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decided: December 15, 1980.
DELAWARE STATE COLLEGE ET ALv.RICKS
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Rehnquist, JJ., joined. Stewart, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 262. Stevens, J., filed a dissenting opinion, post, p. 265.
[ 449 U.S. Page 252]
JUSTICE POWELL delivered the opinion of the Court.
The question in this case is whether respondent, a college professor, timely complained under the civil rights laws that he had been denied academic tenure because of his national origin.
Columbus Ricks is a black Liberian. In 1970, Ricks joined the faculty at Delaware State College, a state institution attended predominantly by blacks. In February 1973, the Faculty Committee on Promotions and Tenure (the tenure committee) recommended that Ricks not receive a tenured position in the education department. The tenure committee, however, agreed to reconsider its decision the following year. Upon reconsideration, in February 1974, the committee adhered to its earlier recommendation. The following month, the Faculty Senate voted to support the tenure committee's negative recommendation. On March 13, 1974, the College Board of Trustees formally voted to deny tenure to Ricks.
Dissatisfied with the decision, Ricks immediately filed a grievance with the Board's Educational Policy Committee (the grievance committee), which in May 1974 held a hearing and took the matter under submission.*fn1 During the pendency of the grievance, the College administration continued to plan for Ricks' eventual termination. Like many colleges
[ 449 U.S. Page 253]
and universities, Delaware State has a policy of not discharging immediately a junior faculty member who does not receive tenure. Rather, such a person is offered a "terminal" contract to teach one additional year. When that contract expires, the employment relationship ends. Adhering to this policy, the Trustees on June 26, 1974, told Ricks that he would be offered a 1-year "terminal" contract that would expire June 30, 1975.*fn2 Ricks signed the contract without objection
[ 449 U.S. Page 254]
or reservation on September 4, 1974. Shortly thereafter, on September 12, 1974, the Board of Trustees notified Ricks that it had denied his grievance.
Ricks attempted to file an employment discrimination charge with the Equal Employment Opportunity Commission (EEOC) on April 4, 1975. Under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, however, state fair employment practices agencies have primary jurisdiction over employment discrimination complaints. See 42 U. S. C. § 2000e-5 (c). The EEOC therefore referred Ricks' charge to the appropriate Delaware agency. On April 28, 1975, the state agency waived its jurisdiction, and the EEOC accepted Ricks' complaint for filing. More than two years later, the EEOC issued a "right to sue" letter.
Ricks filed this lawsuit in the District Court on September 9, 1977.*fn3 The complaint alleged, inter alia, that the College had discriminated against him on the basis of his national origin in violation of Title VII and 42 U. S. C. § 1981.*fn4 The District Court sustained the College's motion to dismiss both claims as untimely. It concluded that the only unlawful employment
[ 449 U.S. Page 255]
practice alleged was the College's decision to deny Ricks tenure, and that the limitations periods for both claims had commenced to run by June 26, 1974, when the President of the Board of Trustees officially notified Ricks that he would be offered a 1-year "terminal" contract. See n. 2, supra. The Title VII claim was not timely because Ricks had not filed his charge with the EEOC within 180 days after that date. Similarly, the § 1981 claim was not timely because the lawsuit had not been filed in the District Court within the applicable 3-year statute of limitations.*fn5
The Court of Appeals for the Third Circuit reversed. 605 F.2d 710 (1979). It agreed with the District Court that Ricks' essential allegation was that he had been denied tenure illegally. Id., at 711. According to the Court of Appeals, however, the Title VII filing requirement, and the statute of limitations for the § 1981 claim, did not commence to run until Ricks' "terminal" contract expired on June 30, 1975. The court reasoned:
"'[A] terminated employee who is still working should not be required to consult a lawyer or file charges of discrimination against his employer as long as he is still working, even though he has been told of the employer's present intention to terminate him in the future.'" Id., at 712, quoting Bonham v. Dresser Industries, Inc., 569 F.2d 187, 192 (CA3 1977), cert. denied, 439 U.S. 821 (1978).
See Egelston v. State University College at Geneseo, 535 F.2d 752 (CA2 1976); cf. Noble v. University of Rochester, 535 F.2d 756 (CA2 1976).
The Court of Appeals believed that the initial decision to terminate an employee sometimes might be reversed. The
[ 449 U.S. Page 256]
aggrieved employee therefore should not be expected to resort to litigation until termination actually has occurred. Prior resort to judicial or administrative remedies would be "likely to have the negative side effect of reducing that employee's effectiveness during the balance of his or her term. Working relationships will be injured, if not sundered, and the litigation process will divert attention from the proper fulfillment of job responsibilities." 605 F.2d, at 712. Finally, the Court of Appeals thought that a rule focusing on the last day of employment would provide a "bright line guide both for the courts and for the victims of discrimination." Id., at 712-713. It therefore reversed and remanded the case to the District Court for trial on the merits of Ricks' discrimination claims. We granted certiorari. 444 U.S. 1070 (1980).
For the reasons that follow, we think that the Court of Appeals erred in holding that the filing limitations periods did not commence to run until June 30, 1975. We agree instead with the District Court that both the Title VII and § 1981 claims were untimely.*fn6 Accordingly, we reverse.
Title VII requires aggrieved persons to file a complaint with the EEOC "within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U. S. C. § 2000e-5 (e).*fn7 Similarly, § 1981 plaintiffs in Delaware must file suit within three years of the unfavorable employment decision. See n. 5, supra. The limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending claims arising from employment
[ 449 U.S. Page 257]
decisions that are long past. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-464 (1975); see United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977).
Determining the timeliness of Ricks' EEOC complaint, and this ensuing lawsuit, requires us to identify precisely the "unlawful employment practice" of which he complains. Ricks now insists that discrimination motivated the College not only in denying him tenure, but also in terminating his employment on June 30, 1975. Tr. of Oral Arg. 25, 26, 31-32. In effect, he is claiming a "continuing violation" of the civil rights laws with the result that the limitations periods did not commence to run until his 1-year "terminal" contract expired. This argument cannot be squared with the allegations of the complaint. Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination. United Air Lines, Inc. v. Evans, supra, at 558. If Ricks intended to complain of a discriminatory discharge, he should have identified the alleged discriminatory acts that continued until, or occurred at the time of, the actual termination of his employment. But the complaint alleges no such facts.*fn8
Indeed, the contrary is true. It appears that termination of employment at Delaware State is a delayed, but inevitable,
[ 449 U.S. Page 258]
consequence of the denial of tenure. In order for the limitations periods to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure. But no suggestion has been made that Ricks was treated differently from other unsuccessful tenure aspirants. Rather, in accord with the College's practice, Ricks was offered a 1-year "terminal" contract, with explicit notice that his employment would end upon its expiration.
In sum, the only alleged discrimination occurred -- and the filing limitations periods therefore commenced -- at the time the tenure decision was made and communicated to Ricks.*fn9 That is so even though one of the effects of the denial of tenure -- the eventual loss of a teaching position -- did not occur until later. The Court of Appeals for the Ninth Circuit correctly held, in a similar tenure case, that "[the] proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." Abramson v. University of Hawaii, 594 F.2d 202, 209 (1979) (emphasis added); see United Air Lines, Inc. v. Evans, 431 U.S., at 558. It is simply insufficient for Ricks to allege that his termination "gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination." Id., at 557. The emphasis is not upon the effects of earlier employment decisions; rather, it "is [upon] whether any present violation exists." Id., at 558 (emphasis in original).
[ 449 U.S. Page 259]
We conclude for the foregoing reasons that the limitations periods commenced to run when the tenure decision was made and Ricks was notified. The remaining inquiry is the identification of this date.
Three dates have been advanced and argued by the parties. As indicated above, Ricks contended for June 30, 1975, the final date of his "terminal" contract, relying on a continuing-violation theory. This contention fails, as we have shown, because of the absence of any allegations of facts to support it. The Court of Appeals agreed with Ricks that the relevant date was June 30, 1975, but it did so on a different theory. It found that the only alleged discriminatory act was the denial of tenure, 605 F.2d, at 711, but nevertheless adopted the "final date of employment" rule primarily for policy reasons. Supra, at 255-256. Although this view has the virtue of simplicity,*fn10 the discussion in Part II of this opinion demonstrates its fallacy as a rule of general application. Congress has decided that time limitations periods commence with the date of the "alleged unlawful employment practice." See 42 U. S. C. § 2000e-5 (e). Where, as here, the only challenged employment practice occurs before the termination date, the limitations periods necessarily commence to run before that date.*fn11 It should not be forgotten that time-limitations provisions themselves promote important interests; "the period
[ 449 U.S. Page 260]
allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones." Johnson v. Railway Express Agency, Inc., 421 U.S., at 463-464.*fn12 See Mohasco Corp. v. Silver, 447 U.S. 807, 820, 825 (1980).
The EEOC, in its amicus brief, contends in the alternative for a different date. It was not until September 12, 1974, that the Board notified Ricks that his grievance had been denied. The EEOC therefore asserts that, for purposes of computing limitations periods, this was the date of the unfavorable tenure decision.*fn13 Two possible lines of reasoning underlie this argument. First, it could be contended that the Trustees' initial decision was only an expression of intent that did not become final until the grievance was denied. In support of this argument, the EEOC notes that the June 26 letter explicitly held out to Ricks the possibility that he would receive tenure if the Board sustained his grievance. See n. 2, supra. Second, even if the Board's first decision
[ 449 U.S. Page 261]
expressed its official position, it could be argued that the pendency of the grievance should toll the running of the limitations periods.
We do not find either argument to be persuasive. As to the former, we think that the Board of Trustees had made clear well before September 12 that it had formally rejected Ricks' tenure bid. The June 26 letter itself characterized that as the Board's "official position." Ibid. It is apparent, of course, that the Board in the June 26 letter indicated a willingness to change its prior decision if Ricks' grievance were found to be meritorious. But entertaining a grievance complaining of the tenure decision does not suggest that the earlier decision was in any respect tentative. The grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made.
As to the latter argument, we already have held that the pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations periods. Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229 (1976).*fn14 The existence of careful procedures to assure fairness in the tenure decision should not obscure the principle that limitations periods normally commence when the employer's decision is made. Cf. id., at 234-235.*fn15
The District Court rejected both the June 30, 1975, date and the September 12, 1974, date, and concluded that the limitations periods had commenced to run by June 26, 1974, when the President of the Board notified Ricks that he would be offered a "terminal" contract for the 1974-1975 school
[ 449 U.S. Page 262]
year. We cannot say that this decision was erroneous. By June 26, the tenure committee had twice recommended that Ricks not receive tenure; the Faculty Senate had voted to support the tenure committee's recommendation; and the Board of Trustees formally had voted to deny Ricks tenure.*fn16 In light of this unbroken array of negative decisions, the District Court was justified in concluding that the College had established its official position -- and made that position apparent to Ricks -- no later than June 26, 1974.*fn17
We therefore reverse the decision of the Court of Appeals and remand to that court so that it may reinstate the District Court's order dismissing the complaint.
Reversed and remanded.
605 F.2d 710, reversed and remanded.
JUSTICE STEWART, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.
I agree with the Court that the unlawful employment practice alleged in the respondent's complaint was a discriminatory
[ 449 U.S. Page 263]
denial of tenure, not a discriminatory termination of employment. See ante, at 257-259, and nn. 8, 9. Nevertheless, I believe that a fair reading of the complaint reveals a plausible allegation that the College actually denied Ricks tenure on September 12, 1974, the date on which the Board finally confirmed its decision to accept the faculty's recommendation that he not be given tenure.
Therefore, unlike the Court, I think Ricks should be allowed to prove to the District Court that the allegedly unlawful denial of tenure occurred on that date.*fn1 As noted by the Court, see ante, at 260, n. 13, if Ricks succeeds in this proof, his § 1981 claim would certainly be timely, and the timeliness of his Title VII claim would then depend on whether his filing of a complaint with the Delaware Department of Labor entitled him to file his EEOC charge within 300 days of the discriminatory act, rather than within the 180 days' limitation that the Court of Appeals and the District Court assumed to be applicable.*fn2
A brief examination of the June 26, 1974, letter to Ricks
[ 449 U.S. Page 264]
from the Board of Trustees, quoted by the Court, ante, at 253, n. 2, provides a reasonable basis for the allegation that the College did not effectively deny Ricks tenure until September 12. The letter informed Ricks of the Board's "intent not to renew" his contract at the end of the 1974-1975 academic year. And the letter suggested that the Board was so informing Ricks at that time only to ensure technical compliance with College and American Association of University Professors requirements in case it should later decide to abide by its earlier acceptance of the faculty's recommendation that Ricks be denied tenure. The Board expressly stated in the letter that it had "no way of knowing" what the outcome of the grievance process might be, but that a decision of the Board's Educational Policy Committee favorable to Ricks would "of course . . . supersede any previous action taken by the Board."
Thus, the Board itself may have regarded its earlier actions as tentative or preliminary, pending a thorough review triggered by the respondent's request to the Committee. The Court acknowledges that this letter expresses the Board's willingness to change its earlier view on Ricks' tenure, but considers the grievance procedure under which the decision might have been changed to be a remedy for an earlier tenure decision and not a part of the overall process of making the initial tenure decision. Ricks, however, may be able to prove to the District Court that at his College the original Board response to the faculty's recommendation was not a virtually final action subject to reopening only in the most extreme cases, but a preliminary decision to advance the tenure question to the Board's grievance committee as the next conventional stage in the process.*fn3
[ 449 U.S. Page 265]
Whether this is an accurate view of the tenure process at Delaware State College is, of course, a factual question we cannot resolve here. But Ricks lost his case in the trial court on a motion to dismiss. I think that motion was wrongly granted, and that Ricks was entitled to a hearing and a determination of this factual issue. See Abramson v. University of Hawaii, 594 F.2d 202 (CA9).
I would, therefore, vacate the judgment of the Court of Appeals and remand the case to the District Court so that it can make this determination and then, if necessary, resolve whether Title VII allowed Ricks 300 days from the denial of tenure to file his charge with the Commission.
JUSTICE STEVENS, dissenting.
The custom widely followed by colleges and universities of offering a 1-year terminal contract immediately after making an adverse tenure decision is, in my judgment, analogous to the custom in many other personnel relationships of giving an employee two weeks' advance notice of discharge. My evaluation of this case can perhaps best be explained by that analogy.
Three different reference points could arguably determine when a cause of action for a discriminatory discharge accrues: (1) when the employer decides to terminate the relationship; (2) when notice of termination is given to the employee; and (3) when the discharge becomes effective. The most sensible rule would provide that the date of discharge establishes the time when a cause of action accrues and the statute of limitations begins to run. Prior to that date, the allegedly wrongful act is subject to change; more importantly, the effective discharge date is the date which can normally be identified with the least difficulty or dispute.*fn1a
[ 449 U.S. Page 266]
I would apply the same reasoning here in identifying the date on which respondent's allegedly discriminatory discharge became actionable. See Egelston v. State University College at Geneseo, 535 F.2d 752, 755 (CA2 1976). Thus under my analysis the statute of limitations began to run on June 30, 1975, the termination date of respondent's 1-year contract. In reaching that conclusion, I do not characterize the College's discharge decision as a "continuing violation"; nor do I suggest that a teacher who is denied tenure and who remains in a school's employ for an indefinite period could file a timely complaint based on the tenure decision when he or she is ultimately discharged. Rather, I regard a case such as this one, in which a college denies tenure and offers a terminal 1-year contract as part of the adverse tenure decision, as a discharge case. The decision to deny tenure in this situation is in all respects comparable to another employer's decision to discharge an employee and, in due course, to give the employee notice of the effective date of that discharge. Both the interest in harmonious working relations during the terminal period of the employment relationship,*fn2a and the interest
[ 449 U.S. Page 267]
in certainty that is so important in litigation of this kind,*fn3a support this result.
For these reasons, I would affirm the judgment of the Court of Appeals.
Counsel FOOTNOTES
* Robert E. Williams, Douglas S. McDowell, and Daniel R. Levinson filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Deputy Solicitor General Wallace, Edwin S. Kneedler, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prager for the United States et al.; and by David M. Rabban and Victor J. Stone for the American Association of University Professors.
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IN RE CLYDEANE C., A CHILD UNDER THE AGE OF EIGHTEEN YEARS, ETC., AND ANNETTA C., RESPONDENT-APPELLANT,v.ADMINISTRATION FOR CHILDREN'S SERVICES, PETITIONER-RESPONDENT.
Order of disposition, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about April 15, 2009, insofar as appealed from as limited by the briefs, bringing up for review the fact-finding determination that respondent mother neglected the subject child, unanimously reversed, on the law and the facts, without costs, the finding of neglect vacated, and the petition dismissed.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Nardelli, J.P., McGuire, Acosta, Freedman, RomÁn, JJ.
Respondent and her 11-year-old daughter lived for three years in an apartment owned by an elderly friend, who had asked respondent to take care of him as his health deteriorated. She acted as his nurse, took him to doctor appointments, cooked for him and bathed him. Arrangements had been made for a cleaning person to clean the apartment on weekends. When the owner died at age 96, his son attempted to evict respondent. Respondent was informed by the police to go to Housing Court, and when she did the following day, the son called the police and reported that the child was alone in the apartment. A Family Court action was commenced that ultimately led to a finding of neglect.
The evidence merely established, among other things, that the apartment was cluttered with bags and boxes of legal files belonging to the owner and had a kitchen that was dirty. These conditions, however, were neither unsafe nor unsanitary (see Matter of Iyanah D., 65 AD3d 927 [2009]; Matter of Erik M., 23 AD3d 1056 [2005]). The child had adequate sleeping accommodations and was adjudged by a doctor and a juvenile officer to be clean, "well taken care of, verbal and very smart," and well-fed. Her school principal stated that the child was attending school and passing her classes, and was generally well-regarded as a student, although she sometimes had body odor and dirty clothes.
Moreover, certain Family Court findings regarding the condition of the apartment are not supported by the evidence. For instance, the court found that there were feces in the kitchen, but the officer said that she saw them in one room, which is not out of the ordinary for a family with a pet cat as was the case here. While the court found that the apartment "reeked" of urine, the caseworker stated that there was a "mild smell" of urine. In any event, a musty or urine smell is not unusual in an apartment where an aged and sick man had been living alone for many years. The caseworker also testified that only one bathroom had a clogged sink and was dirty, and there was no evidence that it was the bathroom used by the child. The mother in fact testified there was one bathroom that no one used, where the litter box was kept. Although there was evidence that the condition of the apartment was far from ideal, we find that there was insufficient evidence that the condition of the apartment was chronic and attributable to respondent, as she was not the owner of the apartment and a cleaning lady was responsible for cleaning the apartment. The condition of the premises did not constitute neglect (see Matter of Allison B., 46 AD3d 313 [2007]), and did not place the child's physical, mental or emotional state in imminent danger of impairment (see Nicholson v Scoppetta, 3 NY3d 357, 368-369 [2004]; Matter of Devin N., 62 AD3d 631 [2009]).
We also find no basis for a neglect finding in the fact that the mother left the child for a period of approximately two hours, either alone or with an adult who was known to the child and the mother, and with whom the mother had a comfortable relationship.
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March 31, 2009
CALVIN DAVIS, RICARDO ROLON, KIRK HENSON, DAVID HARVEY, JAMES BROWN, CHANDAR BINGHAM, MAURICE POPE, PLAINTIFFSv.UNITED STATES OF AMERICA, DEFENDANT
Plaintiffs, several current and former inmates who were incarcerated in the Federal Correctional Institution Schuylkill, Pennsylvania ("FCI Schuylkill"), filed a complaint against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. § 1346. The Complaint alleges negligence in the administration of the institution as well as negligent medical care of the inmates occurring during 2005 and 2006. The United States has filed a motion to dismiss based on failure to file a "certificate of merit" within sixty (60) days of the filing of the Complaint. (Dkt. 34.)*fn1 Because the certificate of merit requirement imposed by Pennsylvania Rule of Civil Procedure 1042.3 applies as substantive law to Plaintiffs' claims under the FTCA, Defendant's Motion to Dismiss will be granted, but Plaintiffs will be given leave to file an amended complaint limited to claims of negligence based upon conduct of Bureau of Prisons' employees who are not healthcare professionals.
I. Background
Plaintiffs, eight former or current inmates who were housed at FCI Schuylkill between 2005 and 2006, filed the current action in this Court on March 26, 2007. (Complaint, Dkt. 1.) The Complaint asserts that the "basis for this action is the Defendant's failure to provide adequate medical care to inmates under its supervision and control at FCI Schuylkill." (Id. at ¶ 14.)
Between 2005 and 2006, Plaintiffs became infected with Methicillin-resistant Staphylococcus Aureus ("MRSA").*fn2 (Id. at ¶ 16.) Plaintiffs allege that they "contracted MSRA because each Plaintiff was housed in a cell with or placed within close proximity to individuals who were infected with MRSA." (Id. at ¶ 19.) As a result, Plaintiffs developed "painful boils and lesions which spread throughout their bodies affecting their skin and internal organs" and that they observed "scars, abscesses, lesions and festering wounds" which caused them to seek help from prison and medical staff. (Id.)
The Complaint alleges that there was an official, but unwritten, policy and practice of:
a) Not providing medical isolation facilities for inmates;
b) Not providing adequate screening procedures for new inmates prior to admitting them to their cells;
c) Not providing medical care to inmates unless death appeared imminent;
d) Not providing and/or refusing to provide medical testing without a Court Order;
e) Refusing to acknowledge and/or denying the existence of infectious diseases at FCI Schuylkill;
f) Failing and/or refusing to provide basic sanitation for inmates; and
g) Failing to disclose and concealing the outbreak of infectious diseases at FCI Schuylkill. (Id. at ¶ 15.) In support of these assertions, Plaintiffs aver that they were each forced to care for themselves because they were "denied access to medical treatment, staff, and personnel, despite their obvious and painful abscesses, scars, lesions and festering wounds." (Id. at ¶ 22.) Plaintiffs additionally allege that FCI Schuylkill was aware of the MRSA outbreak, but that prisoners were not warned of the outbreak, were not told to refrain from contact with the infected inmates, were not told to avoid touching their own infections, and were not quarantined or kept segregated from uninfected inmates and staff. (Id. at ¶¶ 20, 23, 27.) Plaintiffs also allege that the Warden of FCI-Schuylkill and other prison administrators failed to abide by Bureau of Prisons Practice Guidelines on MRSA Containment, as a result of which Plaintiffs were infected with MRSA. (Id. at ¶ 28.)
Plaintiffs specifically allege that the FCI-Schuylkill Warden was negligent. (Id. at ¶ 38.)
When Plaintiffs' ailments were treated, Plaintiffs allege that they were initially told to treat themselves by rubbing the wounds with warm wash cloths and that the sores were "spider bites," "bedsores," "pimples," and "allergies." (Id. at ¶ 24.) As a result of the alleged improper diagnosis, Plaintiffs maintain that they were not treated in a timely manner and the MRSA infections spread through their bodies, resulting in permanent scars, continued pain, and permanent impairment of bodily functions. (Id. at ¶ 26.)
Plaintiffs' Complaint asserts jurisdiction in this Court pursuant to the Federal Tort Claims Act, 28 U.S.C.A. § 1346, 28 U.S.C.A. § 2671, and 28 U.S.C.A. § 2675. (Id. at ¶ 1.) Plaintiffs filed this action on March 26, 2007, after the claims had been presented to the Northeast Regional Office of the Federal Bureau of Prisons in June 2006, and denied in January 2007. (Id. at ¶ 2.) The Complaint includes one count, entitled "Plaintiffs' Negligence and Gross Negligence Claims Against Defendant." (Id. at ¶ 29.) Plaintiffs aver that Defendant was under a duty to exercise care in protecting the safety and well-being of Plaintiffs and that they, through agents, servants, or employees, negligently supervised FCI Schuylkill and its staff by failing to:
a) provide independent supervision and oversight of FCI Schuylkill, the warden, the inmate living conditions and medical staff and facilities;
b) adhere to Federal guidelines set up for testing, diagnosis, isolation and treatment of inmates with MRSA;
c) acknowledge that the inmate population, plaintiffs in particular, had compromised immune systems, and were especially susceptible to infections living in a closed damp, dirty prison lacking ventilation and with disease-laden showers;
d) warn inmates of the risk of contracting MRSA from inmates which the defendant knew or had reason to know had MRSA;
e) provide medical care to inmates unless imminent death was apparent; and
f) test for serious infections unless ordered by a court; and refusal to re-test inmates who were treated for MRSA. (Id. at ¶¶ 30-32.)
Defendant filed the current Motion to Dismiss on June 4, 2008. Defendant argues that Plaintiffs' failure to comply with Pa. R. Civ. P. 1042.3, by not filing a certificate of merit ("COM"), dictates that the Complaint be dismissed. (Dkt. 34.) The Motion to Dismiss has been fully briefed and is ripe for review.
A. Standard of Review
The court's task on a Rule 12(b)(6) motion to dismiss for failure to state a claim is to "determine whether, under any reasonable reading of the pleadings, the plaintiffs may be entitled to relief." Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). In doing so, all factual allegations and all reasonable inferences drawn therefrom are assumed to be true. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). "The complaint will be deemed to have alleged sufficient facts if it adequately puts the defendants on notice of the essential elements of the cause of action." Id.
The court, however, need not accept as true a complaint's "bald assertions" or "legal conclusions." In re Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997). Thus, a Rule 12(b)(6) motion does not serve to question a plaintiff's well-pled facts, but rather tests the legal foundation of the plaintiff's claims. United States v. Marisol, Inc., 725 F. Supp. 833, 836 (M.D. Pa. 1989). The Supreme Court recently abrogated its longstanding decision in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which had held that a complaint may be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." The Court retired this "no set of facts" language in favor of a new standard: a plaintiff's obligation to state a claim for relief under Rule 8(a)(2) "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). As a result of Twombly, plaintiffs must now nudge their claims "across the line from conceivable to plausible." Id. To state a claim consistent with the language of Fed. R. Civ. P. 8(a)(2), which requires only a "short and plain statement of the claim showing that the pleader is entitled to relief," a complaint must contain factual allegations sufficient enough "to raise a right to relief above a speculative level." Id. "[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008).
B. Applicability of Pennsylvania Rule of Civil Procedure 1042.3
Under Pennsylvania law, a party filing an "action based upon an allegation that a licensed professional deviated from an acceptable standard," Pa R. Civ. P. 1042.3(a) (emphasis added), must file a COM signed by the party or the party's attorney that attests to the fact that an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm.
Pa. R. Civ. P. 1042.3(a)(1) (emphasis added). If a plaintiff fails to file the required certificate within sixty (60) days of filing the complaint, defendants may file a praecipe for entry of judgment of non pros. See Pa. R. Civ. P. 1042.6. "[T]he sixty-day deadline for filing a COM will be strictly construed and not lightly excused . . . ."*fn3 Stroud v. Abington Mem'l Hosp., 546 F. Supp. 2d 238, 250 (E.D. Pa. 2008). Over sixty (60) days have elapsed since the filing of the Complaint, and Plaintiffs have not submitted a Rule 1042.3 certificate of merit.
The sole basis for Plaintiffs' only count, "Negligence and Gross Negligence," is the FTCA, 28 U.S.C.§ 1346.*fn4 (Dkt. 1.) The FTCA permits litigation against the United States "for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C.A § 1346(b); United States v. Muniz, 374 U.S. 150, 152 (1963). "The FTCA provides a remedy in damages for the simple negligence of employees of the United States to protect federal inmates." Lopez, 2008 WL 4415585, at *1 n.2 (citing Muniz, 374 U.S. at 150). "A federal district court addressing an FTCA action must apply the law of the state . . . in which the alleged tortious conduct occurred." Lopez, 2008 WL 4415585, at *13 (citing 28 U.S.C.A. § 1346(b); Toole v. United States, 588 F.2d 403, 406 (3d Cir. 1978); O'Neal v. Dep't of Army, 852 F. Supp. 327, 334-35 (M.D. Pa. 1994); Turner v. Miller, 679 F. Supp. 441, 443 (M.D. Pa. 1987)).
Since application of the law of the state is the required standard, a plaintiff pursuing a claim under the FTCA must comply with Pennsylvania substantive law. Arrington v. Inch, No. 1:05cv0245, 2006 WL 860961, at *7 (M.D. Pa. Mar. 30, 2006). The Third Circuit and numerous district courts in the Third Circuit have recognized that Rule 1042.3, and New Jersey's similar affidavit of merit statute, are substantive laws and should be applied by federal courts under federal question, supplemental, and diversity jurisdiction. See Iwanejko v. Cohen & Grigsby, P.C., 249 Fed. App'x 938, 943-44 (3d Cir. 2007) (the district court "correctly applied Rule 1042.3 as substantive state law" in a negligence claim arising under supplemental jurisdiction); Bramson v. Sulayman, 251 Fed. App'x 84, 87 n.2 (3d Cir. 2007) (finding that the application of New Jersey's affidavit of merit statute was required in a claim in which jurisdiction rested on the FTCA); Stroud, 546 F. Supp. 2d at 248 ("Federal courts in Pennsylvania have uniformly held that the COM requirement is a substantive rule of law that applies in professional liability actions proceeding in federal court."); Maruca v. Hynick, Civ. A. No. 3:06cv689, 2007 WL 675038, at *5 (M.D. Pa. Feb. 27, 2007) (finding "[t]he certificate of merit requirement of Pa. R. Civ. P. 1042.3 applies in a case pleading a claim for medical malpractice, whether the case is filed in state or federal court" in a claim arising under supplemental jurisdiction); Chamberlain v. Giampapa, 210 F.3d 154, 158-61 (3d Cir. 2000) (finding that the New Jersey affidavit of merit statute is "substantive state law that must be applied by federal courts sitting in diversity"). District courts in Pennsylvania have recognized the force of the conclusion that the COM requirement applies in FTCA actions. See Santee v. United States, Civ. A. No. 3:cv-07-2207, 2008 WL 4426060, at *3 (M.D. Sept. 30, 2008); Boyd v. United States, No. 05-2033, 2006 WL 2828843, at *5-*6 (M.D. Pa. Sept. 29, 2006); Booker v. United States, Civ. No. 07-1960, 2009 WL 90129, at *3 (M.D. Pa. Jan. 14, 2009).
In a very similar case to that pled here, the Honorable William J. Nealon, in Santee, 2008 WL 4426060, at *3, held that "[b]ased on the Third Circuit Court of Appeals decisions in Iwanejko and Chamberlain and the many District Court opinions . . . it is determined that Rule 1042.3 is substantive law to be applied in the present case." In Santee, plaintiff's action was brought pursuant to the FTCA, and averred that "the care he received from prison medical staff for his diabetes condition and resultant wounds was negligent and that as a result, he had to have multiple amputations of his lower right extremity, rendering him disabled." Santee v. United States, Civ. A. No. 3:cv-07-2207, 2008 WL 4426088, at *1 (M.D. Pa. May 8, 2008) (report and recommendation). Judge Nealon dismissed the action as Plaintiff had failed to file a COM as required by Rule 1042.3. As in Santee, Rule 1042.3 is applicable to the current claims under the FTCA.
Plaintiffs' reliance on D.V. v. Westmoreland County Children's Bureau, Civ. A. No. 07-829, 2008 WL 612744 (W.D. Pa. Mar. 3, 2008), is misplaced. In D.V., the plaintiff's claim was based on violation of First and Fourteenth Amendment rights, not negligence. Id. at *1. The D.V. court emphasized the distinction between plaintiff's constitutional claim and actions founded on state law tort principles, such as negligence. Id. ("the standards for determining a violation of the United States Constitution differ from those for determining whether a defendant has committed a tort actionable under state law"). In the current situation, Plaintiffs' claims are premised on state tort law, not constitutional law, and thus D.V. is distinguishable.
The Third Circuit's holding in Iwanejko, and the recognition of that holding as applicable to FTCA actions, compel a finding that the COM requirement under Pennsylvania Rule 1042.3 is a substantive legal requirement that applies to claims for medical malpractice or medical negligence under the FTCA. See Santee, 2008 WL 4426060, at *3; Lopez,2008 WL 4415585, at *14; Boyd, 2006 WL 2828843, at *5-*6; Booker, 2009 WL 90129, at *3. Thus, Plaintiffs' failure to file a COM requires dismissal of those claims that are based upon alleged negligence in the diagnosis and treatment of their MRSA infections.
C. Plaintiffs' Negligence Claim
Plaintiffs argue that, even if Rule 1042.3 applies to a FTCA claim alleging medical negligence, a COM is not required to the extent that the Complaint seeks recovery for "ordinary negligence" and not for medical malpractice. Plaintiffs assert that, in any event, they must "be allowed to proceed with their ordinary negligence claims." (Dkt. 38, at 7 n.2.) Defendant disputes Plaintiffs' assertion that they have presented negligence claims that fall outside the purview of the COM requirement.
"'[A] court must ask two fundamental questions in determining whether a claim sounds in ordinary negligence or medical malpractice: (1) whether the claim pertains to an action that occurred within the course of a professional relationship; and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience.'" Smith v. Friends Hosp., 928 A.2d 1072, 1075-76 (Pa. Super. Ct. 2007) (quoting Ditch v. Waynesboro Hosp., 917 A.2d 317, 321-22 (Pa. Super. Ct. 2007)). Clearly, Plaintiffs have asserted some claims that arise out of a relationship with a healthcare professional.
The Pennsylvania Superior Court in Smith determined that "where a complaint is predicated upon facts constituting medical treatment, that is, when it involves diagnosis, care and treatment by licensed professionals, the action must be characterized as a professional negligence action." Smith, 928 A.2d at 1076. Moreover, the Third Circuit has found that "[a] complaint 'sounds in malpractice' where 'the conduct at issue constituted an integral part of the process of rendering medical treatment.'" Iwanejko, 249 Fed. App'x at 944 (quoting Ditch, 917 A.2d at 322).
Paragraph fourteen (14) of Plaintiffs' Complaint asserts that "[t]he basis for this action is the Defendant's failure to provide adequate medical care to inmates under its supervision and control at FCI Schuylkill." (Dkt. 1, at ¶ 14.) Plaintiffs' Complaint proffers numerous allegations of specific breaches of professional standards. For example, Plaintiffs allege that the "treatment which was initially provided . . . was inadequate." (Id. at ¶ 25.) Plaintiffs' Complaint also alleges that "[b]ecause [Plaintiffs'] wounds were neither diagnosed nor treated in a timely or proper manner, the MRSA infections spread throughout their bodies and Plaintiffs now suffer from permanent scars, continuing pain and permanent impairment of bodily functions." (Dkt. 1, at ¶ 26.) Again, this claim, involving proper diagnosis and treatment, involves alleged deviation from standards of care applicable to healthcare professionals.
But the Complaint also alleges negligence on the part of prison officials who are not healthcare professionals. For example, the Complaint charges the Warden with negligent failure to follow BOP guidance on MRSA containment. (Id. at ¶ 28.) Plaintiffs also allege negligent failure to warn of the risks of contracting MRSA from other inmates. (Id. at ¶ 20.) Prison administrators, like the Warden, are charged with the duty of providing a reasonably safe place of confinement. Such a duty may be breached where a prison administrator allows unsanitary conditions to exist such that inmates become infected by contagious diseases. To be sure, expert testimony may be needed to show breach of the duty of care and causation. But the COM rule is not applicable in any case where expert testimony is required. It pertains only where the claim is based upon the negligence of a licensed professional. Thus, to the extent that Plaintiffs seek recovery for the negligence of prison administrators in connection with the operation of the institution, their failure to supply a COM is not fatal. See Robus v. Pennsylvania Dep't of Corrs., Civ. A. No. 04-2175, 2006 WL 2060615, at *11 (E.D. Pa. July 20, 2006).
Plaintiffs have requested that if this Court finds that a COM is applicable to the current action, only those claims for medical malpractice be dismissed. (Dkt. 38, at 7 n.2.) Plaintiffs have presented a single-count complaint in which claims of both ordinary negligence and professional negligence are interwoven. Untangling these claims would be problematic. Under the circumstances, Plaintiffs should be required to file a new pleading that is confined to claims arising from the alleged negligence of those federal employees who are not healthcare professionals. To the extent that Plaintiffs transgress this limitation, Defendant will be able to challenge the justiciability of a specific claim. Thus, Defendant's Motion to Dismiss will be granted, but Plaintiffs will be afforded the opportunity to file an amended complaint asserting negligence claims that do not involve actions of healthcare professionals.*fn5 An appropriate order follows.
NOW THIS 31st DAY OF MARCH 2009, for the reasons set forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. Defendant's Motion to Dismiss (Dkt. 34) is GRANTED.
2. Within twenty (20) days from the date of this Order, Plaintiffs shall file an amended complaint limited to claims of negligence that do not involve a breach of standards applicable to licensed healthcare professionals.
3. Failure to file an amended complaint will result in the dismissal of this action.
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By Anil Kumar, Showbiz Bites Staff Writer
Preity Zinta and Sussanne Khan's dinner date is in news. Well, this is because the two friends enjoyed a delicious dinner together last night. Te two are very close friends and their closeness was vivid when Sussanne attended Preity's wedding ceremony in Los Angeles. The two ladies are often spotted together. On Monday night (last night), Preity and Sussanne were spotted at a restaurant in Khar, Mumbai. Both were dressed casuals and looking chic.
Preity's sunglasses, she was wearing, made her more attractive. Photographers did not leave the chance of clicking the gorgeous ladies' pictures.
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- Price: $1,795 per Month ($1/sq. ft.)
- 3352 Heatherwood Trace
- City: Clarksville
- Subdivision: Meadows of Hearthstone
- County: Montgomery County
- Beds: 5
- Baths: 3½
- Type: Rental
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This Terraces of Hearthstone home is located at 233 Spring Terrace Lane in Clarksville. 1631856 was built in 2009 and has 4 bedrooms233 Spring Terrace Lane, Clarksville - MLS 1631856 Close
Rental property for rent in Clarksville, TN at 233 Spring Terrace Lane. This 4 bedroom rental property is priced at $1/sqft.
Home has it all. Beautiful hardwood floors, vaulted ceilings in the living room. Eat In kitchen is open to the living room. Looking for a little privacy? Master suite is separate from the rest of the bedrooms. Master on suite has been beautifully done.
Listing information last updated on December 5th, 2016 at 2:09am CST.
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Is this restaurant good for bar scene?
Is this a Spanish restaurant?
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We ate here the 1st night in Fajardo, and the staff and food were delicious.. The bushwhacker and my Chimichanga were so good. The staff gave us a lot of recommendations for things to do..
At first services was kind of slowly but the staff were very kind and did their best for giving us a good service. Prices are ok for the portions (kind of big portions, so maybe you want to share). Definitely, I reccomend this restaurant and would go back again.
Not a bad thing to say about the blue Iguana. The staff was friendly and the food was tasty! My hubby ordered a chicken quesadilla which he loved. I ordered the vegetarian fajitas ( it is a bit vinegary... but i like vinegar.) so i loved it!!! We took the Ferry to Culebra, upon our return we went back to...
I stayed at the Fajardo in 12 years ago. I remember eating here because the food was so delicious. The nachos are incredible, and it's right by the hotel. We stayed in Rio Grande and drove 45 min just to eat the nachos. The hostess was sweet, and we enjoyed talking with them. If you're around, I would highly recommend...
The food here was much like you'd expect from a Mexican place back home on the mainland. It was good, but I would rather be eating the local fare.
Great verde salsa and hot habanero salsa. House salsa is good as well, but 6 bucks for chips and salsa. Fajitas are great but don't get the assorted app dish. Service was excellent and they have a great bar and two pool tables. Great prices as well. You are not in Mexico so don't be cheap and expect the same...
I know you can get excellent fajitas in many places, but what I love at Blue Iguana it was the service and the chipotle spicy sauce. That add a deep extra flavor to our fajitas. Drinks were good and the server was very attentive and willing to share his personal favorite dishes. We had a great Time!
we went for lunch when staying at the hotel Fajardo Inn. it was a nice clean restaurant, with a bar area. They have a pool table and a foose table. Service was a bit slow, we were the only ones in the rest. so not sure why food took so long, but it was really good. It was a really...
We stayed at the Fajardo Inn for pleasure scuba trip and spent several evenings in the bar...food was very good. But the service we received from Jessica (bartender) was awesome. She helped us find places, suggested activities and made us feel at home!!! Even helped us with transpiration:-). She was awesome.
Great place to stay...will definitely be back!!
I went to the Blue Iguana with some friends and were blown away by the quality of the food. Many Mexican restaurants have the same bland and hot food. The Blue Iguana's chief knows how to take Mexican food and give it a whole new taste. We were there for lunch and plan to go back for dinner.
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Microsoft is making some significant changes to how it handles support for older operating systems on newer hardware — and current Skylake owners not using Windows 10 are going to find themselves without many options within 18 months.
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A new report shows that Intel's Core M performance depends a great deal on which OEM hardware you buy in the first place. While this has always been true to some extent, the gaps are significantly larger this generation.
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text: Massive Destruktion(originally the name was Massive Distortion) was formed by Rob(drums) and CJ(guitar) back in 2005 as a Heavy/Thrash Metal project. The two of them gave a basic structure to what they wanted for the band but due to personal problems CJ couldn't continue with the project leaving Rob alone. In 2007 Rob revived Massive Distortion when Bran-Chi (who briefly did vocals back in 2005) came with the idea of making a Thrash Metal band changing the name to Massive Destruktion with , PJ who was working with them on another project earlier and Carlos as the new guitar players. They started working on new material, leaving behind what Massive Distortion was for a more aggressive approach. Later they met Luis who played bass for their live shows for a while, then D'rek filled the bassist position but due to some personal difficulties he was unable to continue with Massive Destruktion, and now Angel joined the band as a full time bassist.


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...the Mariana Islands, lying 1,000 miles from Enewetak and 3,500 miles from Pearl Harbor. Against this threat, after the destruction at Truk, the Japanese hastily drew up a new defense plan, " Operation A," relying on their remaining 1,055 land-based aircraft in the Marianas, in the Carolines, and in western New Guinea and on timely and decisive intervention by a sea force, which...


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Visakhapatnam, December 20, 2005Asthra is the two-day Management Program at GVP College for PG Courses inaugurates
A two day management meet 'Asthra' is being organized by GVP College for PG Courses at Rushikonda on Thursday and Friday. Speaking a media conference on Tuesday, principal D.Dakshina Murthy and School of Management Studies director PV Sarma said that the objective of the program was to provide a platform for interaction among students of various colleges and also to keep the representatives form the industry informed of the pool of talent available in the city.
GVP College students would only organize but not participate in any of the events to ensure fair judgment in various competitions. Center Head of HSBC EDPI Private Limited Ian D Coleman and Chairman of Qatalys Group of Companies, Texas, TBS Rao would participate as guest of honor.
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|Publication number
|Publication type
|Application number
|Publication date
|Dec 8, 1992
|Filing date
|May 25, 1990
|Priority date
|May 25, 1990
|Fee status
|Publication number
|John D. Langley, Edward A. Williams
|Original Assignee
|Kappler Safety Group
|Export Citation
|BiBTeX, EndNote, RefMan
|Patent Citations (3), Referenced by (42), Classifications (34), Legal Events (8)
|External Links: USPTO, USPTO Assignment, Espacenet
This invention relates generally to composite chemical barrier fabrics and more particularly to seaming tapes and methods for forming bonded seams between pieces of such fabric.
Composite multilayer fabrics that form a barrier to passage of toxic chemicals have been developed for use in protective garments. Garments made of effective barrier materials provide safer working conditions by preventing hazardous materials from coming into contact with the worker's body. The need for protective garments has been emphasized in recent years by enactment of local, state, and federal laws and promulgation of regulations requiring their use under many circumstances.
A highly effective composite multilayer barrier fabric is disclosed in my prior U.S. Pat. No. 4,833,010, issued May 23, 1989. This fabric has a base sheet of a material such as nonwoven polypropylene that has internal void spaces, a sheet of a first multilayer film material laminated to one face of the base sheet, and a sheet of a second multilayer film laminated to the opposite face of the base sheet. The first multilayer sheet includes an inner film of ethylene vinyl alcohol with a film of nylon laminated to each face thereof and an outer film of heat sealable polyethylene. The second multilayer film has a middle film of polyvinylidene chloride with a film of ethylene vinyl acetate laminated to its inner face and a film of heat-sealable polyethylene laminated to its outer face. This composite fabric is highly effective against a wide spectrum of chemicals. In standardized tests using the ASTM F739 test method wherein the fabric is as exposed to the ASTM F1001 chemical test battery, which includes 15 chemicals representing numerous classes of compounds, no breakthrough for any of the chemicals in the test battery occurred during an eight-hour test period.
A problem which has been presented in preparing protective garments from the composite fabric described above is the difficulty encountered in forming leak-proof durable seams between pieces of the fabric. In order to provide an effective protective garment, the seams therein as well as the fabric must provide a barrier to passage of liquid or gaseous chemicals sought to be excluded. Conventional sealing tapes made up of material such as polyethylene are not fully effective when bonded to this fabric in that they fail to provide a desired barrier for many of the chemicals in the referenced test battery. In addition to forming an effective barrier, sealing tape for fabrication of garments should be readily heat-sealable and should be amenable to forming a strong and durable seam when applied to the fabric. Requirements also exist for seaming of other types of composite fabrics and for joining of such fabrics to components such as clear plastic visors and zippers in fabrication of protective garments.
This invention is directed to heat-bondable tapes for making seams between pieces of chemical barrier composite fabrics and between such fabrics and other components of protective garments and to a method of forming such seams. The seaming tapes include a first, base multilayer sheet that is usable by itself for certain less-demanding applications and a second multilayer sheet that, when laminated to and combined with the base sheet, provides an effective barrier to a wide spectrum of chemicals, giving a durable seam with the same barrier ability as is provided by the barrier fabric disclosed in my prior patent, referenced above. A sheet of polyethylene may also be disposed between the multilayered sheets to provide enhanced adhesion in forming the component sheets into a single tape.
The base multilayer sheet is made up of a stacked, laminated array of successive layers of polymeric film including an outside layer of ethylene vinyl acetate, which layer in use is disposed in contact with the fabric being seamed, a layer of polyvinylidene chloride, a second layer of ethylene vinyl acetate, and an outside layer of chlorinated polyethylene.
The second multilayer sheet, which is included in the preferred combination, includes an interior layer of ethylene vinyl alcohol sandwiched between layers of nylon or polyethylene.
Preparation of a seam between pieces of the barrier fabric may be carried out by placing the seaming tape over the fabric along the seam line with the ethylene vinyl acetate outside layer of the base tape in contact with the fabric and applying heat and pressure to obtain bonding with the fabric substrate. To obtain stronger and more durable seams, the fabric region may be stitched together, with the seaming tape covering the stitching to avoid leakage through needle holes. In addition, the seaming tape may be appplied to both sides of the fabric as well as to one side only to provide a greater barrier effect.
Seaming tapes and methods embodying the invention provide highly effective seams for protective garments, with the resulting seams showing the same barrier properties as the fabric itself, although a lesser degree of effectiveness suitable for some applications may be obtained by using only a single multilayer tape as described herein. The tapes may also be used for bonding of barrier fabric to components of protective garments such as plastic visors, zippers, and the like.
It is, therefore, an object of this invention to provide seaming tapes that, when bonded to adjacent pieces of chemical barrier fabric, produce a seam with effective barrier properties.
Another object is to provide protective garment seams that have high strength and durability.
Yet another object is to provide a method of forming such seams.
Other objects and advantages of the invention will be apparent from the following detailed description.
FIG. 1 is a top plan view showing a bonded seam embodying the invention.
FIG. 2 is an enlarged cross-sectional view showing a multilayer sheet used as the base sheet in seaming tapes embodying the invention.
FIG. 3 is an enlarged cross-sectional view showing the sheet of FIG. 2 bonded to an additional multilayer sheet.
FIG. 4 is an enlarged cross-sectional view showing the base sheet of FIG. 2 bonded to a different, additional multilayer sheet.
FIG. 5 is an enlarged cross-sectional view showing the base tape of FIG. 2 bonded to yet another different additional multilayer sheet.
FIG. 6 is a cross-sectional view showing seaming tapes embodying the invention forming a bonded joint between components of a protective garment.
Referring to FIG. 1 of the drawings, a bonded seam 10 between pieces 12 and14 of chemical barrier fabric is shown. The seam is formed by a multilayer tape 16 embodying the invention disposed so as to cover the interface 18 between the fabric pieces and bonded to the top surface thereof.
FIG. 2 shows the structure of a multilayer tape which may be used alone or in combination with a layer of polyethylene for certain less-demanding applications or, when combined with an additional multilayer tape, for providing a more complete barrier at garment seams. The tape 16 of FIG. 2 includes an upper layer 20 of chlorinated polyethylene and successive layers of ethylene vinyl acetate 22, polyvinylidene chloride 24, and ethylene vinyl acetate 26. When used in combination with a layer of polyethylene, that layer is preferably disposed on the chlorinated polyethylene side of this multilayer tape. In forming a seam, the bottom layer 26 of the tape is disposed next to the barrier fabric and over the interface between the pieces to be seamed. Multilayer composite sheet material having this structure is available from Dow Chemical Company under the designation XU 65505.06 or 65505.07. This material has been usedpreviously for specialized medical applications but is not known to have been used as a seaming tape or bonding material for joining chemical barrier fabrics.
FIG. 3 shows a preferred seaming tape 28 made up of two laminated multilayer sheet materials bonded together to provide a tape structure having a highly effective chemical barrier capability. Tape 28 includes a bottom multilayer base sheet made up of layers 20-26 having the composition given above with respect to FIG. 2. The base sheet is bonded to a second multilayer sheet 29 with a layer of polyethylene 38 being disposed between the two multilayer sheets. Upper sheet 29 includes an outer layer 30 of linear low-density polyethylene, a first layer 32 of nylon adjacent to the outer layer, a layer 34 of ethylene vinyl alcohol next to the first nylon layer, and a second nylon layer 36 adjacent to layer 34. A layer of polyethylene 38 disposed between the two multilayer sheets enhances bonding of the two multilayer sheets to one another. In addition, pigments may be readily incorporated into the polyethylene layerto provide a color as may be desired for identification purposes. A film sheet material having the structure shown for tape component 29 is available from Print Pack, Inc., under the designation Omniflex™, C44-442.
FIG. 4 shows a multilayer seaming tape 40 made up of base sheet 16 of the composition given above and a multilayer sheet 43 with a layer of polyethylene 38 being disposed between the two multilayer tapes. Sheet 43 has an upper layer 42 of linear low-density polyethylene, a middle layer 44 of ethylene vinyl alcohol and a lower layer 46 of linear low-density polyethylene. Sheet material having this structure is available from PrintPack, Inc., under the designation Omniflex™, No. C44-542.
In FIG. 5 there is shown a multilayer seaming tape 48 made up of a multilayer composite sheet 50 disposed over base sheet 16 with an intervening layer of polyethylene 38. Sheet 50 has an upper layer 52 of low-density polyethylene, a middle layer 54 of ethylene vinyl alcohol, anda lower layer 56 of low-density polyethylene. Sheet material having this structure is available from Print Pack, Inc., under the designation Omniflex™, No. C44-449.
FIG. 6 shows a bonded joint between a fabric 58 made up of polyethylene anda visor 60 of transparent polyvinyl chloride sheet material. A tape 28 of the composition shown in FIG. 3 is disposed over an overlapped region 66 between the parts being joined to provide an upper seaming tape 62 and a lower one 64.
Multilayer composites of seaming tapes having the structures described above may be prepared by extruding a layer of adhesive such as polyethylene between the base sheet and an additional multilayer sheet, immediately cooling the resulting composite material with a chill roller, and cutting the material in strips of convenient widths such as 5/8 to 1.0inch.
Bonded seams between adjacent pieces of chemical fabrics may be formed by placing the pieces in generally edge-to-edge relation disposing a seaming tape so as to cover the edges on at least one side and applying heat and pressure by means of a conventional heated-air welding machine. To providea more durable seam, it is preferred first to stitch the fabric edges together with the edge regions being placed like side to like side and then to place so as to cover all stitching holes. For maximum durability and barrier effects, seaming tape may be placed on both sides of the fabric.
The invention is further illustrated by the following specific examples.
Samples of multilayer barrier fabric of the composition given in my above-referenced prior U.S. Pat. No. 4,833,010, were seamed by placing a tape as shown and described with reference to FIG. 3, above, over adjacentedges of the barrier fabric and bonding the tape to fabric regions adjacentthe interface between fabric pieces on one side only. The seamed fabrics were then subjected to permeation testing using the ASTM F739 method, the seamed fabric being exposed to the 15 chemicals listed in the ASTM F1001 chemical test battery and to two gases, ammonia and chlorine, as specifiedby the National Fire Prevention Association for testing. Test runs were conducted in each of three cells for each of the chemicals. In all cases, the minimum detection level was one part per million or less. Tests were conducted at ambient temperature and for a duration of three hours in all cases. The results obtained are given in the following table.
__________________________________________________________________________PERMEATION TEST RESULTS(tape seam on one side of fabric) Breakthrough Time Permeation Rate Minimum (minutes) (μg/cm2 -hr) Detection Cell 1 Cell 2 Cell 3 Cell 1 Cell 2 Cell 3 (ppm)__________________________________________________________________________Acetone 4 8 4 .84 .59 1.3 0.001Acetonitrile None None None N/A N/A N/A 1.0Ammonia (gas) 8 4 16 10.2 41.0 3.9 0.001Carbon Disulfide 4 4 4 .48 .74 1.6 0.002Chlorine (gas) None None None N/A N/A N/A 1.0Dichloromethane 4 8 12 3.5 .78 .66 0.016Diethylamine None None None N/A N/A N/A 0.018Dimethylformamide None None None N/A N/A N/A 0.011Ethyl Acetate 8 8 20 .26 .77 .04 0.002Hexane 8 8 8 3.0 4.9 3.6 0.030Methanol 4 28 4 9.0 4.5 21 0.012Nitrobenzene None None None N/A N/A N/A 0.025Sodium Hydroxide (50% w/w) None None None N/A N/A N/A 1.0Sulfuric Acid (conc.) None None None N/A N/A N/A 1.0Tetrachloroethylene 40 40 None .16 .24 N/A 0.001Tetrachydrofuran 12 12 36 .42 .98 .42 0.033Toluene 28 32 28 .53 .36 .31 0.004__________________________________________________________________________
It may be seen from the foregoing table that complete prevention of permeation was obtained in some cases, while in other cases permeation occurred at varying rates.
The above series of tests was carried out for a seamed garment as describedin Example 1 except that the seaming tape was bonded to the barrier fabric across the interface between fabric pieces on both sides of the fabric. Nopermeation was observed for any of the listed chemicals; thus, a highly effective barrier is obtained at the seams.
The above examples are merely illustrative and are not to be understood as limiting the scope of the invention, which is limited only as indicated bythe appended claims.
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|Multilayer extrusion process
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|Citing Patent
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|Dec 27, 1994
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|Apr 6, 2001
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|Method of joining two or more substrates with a seam
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|Apr 3, 2003
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|Ti Group Automotive Systems, L.L.C.
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|Allergen barrier fabric
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|Puncture and abrasion resistant, air and water impervious laminated fabric
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|May 22, 2008
|Clemson University
|Method of Joining Two or More Substrates with a Seam
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|Transportable contaminated remains pouch
|May 21, 2009
|Nov 12, 2009
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|Method for forming a puncture and abrasion resistant laminated fabric and three dimensional ballistic resistant products therefrom
|Aug 6, 2008
|Feb 11, 2010
|Aaron Drake Smith
|Garment With Interior Surface Indicator
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|Mar 4, 2010
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|Splice seam
|Nov 23, 2009
|Mar 18, 2010
|Jhrg, Llc
|Puncture and abrasion resistant, air and water impervious laminated fabric
|Nov 18, 2009
|Apr 15, 2010
|Jhrg, Llc
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|Apr 20, 2010
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|Gm Global Technology Operations, Inc.
|Bipolar plate assembly with thermoplastic sealant and method therefor
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|Adnan Ezzarhouni
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|Terrell Adam J
|Flash fire and chemical resistant fabric and garments
|Jul 10, 2014
|Jul 23, 2015
|Cohesive Systems Llc
|Fabrication process for garments and other fabric products
|U.S. Classification
|428/57, 428/61, 428/516, 428/347, 428/349, 428/520, 428/476.1, 156/304.1, 428/500, 428/475.8, 428/515, 428/518, 156/304.3, 428/60, 428/58
|International Classification
|Cooperative Classification
|European Classification
|Sep 4, 1992
Owner name: KAPPLER SAFETY GROUP, ALABAMA
Free format text: ASSIGNMENT OF ASSIGNORS INTEREST.;ASSIGNORS:LANGLEY, JOHN D.;WILLIAMS, EDWARD A.;REEL/FRAME:006289/0186
Effective date: 19900518
|Jun 10, 1996
|Fee payment
Year of fee payment: 4
|Jul 4, 2000
|Maintenance fee reminder mailed
|Aug 7, 2000
|Fee payment
Year of fee payment: 8
|Aug 7, 2000
|Surcharge for late payment
|Jun 6, 2003
Owner name: KAPPLER, INC., ALABAMA
Free format text: CHANGE OF NAME;ASSIGNOR:KAPPLER SAFETY GROUP, INC.;REEL/FRAME:013712/0694
Effective date: 20021213
|May 4, 2004
|Fee payment
Year of fee payment: 12
|Jul 5, 2005
Owner name: WACHOVIA BANK, NATIONAL ASSOCIATION, GEORGIA
Free format text: SECURITY AGREEMENT;ASSIGNOR:KAPPLER, INC.;REEL/FRAME:016216/0317
Effective date: 20050630