PHILADELPHIA – A federal judge has partially dismissed counts from civil rights litigation brought by a Montgomery County man who claimed he suffered seizures, and was then denied medical care and physically assaulted while incarcerated at Curran-Fromhold Correctional Facility.
Joseph Peronace filed suit in the Philadelphia County Court of Common Pleas on Sept. 13 versus the City of Philadelphia.
“On or about May 19, 2022, the plaintiff Joseph Peronace, was incarcerated at the defendant’s prison facility, known as ‘Curran Fromhold Correctional Facility’ and located at 7901 State Road, Philadelphia, Pennsylvania, for criminal charges related to non-violent offenses. Upon the commencement of the intake process, the defendant’s medical staff had difficulty locating a vein from which blood could be drawn. Due to the inability to locate a viable vein for a blood draw, the defendant wrongfully and punitively designated the plaintiff as non-compliant during the intake process and placed him into a cell in C-block. Following the placement of the plaintiff into a jail cell, he suffered a series of three seizures, causing his legs to become numb and unresponsive,” the suit said.
“Due to the numbness and unresponsiveness of his legs, the plaintiff was unable to bear weight, ambulate or move from any position without assistance. Due to the numbness and unresponsiveness of his legs, the plaintiff was unable to ambulate or otherwise gain access to the toilet in his jail cell when he needed to relieve himself. During this time period, the plaintiff made requests on several occasions for assistance to go to the bathroom, said requests which were denied, causing the plaintiff to lose control and void urine and stool in his clothing. Despite requests for assistance, the plaintiff was forced to remain lying in his own waste for extended periods of time. On three occasions, the plaintiff’s jail cell was unlocked and unknown and unidentified individuals were permitted to enter the said jail cell and assault the plaintiff with punches and kicks.”
The suit added that the plaintiff made repeated requests to be seen by the defendant’s medical staff, requests which he said were ignored – but that he was finally transferred to Jefferson Torresdale Hospital on May 30 or May 31, 2022, where he then received medical treatment.
“At all times material and relevant to the instant complaint, the defendant acted through its employees, agents and prison guards/corrections officers under color of state law and utilized such power to compel the plaintiff to comply with all orders and directives directed to him. At all times material and relevant to the instant complaint, the defendant acted through its employees, agents and prison guards/corrections officers, under color of state law and exercised dominion and control over the plaintiff’s person, and pursuant to such power, made decisions as to when and whether the plaintiff would have access to medical care,” the suit stated.
“At all times material and relevant to the instant complaint, the defendant acted through its employees, agents and prison guards/corrections officers, under color of state law, and exercised dominion and control over the plaintiff’s person, and pursuant to such power, permitted or caused unknown and unidentified individuals to enter his jail cell and assault the plaintiff. At all times material and relevant to the instant matter, the defendant was aware of the plaintiff’s repeated requests for medical assistance and his need for such assistance and care when having significant medical issues. At all times material and relevant to the instant matter, the defendant was aware that individuals intending to assault the plaintiff should be denied to his jail cell and to his person.”
The City removed the case to the U.S. District Court for the Eastern District of Pennsylvania on Oct. 12, where the plaintiff brought an amended complaint on Nov. 6 and the defendant followed up with a motion to dismiss it on Nov. 20.
“To the extent that plaintiff intends to assert a negligence claim against the City, plaintiff’s claim is prohibited by the Torts Claims Act and its enumerated exceptions. Here, plaintiff claims for the alleged negligent failures of defendant City to provide medical care, assistance to access the toilet, a clean and sanitary jumpsuit; and in preventing unknown individuals from entering plaintiff’s jail cell. Plaintiff’s claim does not fit within any of the nine exceptions to the City’s grant of immunity under the Tort Claims Act. The nine exceptions that may impose liability on a local agency relate to: (1) Vehicle liability; (2) Care, custody or control of personal property; (3) Care, custody or control of real property; (4) Trees, traffic controls and street lighting; (5) Utility service facilities; (6) Streets; (7) Sidewalks; (8) Care, custody or control of animals; and (9) Sexual abuse. As such, plaintiff’s Count I negligence claim is prohibited by the Torts Claims Act and its enumerated exceptions and therefore must be dismissed,” per the dismissal motion.
“As a preliminary matter, to the extent that plaintiff intends to assert a ‘Civil Rights Under Section 1983 claim against the City, Section 1983 is not a claim in and of itself, but a cause of action for alleged constitutional violations. As such, plaintiff’s Count II claim is either asserting a vehicle for a cause of action rather than the claim itself, or is to be construed as a catchall for specific civil rights violations…Plaintiff’s Count II claim should additionally be dismissed for failure to plead any facts alleging a claim against defendant City. Plaintiff’s allegations for his Section 1983 claim are wholly based upon the conduct of the City’s employees. Here plaintiff’s sole allegation against defendant City is that it acted through the conduct of its employees…plaintiff’s conclusory allegations as to the conduct of its employees as plausibly alleging unconstitutional municipal action are insufficient, and seeks to hold the City of Philadelphia liable under a vicarious liability theory which is patently improper under Monell. For the above stated reasons, plaintiff’s Count II Section 1983 claim against defendant City must be dismissed for failure to plead any factual allegations.”
The City continued that because the plaintiff filed an amended complaint against the same party and with the same defects in the failure to plead, on the same claims, leave to amend would be futile and the complaint should be dismissed with prejudice.
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Karen S. Marston granted in part the City’s requested dismissal with prejudice motion, in a memorandum opinion issued on Dec. 12.
“First, the City argues that Count I, which is labeled ‘negligent, reckless, and outrageous conduct,’ is prohibited by the Pennsylvania Political Subdivision Tort Claims Act. The Court agrees. The Tort Claims Act provides that ‘no local agency shall be liable for any damages on account of any injury to a person or property caused by an act of the local agency or an employee thereof.’ That said, ‘[a] local agency or its employees may be liable for claims of negligence that fall into one of the nine enumerated exceptions under Section 8542(b) of the Tort Claims Act. These exceptions are vehicle liability; care, custody or control of personal property; real property; trees, traffic controls, and street lighting; utility service facilities; streets; sidewalks; care, custody or control of animals and sexual abuse. The conduct about which Peronace complains does not fall into any of these exceptions, and therefore, his state law claim in Count I is barred by the Tort Claims Act,” Marston said.
“In Count II, Peronace brings a claim for civil rights violations under Section 1983, arguing that the City violated, among other things, his ‘right to liberty; right to reasonable personal safety while in custody; right to medical care when in custody…right to be free from cruel and unusual punishment and…his right to substantive and procedural due process as guaranteed by the Fourth, Fifth, Eighth and Fourteenth Amendments.’ In his response to the motion to dismiss, Peronace focuses only on his Eighth Amendment right to be free from cruel and unusual punishment. Local governments and municipalities are considered persons under Section 1983. A municipality, however, ‘may not be held liable for constitutional torts under Section 1983 on a vicarious liability theory rooted in respondeat superior.’ Here, the City argues that Peronace has not alleged facts tending to suggest a municipal policy, custom or deliberate indifference caused his injuries, and instead, impermissibly seeks to hold it liable under a theory of vicarious liability. But contrary to his argument, Peronace has not ‘clearly’ identified which City policy or custom he believes is inadequate and caused the alleged violations of his Eighth Amendment rights.”
Marston added that the plaintiff “does not identify a City policy that explicitly authorized this conduct, nor has he alleged similar conduct was suffered by other prisoners, such that the Court could infer CFCF has a custom of denying prisoners access to necessary medical care, of leaving prisoners to lie in their excrement, of leaving cells unlocked, or of allowing unknown individuals to assault prisoners in their cells.”
“To the contrary, Peronace has alleged only that the City ‘owned, operated, managed, controlled and supervised the daily operations and running’ of CFCF and that it ‘acted through the conduct of [its] servants, agents, and employees.’ This is insufficient under Monell. Accordingly, the motion to dismiss is also granted as to Count II,” Marston stated.
“The City’s motion to dismiss is granted. Count I of the amended complaint is dismissed with prejudice, and Count II is dismissed without prejudice. Peronace may file a second amended complaint reasserting his Section 1983 claim to the extent he can in good faith cure the deficiencies identified in this memorandum. Any second amended complaint must include a red line identifying changes between it and the amended complaint.”
For counts of civil rights violations under 42 U.S.C. Section 1983, the plaintiff is seeking damages in excess of $50,000, plus interest, costs and attorney’s fees.
The plaintiff is represented by Jeffrey I. Zimmerman and Jeffrey Schmidt of Rovner Allen Rovner Zimmerman Sigman & Schmidt, in Feasterville.
The defendant is represented by Irene Lu of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-03943
Philadelphia County Court of Common Pleas case 230401756
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com