PHILADELPHIA – For the second time, the Commonwealth of Pennsylvania is pursuing 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, litigation 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.”
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.”
UPDATE
After an amended complaint was filed on July 28 (now pursuing claims against defendants Wolf, Fetterman and Flood in their individual capacities only and having withdrawn Monell-like claims against the Commonwealth), the defendants filed a renewed dismissal motion on Sept. 28 – once again contending that Eleventh Amendment immunity would bar individual claims against Wolf, Fetterman and Flood, and that the remaining claims from the plaintiff should be thrown out.
“Crucially, although plaintiff alleges that the individual defendants violated Norris’ rights under the Fourth Amendment ‘to be secure in his person against unreasonable seizure’, at no point in Count I does she specify when the alleged ‘seizure’ occurred. Moreover, even a timely ‘unreasonable seizure’ claim is not plausible as against the individual defendants. Count I must fail due to any allegation as to when such a seizure of Norris occurred. Therefore, Count I fails to allege that the individual defendants violated Norris’ Fourth Amendment rights,” according to the dismissal motion, in part.
“In conclusory fashion, plaintiff alleges in Count III that the individual defendants violated two of Norris’ Fifth Amendment rights: Freedom from double jeopardy and the Fifth’s due process clause. These claims may be easily disposed of. First, it is well-settled that the Fifth Amendment’s due process clause – unlike the Fourteenth’s, which is but one subject of Count IV – applies only to the federal government. Second, the double jeopardy clause of the Fifth Amendment, by definition, requires two separate prosecutions or sets of charges for the same offense (among other requirements). The amended complaint makes no such allegation. Indeed, it is unclear what was intended by plaintiff’s reference to ‘double jeopardy.’ To the extent plaintiff is seeking to challenge Norris’ conviction, she is barred from bringing a constitutional claim pursuant to Section 1983 if a judgment in plaintiff’s favor would demonstrate or imply the invalidity of Norris’ criminal conviction. To the extent plaintiff is alleging something other than a claim barred by Heck, her threadbare references to the Fifth Amendment do not satisfy pleading standards under Rule 8. For the above reasons, plaintiff fails to allege that any individual defendant violated Norris’ Fifth Amendment rights.
The motion added that in Count III, the plaintiff’s Eighth Amendment claim alleging “excessive bail and/or cruel and unusual punishment through deliberate indifference” could not hold water, due to there being “no possibility of liability against the individual defendants for excessive bail, given that none of them could have had any involvement in Norris’ bail determination more than 45 years ago.”
“First, invoking the Privileges and Immunities clause of the Fourteenth Amendment is a non-starter…[since] the long-acknowledged absence of authority, in and of itself, entitles the individual defendants to qualified immunity on (at an absolute minimum) this portion of Count IV. Second, with respect to the Due Process clause, it remains unclear whether plaintiff is asserting procedural or substantive due process rights. Thus, despite identifying this ambiguity in their first motion to dismiss, the individual defendants again will examine both potential theories. It appears that plaintiff has invoked substantive due process because of Count IV’s reference to the ‘shocks the conscience’ standard.’ There is no persuasive, let alone binding, authority in this Circuit which would render plaintiff’s due process claim plausible. Therefore, the individual defendants cannot be liable under either Due Process theory,” the motion went on to say.
“Finally, Count IV fails to state a plausible equal protection claim. The Equal Protection clause directs that all persons similarly situated should be treated similarly. Plaintiff, who does not allege that Norris was a member of a protected class, attempts to bring an Equal Protection ‘Class of One’ claim, as recognized in Village of Willowbrook v. Olech, 528 U.S. 562 (2000). ‘According to that theory, a plaintiff states a claim for violation of the Equal Protection clause when he ‘alleges that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” The amended complaint, including plaintiff’s exhibits, which are deemed a part of the pleading, does not allege that Norris was intentionally treated differently from other similarly situated. Instead, the Philadelphia Inquirer article appended to the complaint as Exhibit A expressly states that Norris ‘joined 13 other lifers who were all waiting for Gov. Tom Wolf to act on the recommendation’ – thus, quite far from a ‘Class of One.’ There simply is no basis for a Class of One claim under such facts. In sum, plaintiff fails to plausibly allege that any of the individual defendants – let alone all of them – violated Norris’ Fourteenth Amendment rights.”
Finally, the motion asserted that with or without qualified immunity, Count V must be dismissed, because the plaintiff “is not a proper party under the statute at issue” and Count VI failed to state a claim under the ADA.
“In the amended complaint, plaintiff has added a purported cause of action under the Civil Rights of Institutionalized Persons Act (CRIPA). Simply put, CRIPA does not bestow a private right of action to inmates for constitutional violations in state prisons (or anywhere else). Instead, Section 1997a of CRIPA confers such standing upon the Attorney General of the United States only. In other words, CRIPA was enacted primarily to ensure that the United States Attorney General has ‘legal standing to enforce existing constitutional and Federal statutory rights of institutionalized persons.’ Plaintiff is a private citizen. Therefore, because the plaintiff is not the United States Attorney General, Count V must be dismissed with prejudice. This dismissal is warranted as to the individual defendants and the Commonwealth of Pennsylvania in equal measure, with or without qualified immunity,” the motion said.
“Plaintiff sues the individual defendants under Title II of the Americans with Disabilities Act. Title II of the ADA prohibits discrimination ‘by reason of’ a qualified individual’s disability in the ‘services, programs, or activities of a public entity.’ None of the individual defendants is plausibly alleged to be ‘public entities’ within the meaning of ADA Title II. Nor could they be. In sum, plaintiff has failed to allege that defendants Wolf, Fetterman and Flood violated any of Norris’ federal rights. For this reason alone, the individual defendants are entitled to qualified immunity.”
For counts of violating 42 U.S.C. Section 1983, 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 and Karen M. Romano 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