again fails to set

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forth any allegations whatsoever that Luzerne County undertook

any act pursuant to an official municipal policy of some nature

which caused a Constitutional tort. See Monell vs. Department

of Social Servs., 436 U.S. 658, 690-91 (1978); see also Board of

County Comm'rs of Bryan County, OK vs. Brown, 520 U.S. 397, 117

S. Ct. 1382, 1388-89 (1997); Roman vs. Jeffes, 904 F.2d 192,

196-97 (3d Cir. 1990); Illiano vs. Clay Township, 892 F. Supp.

117, 121 (E.D. Pa. 1995). 

Moreover, it has been repeatedly held that a municipality

may not be subjected to § 1983 liability on a theory of

respondeat superior. Bryan County, 117 S. Ct. at 1388; City of

Canton vs. Harris, 489 U.S. 378, 392 (1989); City of St. Louis

vs. Praprotnik, 485 U.S. 112, 121-22 (1988); Pembaur vs.

Cincinnati, 475 U.S. 469, 478-79 (1986); Oklahoma City vs.

Tuttle, 471 U.S. 808, 818, reh'g denied, 473 U.S. 925 (1985);

Monell, 436 U.S. at 691; Beck vs. City of Pittsburgh, 89 F.3d

966, 971 (3d Cir. 1996), cert. denied, 519 U.S. 1151, 117 S. Ct.

1086 (1997); Andrews vs. City of Philadelphia, 895 F.2d 1469,

1480 (3d Cir. 1990). 

A review of the complaint reveals that plaintiff has not

alleged that anyone in the Luzerne County government ever

promulgated a policy of indifference to his constitutional

rights, and he has not alleged that county officials ever

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violated the rights of anyone but himself. See St. Louis vs.

Praprotnik, 485 U.S. 112, 128 (1988). Therefore, the claims

against Luzerne County will be again be dismissed as legally

frivolous. 

IT IS HEREBY ORDERED THAT:

1. The concurred in motion to dismiss the

Commonwealth of Pennsylvania(Doc. No. 18) is

GRANTED. 

2. Defendant Wetzel's motion to dismiss

plaintiff's amended complaint as duplicative

(Doc. No 18), is GRANTED.

3. The amended complaint is dismissed as

frivolous pursuant to 28 U.S.C. §

1915(e)(2)(B)(i), as to defendants, Luzerne

County and Gene Fishy.

4. The Clerk of Court is directed to consolidate

Font vs. Luzerne County, Civil No. 4:05-CV1226 into Font vs. Pennsylvania State Police

et al, Civil No. 4:05-CV-0277, pursuant to

Federal Rule of Civil Procedure 42(a).

5. The Clerk of Court is directed to close the

case of Font vs. Luzerne County, Civil No.

4:05-CV-1226. 

6. The Clerk of Court is directed to serve the

amended complaint on Nurse Sherry, the only

new defendant identified in the amended

complaint. 

7. The plaintiff has thirty (30) days from the

date of this order in which to properly

provide the names of the John Doe defendants

referred to in the amended complaint. Failure

to timely identify those defendants will

Case 4:05-cv-01226-MM-DB Document 33 Filed 07/19/06 Page 11 of 12
result in them being dismissed from this action.

8. Plaintiff's motions for production of

documents and for temporary restraining order

(Doc. Nos. 24, 25) are DISMISSED as moot. 

s/Malcolm Muir 

MUIR

United States District Judge

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