PHILADELPHIA – The Commonwealth of Pennsylvania is seeking a complete dismissal of litigation brought by the family of a man who died from COVID-19 shortly before he was to be released from prison after more than four decades, which charged that state officials did not approve the decedent’s pardon in a timely manner, allegedly leaving him at greater risk for contracting the virus and causing his death.
Janice Stewart (individually and as Administrator of the Estate of Bruce Norris, Deceased) and the Estate of Bruce Norris of Philadelphia first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Jan. 24 versus the Commonwealth of Pennsylvania, former Governor Tom Wolf, former Lt. Governor (and current U.S. Sen.) John Fetterman and Secretary of Pennsylvania’s Board of Pardons Brandon Flood.
“As of Dec. 19, 2020, Bruce Norris, the decedent herein, had been incarcerated for approximately 45 years, largely at Graterford prison in a single cell, whereupon he was later incarcerated at SCI-Phoenix, 1200 Mokychic Drive, Collegeville, PA 19426. On Dec. 19, 2020, Bruce Norris’ application for pardon and/or clemency and/or commutation of his prison sentence was approved by defendants Commonwealth (and its Board of Pardons, in particular), Fetterman and/or Flood,” the suit said.
“As of Dec. 19, 2020, defendants Commonwealth (and its Board of Pardons), Fetterman and/or Flood were therefore responsible for the effectuation of Bruce Norris’ successful application for clemency and/or commutation and/or parole, and in particular, for effectuating his actual release from custody in SCI-Phoenix, through having an order of release and/or official pardon executed and issued by defendant Wolf to all parties hereto. As of Dec. 19, 2020, defendants knew or had reason to know that Bruce Norris was at risk of being infected with the COVID-19 virus and/or dying from the same, given that human beings incarcerated in the defendants’ prisons were catching the virus at a rate approximately three times that of the defendants’ free constituents in Pennsylvania.”
The suit added that the defendants knew or had reason to know that Bruce Norris was at risk of being infected with the COVID-19 virus and/or dying from the same, given his personal medical history, current medical condition and/or record of comorbidities.
After Dec. 19, 2020, while awaiting the defendants to process the pardon/clemency/commutation paperwork for defendant Wolf’s signature and order, Bruce Norris became infected with the COVID-19 virus while incarcerated inside a two-person cell at SCI-Phoenix, and he died on or about Jan. 30, 2021.
“Upon information and belief, Bruce Norris had been regularly incarcerated within a one-person cell, but was moved into and/or kept within a two-person cell, despite defendants’ pre-existing knowledge of his co-morbidities, his current health condition and the virulence and/or highly contagious character of the COVID-19 virus for incarcerated people in the defendants’ prisons, such as SCI-Phoenix,” the suit stated.
“At any and all times relevant, and from Dec. 19, 2020 until Jan. 30, 2021 in particular, defendants were responsible for timely effectuating Bruce Norris’ release from SCI-Phoenix but manifestly failed to do so, and the defendants’ actions and/or inactions concerning their individual and collective failure(s) to timely effectuate Bruce Norris’ release transmogrified every day of his continued incarceration into a constitutionally-impermissible, cruel and unusual punishment and/or sentence, in abrogation of the Fourth, Fifth, Eighth and/or Fourteenth Amendment(s) to the U.S. Constitution, and one manifestly bereft of substantive and/or procedural due process.”
UPDATE
On June 13, the defendants motioned to dismiss the case in its entirety, for alleged lack of subject matter jurisdiction and failure to state claims upon which relief could be granted.
“The Court lacks subject matter jurisdiction over all Section 1983 claims against the Commonwealth of Pennsylvania, which is entitled to Eleventh Amendment immunity from Counts I through VIII. The same reasoning, as explained below, applies to all of plaintiff’s claims against defendants Wolf, Fetterman and Flood in their official capacities as (former) state officials. Absent consent by the State, the Eleventh Amendment bars suits in federal court by a private party against states, state agencies and state officials in their official capacities. Eleventh Amendment immunity protects a state from suit regardless of whether the plaintiff is a citizen of that state,” the dismissal motion stated, in part.
“None of the exceptions to Eleventh Amendment immunity apply to this case. Section 1983 does not abrogate immunity and the Commonwealth has not waived immunity or consented to this action. Therefore, defendant Commonwealth of PA is entitled to Eleventh Amendment immunity. Further, Plaintiff’s claims against defendants Wolf, Fetterman, and Flood in their official capacities also are barred by Eleventh Amendment immunity.”
Besides other supposed pleading deficiencies on the level of federal law, the defendants argued that while the plaintiff alleges that defendants Wolf, Fetterman, and Flood “knew or had reason to know that Bruce Norris was at risk of being infected with the COVID-19 virus and/or dying from the same”, the plaintiff “does not allege that the defendants personally knew of any heightened risk affecting Norris in particular, when compared to any other inmate during the pandemic.”
For counts of violating 42 U.S.C. Section 1983, Monell, the Fourth, Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution, the Americans with Disabilities Act of 1990, the plaintiff is seeking damages to be determined at trial by jury in excess of $150,000, and for all other and further relief as the Court may deem just and equitable.
The plaintiff is represented by J. Conor Corcoran of the Law Office of J. Conor Corcoran, in Philadelphia.
The defendants are represented by Matthew R. Skolnik of the Pennsylvania Attorney General’s Office, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-00295
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com