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

August 11, 2005

BACKGROUND

On June 20, 2005, plaintiff, an inmate presently confined

in the State Correctional Institution, Albion, Pennsylvania,

filed this pro se civil rights action pursuant to 42 U.S.C. §

1983. He complains of incidents which occurred at his former

place of confinement, the Luzerne County Prison. The only named

defendants are 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 dismissed, without prejudice, as

frivolous. (Doc. No. 7). On July 21, 2005, plaintiff filed a

motion for reconsideration of this Court’s July 12, 2005 Order.

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(Doc. No. 8). For the reasons set forth below, the motion will

be granted. 

Discussion

A motion for reconsideration is a device of limited utility.

It may be used only to seek remediation for manifest errors of

law or fact or to present newly discovered evidence which, if

discovered previously, might have affected the court's decision.

Harsco Corp. vs. Zlotnicki, 779 F.2d 906 (3d Cir. 1985), cert.

denied, 476 U.S. 1171 (1986); Massachusetts Mutual Life

Insurance Co. vs. Maitland, Civil No. 87-0827 (M.D. Pa. March 1,

1989) (Rambo, J.). Accordingly, a party seeking reconsideration

must demonstrate at least one of the following grounds prior to

the court altering, or amending, a standing judgment: (1) an

intervening change in the controlling law; (2) the availability

of new evidence that was not available when the court granted

the motion; or (3) the need to correct a clear error of law or

fact or to prevent manifest injustice. Max's Seafood Café vs.

Quineros, 176 F.3d 669, 677 (3d Cir. 1999)(citing North River

Ins. Co. vs. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.

1995)). A motion for reconsideration is appropriate in

instances where the court has “...misunderstood a party, or has

made a decision outside the adversarial issues presented to the

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Court by the parties, or has made an error not of reasoning, but

of apprehension.” See Rohrbach vs. AT & T Nassau Metals Corp.,

902 F. Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other

grounds on reconsideration, 915 F. Supp. 712 (M.D. Pa. 1996),

quoting Above the Belt, Inc. vs. Mel Bohannan Roofing, Inc., 99

F.R.D. 99, 101 (E.D. Va. 1983). It may not be used as a means

to reargue unsuccessful theories, or argue new facts or issues

that were not presented to the court in the context of the

matter previously decided. Drysdale vs. Woerth, 153 F. Supp. 2d

678, 682 (E.D. Pa. 2001). “Because federal courts have a strong

interest in the finality of judgments, motions for

reconsideration should be granted sparingly.” Continental

Casualty Co. vs. Diversified Indus. Inc., 884 F.Supp. 937, 943

(E.D. Pa. 1995). 

Plaintiff alleges that upon his initial commitment to the

Luzerne County Prison, on June 20, 2003, he had severe injuries

which he incurred during his arrest. He states that defendants

were deliberately indifferent to his serious medical needs “in

that although the defendants contracted physician diagnosed

'nerve damage' plaintiff was not given any treatment for it and

now as a result of defendants' failure to provide treatment, the

nerve damage is permanent and plaintiff is in constant pain from

it.” Plaintiff contends that defendant's “medical staff failed

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to diagnose a severe concussion and seizure disorder that were

present as a result of his injuries incurred during arrest and

that their failure to diagnose and treat the serious needs do

constitute deliberate indifference.” (Doc. No. 1, complaint).

Plaintiff further alleges that “defendants by and through

their corrections staff violated plaintiff's 8th Amendment rights

by their failure to protect plaintiff from harm by other

inmates.” Specifically, plaintiff states that he was “placed in

a cage-type cell and was subject to being scalded by hot water

and coffee thrown at him by other inmates, who repeatedly

threatened plaintiff's life.” Plaintiff allegedly reported this

to corrections staff by no action was taken to protect plaintiff

from further harm. Plaintiff states that “due to the fact that

[his] underlying criminal charge was a sex offense, by placing

plaintiff in general prison population, they were putting

plaintiff at great risk to be assaulted by other inmates which

is commonplace in the prison system.” (Doc. No. 1, complaint).

Plaintiff filed the instant action in which he contends that

“the 8th Amendment guarantees his right to be protected from

assault by other inmates and that while his injuries from the

assaults were not permanent physically the emotional damage

remains.” Thus, plaintiff seeks compensatory and punitive

damages. 

Case 4:05-cv-01226-MM-DB Document 14 Filed 08/11/05 Page 4 of 7
1. Section 1915(e)(2) provides:

(2) Notwithstanding any filing fee, or any portion

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

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. 

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

screened pursuant to Section 1915,1 of the Prison Litigation

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.

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 appears that

the plaintiff in an amended complaint could name and describe

the defendants' personal involvement in the alleged misdeeds,

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and an amended complaint may be filed once as of right before an

answer is filed. See Fed. R. Civ. P. 15. It is necessary and

important to allow the plaintiff to amend his complaint so that

the issues raised in this litigation may be decided fully on

their merits. See Weaver vs. Wilcox, 650 F.2d 22, 27-28 (3d

Cir. 1981); Kauffman vs. Moss, 420 F.2d 1270, 1275-76 (3d Cir.),

cert. denied, 400 U.S. 846 (1970). The plaintiff's claims may

be amended under penalty of dismissal. If no proper amended

complaint is filed within the prescribed time, this action may

be dismissed.

The amended complaint "must be a new pleading which stands

by itself as an adequate complaint without reference to the

complaint already filed." Young vs. Keohane, 809 F. Supp. 1185,

1198. Federal Rule of Civil Procedure 8(a) requires that a

complaint consist of a short and plain statement setting forth

(1) the grounds upon which the court's jurisdiction rests, (2)

one or more claims showing that the pleader is entitled to

relief, and (3) a demand for judgment for the relief sought by

the pleader. The short, plain, and concise statement of claim

must " 'give the defendant fair notice of what the plaintiff's

claim is and the grounds upon which it rests.' " Leatherman vs.

Tarrant County Narcotics Unit, 113 S.Ct. 1160, 1163 (1993)

(quoting Conley vs. Gibson, 355 U.S. 41, 47 (1957)).

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IT IS HEREBY ORDERED THAT:

1. Plaintiff's motion for reconsideration (Doc.

No The . 8) is GRANTED. 

2. The Clerk of Court is directed to REOPEN the

plaintiff's case. 

3. Plaintiff is GRANTED leave to amend his

complaint, as specified in the foregoing

Order, within thirty (30) days of the date of

this Order. 

4. Failure to file such amendment will result in

the dismissal of plaintiff’s action.

 s/Malcolm Muir

 

MUIR

United States District Judge

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