Opinion
No. 2090 C.D. 2012
09-04-2013
Demetrius Allen, Appellant v. Mr. Gains (Paint Supervisor)
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Demetrius Allen appeals, pro se, from the October 25, 2012, order of the Court of Common Pleas of Erie County (trial court), which granted the motion for summary judgment filed by the Commonwealth of Pennsylvania (Commonwealth) on behalf of Mr. Gains, a paint supervisor for the Department of Corrections. We affirm.
Allen, an inmate at the State Correctional Institution at Albion, filed a complaint on July 13, 2011, for personal injuries, alleging that Mr. Gains was responsible in his individual capacity for personal negligence under 42 U.S.C. §1983. Allen claimed that Mr. Gains did not follow protocol when he failed to ensure that "wet paint" signs were posted in a freshly painted room. Allen entered the area, unaware of the wet paint, and suffered permanent injury to his left eye when paint dripped into it. Allen claims he has suffered a near loss of vision and that the injury requires him to wear glasses. (Compl. at 1-2.)
Section 1983, 42 U.S.C. §1983, provides:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
In response to the complaint, Mr. Gains, represented by the Commonwealth, filed a motion for summary judgment, arguing that Allen failed to set forth a cause of action for which relief could be granted. Allen then filed a "motion for summary judgment in opposition." Allen alleged for the first time in this motion that Mr. Gains acted with "deliberate indifference" in failing to post "wet paint" signs and that this conduct violated Allen's right to be free of cruel and unusual punishment pursuant to the Eighth Amendment of the United States Constitution. (C.R., Item 31 at 2.)
Thereafter, the trial court granted Mr. Gains' motion for summary judgment. In its opinion, the trial court observed that Allen's complaint did not contain any allegations of an Eighth Amendment violation and Allen did not seek to amend his complaint to add this allegation. Moreover, even if Allen had properly raised an Eighth Amendment violation, this claim was without merit. The trial court also concluded that Mr. Gains was entitled to sovereign immunity and that none of the exceptions to immunity contained in section 8522(b) of the Judicial Code, 42 Pa. C.S. §8522(b), applied. This appeal followed.
Our scope of review of a trial court order granting summary judgment is plenary. This court will reverse the trial court's order only if we determine that it committed an error of law or an abuse of discretion. Jones v. Southeastern Pennsylvania Transportation Authority, 565 Pa. 211, 216-17, 772 A.2d 435, 438 (2001).
Allen initially argues that the trial court's October 25, 2012, order is internally contradictory. Specifically, the order grants the motion for summary judgment "filed on behalf of the [d]efendant [Mr. Gains]." (Trial Ct. Order, 10/25/12, at 1.) However, the order also states that "[d]efendant has failed to raise a genuine issue of material fact that would defeat the Commonwealth's Motion." Id. (emphasis added). The trial court's order and its supporting opinion state that the motion for summary judgment filed on behalf of Mr. Gains is granted. Although the order stated that "defendant" failed to raise a genuine issue of material fact, the balance of the order and opinion written in support thereof definitively states that Allen failed to raise an issue of a material fact. We conclude that the trial court's use of the word "defendant" was a harmless typographical error.
Allen next asserts that the trial court erred in granting Mr. Gains' motion for summary judgment. Summary judgment is properly granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa. R.C.P. No. 1035.2. We review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact are resolved against the moving party. Schnupp v. Port Authority of Allegheny County, 710 A.2d 1235, 1237 (Pa. Cmwlth. 1998).
In his complaint, Allen asserted that Mr. Gains' failure to ensure that "wet paint" signs were posted amounted to negligence and that such was a violation of 42 U.S.C. §1983. (Compl. at 1.) Negligence, however, cannot support a section 1983 claim. See Tristani v. City of Pittsburgh, 755 A.2d 52, 56 (Pa. Cmwlth. 2000) (concluding that jury's determination that police officer acted negligently was insufficient to support a section 1983 claim).
Allen also alleges that Mr. Gains was "deliberately indifferent" by failing to have "wet paint" signs posted, resulting in cruel and unusual punishment in violation of Allen's rights under the Eighth Amendment to the United States Constitution. However, Allen first raised this allegation in his "motion for summary judgment in opposition" and did not seek to amend his complaint in accordance with Pa. R.C.P. No. 1033.
The Eighth Amendment states that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII.
Pa. R.C.P. No. 1033 provides that "[a] party, either by filed consent of the adverse party or by leave of court, may at any time . . . amend his pleading." --------
Even if we were to consider Allen's claim, we would conclude that the trial court properly granted Mr. Gains' motion for summary judgment. To succeed on a claim that prison conditions violate the Eighth Amendment, Allen must fulfill objective and subjective requirements. Neely v. Department of Corrections, 838 A.2d 16, 20 n.6 (Pa. Cmwlth. 2003). "[T]he conditions must be 'sufficiently serious' from an objective point of view meaning that they involve denial of the minimum civilized measure of life's necessities . . . ." Id. (citation omitted). Subjectively, it must be shown that the prison official acted with "deliberate indifference." Id. (citation omitted). Objectively, Allen's contention that Mr. Gains failed to post a "wet paint" sign does not arise to a deprivation of life's minimal necessities. See id. at 20 (inmate's alleged deprivation of having to contribute to medical care was not a deprivation of life's necessities).
We also agree with the trial court that Allen's negligence claim does not fall within any of the exceptions to sovereign immunity. In accordance with Section 2310 of the Statutory Construction Act of 1972, 1 Pa. C.S. §2310, the Commonwealth and its employees acting within the scope of their duties are immune from suit except where the legislature specifically provides otherwise. Heicklen v. Hoffman, 761 A.2d 207, 209 & n.6 (Pa. Cmwlth. 2000).
To the extent that Allen argues that the dripping paint was a dangerous condition of the realty, we agree with the trial court that the real property exception does not apply. Section 8522(b)(4) of the Judicial Code, 42 Pa. C.S. §8522(b)(4), provides an exception to sovereign immunity for "[a] dangerous condition of Commonwealth agency real estate . . . including Commonwealth-owned real property . . . ." However, "[f]or an injury to be caused by a 'dangerous condition of the real estate' and fall within the real estate exception, the actual defect or flaw in the real estate itself must cause the injury, not some substance on the real property such as ice, snow, grease, or debris, unless such substances are there because of a design or construction defect." Raker v. Pennsylvania Department of Corrections, 844 A.2d 659, 662 (Pa. Cmwlth. 2004) (citation omitted). Dripping paint is not a "dangerous condition" that falls within the real estate exception to sovereign immunity.
Finally, we address Allen's claim that Mr. Gains, a Commonwealth employee acting within his capacity as a paint supervisor, was negligent in failing to ensure that "wet paint" signs were posted. In Kline v. Pennsylvania Mines Corporation, 547 A.2d 1276, 1278 (Pa. Cmwlth. 1988), this court concluded that "allegations of the Department's negligent inspection and regulatory enforcement constitute 'negligent policies or activities' and not circumstances encompassed by the exception to sovereign immunity . . . ." Similarly, Allen's claim that Mr. Gains' failure to follow protocol and ensure that "wet paints" signs were posted only amounts to negligent inspection and is not an exception to sovereign immunity.
The trial court did not err in granting Mr. Gains' motion for summary judgment. Accordingly, we affirm the trial court's order.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 4th day of September, 2013, we hereby affirm the October 25, 2012, order of the Court of Common Pleas of Erie County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge