TALLEY v. KING et al
MEMORANDUM OPINION granting in part and denying in part 23 Defendants' Motion for Partial Summary Judgment. This case will proceed on Plaintiff's claims against Defendant King for excessive force and assault and battery and on Plaintiff's claim against Defendant Orbash for failure to protect. Signed by Magistrate Judge Cynthia Reed Eddy on 5/18/2017. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
C/O R. KING, and C/O ORBASH,
Civil Action No. 2: 16-cv-00152
United States Magistrate Judge
Cynthia Reed Eddy
Presently pending is the partial motion for summary judgment filed by Defendants. (ECF
The issues have been fully briefed and the factual record has also been thoroughly
developed. (ECF Nos. 24, 25, 26, 33, 34, 35, 36, and 37). The motion is ripe for disposition.
For the reasons that follow, the motion will be granted in part and denied in part.
Quintez Talley (“Talley”) is a state prisoner currently confined at SCI-Graterford. He
alleges that while incarcerated at SCI-Greene, Defendant Corrections Officer King used
excessive force against him and Defendant Corrections Officer Orbash failed to protect him.
Defendants do not seek summary judgment on these two claims. Talley also asserts claims for
The parties have consented to jurisdiction by the undersigned Magistrate Judge. See ECF
Nos. 38 and 46.
The facts are construed in the light most favorable to Talley, the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
due process, equal protection, racial discrimination, retaliation, assault and battery, and mental
harm.3 Defendants seek summary judgment on these claims.
On the morning of September 16, 2015, Defendants, Corrections Officers Robert King
(“King”) and Robert Orbash (“Orbash”), were distributing breakfast trays in the SCI-Greene
Restricted Housing Unit (“RHU”). They did not give inmate, Patrick Davis, a breakfast tray.
After Orbash gave Talley his food try, Talley took his “food slot hostage” by sticking his
arm out the food aperture. At that point, King repeatedly slammed the wicket on Talley’s arm
while yelling racial epithets at him. According to Talley, Orbash saw the whole thing but failed
According to Defendants, after the incident with Talley, they continued to feed the
prisoners on the pod. As they were exiting the pod, Talley attempted to strike King with the tray
lid and his fists. Talley also allegedly threw food at King, spat at him, threw coffee and other
drink items at him, and several minutes later, Talley threw material outside of his cell door and
set the material on fire.
Talley was issued two misconduct reports as a result of the incident with King: (1)
Charge B561610 for assault and other infractions for assaulting King; and (2) Charge B561613
for arson. Both misconducts were dismissed without prejudice due to procedural problems and
were not refiled.
Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted
if the “movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” When applying this standard, the court must examine
Talley withdrew his state claims for defamation of character, intentional infliction of
emotional distress, and mental anguish in his amended complaint. (ECF No. 10 at ¶ 69).
the factual record and reasonable inferences therefrom in the light most favorable to the party
opposing summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). “A fact is material if it might affect the outcome of the suit under the governing
law.” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013) (citing Scheidemantle v. Slippery
Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006)).
The non-moving party cannot rest solely on assertions made in the pleadings, legal
memoranda, or oral argument, but must “put up or shut up.” Berckeley Inv. Grp., Ltd. v. Colkitt,
455 F.3d 195, 201 (3d Cir. 2006) (quoting Jersey Cent. Power & Light Co. v. Lacey Twp., 772
F.2d 1103, 1109–10 (3d Cir. 1985)). Plaintiff must go beyond the pleadings and show specific
facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to
interrogatories and admissions) to meet his burden of providing elements essential to his claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Saldana v. Kmart Corp., 260 F.3d
228, 232 (3d Cir. 2001). The non-moving party “must present more than just bare assertions,
conclusory allegations or suspicions to show the existence of a genuine issue.” Podobnik v. U.S.
Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005).
When considering a motion for summary judgment, the court is not permitted to weigh
the evidence or to make credibility determinations, but is limited to deciding whether there are
any disputed issues and, if there are, whether they are both genuine and material. Anderson v.
Liberty Lobby, 477 U.S. 242, 255 (1986). The inquiry, then, involves determining “‘whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’” Brown v. Grabowski, 922 F.2d 1097,
1111 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991) (quoting Liberty Lobby, 477 U.S.
at 251–52). “After making all reasonable inferences in the nonmoving party’s favor, there is a
genuine issue of material fact if a reasonable jury could find for the nonmoving party.”
Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins.
Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)).
The moving party has the initial burden of proving to the district court the absence of
evidence supporting the non-moving party’s claims. Celotex, 477 U.S. at 322; UPMC Health
Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). The burden then shifts to the
non-movant to come forward with specific facts showing a genuine issue for trial. Williams v.
Borough of West Chester, 891 F.2d 458, 460–61 (3d Cir. 1989) (non-movant must present
affirmative evidence—more than a scintilla but less than a preponderance—which supports each
element of his claim to defeat a properly presented motion for summary judgment).
Federal Claims Under 42 U.S.C. § 1983
A plaintiff “must [show] a deprivation of a constitutional right and that the constitutional
deprivation was caused by a person acting under the color of state law” to establish a viable
Section 1983 claim. Phillips v. Cty. of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008), superseded
on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009). Talley’s federal claims are against
Defendants only in their individual capacities.4
Due Process Claim5
The Fourteenth Amendment provides that no State shall “deprive any person of life,
liberty, or property, without due process of law.” U.S. CONST. Amend. XIV, § 1. Thus, to
establish a claim under the Due Process Clause, Tally must show that he had a protected liberty
Talley withdrew his official-capacity claims against the Defendants in his amended
complaint. (ECF No. 10 at ¶ 57).
In his opposition brief, Talley did not address this claim.
or property interest of which he was deprived, and that the process afforded him did not comport
with constitutional requirements. Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000). Due
process protection only applies when a prisoner is subjected to “atypical and significant hardship
. . . in relation to the ordinary incidents of prison life.” Griffin v. Vaughn, 112 F.3d 703, 706 (3d
Cir. 1997) (quoting Sandin v. Connor, 515 U.S. 472, 484 (1995)).
Talley claims that his due process rights were violated when Officer King filed a
“fabricated” misconduct report against him.
The summary judgment record demonstrates that
Talley was already committed to the RHU when the misconduct report was issued, and that the
misconduct was dismissed without prejudice and was not refiled. Because no disciplinary
proceeding occurred which resulted in sanctions against Talley, he has not articulated a sufficient
liberty interest to trigger a valid due process claim. See Sandin v. Connor, 515 U.S. 472 (1995);
Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002); Griffin v. Vaughn, 112 F.3d 703 (3d Cir.
1997). Summary judgment will be granted on this issue as Talley’s due process claim fails as a
matter of law.
Equal Protection Claim
Talley alleges that his equal protection rights were violated because prisoners similarly
situated to him would not have had their arms slammed in the food aperture.
The Fourteenth Amendment Equal Protection Clause provides that no state shall “deny
to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV,
§ 1. The Equal Protection Clause requires that “[a]ll persons similarly situated should be treated
alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
In this case, Talley alleges that he was treated differently because he is African
American.6 As race is a suspect class, strict scrutiny is applied such that any racial classifications
must be narrowly tailored measures that further compelling governmental interests. Johnson v.
California, 543 U.S. 499, 505 (2005). However, even when a suspect class is involved, there is
no denial of equal protection unless the person was treated differently because of his or her class.
City of Cleburne, 473 U.S. at 349.
The summary judgment record evidence, even when viewed in a light most favorable to
Talley, is not sufficient to survive summary judgment. Talley has not demonstrated that nonblack prisoners who dangle an arm outside of a cell are treated any differently than he was.
Therefore, summary judgment will be granted to Defendants on Talley’s equal protection claim.7
Talley alleges that the assault misconduct issued by King was a retaliatory discipline to
retaliate against him and to cover up King’s “hate crime.” To establish a claim for retaliation,
Talley must demonstrate: “(1) his conduct was constitutionally protected; (2) he suffered an
In his response to the motion for summary judgment, Talley also argues, for the first
time, that “he was trying to set forth an equal protection” claim under a class of one. . . .” P’s
Br at 10 n. 22 (ECF o. 33). There are two problems with this argument. First, the time to raise a
new claim has long passed. Discovery has closed in this matter and Talley never requested leave
to amend his complaint to reflect that his equal protection claim was a “class of one” claim.
Moreover, Talley’s argument is without merit for an even more compelling reason: he cannot
establish the elements necessary for a class-of-one equal protection claim. Our circuit has “little
jurisprudence discussing this ‘class of one’ theory, “ but “it is clear that, at the very least, to state
such a claim under [this] theory, a plaintiff must allege that (1) the defendant treated him
differently from others similarly situated; (2) the defendant did so intentionally; and (3) there
was no rational basis for the difference in treatment.” Phillips v. City of Allegheny, 515 F.3d
224, 243 (3d Cir. 2008). Thus, even under a class of one theory, Talley still must demonstrate
that he was treated differently from others similarly situated.
Talley agrees with Defendants that “claims of racial discrimination by prisoners fall
under” the Equal Protection Clause. (ECF No. 33 at p. 11 n.27). Thus, his racial discrimination
claim will share the fate of his Equal Protection Clause claim—summary judgment will be
granted to Defendants on this claim.
adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was
a substantial or motivating factor in the decision to discipline him.” Watson v. Rozum, 834 F.3d
417, 422 (3d Cir. 2016). After a prisoner proves his prima facie retaliation case, if prison
officials establish that “they would have made the same decision absent the protected conduct for
reasons reasonably related to a legitimate penological interest,” they will prevail at summary
judgment. Id. (citing Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001)).
Here, the summary judgment record is void of any evidence reflecting that Talley
engaged in constitutionally protected conduct. Verbal complaining about the treatment received
by another inmate does constitute constitutionally protected conduct.
suffered no adverse action, as the misconduct was dismissed without prejudice and was never
refiled. A dismissed prison misconduct is not an adverse action as a matter of law. Brightwell v.
Lehman, 637 F.3d 187, 194 (3d Cir. 2011). Therefore, Talley cannot meet the elements to prove
his prima facie case and summary judgment will be granted to Defendants on this claim.8
State Law Claims
Assault and battery is a state law intentional tort and Plaintiff’s “mental harm” claim is
construed by the Court to be intentional infliction of emotional distress,9 another state law
intentional tort. Defendants contend that they are entitled to sovereign immunity on both of
Tally argues that his retaliatory discipline claim should be analyzed under the Eighth
Amendment, rather than the First Amendment. Talley provides no support for this argument and
the Court is not aware of any case law that instructs that a retaliation claim should not be
analyzed under the First Amendment. Even assuming that this claim is more akin to an
excessive punishment claim under an Eighth Amendment cruel and unusual punishment
analysis, summary judgment would still be granted to Defendants because the misconduct was
dismissed and Talley was issued no punishment or sanction as a result of the misconduct.
Talley argues that a “mental harm” tort is distinct from intentional infliction of emotional
distress. The Court finds no merit to this argument.
Statutory sovereign immunity bars suits against “Commonwealth employees in both their
official and individual capacities, so long as the employees are acting with[in] the scope of their
duties.” Brautigam v. Farley, 684 F. Supp. 2d 589, 593 (M.D. Pa. 2010) (internal citations
omitted); see also 1 Pa.C.S. § 2310. “Under Pennsylvania law, an action falls within the scope
of employment if it: (1) is the kind that the employee is employed to perform; (2) occurs
substantially within the job’s authorized time and space limits; (3) is motivated at least in part by
a desire to serve the employer; and (4) if force was used by the employee against another, the use
of force is not unexpectable by employer.” Mitchell v. Luckenbill, 680 F. Supp. 2d 672, 682
(M.D.Pa. 2010). Thus, if a Commonwealth employee is acting within the scope of his or her
employment when the employee commits a tort, the employee is not amenable to suit unless one
of the nine enumerated exceptions to the statutory grant of sovereign immunity applies. See 42
Pa.C.S. § 8522(b). This is true whether the tort is committed negligently or intentionally. See
Mitchell, 680 F.Supp.2d at 682 (“[W]illful misconduct does not vitiate a Commonwealth
employee’s immunity if the employee is acting within the scope of his employment . . . .”).
It is uncontested that none of the nine enumerated exceptions to the statutory grant of
sovereign immunity apply in this case Therefore, for Talley’s state law claims to be viable, the
evidence must show that Defendants acted outside the scope of their employment.
Assault and Battery
Talley alleges that King committed an assault and battery against him when King
“intentionally slamm[ed] his arm in the food slot & doing it with the intent to hurt Plaintiff.”
Complaint at ¶ 30 (ECF No. 1-1). He further alleges that Orbash should be held liable for King’s
behavior because he failed to intervene.
An assault occurs when (a) an actor “‘intend[s] to cause a harmful or offensive contact
with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) the other is thereby put in immediate apprehension.’” Renk v. City of Pittsburgh, 641 A.2d
289, 294–95 (Pa. 1994) (quoting Restatement (Second) of Torts § 21(1) (1965)). “‘[A] battery is
committed whenever the violence menaced in an assault is actually done, though in ever so small
a degree, upon the person.” Renk, 641 A.2d at 293 (quoting Cohen v. Lit Bros., 70 A.2d 419,
421 (Pa. Super. Ct. 1950)).
Pennsylvania courts have recognized that “an assault committed by an employee upon
another person for personal reasons or in an outrageous manner is not actuated by an intent to
perform the business of the employer and, as such, is not within the scope of employment.” Zion
v. Nassan, 28 F.R.D. 247, 267 (W.D.Pa. 2012) (quoting Costa v. Roxborough Mem’l Hosp., 708
A.2d 490, 493 (Pa. Super. Ct. 1998) (emphasis added).
After reviewing the summary judgment record and construing it in the light most
favorable to Talley, the Court finds that a reasonable jury could find that King acted outside the
scope of his employment during his altercation with Talley on September 16, 2015. King
repeatedly slammed Talley’s extended arm into the cell door for ten to thirty seconds. While
King slammed Talley’s arm, he used racial epithets and physical threats. Therefore, summary
judgment will be denied on Talley’s claims for assault and battery against King.
In contrast, the summary judgment record evidence does not demonstrate that Orbash
acted outside the scope of his employment when he allegedly failed to intervene. Therefore,
summary judgment will be granted on Talley’s claims for assault and battery against Orbash.
Mental Harm (Intentional Infliction of Emotional Distress)
Talley alleges that he was suffered “mental harm” from King’s assault and battery and
Orbash’s failure to intervene. Supplemental/ Amended Complaint, at ¶ 74 (ECF No. 10).
Talley’s claim for mental harm, is construed as a claim for intentional infliction of emotional
distress, does not survive summary judgment. For an intentional infliction of emotional distress
claim to be viable under Pennsylvania law, “existence of the alleged emotional distress must be
supported by competent medical evidence.” Kazatsky v. King David Mem’l Park, 527 A.2d 988,
995 (Pa. 1987). Talley has not produced any medical evidence which supports his claim that he
suffered emotional distress due to the conduct of King and/or Orbash. Therefore, summary
judgment will be granted on Talley’s state claim for intentional infliction of emotional distress.
Talley’s Attempt to Move for Summary Judgment
In his brief in opposition, Talley seeks summary judgment on his Eighth Amendment
claims. (ECF No. 33 at 5). The deadline for filing summary judgment motions was December
12, 2016. (ECF No. 22). Talley has not filed a motion for summary judgment, but rather seeks
such relief in his opposition to Defendants’ partial motion for summary judgment. But more
importantly, the summary judgment record reflects that genuine issues of material fact exist on
Talley’s excessive force claim against King and his failure to protect claim against Orbash.
Accordingly, Talley’s request will be denied.
Based on the foregoing, Defendants’ partial motion for summary judgment (ECF No. 23)
will be granted in part and denied in part. Summary judgment will be granted on Talley’s federal
claims of violations of due process, equal protection, racial discrimination, and retaliation.
Summary judgment will also be granted on Talley’s state law claims of intentional infliction of
emotional distress and on his assault and battery claim against Orbash, only.
In sum, the remaining claims in this case are Talley’s federal claims of excessive force
against King and his failure to protect against Orbash, and his state law claim of assault and
battery against King.
Dated: May 18, 2017
BY THE COURT:
s/Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
P.O. Box 244
Graterford, PA 19426-0244
(via U.S. First Class Mail)
Office of Attorney General
(via ECF electronic notification)
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