Abuomar v. Commonwealth of Pennsylvania, Department of Corrections et al
MEMORANDUM (Order to follow as separate docket entry) re 24 MOTION for Summary Judgment filed by Kipple, Dennis Brumfield, Commonwealth of Pennsylvania, Department of Corrections, Edward Baumbach, Vince Mooney, and Theodore Benza. Signed by Honorable Matthew W. Brann on 7/12/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT OF :
CORRECTIONS, et al.,
JULY 12, 2017
Mustafa Abuomar worked as the prison Imam at State Correctional Institution
Coal Township (SCI Coal Township) in Northumberland County, Pennsylvania for
nearly twenty years before retiring in May of 2014.1 In his work as the prison
Imam, Mr. Abuomar organized religious observances for the Muslim inmates.
During his tenure at SCI Coal Township, Mr. Abuomar filed a complaint with
the Equal Employment Opportunity Commission (EEOC) about another prison
employee, Theodore Benza, who Mr. Abuomar claimed was making inappropriate
Deposition of Mustafa Abuomar, ECF No. 31-1, at 10:2-6.
ethnic, racial, and religious comments toward him. Mr. Abuomar’s complaint was
filed with the EEOC in January of 2014.2
On March 5, 2014, Mr. Abuomar was asked by SCI Coal Township’s
Superintendent, Vincent Mooney, to discuss his complaints about his work
environment.3 Superintendent Mooney asked two Correctional Officers to escort
Mr. Abuomar to the prison’s training room so that they might informally resolve
any workplace issues that existed.4 After Superintended Mooney attempted to
acquire more information about the allegations Mr. Abuomar had made, Mr.
Abuomar left work early for a pre-scheduled medical appointment.5
Following this interaction, Mr. Abuomar filed this action, in which he
advances various civil rights and tort claims. In accordance with the following
reasoning, the Defendants’ Motion for Summary Judgment is granted.
“One of the principal purposes of the summary judgment rule is to isolate
and dispose of factually unsupported claims or defenses, and we think it should be
interpreted in a way that allows it to accomplish this purpose.”6 Summary
judgment is appropriate where “the movant shows that there is no genuine dispute
EEOC Complaint, ECF No. 39-1.
Deposition of Vincent Mooney, ECF No. 31-3, at 17:01–06.
Deposition of Mustafa Abuomar, ECF No. 31-2. at 48–49.
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
as to any material fact and the movant is entitled to judgment as a matter of
law.”7“Facts that could alter the outcome are ‘material facts,’ and disputes are
‘genuine’ if evidence exists from which a rational person could conclude that the
position of the person with the burden of proof on the disputed issue is correct.”8
“A defendant meets this standard when there is an absence of evidence that
rationally supports the plaintiff’s case.”9 “A plaintiff, on the other hand, must point
to admissible evidence that would be sufficient to show all elements of a prima
facie case under applicable substantive law.”10
“[T]he inquiry involved in a ruling on a motion for summary judgment or for
a directed verdict necessarily implicates the substantive evidentiary standard of
proof that would apply at the trial on the merits.”11 Thus, “[i]f the defendant in a
run-of-the-mill civil case moves for summary judgment or for a directed verdict
based on the lack of proof of a material fact, the judge must ask himself not
whether he thinks the evidence unmistakably favors one side or the other but
whether a fair-minded jury could return a verdict for the plaintiff on the evidence
Fed. R. Civ. P. 56(a).
Clark v. Modern Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993) (Hutchinson, J.) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) and Celotex Corp., 477 U.S. at 322).
Clark, 9 F.3d at 326.
Liberty Lobby, Inc., 477 U.S. at 252.
presented.”12 “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.”13 “The judge’s inquiry, therefore,
unavoidably asks . . . ‘whether there is [evidence] upon which a jury can properly
proceed to find a verdict for the party producing it, upon whom the onus of proof is
imposed.’”14 Summary judgment therefore is “where the rubber meets the road” for
a plaintiff, as the evidentiary record at trial, by rule, will typically never surpass
that which was compiled during the course of discovery.
“[A] party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.”15 “[R]egardless of whether the moving
party accompanies its summary judgment motion with affidavits, the motion may,
and should, be granted so long as whatever is before the district court demonstrates
Id. (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S. 442, 447 (1871)).
Celotex Corp., 477 U.S. at 323 (internal quotations omitted).
that the standard for the entry of summary judgment, as set forth in Rule 56(c), is
Where the movant properly supports his motion, the nonmoving party, to
avoid summary judgment, must answer by setting forth “genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.”17 For movants and nonmovants alike, the
assertion “that a fact cannot be or is genuinely disputed” must be supported by:
(i) “citing to particular parts of materials in the record” that go beyond “mere
allegations”; (ii) “showing that the materials cited do not establish the absence or
presence of a genuine dispute”; or (iii) “showing . . . that an adverse party cannot
produce admissible evidence to support the fact.”18
“When opposing summary judgment, the non-movant may not rest upon
mere allegations, but rather must ‘identify those facts of record which would
contradict the facts identified by the movant.’”19 Moreover, “[i]f a party fails to
properly support an assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . . consider the fact
Liberty Lobby, Inc., 477 U.S. at 250.
Fed. R. Civ. P. 56(c)(1).
Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003) (Weis,
undisputed for purposes of the motion.”20 On motion for summary judgment, “[t]he
court need consider only the cited materials, but it may consider other materials in
“[A]t the summary judgment stage the judge’s function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.”22 “[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.”23 “If the evidence is merely colorable . . . or is not significantly
probative, summary judgment may be granted.”24
Defendants’ motion for summary judgment is granted as to each of
Summary Judgment Is Granted As To Count I—Plaintiff’s Civil
Conspiracy Claim under 42 U.S.C. § 1985(2).
Title 42, United States Code, Section 1985(2) addresses two forms of
prohibited conspiracy. The first applies to conspiracies relating to federal judicial
Fed. R. Civ. P. 56(e)(2).
Fed. R. Civ. P. 56(c)(3).
Liberty Lobby, Inc., 477 U.S. at 249.
Id. at 249–50 (internal citations omitted).
proceedings,25 while the latter applies to “conspiracies to obstruct the course of
justice in state courts.”26
In particular, the text of § 1985(2) provides as follows:
If two or more persons in any State or Territory conspire to deter, by
force, intimidation, or threat, any party or witness in any court of the
United States from attending such court, or from testifying to any
matter pending therein, freely, fully, and truthfully, or to injure such
party or witness in his person or property on account of his having so
attended or testified, or to influence the verdict, presentment, or
indictment of any grand or petit juror in any such court, or to injure
such juror in his person or property on account of any verdict,
presentment, or indictment lawfully assented to by him, or of his
being or having been such juror; or if two or more persons conspire
for the purpose of impeding, hindering, obstructing, or defeating, in
any manner, the due course of justice in any State or Territory, with
intent to deny to any citizen the equal protection of the laws, or to
injure him or his property for lawfully enforcing, or attempting to
enforce, the right of any person, or class of persons, to the equal
protection of the laws;
Thus, when a plaintiff advances a claim pursuant to 42 U.S.C. § 1985(2), he
must point to a federal or state proceeding with which the defendants have
interfered. In the case of a state proceeding, he must allege that such interference
was done to “deny to any citizen the equal protection of the laws.” Otherwise, a
claim under § 1985(2) must fail. Additionally, the Supreme Court of the United
States has interpreted the second portion of § 1985(2) to require that the
conspirators’ actions in furtherance of their objective have some “racial, or perhaps
Kush v. Rutledge, 460 U.S. 719, 724 (1983).
Id. at 725.
otherwise class-based, invidiously discriminatory animus”27 and be “motivated by
an intent to deprive their victims of the equal protection of the laws.”28
The Plaintiff’s claim fails both the federal and state prongs of § 1985(2).
Plaintiff has not adduced sufficient evidence to create a genuine dispute of material
fact as to the existence of any federal or state proceeding, much less that the
Defendants interfered with one. In fact, Plaintiff asserts that such a proceeding is
not necessary to satisfy his claim.29 The Plaintiff’s interpretation of § 1985(2)
ignores clear judicial precedent in this district establishing the need for a federal or
state proceeding in order to make out a claim under that section.
In Holmes v. Benedict, for example, United States Magistrate Judge Martin
C. Carlson recommended that a matter be dismissed for failure to identify “any
pending state or federal court proceeding which was the subject of unlawful
interference.”30 In that case, as here, the only proceedings the employee could
point to were her own “internal institutional complaints, and some form of
administrative disciplinary matter involving her employer.”31 Those facts are
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).
Kush, 460 U.S. at 725.
Pl.’s Br. In Opp’n to Def.’s Mot. for Summ. J. at 2.
Holmes v. Benedict, No. 1:12-CV-767, 2012 WL 6561559, at *6 (M.D. Pa. Nov. 27, 2012)
(dismissing a claim that did not identify any pending federal or state proceeding, but rather
only internal proceedings being conducted by the employer).
similar to the ones at issue in this action, where the Plaintiff cannot point to any
pending federal or state proceeding.
Magistrate Judge Carlson’s reasoning was further accepted by Judges Sylvia
H. Rambo and A. Richard Caputo of this Court. In Behne v. Halstead, Judge
Rambo held that plaintiffs claiming that their positions were terminated to prevent
their investigations into the defendants could not survive a motion for summary
judgment because they could not point to any federal or state proceeding that was
subject to interference.32 Similarly, in Florimonte v. Borough of Dalton, Judge
Caputo dismissed an action from a plaintiff claiming a violation of her civil rights
by defamation when she demanded that the defendant remove pipes that flooded
her property.33 Once again, because the plaintiff was not able to point to a federal
or state proceeding that the defendant interfered with, her claim under § 1985(2)
could not survive.34
Despite Plaintiff’s insistence to the contrary,35 a federal or state proceeding
must be identified in order to sustain a claim under § 1985(2). This is made clear
by the Supreme Court’s reasoning in Kush, where it explained that “the second part
of § 1985(2) applies to conspiracies to obstruct the course of justice in state
Behne v. Halstead, No. 1:13–CV–0056, 2014 WL 1689950, at *15 (M.D. Pa. Apr. 29,2014).
Florimonte v. Borough of Dalton, No. 3:CV-14-0341, 2014 WL 3114071, at *10 (M.D. Pa.
July 7, 2014).
Id. at *22.
Pl.’s Br. in Opp’n to Def.’s Mot. For Summ. J. 2.
courts.”36 Without a state or federal court proceeding to point to, the Plaintiff
cannot satisfy this requirement.
The EEOC proceeding that was in progress does not satisfy this requirement,
because the EEOC is an administrative agency and therefore not a part of the
federal judicial system.37 As the United States Court of Appeals for the Fifth
Circuit has noted, “interference or obstruction of administrative proceedings is not
redressable under § 1985(2).”38 Because the uncontroverted record reveals that
there was no federal or state proceeding that the Defendants conspired to interfere
with, the Plaintiff cannot sustain a claim under 42 U.S.C. § 1985(2), and the
Defendants are entitled to summary judgment on Count I.
Furthermore, the Plaintiff fails to satisfy the requirement of an invidiously
discriminatory animus motivated by an intent to deprive Plaintiff of the equal
protection of the laws. “The protection afforded by section 1985 is “narrower” than
that afforded by section 1983 because section 1985 requires the conspiracy to be
motivated by a racial or other class-based animus.”39 Where discriminatory animus
Kush, 460 U.S. at 725.
Carter v. Church, 791 F.Supp. 298, 300 (M.D. Ga. 1992).
Deubert v. Gulf Federal Sav. Bank, 820 F.2d 754, 758 (5th Cir. 1987).
Robinson v. N.Y. State Dep’t of Correction Servs., No. 908-CV-0911, 2009 WL 3246818, at
*18 n.29 (N.D.N.Y. Sept. 30, 2009).
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is not “the motivating force” behind the actors’ conduct, a 1985 claim must
The Plaintiff does not set forth evidence that the decision to bring Mr.
Abuomar to the prison training room was based on a racial or otherwise
discriminatory animus, nor that it was intended to deprive the Plaintiff of any legal
protection. Instead, the evidence shows that this was an employment-based
decision intended to collect more information about a potential conflict between
two employees.41 Because the Plaintiff has failed to connect the action to any
discriminatory animus, his claim cannot survive summary judgment.
Neither is there a genuine dispute of material fact as to the existence of a
conspiratorial motive. “To sufficiently plead the conspiracy element in a § 1985(2)
claim, one of the requirements is to set forth facts showing an agreement between
the alleged conspirators.”42 As our Court of Appeals explained, this element
requires “a meeting of the minds” to accomplish the unconstitutional purpose.43 A
district court may disregard intimations of a conspiracy that are “vague and
provide no basis in fact.”44
Benson v. United States, 969 F. Supp. 1129, 1136 (N.D. Ill. 1997).
Mooney Dep. 12:8-22.
White v. Wireman, No. 1:16-CV-675, 2017 WL 2215277, at *8 (M.D. Pa. May 19, 2017)
Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010).
Cowan v. City of Mount Vernon, 95 F. Supp. 3d 624, 647 (S.D.N.Y. 2015).
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Even casting the facts in the light most favorable to the Plaintiff, there he has
not presented sufficient evidence as a matter of law to permit the inference that the
Defendants conspired together to discriminate against him prior to their meeting.
To the contrary, the facts lack any suggestion of a unity of purpose or prearranged
understanding on the part of the Defendants prior to their alleged confrontation
with Mr. Abuomar. Because a reasonable jury could not conclude that the subject
meeting was the product of a concerted conspiracy rather than a one-off meeting,
summary judgment is further warranted on this independent ground.
Summary Judgment Is Granted As To Count II—Plaintiff’s
Fourth Amendment Seizure Claim.
Plaintiff contends that Defendants violated his Fourth Amendment right to
be free from illegal searches and seizures. The Supreme Court of the United States
has previously held that a person is seized “within the meaning of the Fourth
Amendment only if”, given the objective circumstances of the situation, “a
reasonable person would have believed that he was not free to leave.”45 The
Supreme Court’s decision in United States v. Mendenhall established an objective
test for determining whether or not a person is seized for the purposes of the Fourth
Amendment. The Court also provided that examples of what conduct “might
indicate a seizure,” including the “threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the person of the
United States v. Mendenhall, 446 U.S. 544, at 554 (1980).
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citizen, or the use of language or tone of voice indicating that compliance with the
officer’s request might be compelled.”46
A person has been seized “only when, by means of physical force or a show
of authority, his freedom of movement is restrained.”47 The Supreme Court has
recognized that this statement is a necessary rather than a sufficient one.48 In other
words, not every restraint of freedom of movement achieved through a show of
authority constitutes a Fourth Amendment seizure.
The Plaintiff has failed to create a genuine dispute of material fact as to
whether he was seized on March 5, 2014 during his transportation to the prison
training room. His self-serving statements are unsupported by the evidence and
comprise the only account of events that mentions physicals contact of any kind on
that day. As a general proposition, “conclusory, self-serving affidavits are
insufficient to withstand a motion for summary judgment.”49 This Court is not
“required to accept unsupported, self-serving testimony as evidence sufficient to
create a jury question.”50 As such, Plaintiff’s Fourth Amendment claims are
suspect from the outset.
Id. at 554 (emphasis added).
Id. at 553.
California v. Hodari D., 499 U.S. 621, at 628 (1991).
Patton v. Doran, No. Civ. 3:CV-04-2233, 2006 WL 485236 (M.D. Pa, 2006).
Brooks v. American Broadcasting Companies, Inc., 999 F.3d 167, 172 (6th Cir. 1993).
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A reasonable jury could not conclude that Plaintiff was seized based upon
the record presented. For example, the Chaplaincy Programming Director, Aaron
Duncan, a non-defendant who considered himself close with the Plaintiff on the
day in question, testified that at no point was the Plaintiff touched, let alone
grabbed, by the Defendants.51 Furthermore, Mr. Duncan’s testimony provides no
support for the blunt assertion that Plaintiff was treated “like an inmate” on the
walk from his office to the training room.52 Unable to point to any evidentiary
support from the record, the Plaintiff has failed to adduce sufficient evidence to
create a genuine issue of material fact.
Beyond this, it would be a gross dramatization of events to characterize the
Plaintiff as having been detained by the Defendants in the training room. The
record shows that he was asked to provide information, was not isolated from
others, and was allowed to dictate his statement at will, rather than forced to write
any particular one. In addition, no prison staff member was positioned “to ensure
that the Plaintiff did not attempt to leave,” and Mr. Abuomar was informed of why
he was in the training room.53 Lacking the sort of objective indicia that he was not
Deposition of Aaron Duncan, ECF 31-4, at 43:14-23.
Aguilera v. Baca, 394 F. Supp. 2d 1203, 1211 (C.D. Cal. 2005) (explaining that
circumstances that give rise to the inference of a seizure include active positioning by
individuals to prevent an exit by the plaintiff and not informing the plaintiff why he was in a
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free to leave as the law otherwise requires, the Plaintiff has not put forth a viable
In fact, it is Plaintiff’s own statements that show most clearly that he was not
detained. The Plaintiff alleged that although Superintendent Mooney was not
satisfied with the statement he had made, he was allowed to leave work early for a
pre-scheduled appointment. It would contradict established doctrine to say that
someone is detained when he is allowed to leave the place of detention of his own
free will. According to the Supreme Court, one indication that a claimant’s
“freedom of movement” has not been unlawfully restricted is that he remains free
to “otherwise terminate the encounter.”54 Based on the evidence of record, the
Plaintiff has failed to create a genuine dispute of material fact as to a Fourth
Amendment violation, and the Defendant’s motion for summary judgment is
therefore granted as to that claim.
Even accepting as true Plaintiff’s version of events, they do not rise to the
level of a constitutional harm. The Supreme Court has held that not “every
malevolent touch by a prison guard gives rise to a federal action.”55 In Posr v.
Killackey, the plaintiff videographer alleged that he was illegally seized when court
security officers escorted him out of a courthouse.56 The court in that case found
Florida v. Bostick, 501 U.S. 429, 436 (1991).
Hudson v. McMillian, 503 U.S. 1, 9 (1992).
No. 01Civ.2320LTSGWG, 2003 WL 22962191 (S.D.N.Y. Dec. 17, 2003).
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that there was no seizure during that process, especially because no personal
belongings were confiscated.57 Here, there is nothing to suggest that the Plaintiff’s
property had been confiscated, and he similarly was not seized during his escort to
the training room. Similarly, in Sheppard v. Beerman, a law clerk alleged that he
was seized by court officers when they escorted him out of the courthouse after he
was fired.58 The United States Court of Appeals for the Second Circuit found there
was no seizure during his escort, and therefore no Fourth Amendment violation
could lie. Mr. Abuomar’s circumstances are similar: He was escorted to another
part of the building from which he was later free to leave. Such conduct does not
constitute a seizure in violation of his constitutional rights.
The Plaintiff’s time spent in the training room does not rise to the level of a
Fourth Amendment violation either. Any restriction on the Plaintiff’s freedom of
motion cannot be attributed to the Defendants, because “ordinarily, when people
are at work their freedom to move about has been meaningfully restricted, not by
the actions of law enforcement officials, but by the workers’ voluntary obligations
to their employers.”59 Simply having correctional officers in the room would not
constitute a seizure in this case, just as it didn’t in I.N.S. v. Delgado. Similar to that
case, employees were asked questions, but there was “no reason to believe that
Id. at *7.
Sheppard v. Beerman, 18 F.3d 147 (2d Cir. 1994), cert. denied, 513 U.S. 816 (1994).
I.N.S. v. Delgado, 466 U.S. 210, 218 (1984).
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they would be detained if they gave truthful answers to the questions put to them or
if they simply refused to answer.”60
As in Delgado, Mr. Abuomar’s movement was restricted “by a factor
independent of police conduct.”61 He was restricted by the terms of his
employment; he was scheduled to leave the premises at a specific time for his
medical appointment. He was allowed to leave at that time. Nothing the prison
staff did would have made a reasonable person believe that he would otherwise
have to stay in the training room past that time. Instead, the record shows that the
Plaintiff was in fact allowed to leave at the pre-approved time despite not
providing adequate answers to the questions posed.
I also hold that Plaintiff’s claim fails for yet another reason: even in the
event that the Plaintiff could establish that his Fourth Amendment rights were
violated, the Defendants are entitled to qualified immunity. Qualified immunity
protects government officials from “liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.”62 Such qualified immunity
attaches itself to officials whether the official’s actions were a mistake of law, of
Florida v. Bostick, 501 U.S. 429, 436 (1991).
Harlow v. Fitzgerald, 457 U.S. 800, at 818 (1982).
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fact, or a combination of the two.63 A primary purpose of the qualified immunity
doctrine is to shield an official from personal liability when that official
“reasonably believes that his or her conduct complies with the law.”64
When examining whether or not qualified immunity is appropriate, we
consider two issues. The first is whether the official’s conduct violated a
constitutional or federal right.65 The second is whether the right at issue was clearly
established.66 A right has been clearly established when that right’s contours are
“sufficiently clear that a reasonable official would understand that what he is doing
violates that right.”67 The unlawfulness of the act in question must be apparent to a
reasonable person in order to decide that qualified immunity would be
Further, the Supreme Court has established that district court judges should
exercise their discretion in determining which of the two Saucier prongs should be
addressed first in light of the facts of any given case. In Pearson, Justice Samuel
Alito explained that “while the sequence set forth [in Saucier] is often appropriate,
Groh v. Ramirez, 540 U.S. 551, at 567 (2004).
Pearson v. Callahan, 555 U.S. 223, at 244 (2009).
Sharp v. Johnson, 669 F.3d 144, at 159 (3d Cir. 2012) (citing Saucier v. Katz, 553, U.S. 194,
at 201 (2001)).
Anderson v. Creighton, 483 U.S. 635, at 640 (1987).
Id., citing Malley v. Briggs, 475 U.S. 335, at 344-5 (1986).
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it should no longer be regarded as mandatory.”69 Instead, we were told that “the
judges of the district courts and the courts of appeals should be permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.”70
This Court has already addressed its decision as to the constitutionality and
statutory validity of the Defendants’ actions, and has found that those actions did
not violate any constitutional or federal rights. As such, qualified immunity could
be granted on that basis alone, as the Plaintiff is required to establish both prongs
of the Saucier requirement. The Court will, however, reach a determination on the
second prong for the record.
The evidence in the record does not lead to a reasonable inference that any
such right was clearly established. Plaintiffs’ attempts to strip away Defendants’
entitlement to qualified immunity are expressed “at much too high a level of
abstraction”—in clear contravention of the Third Circuit’s recent decision in
Zaloga v. Borough of Moosic.71 In Zaloga, the Third Circuit made explicit that “it
is not sufficient to conclude” that a generalized right against government
Pearson, 555 U.S. at 236.
841 F.3d 170, 175 (3d Cir. 2016) (Jordan, J.).
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interference with a protected right exists.72 Rather, the district court “must attend to
context” and “consider . . . the circumstances confronting [the state actor]” at that
particular moment in time.73 This construction ensures that judicial emphasis
remains zeroed in on the core question in qualified immunity cases: “whether a
reasonable state actor could have believed his conduct was lawful.”74
Here, the issue is whether a reasonable officer in the Defendants’ positions
would believe that a co-worker who acquiesces in a meeting discuss an
employment dispute, whose personal effects are not confiscated, and who is
permitted to freely leave, is unlawfully seized. The law in this arena is not so
There is a dearth of cases that can be readily analogized to the facts of this
action. As the court in Myers v. Baca noted, “the vast majority of cases involving
seizures of persons stem from criminal investigations.”75 Other cases involving
alleged seizures tend to involve college students and college-owned dormitories.76
In short, the facts of this case do not lend themselves clearly to comparison to
established case law, which itself supports the application of qualified immunity.
Myers v. Baca, 325 F.Supp.2d 1095, 1114 (C.D. Cal. 2004).
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As the Third Circuit has explained, qualified immunity will attach absent “a robust
consensus of cases” suggesting otherwise.77
Myers itself, however, presents perhaps the closest comparison and leads to
the conclusion that a reasonable officer could have believed that the Plaintiff
remained in the meeting to lawfully discuss an employment dispute. In Myers, the
court recited a number of factors supporting that conclusion.78 For instance,, the
plaintiffs “were not subject to physical force,”79 nor threatened with force. In
addition, they were not “informed that a criminal investigation was taking place.”80
Finally, the plaintiffs in that case were not arrested.81
Every one of those factors applies with equal strength to the Plaintiff in this
action. The record does not support the claim that Mr. Abuomar was subject to
physical force. Likewise, there was no criminal investigation in this case, nor was
the Plaintiff ever arrested. These signs all strongly suggest that a reasonable officer
in the Defendants’ position could have believed he was not violating the Plaintiff’s
With that in mind, I also note that Majors Baumbach and Brumfield acted
pursuant orders from their superior that they had no reason to believe would violate
Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 639 (3d Cir. 2015) (Vanaskie, J.).
Myers, 325 F.Supp.2d at 1114.
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Plaintiff’s Fourth Amendment rights. As they believed themselves to be executing
a simple order of escorting someone through the prison, the evidence does not
support the idea that those Defendants would have understood that requiring a
statement from the Plaintiff would have violated his rights. As such, the
Defendants cannot be said to have violated the second prong of the Saucier
As applied to Superintendent Mooney, the same rationale holds. The
Plaintiff’s argument—that this Defendant ignored the Equal Employment
Opportunity Commission’s (EEOC) suggestion to not speak to the Plaintiff—is not
relevant to this claim. Moreover, whether Superintendent Mooney made the best
procedural decision has no bearing on the alleged constitutional violation. The
EEOC’s suggestion does not show that he was aware that he might be violating the
Plaintiff’s constitutional rights. Instead, the record indicates that Superintendent
Mooney acted that day with the purpose of acquiring more information as to the
Plaintiff’s 2014 complaint to the EEOC.82 The record does not indicate or even
suggest, however, that a reasonable official would have understood that bringing
an employee to his office and asking for information would have violated any
constitutional or federal right. Qualified immunity is intended to protect “all but
Mooney Dep. 12:8-22
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the plainly incompetent or those who knowingly violate the law.”83 As such, with
respect to those Defendants, qualified immunity is appropriate.
Because qualified immunity would attach even if Defendants violated a
substantive federal right, summary judgment is granted on this count.
Summary Judgment Is Granted As To Count III—Plaintiff’s
Fourteenth Amendment Due Process Claim.
The Fourteenth Amendment to the United States Constitution provides that
no “State [shall] deprive any person of life, liberty, or property, without due
process of law.”84 To establish a viable Fourteenth Amendment claim, a plaintiff
must demonstrate that: (1) the conduct complained of was committed by a person
acting under color of state law; and (2) the conduct deprived the complainant of
rights secured under the Constitution or federal law.85
The Plaintiff argues that he was detained by the Defendants, depriving him
of his liberty without due process of law.86 The Plaintiff similarly asserted that he
was detained in violation of his Fourth Amendment rights. That claim was properly
asserted there, and as such, under the “more-specific-provision” rule, cannot be
brought again under the umbrella of the Fourteenth Amendment. Under that rule,
Malley v. Briggs, 475 U.S. 335 (1986).
U.S. Const. amend. XIV § 1.
Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998).
Am. Compl. ¶ 98. Plaintiff also admits in his papers that he “concurs that the named
individual Defendants are entitled to summary judgment with respect to their official, though
not individual, capacities.” ECF No. 35 at 6.
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“if a constitutional claim is covered by a specific constitutional provision, such as
the Fourth or Eighth Amendment, the claim must be analyzed under the standard
appropriate to that specific provision, not under the rubric of substantive due
process.”87 This rule stems from the Supreme Court’s reluctance “to expand the
concept of substantive due process.”88 Because the issues that comprise the basis
for this claim were precisely those resolved under the Fourth Amendment claim,
the substantive due process claim must also fail.
Similarly, without the deprivation of “a protected interest in life, liberty, or
property” and that deprivation having “occurred without due process of law,”89
Plaintiff cannot establish any procedural due process violation. Plaintiff has
adduced no evidence tending to show that he was deprived of any liberty or
property interest in a procedurally unfair way, the procedural due process claim
must also fail.
As such, summary judgment on the due process claim is granted in favor of
Betts v. New Castle Youth Development Center, 621 F.3d 249 (3d Cir. 2010).
County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998).
Burns v. PA Dep’t of Correction, 544 F.3d 279, 285 (3d Cir. 2008) (explaining the two-prong
requirement to prove procedural due process).
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Summary Judgment Is Granted As To Count IV—Plaintiff’s Title
VII Hostile Work Environment Claim.
All parties concur that the named individual Defendants are entitled to
summary judgment with respect to Counts IV and V of the complaint because Title
VII bars recovery against individual defendants.90 As such, summary judgment is
granted on these counts in favor of the individual Defendants.
Turning to Mr. Abuomar’s employer, Title VII’s prohibition on hostile work
environment is violated when the workplace “is permeated with ‘discriminatory
intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
environment.’”91 The Court examines the totality of the circumstances, considering
the “frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.”92
The Supreme Court has further made clear that isolated incidents and offhand
comments generally will not be sufficient to establish a hostile work
environment.93 “Conduct that is not severe or pervasive enough to create an
Sheridan v. E.I DuPont de Nemours and Co., 100 F.3d 1061, at 1077-8 (3d Cir. 1996).
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (citing Harris v.
Forklift Systems, Inc. 510 U.S. 17 (1993)).
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998).
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objectively hostile or abusive work environment—an environment that a
reasonable person would find hostile or abusive—is beyond Title VII’s purview.”94
Such a Title VII claim is analyzed under the familiar burden-shifting
framework established in McDonnell Douglas Corp. v. Green. Under that
framework, the plaintiff begins with the burden to establish a prima facie case of
discrimination as required by the specific claim.95 Should the plaintiff meet his
burden, the defendant then is faced with a burden of production to provide a
legitimate, nondiscriminatory reason for the action or decision taken.96 If the
defendant is able to do so, the burden shifts back to the plaintiff, who must prove
by a preponderance of the evidence that the employer’s proffered reason was
Mr. Abuomar alleges that the Defendants took discriminatory actions that
created a hostile work environment. He claims that he had racial and religious slurs
and remarks spoken at him, and that on two occasions he was treated with
disrespect. While any use of such slurs ought not to be condoned, “it is . . . well
settled that occasional or sporadic instances of the use of racial or ethnic slurs,” are
Id. at 21.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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insufficient to prove a violation of Title VII.98 Without specific support from the
record of a greater number of incidents of racial or religious remarks or isolated
incidents with much greater severity, the plaintiff cannot support a Title VII claim
with these stray comments.
Furthermore, the Plaintiff alleges that one of the Defendants once threw his
jacket on a table. On a separate occasion, that same Defendant made the Plaintiff
pass through the standard security protocol rather than using a wand mechanism to
screen him. Neither of these incidents bears any indication of racial or religious
motivation; at worst, these interactions might be described as unpleasant conduct
amounting to minor inconveniences. At most, the plaintiff was upset that his jacket
was tossed and that he stood in line for the same security routine as everyone else.
Such trivial occurrences do not amount to a Title VII violation.99
It is not clear from the record that the incidents alleged were motivated by
ethnic, racial, or religious discrimination. The Plaintiff instead asks the Court to
rely on his self-serving speculation in order to permit his complaint to survive
Williams v. Astra USA, Inc., 68 F.Supp.2d 29, 36 (D. Mass. 1999) (holding that five incidents
of racially-based remarks were insufficient to support hostile work environment claim) See
also Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372, 1380 (7th Cir.1986).
See Mitchell v. City of Dumas, Ark., 187 Fed.Appx. 666, 668 (8th Cir. 2006) (holding that
isolated actions and comments without connection to race was at most “unpleasant or rude”);
Moss v. Texarkana Arkansas School District, 2017 WL 810290, March 1, 2017 (W.D. Ark.)
(holding that changes in working conditions that merely inconvenience an employee do not
establish a Title VII violation).
- 27 -
summary judgment. Even accepting the Plaintiff’s allegations as true, however,
these incidents are simply not so “severe or pervasive” as a matter of law. 100
Plaintiff’s deposition refers to only a handful of discrete incidents between the
Plaintiff and the various Defendants.101 These isolated incidents generally
recounted above do not constitute a hostile workplace severe enough to alter the
terms of the Plaintiff’s employment. As the Third Circuit warned, “occasional
insults, teasing, or episodic instances of ridicule are not enough; they do not
‘permeate’ the workplace.”102 Similarly, none of the alleged incidents can be
considered “extremely serious” on their own, as required.103
The Plaintiff is simply not able to adduce sufficient evidence to corroborate
his claims of a hostile work environment in order to survive summary judgment.
The record does not indicate that any events that may have occurred were
pervasive or severe enough to warrant denying the motion for summary judgment.
As such, the motion is granted as to Count IV.
See Clay v United Parcel Serv., 501 F.3d 695, 707–08 (6th Cir. 2007) (holding that 15
incidents over a two-year time frame did not constitute severe or pervasive conduct).
Abuomar Dep. at 12:23–13:12, 62:22–63:04, 72:14–73:2.
Faragher, 524 U.S. at 788.
Clark County School Dist. V. Breeden, 532 U.S. 268, 271 (2001) (reminding courts that
isolated incidents must be “extremely serious” to violate Title VII).
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Summary Judgment Is Granted As To Count V—Plaintiff’s Title
VII Retaliation Claim.
Title VII’s anti-retaliation protections seek to safeguard those who
“participate in certain Title VII proceedings (the ‘participation clause’) and those
who oppose discrimination made unlawful by Title VII (the ‘opposition
clause’).”104 Claims under the anti-retaliation provision of Title VII are judged
under a different lens than Title VII hostile work environment allegations; the antiretaliation provision seeks to protect an employee from the possibility that an
employer will interfere with the employee’s “efforts to secure or advance
enforcement of the Act’s basic guarantees.”105 Put another way, the antidiscrimination provision “seeks to prevent injury to individuals based on who they
are, i.e., their status. The anti-retaliation provision seeks to prevent harm to
individuals based on what they do, i.e., their conduct.”106
To prove a prima facie case of retaliation, a plaintiff must show that there was
“(1) protected activity; (2) adverse action by the employer either after or
contemporaneous with the employee’s protected activity; and (3) a causal
connection between the employee’s protected activity and the employer’s adverse
Moore v. City of Philadelphia, 461 F.3d 331, at 341 (3d Cir. 2006).
Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, at 63 (2006).
- 29 -
action.”107 Establishing a causal connection between the two requires the plaintiff
to prove that “either (1) an unusually suggestive temporal proximity between the
protected activity and the allegedly retaliatory action, or (2) a pattern of
antagonism coupled with timing to establish a causal link.”108 As a matter of law,
“Title VII retaliation claims must be proved according to traditional principles of
but-for causation.”109 As such, a plaintiff must prove that the “unlawful retaliation
would not have occurred in the absence of the alleged wrongful action or actions of
Neither party contests that the Plaintiff’s filing of a complaint with the EEOC
satisfies the first prong of the claim. Next, however, the Plaintiff must show that
the Defendant committed an adverse employment action against him, as defined by
the Burlington Northern standard. The Plaintiff alleges that he was retaliated
against by being subjected to false imprisonment and allegedly coerced into
writing a statement contradicting his complaint. He further alleges that he suffered
retaliation by being subjected to acts that were offensive to someone of Islamic
faith, as well as by having had his authority as the prison Imam restricted.111
E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015) (internal quotations omitted).
Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517, 2533 (2013).
Am. Compl., ¶¶ 120–122.
- 30 -
In evaluating the Plaintiff’s claims of retaliation, we must examine the alleged
incidents and determine whether they rise to the level of being materially adverse,
meaning that they “well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Title VII does not establish “a general
civility code for the American workplace.”112 Because the anti-retaliation statute
attempts to stop employers from interfering with the exercise and vindication of a
plaintiff’s rights under the anti-discrimination provision of Title VII, it is only
concerned with employer actions that would prevent a reasonable worker from
accessing those rights. “Trivial harms” and “petty slights,” are not prohibited by
the provision because they will not deter a reasonable worker from utilizing the
Title VII mechanisms available to him or her.113 The Third Circuit adopted this
approach soon after the Supreme Court’s decision in Burlington Northern. Similar
to the analysis involved in determining whether a workplace is hostile, the court
must consider the totality of the circumstances when evaluating alleged
In the instant case, the Plaintiff has not put forth sufficient evidence beyond
his own statements to create a genuine dispute of material fact. As such, the
Plaintiff’s evidence is insufficient to make out a prima facie case of retaliation. In
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, at 80 (1998).
Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, at 68 (2006).
Moore v. City of Philadelphia, 461 F.3d 331, at 345-6 (3d Cir. 2006).
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particular, none of the Plaintiff’s complained-of actions amount to materially
adverse employment actions. Bringing the Plaintiff to the prison training room to
discuss his allegations against another employee is not an adverse action. “[W]riteups and meetings with supervisors are not materially adverse employment
actions.”115 Neither are “reprimands for insubordination,” “meetings with
supervisors,” and other similar “directions.”116
Further, Plaintiff’s claim that his authority to select religious texts and
organizing services also does not amount to a materially adverse action on the part
of the Defendants. Having, on one occasion, not been able to select texts and
organize services does not rise to the level of materially adverse action. Unlike the
scenario presented in Burlington Northern, the Plaintiff was not reassigned to any
sort of less desirable position, nor was his pay held up. 117
Additionally, the Plaintiff claims that DOC employees placed condoms on his
desks or moved his Quran to the floor. Once again, this sort of behavior—though
troubling in my view, if true— does not amount to materially adverse under the
Burlington Northern standard. The Court in Kavanaugh v Miami-Dade County
found that a similar incident involving condoms placed around a plaintiff’s work
Griggs v. Univ. Health Sys., No. CIV. SA-06-CV-384, 2008 WL 3981814, at *8 (W.D. Tex.
Aug. 25, 2008).
Prince-Garrison v. Maryland Dep't of Health & Mental Hygiene, 317 F. App’x 351, 353 (4th
Burlington Northern, 548 U.S. at 55 (2006).
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trailer did not rise to the level of being materially adverse.118 Furthermore, even if
these events did occur, Mr. Abuomar baldly asserts ipse dixit that the Defendants
were the perpetrators of this act, with no support for the accusation.119 Similarly, in
Kavanaugh, the plaintiff was not able to provide evidence that her coworkers were
responsible for the incident, nor that a “break-in of her car was related to the filing
of her EEOC charge.”120 Mr. Abuomar finds himself in a strikingly similar
position, without evidence to support the notion that his coworkers performed
these acts. Given the lack of substantial evidence creating a genuine material fact,
the Plaintiff cannot satisfy the second element of his claim.
Furthermore, Plaintiff cannot satisfy the causation element of his claim under
the Nassar standard. Mr. Abuomar has not provided enough evidence to prove that
his EEOC complaint was the but-for cause of any retaliatory acts. Instead, the
record suggests other possible reasons for actions taken. The record suggests that
Mr. Abuomar was brought to the training room in an effort to resolve a workplace
dispute—not to sanction him for bringing a complaint in the first place.121 In fact, it
appears likely that the meeting would have occurred even absent the filing of a
formal complaint. Further, the record reveals that the decision to select and order
Kavanaugh v. Miami-Dade County, 775 F.Supp.2d 1361, 1369-70 (S.D. Fl. 2011).
Am. Compl. ¶ 121.
Kavanaugh, 775 F.Supp.2d at 1369-70
Mooney Dep. 12:8-22.
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Islamic texts was made by Plaintiff’s direct supervisor, Mr. Duncan, only because
the Plaintiff had been absent from work for months.122 Accordingly, Plaintiff
cannot establish but-for causation as required by Nassar, and the claim fails under
that prong as well.
Had the Plaintiff been able to make out a prima facie case, the Defendant
employer has proffered a legitimate reason for the decision to bring the Plaintiff to
speak with Superintendent Mooney and provide a detailed statement. The record
reveals that the Superintendent was concerned that one of his employees was
engaged in a dispute with a co-worker and desired to learn more about the situation
in an effort to foster de-escalation and informal resolution.123
This would place the burden back on the plaintiff to then discredit the
employer’s proffered reason as pretext. This is an admittedly difficult burden for a
plaintiff to meet.124 To do so, a plaintiff cannot simply show that the decision made
was wrong or mistaken.125 Instead, the plaintiff must show such “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
Duncan Dep. 49-50.
Mooney Dep. 12:8-22.
Fuentes v. Perskie, 32 F.3d 759, at 765 (3d Cir. 1994).
Fuentes, 32 F.3d at 765.
- 34 -
proffered legitimate reasons for its action that a reasonable factfinder could
rationally find them unworthy of credence.”126
The Plaintiff does not offer evidence sufficient to prove pretext. Under
prevailing Third Circuit case law, the Plaintiff must either “offer evidence that
casts sufficient doubt upon each of the legitimate reasons proffered by the
Defendant so that a factfinder could reasonably conclude that each reason was a
fabrication” or “present evidence sufficient to support an inference that
‘discrimination was more likely than not a motivating or determinative cause of the
adverse employment action.”127
The Plaintiff does not provide evidence either that the proffered reasons were
a fabrication or that discrimination was more likely than not a determinative or
motivating cause of the action taken. In fact, nothing the Plaintiff provides rebuts
the legitimate nondiscriminatory reasons given by the Defendants. The Plaintiff
must “present evidence contradicting the core facts put forward by the employer as
the legitimate reason for its decision.”128 The Plaintiff has further failed to provide
any evidence supporting the idea that the proffered reasons were pretextual.
As such, the motion for summary judgment is granted as to Count V.
Shahin v. Delaware, 563 Fed.Appx. 196, 199 (3d. Cir 2014) (quoting Fuentes, 32 F.3d at 762
(3d Cir. 1994)).
Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005).
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Summary Judgment Is Granted As To Count VI—Plaintiff’s
PHRA Hostile Workplace Environment Claim.
The Third Circuit has held that the Pennsylvania Human Rights Act
(PHRA), 43 P.S. 951 et seq., “is to be interpreted as identical to federal antidiscrimination laws except where there is something specifically different in its
language requiring that it be treated differently.129 Neither party argues that PHRA
departs from federal statute in any way that requires different treatment, so I treat
the provisions as applying “identically in this case and as being governed by the
same set of decisional law.”130
Accordingly, my judgment as to the PHRA hostile workplace environment
claim is identical to that arrived at under Title VII. The motion for summary
judgment is therefore granted on Count VI.
Summary Judgment Is Granted As To Count VII—Plaintiff’s
PHRA Retaliation Claim.
Similar to Count VI, because the PHRA is subject to the same legal analysis,
my judgment on this count is identical to that on Plaintiff’s Title VII retaliation
claim. Therefore, summary judgment is granted on Count VII.
Fogelman v. Mercy Hosp. Inc., 283 F.3d 561, at 567 (3d Cir. 2002).
Slagle v. County of Clarion, 435 F.3d 262, n. 5 (3d Cir. 2006).
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Summary Judgment is Granted As to Count VII—Plaintiff’s State
Law Battery Claim.
Plaintiff next alleges that he was subject to a number of intentional torts as a
result of the actions of the various Defendants. The first of those is a claim for
battery. Battery requires a plaintiff to prove that the defendant “acted with the
intent to cause harmful or offensive bodily contact with the person of the plaintiff
and that such contact actually followed.”131 The Plaintiff has put forth no evidence
to support the claim that any offensive contact occurred, aside from his own
subjective evaluations. The Defendants deny that they subjected the Plaintiff to any
objectively offensive or harmful conduct. I agree.
Mr. Abuomar provides very little information as to the manner and force of
the alleged battery. The record does not reflect sufficient context as to how the
Plaintiff was allegedly grabbed, and therefore does not offer enough evidence to
create a genuine issue of fact. Multiple witnesses testified that the Plaintiff was
never touched by any of the Defendants on the day in question—let alone in an
objectively offensive way. For example, Mr. Duncan was clear that no such contact
occurred at any point during the day’s events, and that he would not have allowed
any such contact had it been initiated by the Defendants.132 Considering the record
Dull v. West Manchester Tp. Police Dept., 604 F.Supp.2d 739, at 754 (M.D. Pa. 2009).
Duncan Dep. 43:14-23
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as whole, the Plaintiff cannot survive motion for summary judgment on the whim
of self-serving statements alone.
Defendants further assert that they are entitled to immunity on the battery
claim even if the Plaintiff could survive summary judgment on the merits.
Pennsylvania’s broad immunity statute provides sweeping protections to the
Commonwealth of Pennsylvania, its officials, and its employees:
“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
The Pennsylvania Department of Corrections (DOC) and its employees fall
under the umbrella of protection afforded by Pennsylvania’s tort immunity statute.
Courts have recognized that the DOC and its employees are entitled to immunity
under most circumstances, with the exception of when the General Assembly has
specifically waived immunity.134
Pennsylvania has waived immunity in a very limited set of circumstances.
Acts which may impose liability include cases involving: vehicle liability;
medical-professional liability; care, custody or control of personal property;
Commonwealth real estate, highways and sidewalks; potholes and other dangerous
1 Pa.C.S. § 2310.
Dennison v. Pennsylvania Dept. of Corrections, 268 F.Supp.2d 387, 405-6 (M.D. Pa. 2003).
- 38 -
conditions; care, custody or control of animals; liquor store sales; National Guard
activities; and toxoids and vaccines.135 Beyond those specific acts by a
Commonwealth party, the defense of sovereign immunity applies without question
to the Commonwealth, its officials, and its employees performed within the scope
of their employment.
In Pennsylvania, courts have adopted the Restatement (Second) of Agency’s
test for determining scope of employment. Conduct is within the scope of
employment only if: (a) it is the kind that the employee is employed to perform;
(b) it occurs substantially within the authorized time and space limits; (c) it is
calculated, at least in part, by a purpose to serve the employer; and (d) if force is
intentionally used, it is not unexpected by the employer.136 Even intentional torts
cannot be recovered for when an employee is acting within his official capacity.137
Therefore, if the Defendants were acting within the scope of their employment,
they are entitled to immunity for the state law claims against them.
It is that scope-of-employment condition that the Plaintiff contends the
Defendants do not satisfy. The Plaintiff points to statements made by the director
of the EEOC, suggesting that the EEOC has jurisdiction over investigation of
42 Pa.C.S. § 8522.
Restatement (Second) of Agency, § 228 (1958).
Pickering v. Sacavage, 642 A.2d 555 (Pa. Commw. Ct. 1994).
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complaints made to the EEOC.138 The Court acknowledges as much. However, it
does not simultaneously preclude the Superintendent himself from managing his
department’s own internal affairs.
Of course, the Court recognizes that the Superintendent, in order to effectively
operate his facility and manage his staff, must also have some method of internally
investigating allegations that are made amongst employees under his jurisdiction,
even if parallel concurrent investigations are already underway. It would lead to
counterintuitive results to say that a supervisor could not attempt to internally
resolve conflicts between his inferiors in such a manner. In fact, in Torres v.
Pisano, the Second Circuit reinforced the idea that once an employer is informed
of possible harassment in the workplace, he comes under a “duty to take
reasonable steps to eliminate it.”139 Upon weighing those concerns, this Court finds
that it would be counterproductive to second-guess the authority of the
Superintendent by holding that internal investigations were beyond the scope of his
There is no question that the events occurred within the authorized time and
space limits, and the decision to have the Plaintiff write a statement was calculated
to serve the Department of Corrections. Lastly, it does not appear that any force
Affidavit of Raphael Chieke, ECF 36.
Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997) (citing Snell v. Suffolk County, 782 F.3d 1094,
1104 (2d Cir. 1986)).
- 40 -
used (if there was any at all) was unexpected by the employer. As such, the Court
finds that the employees were acting within the scope of their employment.
Even if the contact that the Plaintiff alleged did occur, it would not rise to
the level of battery. Not every contact between individuals constitutes a harmful or
offensive touch. Professors Prosser and Keeton have explained that in “a crowded
world,” some level of contact between individuals is to be expected.140 According
to the “crowded world doctrine,” the time, place, and circumstances surrounding
the act are important in determining whether a battery occurred. 141 This doctrine
has been applied even in cases where one individual has intentionally made contact
with another to find that there was no battery.142 When trying to move from one
end of a prison hallway to another, individuals might well expect some contact
from others. In this setting, the alleged contact that the Plaintiff complains of did
not rise to a harmful or offensive level.
Accordingly, the motion on summary judgment as to Count VIII is granted.
Summary Judgment Is Granted As To Count IX—Plaintiff’s
State Law Intentional Infliction Of Emotional Distress Claim
In order to advance a claim of intentional infliction of emotional distress, a
plaintiff has to satisfy four elements, namely that: 1) the conduct was extreme and
W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS, § 9, at 42
(5th ed. 1984).
Wallace v. Rosen, 765 N.E.2d 192 (Ind. Ct. App. 2002).
- 41 -
outrageous; 2) the conduct was performed intentionally or recklessly; 3) the
conduct caused emotional distress; and 4) the distress was severe.143 Conduct is
only considered extreme and outrageous in Pennsylvania when it is “so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
society.”144 An average member of the community must hear the facts of the case
and be so incensed that he would deem the events “Outrageous!”145
The bar for recovery on a claim of intentional infliction of emotional distress
is set high for a plaintiff:
Cases which have found a sufficient basis for a cause of action of
intentional infliction of emotional distress have had presented only the
most egregious conduct. See e.g., Papieves v. Lawrence, 437 Pa. 373,
263 A.2d 118 (1970) (defendant, after striking and killing plaintiff's
son with automobile, and after failing to notify authorities or seek
medical assistance, buried body in a field where discovered two
months later and returned to parents (recognizing but not
adopting section 46)); Banyas v. Lower Bucks Hospital, 293 Pa.
Super. 122, 437 A.2d 1236 (1981) (defendants intentionally fabricated
records to suggest that plaintiff had killed a third party which led to
plaintiff being indicted for homicide); Chuy v. Philadelphia Eagles
Football Club, 595 F.2d 1265 (3d. Cir.1979) (defendant’s team
physician released to press information that plaintiff was suffering
from fatal disease, when physician knew such information was
Doe v. Liberatore, 478 F.Supp.2d 742, at 765 (M.D. Pa. 2007).
Strickland v. University of Scranton, 700 A.2d 979, at 987 (Pa. Super. Ct. 1997).
Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998).
- 42 -
Additionally, the plaintiff must allege the “physical manifestations of that
distress,” showing a physical harm suffered as a result of the outrageous
conduct.147 Furthermore, a plaintiff must generally provide “competent medical
evidence” to prove injury.148
The Plaintiff has not provided evidence to show that the alleged conduct was
of an extreme and outrageous nature necessary to satisfy the first prong. Nor has he
supplemented the record with sufficient medical evidence, or any competent
medical evidence, to satisfy his burden as to the third or fourth prongs. This
complete absence of evidence supporting his claim for intentional infliction of
emotional distress means that it must fail on the merits.
Furthermore, in accordance with the rationale and judgment outlined with
regard to Count VIII, Defendants are entitled to summary judgment on the state
law claim alleged under Count IX for intentional infliction of emotional distress on
the basis of state sovereign immunity. Therefore, summary judgment with respect
to Count IX is granted.
M.S. ex rel. Hall v. Susquehanna Township School Dist., 43 F.Supp.3d 412, 430 (M.D. Pa.
Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, at 197 (Pa. 1987).
- 43 -
Summary Judgment Is Granted As To Count X—Plaintiff’s State
Law False Imprisonment Claim
False imprisonment in Pennsylvania is characterized by two elements: first,
the detention of a person, and second, the unlawfulness of such detention.149 The
Plaintiff must therefore prove that he was in fact detained, and that this detention
would have been unlawful. The Plaintiff fails to make out this claim because he
was simply not detained on the day in question, for the reasons outlined under
Count II. Absent evidence of such detention, the Plaintiff’s claim for false
Even if the Plaintiff had provided sufficient evidence to survive summary
judgment on the merits of the claim, Defendants are entitled to immunity in
accordance with the rationale and judgment outlined with regards to Count VIII.
As a result, the motion for summary judgment is granted on Count X.
Pahle v. Colebrookdale Tp., 227 F.Supp.2d 361 (E.D. Pa. 2002) (citing Fagan v. Puttsburg
Terminal Coal Corporation, 149 A. 159 (Pa. 1930)).
- 44 -
In accordance with the foregoing reasoning, Defendants’ Motion for
Summary Judgment is granted in full.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
- 45 -
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