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Eliot S. Sash v. the United States of America

March 31, 2011

ELIOT S. SASH, PLAINTIFF,
v.
THE UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: : Hon. Dennis M. Cavanaugh

NOT FOR PUBLICATION

OPINION

DENNIS M. CAVANAUGH, U.S.D.J.:

This matter comes before the Court upon the motion of Defendant United States of America's (the "United States") Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). No oral argument was heard under Rule 78. For the reasons stated below, the Government's motion is granted.

I. BACKGROUND*fn1

Plaintiff Eliot S. Sash ("Plaintiff") is a former federal inmate who was incarcerated at the Federal Correctional Complex in Allenwood, Pennsylvania. In this action, he seeks money damages from the United States for harms that he allegedly suffered because a Sex Offender Public Safety Factor ("Sex Offender PSF"), an internal Federal Bureau of Prisons ("BOP") designation, was not removed from his inmate file. The Sex Offender PSF resulted in Plaintiff being classified as a "low security" inmate instead of a "minimum security" inmate and caused him to be denied placement in a camp facility or on home confinement. Compl. ¶ 1.

On April 14, 2010, this Court issued an Opinion and Order dismissing Plaintiff's claims against nine BOP employees, and dismissing his claims against the United States in part. Two types of claims were permitted to proceed: (1) emotional distress claims that do not arise out of defamation, libel or slander; and (2) a negligence claim based on the failure to "properly record and maintain records pertaining to Plaintiff allowing an erroneous Sex Offender Public Safety Factor to remain in his BOP records." Sash v. United States, No. 09-2074, 2010 U.S. Dist. LEXIS 37383, at *23-26 (D.N.J. Apr. 14, 2010).

II.STANDARDOFREVIEW

Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings after the pleadings are closed. To succeed on such a motion, the moving party must show that "no material issue of fact remains to be resolved and that [the moving party] is entitled to judgment as a matter of law." Rosenau v. Unifund Corp., 538 F.3d 218, 221 (3d Cir. 2008) (quoting Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir. 1988) (internal quotation marks omitted)).

As in a motion dismiss for failure to state a claim, in deciding a motion for judgment on the pleadings, all allegations in the complaint must be taken as true and viewed in the light most favorable to the plaintiff. See Turbe v. Gov't of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991). Moreover, a court may consider only the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents if the plaintiff's claims are based upon those documents. See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993).

III. DISCUSSION

A. Negligent Infliction of Emotional Distress*fn2 In order to recover for negligent infliction of emotional distress, a plaintiff must prove one of

the following four elements: "(1) that the Defendant had a contractual or fiduciary duty toward him;

(2) that Plaintiff suffered from a physical impact; (3) that Plaintiff was in a 'zone of danger' and at risk of immediate physical injury; or (4) that Plaintiff had a contemporaneous perception of tortious injury to a close relative." Doe v. Phila. Cmty. Health Alternatives AIDS Task Force, 745 A.2d 25, 27 (Pa. Super. Ct. 2000). Moreover, "a Plaintiff who alleges negligent infliction of emotional distress must suffer immediate and substantial physical harm." Id. at 28. The Complaint does not allege that Plaintiff suffered a physical impact or ...


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