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 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SEAN CARLOS BURKE )

Plaintiff, )

v. ) C.A. No. 05-371 Erie

) District Judge McLaughlin

ACCO BRANDS, INC, et al., ) Magistrate Judge Baxter

Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the motion to dismiss filed by Defendant ACCO

Brands [Document # 5] be denied. 

It is further recommended that Plaintiff be directed to file an amended complaint as to his

tort claims against ACCO Brands, Boise Cascade Corporation, and John Doe Manufacturer,

within twenty days. 

II. REPORT

A. Introduction

On December 20, 2005, this case was removed by Defendant ACCO Brands to this

federal court. Plaintiff is an inmate acting pro se. Named as Defendants are: ACCO Brands,

Inc.; Boise Cascade Corporation; John Doe Manufacturer; and Carol Scire, Jeffrey Beard, and

Superintendent Harry Wilson, all employees of the Pennsylvania Department of Corrections. 

Plaintiff alleges that he suffered injuries to his left hand caused by a stapler manufactured and

distributed by ACCO Brands. Plaintiff claims that the stapler is defective, prone to malfunction

and does not contain warning stickers. In addition to the tort claims against ACCO Brands,

Boise Cascade, and John Doe Manufacturer, Plaintiff is asserting federal constitutional violations

against Defendants Beard, Scire and Wilson. As relief, Plaintiff seeks monetary damages, as

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well as injunctive relief. See Document # 1, Attachment 2, Common Pleas Complaint.

Defendant ACCO Brands has filed a motion to dismiss and Plaintiff has filed an Brief in

Opposition to the pending motion to dismiss.

B. Standards of Review

1. Pro Se Pleadings

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if

it appears “<beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 520-521(1972), quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). If the court can reasonably read pleadings to state

a valid claim on which the litigant could prevail, it should do so despite failure to cite proper

legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant’s

unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United

States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared by a

prisoner may be inartfully drawn and should be read “with a measure of tolerance”); Smith v.

U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections, 949

F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation,

a district court should construe all allegations in a complaint in favor of the complainant. Gibbs

v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.

1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906

F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court will

consider facts and make inferences where it is appropriate. 

2. Motion to dismiss

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be

viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the

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 Plaintiff requests the following relief from Defendant ACCO Brands:

A. ... $45,000 dollars [sic] in compensatory damages as a result of the

physical injury which has resulted from the Plaintiff’s usage of the

Swingline Heavy Duty Stapler, Stock No. 39002 and the Plaintiff’s

preclusion to perform his regular activities as a result of the injury to his

left hand since the occurrence of the injury.

B. ... $45,000 dollars [sic] in punitive damages as a result of the physical

injury incurred as a result of the usage of the defective product which is

prone to malfunctioning and when the malfunction occurs the infliction of

physical injury occurs upon the use.

C. ... $100,000 dollars [sic] as a result of ACCO Brands, Inc., failure to affix

adequate warning stickers at the rear of the Swingline Heavy Duty Stapler,

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complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319 (1989); Estelle v.

Gamble, 429 U.S. 97 (1976). The motion cannot be granted unless the court is satisfied “that no

relief could be granted under any set of facts that could be proved consistent with the

allegations.” Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). The issue is not whether the

plaintiff will prevail at the end but only whether he should be entitled to offer evidence to support

his claim. Neitzke; Scheuer v. Rhodes, 419 U.S. 232 (1974). Rule 8(a) of the Federal Rules of

Civil Procedure states that a pleading must set forth a claim for relief which contains a short and

plain statement of the claim showing that the pleader is entitled to relief. Therefore, in order to

survive a motion to dismiss for failure to state a claim, the complaint must set forth sufficient

information to suggest that there is some recognized legal theory upon which relief can be

granted.

C. Claims against Defendant ACCO Brands

Plaintiff alleges that on May 16, 2005, he was using a heavy-duty stapler when it either

jammed or ran out of staples. When Plaintiff attempted to fix the stapler, his left hand became

caught in the rod mechanism. Plaintiff claims that Defendant ACCO Brands is the manufacturer

and distributor of the stapler and should therefore be liable to him for his resulting injuries.1 

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Stock No. 39002, to put the user and or purchaser on Notice of the devices

capability to malfunction and when that malfunction occurs physical injury

is inflicted upon the user or purchaser, in violation of strict liability

statutes.

D. ... $45,000 dollars [sic] for pain and suffering as a result of the Plaintiff’s

inability to function without the aid of pain and anti inflammatory

medications as a result of the injuries inflicted upon him by the ACCO

Brands, Inc. Swingline Heavy Duty Stapler, Stock No. 39002.

E. ... a per diem figure in the amount of $80,000 dollars [sic] for the expense

of litigating this tort action, as well as $ 500 dollars [sic] a day for each

day that the corporation known as ACCO Brands refuses to provide

warning stickers upon there [sic] product.

F. ... $ 35,000 dollars [sic] due to loss of weight muscle mass and size as a

direct result of the Plaintiff’s inability to put any weight down on his left

hand since the occurrence of this injury inflicted by the Swingline Heavy

Duty stapler, stock no. 39002, as well as recurring numbness and the

inability to grip objects as a result of the injury to the left hand.

G. ... $ 776 dollars [sic] in lost wages and salary to the Plaintiff from the date

of the injury to the present time of the filing of this tort action, due to his

inability to be employed as a Hazmat removal worker and skilled

maintenance repair worker. 

Document # 1, Attachment 2, page 16. 

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Plaintiff’s claims against Defendant ACCO Brands sound in strict liability. The

Restatement (Second) of Torts Section 402A, which has been expressly adopted by the Supreme

Court of the Commonwealth of Pennsylvania, [see Pennsylvania Dep’t. Of General Services v.

United States Mineral Products Company, 898 A.2d 590, 615 (Pa. May 25, 2006) citing Webb v.

Zern, 422 Pa. 424, 220 A.2d 853 (Pa. 1966)] provides that:

(1) One who sells any product in a defective condition and reasonably

dangerous to the user or consumer or to his property is subject to liability

for physical harm thereby caused to the ultimate user or consumer, or to

his property, if (a) the seller is engaged in the business of selling such a

product, and (b) it is expected to and does reach the user or consumer

without substantial change in the condition in which it is sold.

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(2) The rule in subsection (a) applies although (a) the seller has exercised all

possible care in the preparation and sale of this product and (b) the user or

consumer has not bought the product from or entered into any contractual

relation with the seller.

Restatement (Second) of Torts Section 402A. 

So then under Pennsylvania law, “to recover under § 402A , a plaintiff must establish

that the product was defective, that the defect was a proximate cause of the plaintiff's injuries,

and that the defect causing the injury existed at the time the product left the seller's hands.” 

Davis v. Berwind Corporation, 547 Pa. 260, 267, 690 A.2d 186, 190 (Pa. 1997) quoting

Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 93-94, 337 A.2d 893, 899 (1975). 

In his pro se complaint, Plaintiff does not allege what was defective about the stapler or

how any alleged defect proximately caused his injuries. Such would normally be grounds for

dismissal of the complaint. However, in his brief in opposition to the pending motion to dismiss,

Plaintiff attempts to articulate the defect in the design of the stapler. Document # 8, page 7-8. 

Because Plaintiff is a pro se litigant and because he was not previously advised by this

Court that he could file an amended complaint in response to the motion to dismiss, he should be

permitted to amend his complaint to plead his tort claims at this time. See Grayson v. Mayview

State Hospital, 293 F.3d 103 (3d Cir. 2002). Accordingly, the motion to dismiss should be

denied at this stage of the proceedings. Defendant may reassert its motion to dismiss following

the filing of the amended complaint.

III. CONCLUSION

For the foregoing reasons, this Court respectfully recommends the motion to dismiss filed

by Defendant ACCO Brands [Document # 5] be denied. 

It is further recommended that Plaintiff be directed to file an amended complaint as to his

tort claims against ACCO Brands, Boise Cascade Corporation, and John Doe Manufacturer,

within twenty days. 

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local

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Rule 72.1.4 B, the parties are allowed ten (10) days from the date of service to file written

objections to this report. Any party opposing the objections shall have seven (7) days from the

date of service of objections to respond thereto. Failure to timely file objections may constitute a

waiver of any appellate rights. 

S/ Susan Paradise Baxter

SUSAN PARADISE BAXTER

Chief United States Magistrate Judge

Dated: July 21, 2006

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