ROBINSON v. BEARD et al

Filing 78

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE RONALD L. BUCKWALTER ON 11/13/14. 11/14/13 ENTERED AND COPIES E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HARVEY MIGUEL ROBINSON,
Plaintiff,
v.
JEFFREY BEARD, et al.
Defendants.

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CIVIL ACTION

NO. 08-3156

MEMORANDUM

BUCKWALTER, S. J.

November 13, 2013

Currently pending before the Court is a Partial Motion to Dismiss Plaintiff’s Amended
Complaint by Defendants Jeffrey A. Beard, David DiGuglielmo, Myron Stanishefski, Francis
Beretsky, William Wilcox, and Bryan Toms (collectively, the “Commonwealth Defendants”).
For the following reasons, the Motion is granted in part and denied in part.
I.

FACTUAL BACKGROUND
According to the facts set forth in the Amended Complaint, Plaintiff Harvey Miguel

Rodriguez was an inmate within the “J Block” section of the State Correctional Institution
(“SCI”) at Graterford. (Am. Compl. ¶ 16.) J Block is a restricted housing unit (“RHU”) where
all inmates are subject to administrative segregation and, in most cases, require correctional
officers to escort them when moving outside of their cells. (Id.)
On July 3, 2006, Plaintiff was scheduled to attend the law library located within J Block
at approximately 7:00 a.m. (Id. ¶ 17.) At that time, Defendant Bryan Toms, a correctional

officer, approached Plaintiff’s cell door to escort Plaintiff to the library. (Id. ¶ 18.) Plaintiff told
Toms that he required several more minutes to wash up and prepare himself. (Id.) When Toms
returned to escort Plaintiff, but before he reached Plaintiff’s cell, the cell door opened. (Id. ¶ 19.)
Plaintiff stepped into the cell doorway and asked Toms why the door was opened, to which Toms
replied, “to take you to the library, get dressed.” (Id.) While Plaintiff was bending down to put
on his shoes, Toms suddenly grabbed Plaintiff’s upper body and pulled him out of the cell and
into the tier area of J Block. (Id. ¶ 20.) At that time, Plaintiff and Toms were alone. (Id. ¶ 18.)
Toms proceeded to hold Plaintiff by the throat with one hand while continually punching
Plaintiff in the face and head. (Id. ¶ 21.) The punching continued for a period of time, during
which Toms repeatedly stated, “go down” after every strike. (Id. ¶ 21.)
At that point, Defendants William Wilcox and Francis Beretsky came running down the
B-Wing tier of J Block and immediately began punching and kicking Plaintiff while wrestling
him to the ground, finally handcuffing Plaintiff behind his back. (Id. ¶ 22.) Toms and Beretsky
then continued to kick and punch Plaintiff as he was handcuffed and lying on the ground. (Id. ¶
23.) Plaintiff was then picked up by several correctional officers and confined in the shower area
located in B-Wing. (Id. ¶ 24.)
After waiting in the shower for approximately thirty minutes, correctional officers
escorted Plaintiff to the medical infirmary located in Graterford, where he was examined by two
nurses and a physician, Dr. Felipe Arias. (Id. ¶ 26.) The medical staff completed a medical
incident report and took pictures of almost all of Plaintiff’s visible injuries. (Id.) During the
examination, Plaintiff reported pain in his head, face, eye, ear, neck, shoulders, and back, as well
as blurred vision and various abrasions. (Id. ¶ 27.)
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At approximately 1:30 p.m. on the same day, Plaintiff received two DC-141 misconduct
reports—one written by Defendant Joseph Frushon and one written by Defendant Toms—
charging him with assault for purportedly threatening an employee and refusing a direct order
based on the above described events. (Id. ¶ 28.) According to the reports, Plaintiff was being
escorted to the law library by both Toms and Frushon and was able to “free his hand” from his
cuffs in order to “swing[] his closed right fist repeatedly at Toms.” (Id. ¶ 29.) The reports also
accused Plaintiff of threatening Toms and refusing an order. (Id.)
From the time of the above-mentioned assault to the present, Plaintiff has submitted
numerous medical sick call slips and has been scheduled from many “doctor line” call outs.
(Id. ¶ 31.) In addition, he has experienced daily throbbing pain in his head and neck, as well as
blurred vision. (Id.) He has reported and continues to report these conditions to the Graterford
medical staff. (Id. ¶ 32.) Nonetheless, Graterford medical staff have denied most, if not all, of
Plaintiff’s requests for medical treatment, aside from occasionally providing Plaintiff with
ibuprofen. (Id. ¶ 33.) Based on these denials, Plaintiff submitted an inmate grievance against
Defendants, including Dr. Arias, in accordance with Graterford policy. (Id. ¶ 34.) Defendant
Julie Knauer was assigned to investigate Plaintiff’s grievances, but denied both his grievances
and his requests for specialty medical treatment. Accordingly, Plaintiff filed a second level
appeal to Superintendent David DiGuglielmo, who responded by upholding Defendant Knauer’s
decision. (Id. ¶ 36.)
During the first week of October 2006, Plaintiff began experiencing severe debilitating
problems with his nervous system, causing his fingertips to go numb. (Id. ¶ 37.) By the end of
October, the numbness, tingling, and pain spread to his palms, forearms, and biceps. (Id. ¶ 38.)
3

Plaintiff reported these problems to prison officials via sick call slips, medical visits, and written
memoranda. (Id.) On November 1, 2006, Plaintiff separately sent Defendants DiGuglielmo and
Knauer memoranda informing them of the aforementioned problems—which he believed were
due to nerve damage as a result of his assault by Toms, Wilcox, and Beretsky—and requesting a
CT scan and specialist treatment. (Id. ¶ 39.) No response was forthcoming other than the return
of his memoranda with stamps marked “RECEIVED” by the medical department and by the
Superintendent’s office. (Id. ¶ 40.)
On November 20, 2006, Defendant Myron Stanishefski wrote to Plaintiff stating, “I have
received your medical records. There is numerous documentation of your request for CAT scan
and MRI. However, our medical exams and x-rays have been negative. Your request to be seen
by a specialist and to receive an MRI or CAT scan is denied at this time.” (Id. ¶ 41.)
Nonetheless, Plaintiff continued to submit sick call slips describing his symptoms. (Id. ¶ 42.)
Finally, on December 1, 2006, Dr. Arias informed Plaintiff that he was approving and sending
Plaintiff for an MRI of his upper spinal column. (Id. ¶ 43.) Thereafter, on December 26, 2006,
Plaintiff was taken to a local hospital and had an MRI done of his upper spinal column (neck).
(Id. ¶ 45.) Ultimately, on December 30, 2006, Dr. Arias spoke with Plaintiff during a sick call
visit, informed him that the MRI showed the Plaintiff had two ruptured disks and a fractured
vertebra, and indicated that Plaintiff would be scheduled for a doctor line visit to discuss the MRI
results. (Id. ¶ 46.) Dr. Arias further advised Plaintiff that he ordered additional tests to measure
any nerve damage. (Id.)
Plaintiff continued to submit sick call slips and, during his sick call visits, he complained
of a worsening nervous system condition. (Id. ¶ 47.) On February 20, 2007, Dr. Arias informed
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Plaintiff that tests to measure nerve damage were approved. (Id. ¶ 48.) Subsequently, on March
29, 2007, Plaintiff was finally taken to a private physician, who performed nerve conduction
studies. (Id. ¶ 49.)
The following day, Plaintiff spoke directly with Defendant DiGuglielmo regarding his
worsening nervous system problems, and DiGuglielmo assured Plaintiff that he would
investigate his concerns. (Id. ¶ 50.) On April 10, 2007, Plaintiff again spoke directly to
DiGuglielmo to express concerns over the status of his physical condition and to again request
medical treatment. (Id. ¶ 51.) In addition, Plaintiff requested the aid of a plastic chair for resting
on while in the shower and yard. (Id.) DiGuglielmo again agreed to look into it. (Id.)
Plaintiff continued to submit sick call slips to request the results of his nerve conduction
study tests. (Id. ¶ 52.) Eventually, Plaintiff was informed that he, in fact, had nerve damage and
that he would be scheduled to speak to Dr. Arias. (Id.) When Plaintiff brought all of his requests
to the attention of Dr. Arias during ensuing sick call visits, however, the doctor denied all
requests for medical treatment beyond the provision of ibuprofen. (Id. ¶ 54.)
Via letter dated July 30, 2007, Plaintiff wrote to Defendant Jeffrey Beard, Secretary of the
Pennsylvania Department of Corrections, regarding the failure to address his worsening medical
condition and to make Beard aware of the assault. (Id. ¶ 55.) Moreover, Plaintiff requested
initial reviews on July 5, 2006, July 11, 2006, July 21, 2006, and July 31, 2006. (Id. ¶ 57.) He
also sought both second level appeals and final reviews of the initial grievances/complaints. (Id.)
Plaintiff commenced the current federal action in July 2008 against Jeffrey Beard, former
secretary of Pennsylvania Department of Corrections; former Correctional Health Care
Administrators Jule Knauer and Myron Stanishefski; former Superintendent David DiGuglielmo;
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Prison Health Services employee Dr. Felipe Arias; and Corrections Officers Bryan Toms, Francis
Beretsky, William Wilcox, and Joseph Frushon. The Court granted Defendants DiGuglielmo
and Stanishefski’s joint Motion to Dismiss on October 1, 2008. Subsequently, on July 22, 2009,
the Court granted Defendant Beard’s and Defendant Arias’s Motions to Dismiss. Following an
extended discovery period, Plaintiff requested and was granted leave to file an Amended
Complaint. Plaintiff filed his current Amended Complaint on September 11, 2013, setting forth
the following causes of action: (1) violation of the Eighth and Fourteenth Amendments of the
United States Constitution under 42 U.S.C. § 1983; (2) assault and battery; (3) intentional
infliction of emotional distress; (4) negligent infliction of emotional distress; and (5) negligence.
On October 7, 2013, the Commonwealth Defendants moved for partial dismissal of this
Amended Complaint pursuant to both Federal Rule of Civil Procedure 12(b)(1) and Federal Rule
of Civil Procedure 12(b)(6). Plaintiff filed a Response on October 31, 2013. The Court now
turns to consideration of the present Motion.
II.

STANDARDS OF REVIEW
A.

Rule 12(b)(1)

A motion to dismiss under Federal Rule of Civil Procedure12(b)(1) challenges the power
of a federal court to hear a claim or a case. Gould Elecs., Inc. v. United States, 220 F.3d 169,
178 (3d Cir. 2000). When presented with a Rule 12(b)(1) motion, the plaintiff “will have the
burden of proof that jurisdiction does in fact exist.” Petruska v. Gannon Univ., 462 F.3d 294,
302 n.3 (3d Cir. 2006). There are two types of Rule 12(b)(1) motions. A “facial” attack assumes
that the allegations of the complaint are true, but contends that the pleadings fail to present an
action within the court’s jurisdiction. Mortenson v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884,
6

891 (3d Cir. 1977). If the complaint is deficient as pled, the court should grant leave to amend
before dismissing it with prejudice. Shane v. Fauver, 213 F.3d 113, 116–17 (3d Cir. 2000). A
“factual” attack, on the other hand, argues that, while the pleadings themselves facially establish
jurisdiction, one or more of the factual allegations is untrue thereby causing the case to fall
outside the court's jurisdiction. Mortenson, 549 F.2d at 891. In such a case, “no presumptive
truthfulness attaches to plaintiff’s allegations” and the court must evaluate the merits of the
disputed allegations because “the trial court’s . . . very power to hear the case” is at issue. Id.
A motion to dismiss pursuant to the Eleventh Amendment—as in the present case— is
properly reviewed under Federal Rule of Civil Procedure 12(b)(1). Blanciak v. Allegheny
Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996). Such a motion is a “facial” challenge. See,
e.g., Scott v. Commonwealth Dep’t of Public Welfare, No. Civ.A.02-3799, 2003 WL 22133799,
at *2 (E.D. Pa. Aug. 28, 2003); Nelson v. Commonwealth of Pa. Dep’t of Public Welfare, 244 F.
Supp. 2d 382, 386 (E.D. Pa. 2002). Accordingly, when presented with an Eleventh Amendment
challenge, the court “must accept the complaint’s allegations as true” and draw all reasonable
inferences in favor of the plaintiffs. Scott, 2003 WL 22133799 at *2 (quoting Turicentro, S.A. v.
Am. Airlines Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002)).
B.

Rule 12(b)(6)

Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has
not stated a claim upon which relief can be granted. Fed. R. Civ. P.12(b)(6); see also Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007), the United States Supreme Court recognized that “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
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formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Following these
basic dictates, the Supreme Court, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), subsequently
defined a two-pronged approach to a court’s review of a motion to dismiss. “First, the tenet that
a court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678. Thus, although “Rule 8 marks a notable and
generous departure from the hyper-technical, code-pleading regime of a prior era . . . it does not
unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at
678–79.
Second, the Supreme Court emphasized that “only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 679. “Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
A complaint does not show an entitlement to relief when the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct. Id.; see also Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 232–34 (3d Cir. 2008) (holding that: (1) factual allegations of
complaint must provide notice to defendant; (2) complaint must allege facts suggestive of the
proscribed conduct; and (3) the complaint’s “‘factual allegations must be enough to raise a right
to relief above the speculative level.’” (quoting Twombly, 550 U.S. at 555)).
Notwithstanding these new dictates, the basic tenets of the Rule 12(b)(6) standard of
review have remained static. Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-626, 2008
WL 2779079, at *2 (W.D. Pa. July 15, 2008). The general rules of pleading still require only a
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short and plain statement of the claim showing that the pleader is entitled to relief and need not
contain detailed factual allegations. Phillips, 515 F.3d at 233. Further, the court must “accept all
factual allegations in the complaint as true and view them in the light most favorable to the
plaintiff.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the
court must “determine whether, under any reasonable reading of the complaint, the plaintiff may
be entitled to relief.” Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).
III.

DISCUSSION
The Commonwealth Defendants1 move to partially dismiss the Amended Complaint

against them on the following grounds: (1) the Commonwealth Defendants, in their official
capacities, are not “persons” subject to liability under § 1983 and, thus, any such suit against
them is barred by the Eleventh Amendment; (2) the Eleventh Amendment bars Plaintiff’s claims
against the Commonwealth Defendants in their individual capacities;2 (3) sovereign immunity
bars Plaintiff’s claims against the Commonwealth Defendants under Pennsylvania common law.
The Court addresses each argument individually.3

1

Defendants Arias, Knauer, and Frushon are not parties to the present Motion. Notably,
however, the Court granted Defendant Arias’s Motion to Dismiss with prejudice on July 22,
2009. Moreover, Defendants Knauer and Frushon were never served with either the original
Complaint or the Amended Complaint, meaning they are not proper parties to the action.
2

It remains unclear whether the Commonwealth Defendants are seeking dismissal of the
§ 1983 claims to the extent they are asserted against Defendants Toms, Wilcox, and Beretsky in
their individual capacities. In fact, their proposed order seems to concede that these claims
remain viable. Plaintiff, however, sets forth a response to such an argument in his opposition
brief as if it were raised by Defendants. For purposes of clarity and comprehensiveness, the
Court will briefly address this contention.
3

Defendants also argue that: (1) to the extent Plaintiff is alleging an Eighth Amendment
deliberate indifference claim against Commonwealth Defendants, it must fail; and (2) Plaintiff’s
substantive due process claim must fail. Plaintiff’s Response in Opposition, however, explicitly
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A.

Whether the Commonwealth Defendants, in their Official Capacities, Are
Subject to Liability Under § 1983

The Commonwealth Defendants first argue that to the extent Plaintiff sues them in their
official capacities, the Eighth and Fourteenth Amendment claims must be dismissed under
Federal Rule of Civil Procedure 12(b)(1). Specifically, they note that a plaintiff may only bring a
section 1983 action if he alleges that a “person” acting under color of state law deprived him of
rights, privileges, or immunities secured by the Constitution or laws of the United States. 42
U.S.C. § 1983. They further reason that “[t]he Commonwealth defendants are Commonwealth
employees . . . . Because of their status, Commonwealth defendants are not ‘person[s]’ subject to
liability for damages under § 1983 in their official capacities.” (Defs.’ Mem. Supp. Mot. Dismiss
5.)
Defendants’ argument rings true. The United States Supreme Court has recognized the
difference between official-capacity and personal capacity lawsuits as follows:
[O]fficial-capacity suits “‘generally represent only another way of pleading an action
against an entity of which an officer is an agent.”’ . . . A suit against a state official
in her official capacity therefore should be treated as a suit against the State . . . .
Indeed, when an official sued in this capacity in federal court dies or leaves office,
her successor automatically assumes her role in the litigation . . . . Because the real
party in interest in an official-capacity suit is the governmental entity and not the
named official, “the entity’s ‘policy or custom’ must have played a part in the
violation of federal law.” . . . For the same reason, the only immunities available to

states that “[i]n adherence to the prior orders of this Court, Plaintiff is not attempting to reassert
or allege a new Eighth Amendment indifference claim. Likewise, Plaintiff is not attempting to
assert a substantive due process claim under the Fourteenth Amendment.” (Pl.’s Resp. Opp’n
Mot. Dismiss 2 n.2.)
The Court presumes that this concession applies equally to the claims against Defendants
DiGuglielmo, Stanishefski, and Beard since the Court has already dismissed Plaintiff’s claims
against them with prejudice. Indeed, Plaintiff’s proposed order suggests that Defendants’ Motion
as to these individuals should be granted. As the Amended Complaint cannot reassert the
dismissed claims, these Defendants are deemed to no longer be part of this action.
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the defendant in an official-capacity action are those that the governmental entity
possesses.
Personal-capacity suits, on the other hand, seek to impose individual liability upon
a government officer for actions taken under color of state law. Thus, “[o]n the
merits, to establish personal liability in a § 1983 action, it is enough to show that the
official, acting under color of state law, caused the deprivation of a federal right.”
. . . While the plaintiff in a personal-capacity suit need not establish a connection to
governmental “policy or custom,” officials sued in their personal capacities, unlike
those sued in their official capacities, may assert personal immunity defenses such
as objectively reasonable reliance on existing law.
Hafer v. Melo, 502 U.S. 21, 25 (1991) (emphasis in original) (citations omitted). Thus, as a
general rule, an official-capacity suit is merely another way of pleading an action against an
entity of which an officer is an agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985). Such a
suit is properly treated as a suit against the governmental entity itself. Id. at 166.
To that end, the United States Supreme Court has expressly held that the phrase “person”
in 42 U.S.C. § 1983 was not meant to include state officials in their official capacities. Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 70–71 (1989). The Court noted that it is wellestablished that, pursuant to the Eleventh Amendment,4 “an unconsenting State is immune from
suits brought in federal courts by her own citizens as well as by citizens of another State.”
Edelman v. Jordan, 415 U.S. 651, 662–663 (1974). “[F]or over a century now, [the Supreme
Court has] made clear that the Constitution does not provide for federal jurisdiction over suits
against nonconsenting States.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000) (citing

4

“The Eleventh Amendment renders the States immune from ‘any suit in law or equity,
commenced or prosecuted . . . by Citizens of another State, or by Citizens or Subjects of any
Foreign State.’” Tennessee v. Lane, 541 U.S. 509, 517 (2004). Although the Eleventh
Amendment expressly refers to suits by citizens of “another State,” the Supreme Court has
repeatedly held that this immunity “applies to unconsented suits brought by a State’s own
citizens.” Id.
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College Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999);
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996)). Thus, consistent with the notion that “a
suit against a state official in his or her official capacity is not a suit against the official but rather
is a suit against the official’s office,” the Supreme Court has held that the Eleventh Amendment
also precludes suits against state officials in their official capacities. Will, 491 U.S. at 70–71.
In an effort to avoid this Eleventh Amendment bar, Plaintiff invokes an exception set
forth by the Supreme Court in Ex parte Young, 209 U.S. 123 (1908). In Young and its progeny,
the Supreme Court held that “a state official in his or her official capacity, when sued for
injunctive relief, would be a person under § 1983 because ‘official-capacity actions for
prospective relief are not treated as actions against the State.’” Will, 491 U.S. at 71 n.10 (citing
Graham, 473 U.S. at 167, n.14; Young, 209 U.S. at 159–60). Therefore, a suit for prospective
equitable relief challenging the constitutionality of a state official’s action does not constitute a
lawsuit against the State and, thus, does not violate the Eleventh Amendment. Doe v. Div. of
Youth & Family Servs., 148 F. Supp. 2d 462, 484 (D.N.J. 2001) (citing Death Row Prisoners of
Pa. v. Ridge, 948 F. Supp. 1258, 1265 (E.D. Pa. 1996) (quoting Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984))). This doctrine ensures that state officials do not use the
Eleventh Amendment as a method for “avoiding compliance with federal law.” P.R. Aqueduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).
This exception to the Eleventh Amendment, however, is a very narrow one: “It applies
only to prospective relief, does not permit judgments against state officers declaring that they
violated federal law in the past, . . . and has no application in suits against the States and their
agencies which are barred regardless of the relief sought.” Id. The Supreme Court has reasoned
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that:
Both prospective and retrospective relief implicate Eleventh Amendment concerns,
but the availability of prospective relief of the sort awarded in Ex parte Young gives
life to the Supremacy Clause. Remedies designed to end a continuing violation of
federal law are necessary to vindicate the federal interest in assuring the supremacy
of that law . . . . But compensatory or deterrence interests are insufficient to
overcome the dictates of the Eleventh Amendment.
Green v. Mansour, 474 U.S. 64, 68–69 (1985); see also Christ the King Manor, Inc. v. Sec’y U.S.
Dept. of Health & Human Servs., 730 F.3d 291, 318 (3d Cir. 2013) (“Plaintiffs can therefore
bring suit against state officers, but their remedies are limited to those that are ‘designed to end a
continuing violation of federal law.’ . . . Plaintiffs may not be awarded damages or other forms of
retroactive relief . . . . That bar on retroactive relief includes forms of equitable relief that are
functionally equivalent to damage awards.”).
In the present case, the “Prayer for Relief” in the Amended Complaint seeks injunctive
relief in the form of “[a] declaration that the acts and omissions described herein violated
plaintiff’s rights under the Constitution and laws of the United States.” (Am. Compl. 17.) That
requested injunctive relief is retrospective, not prospective, in nature. Defendants’ actions of
excessive force for which Plaintiff seeks relief are completed and there is no continuing violation
of constitutional rights occurring. Under well-established Supreme Court precedent, such
requested relief is insufficient to overcome the Eleventh Amendment’s prohibition on lawsuits
against state officials in their official capacity. As Plaintiff’s official-capacity suits against the
Commonwealth Defendants are nothing more than suits against the Commonwealth itself, the
Court deems them barred by the Eleventh Amendment and dismisses them pursuant to Rule
12(b)(1).

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B.

Whether the Eleventh Amendment Bars Suits Against the Commonwealth
Defendants in their Individual Capacities

In Hafer v. Melo, 502 U.S. 21 (1991), the Supreme Court held that the Eleventh
Amendment does not bar suits brought against state officials in their individual capacities, even
if the actions which are the subject of the suit were part of their official duties. Id. at 30.
Specifically, it held that “state officials, sued in their individual capacities, are ‘persons’ within
the meaning of § 1983. The Eleventh Amendment does not bar such suits, nor are state officers
absolutely immune from personal liability under § 1983 solely by virtue of the ‘official’ nature of
their acts.” Id. at 31; see also Slinger v. N.J., 366 F. App’x 357, 360–61 (3d Cir. 2010).
Given these principles, to the extent Defendants seek dismissal of the individual-capacity
§ 1983 claims against the Commonwealth Defendants pursuant to the Eleventh Amendment,
their argument is unfounded. Plaintiff’s § 1983 claims against Defendants Toms, Wilcox, and
Beretsky shall not be dismissed.
C.

Whether Sovereign Immunity Bars Plaintiff’s Claims Under Pennsylvania
Common Law

Finally, the Commonwealth Defendants move, pursuant to Federal Rule of Civil
Procedure 12(b)(6), to dismiss Plaintiff’s state law claims of assault, battery, intentional
infliction of emotional distress, negligent infliction of emotional distress, and negligence.
Specifically, they assert that all of the Commonwealth Defendants are “Commonwealth parties”
as defined by Pennsylvania statute.5 As the Commonwealth’s presumed sovereign immunity has
not been waived in assault, battery, and negligence claims against Department of Corrections
5

A “Commonwealth party” is defined as “[a] Commonwealth agency and any employee
thereof, but only with respect to an act within the scope of his office or employment.” 42 Pa.
Cons. Stat. § 8501.
14

personnel, Defendants conclude that the common law tort claims must be dismissed.
The Court disagrees. Pennsylvania law provides that Commonwealth employees enjoy
immunity from most state law claims.6 Kintzel v. Kleeman, No. Civ.A.13-163, 2013 WL
4498969, at *3 (M.D. Pa. Aug. 9, 2013). Unlike Eleventh Amendment immunity, sovereign
immunity “applies to Commonwealth employees in both their official and individual capacities,
so long as the employees are ‘acting within the scope of their duties.’” Larsen v. State Emps.’
Ret. Sys., 553 F. Supp. 2d 403, 420 (M.D. Pa. 2008) (citing Maute v. Frank, 657 A.2d 985, 986
(Pa. Super. Ct. 1995)). Sovereign immunity shields Commonwealth employees from liability
when their actions: (1) cannot fit into one of the nine statutory sovereign immunity exceptions;
(2) are not negligent; and (3) occur within the scope of their employment. Kintzel, 2013 WL
4498969, at *3. The United States Court of Appeals for the Third Circuit has indicated that,
under Pennsylvania law, “‘conduct is within the scope of employment where: (a) it is the kind
[the employee] is employed to perform; (b) it occurs substantially within the authorized time and
space limits [and] (c) it is actuated, at least in part, by purpose to serve the master . . . .’”

6

Sovereign immunity is codified at 1 Pa.C.S. § 2310, as follows:

Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is hereby
declared to be the intent of the General Assembly that the Commonwealth, and its
officials and employees acting within the scope of their duties, shall continue to enjoy
sovereign immunity and official immunity and remain immune from suit except as
the General Assembly shall specifically waive the immunity. When the General
Assembly specifically waives sovereign immunity, a claim against the
Commonwealth and its officials and employees shall be brought only in such manner
and in such courts and in such cases as directed by the provisions of Title 42 (relating
to judiciary and judicial procedure) or 62 (relating to procurement) unless otherwise
specifically authorized by statute.
1 Pa. Cons. Stat. § 2310
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Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (quoting Restatement (Second) of
Agency § 236 (1958)).
In the present case, the Commonwealth Defendants’ Motion to Dismiss fails at the third
step of the sovereign immunity test—whether the assault of Plaintiff by Defendants Toms,
Beretsky, and Wilcox on July 3, 2006 was within the scope of their employment as state
correctional officers. Although these Defendants were arguably working within the authorized
time and space limits of their employment when the alleged beating occurred, Plaintiff avers that
he did not engage in any conduct to warrant the use of force and that the beating was done in
retaliation for his criminal convictions, because of grievances/complaints he submitted against
Defendants and their co-workers, and/or in abuse of their authority as correctional officers. (Am.
Compl. ¶¶ 25, 77.) Assuming such allegations to be true, the Court cannot find that such conduct
is of the kind the Defendants were employed to perform or that it was taken to serve the purposes
of the Department of Corrections. Given these outstanding factual issues, the Court declines, at
this time, to cloak the Defendants with the protection of sovereign immunity.
IV.

CONCLUSION
In sum, the Court grants the Commonwealth Defendants’ Motion in part and denies it in

part. First, although the Amended Complaint reasserts claims against Defendants Jeffrey A.
Beard, David DiGuglielmo, and Myron Stanishefski, the Court finds—and Plaintiff appears to
concede—that these Defendants have already been dismissed from this action with prejudice and
that any reasserted claims against them are barred. With respect to Plaintiff’s Eighth
Amendment excessive force claim against Defendants Toms, Wilcox, and Beretsky in their
official capacities, the claims are barred by the Eleventh Amendment and, thus, must be
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dismissed in their entirety under Rule 12(b)(1). With respect to Plaintiff’s Eighth Amendment
excessive force claims against Defendants Toms, Wilcox, and Beretsky in their individual
capacities, however, the claims are valid and shall not be dismissed. Finally, the Court declines
to find that Defendants Toms, Wilcox, and Beretsky are protected by sovereign immunity against
the remaining state law claims, as Plaintiff has plausibly alleged that their actions were
performed outside the scope of their employment.
An appropriate Order follows.

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