Sears v. McCoy

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD SEARS, :

Plaintiff :

: No. 1:17-cv-00869

v. :

: (Judge Kane)

DANTE MCCOY, et al., :

Defendants :

MEMORANDUM

Presently before the Court is the motion for summary judgment (Doc. No. 48) filed by

Defendant Dante McCoy (“McCoy”) following the United States Court of Appeals for the Third

Circuit’s remand of the above-captioned case (Doc. Nos. 44, 45). The motion is fully briefed

and ripe for disposition. For the reasons that follow, the Court will grant in part and deny in part

the motion for summary judgment.

I. BACKGROUND

Pro se Plaintiff Richard Sears, an individual currently confined at the State Correctional

Institution in Albion, Pennsylvania (“SCI Albion”), initiated the above-captioned action by filing

a complaint pursuant to 42 U.S.C. § 1983 on May 16, 2017, against Defendants McCoy,

Lieutenant A. Peters (“Peters”), Lieutenant J. Eveland (“Eveland”), Lieutenant Brian Carpentier

(“Carpentier”), Captain Sciochitana (“Sciochitana”), Deputy Superintendent Facility Manager E.

Baumbach (“Baumbach”), Deputy Superintendent for Centralized Services Anthony Luscavage

(“Luscavage”), Superintendent Vincent Mooney (“Mooney”); and Chief Grievance Officer

Dorina Varner (“Varner”), concerning events that Plaintiff alleges occurred while he was

incarcerated at the State Correctional Institution in Coal Township, Pennsylvania (“SCI Coal

Township”). (Doc. No. 1.) Plaintiff claims that after he filed grievances against Defendant

McCoy, Defendant McCoy verbally abused and harassed him by calling him a “rat” in front of

other inmates and made a number of sexually explicit comments to him. (Id.) Plaintiff also

alleges that Defendant McCoy retaliated against him for filing grievances by throwing out

Plaintiff’s commissary purchase slips, placing a “dark brown foreign object” in his meal, and

stealing and destroying a photograph of Plaintiff’s father. (Id.) Plaintiff also avers that

Defendants Peters, Eveland, Mooney, Varner, Scicchitano, and Carpentier had an “opportunity to

do something meaningful and positive for Mr. Sears and curb or deter any future forms of such

behavior by defendant McCoy[,]” but they “did nothing, causing Mr. Sears to be further

subjected to such behavior [by McCoy].” (Id.) Plaintiff did not assert any allegations against

Defendants Baumbach or Luscavage.

In a Memorandum and Order dated September 12, 2017, the Court granted Plaintiff leave

to proceed in forma pauperis and screened Plaintiff’s complaint pursuant to 28 U.S.C.

§ 1915(e)(2). (Doc. Nos. 5, 6.) Specifically, the Court: (1) dismissed Plaintiff’s claims of verbal

abuse against Defendant McCoy; (2) dismissed his claims against Defendants Peters, Eveland,

Carpentier, Sciochitana, and Varner because he could not maintain a claim based upon their

handling of his grievances and appeals; (3) dismissed Defendants Baumbach and Luscavage

without prejudice because Plaintiff had failed to make any allegations against them; and (4)

noted that Plaintiff’s First Amendment retaliation claim against Defendant McCoy could

proceed. (Doc. No. 5.) The Court granted Plaintiff leave to file an amended complaint within

thirty (30) days so that he could set forth allegations against Defendants Baumbach and

Luscavage. (Id.)

Plaintiff did not file an amended complaint. Accordingly, by Order dated October 31,

2017, the Court directed service of Plaintiff’s complaint upon Defendant McCoy. (Doc. No. 7.)

Defendant McCoy filed his answer on December 5, 2017. (Doc. No. 10.) After the parties

engaged in discovery, Defendant McCoy filed a motion for summary judgment (Doc. No. 20)

and supporting materials (Doc. Nos. 21, 22). After receiving an extension of time, Plaintiff filed

a response in opposition. (Doc. No. 26.) After being granted leave to do so (Doc. Nos. 25, 27),

Defendant McCoy filed a supplemental declaration in support of his motion for summary

judgment on February 19, 2019. (Doc. No. 28.) On May 20, 2019, observing that Defendant

McCoy raised the issue of whether Plaintiff exhausted his administrative remedies with respect

to his claims in accordance with the Prison Litigation Reform Act (“PLRA”), the Court issued a

Paladino Order informing the parties that it would consider the exhaustion issue in the context of

summary judgment and, by doing so, would consider matters outside the pleadings in its role as

factfinder.1 (Doc. No. 35.) The Court provided Defendant McCoy fourteen (14) days to “amend

or supplement his materials to further address the issue of whether Plaintiff has exhausted his

administrative remedies.” (Id.) The Court further noted that Plaintiff should file a brief in

opposition addressing the issue of administrative exhaustion, as well as a statement of material

facts specifically responding to Defendant McCoy’s statement, within twenty-one (21) days from

the date that Defendant McCoy filed any amended or supplemental materials. (Id.) Despite

receiving an extension of time (Doc. Nos. 36, 37), Defendant McCoy did not file any

supplemental materials regarding the issue of administrative exhaustion.

In a Memorandum and Order dated June 27, 2019, the Court granted Defendant McCoy’s

motion for summary judgment, concluding that Plaintiff had failed to properly exhaust his

administrative remedies with respect to his claims against Defendant McCoy. (Doc. No. 38, 39.)

Plaintiff filed a timely notice of appeal. (Doc. No. 41.) On July 8, 2020, the Third Circuit

1 See Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018).

affirmed in part and vacated in part this Court’s judgment. See Sears v. McCoy, 815 F. App’x

668, 669 (3d Cir. 2020). Specifically, the Third Circuit affirmed this Court’s dismissal of

Plaintiff’s verbal harassment claims against Defendant McCoy, noting that “allegations of verbal

harassment, unaccompanied by another injury, are not cognizable under § 1983.” See id. at 670.

The Third Circuit, however, agreed with Plaintiff that Defendant McCoy had not met his burden

of proving that Plaintiff had failed to exhaust his administrative remedies on his retaliation

claims regarding “food tampering, withholding a commissary slip, and theft of a photograph.”

See id. Moreover, the Third Circuit concluded that Plaintiff had substantially complied with the

administrative grievance process with respect to his retaliation claims concerning Defendant

McCoy’s sexually explicit remarks and his labeling Plaintiff as a “rat.” See id. at 671. The

Third Circuit, therefore, affirmed this Court’s judgment as to the dismissal of Plaintiff’s verbal

harassment claims against Defendant McCoy and his claims against all other Defendants and

vacated the grant of summary judgment with respect to Plaintiff’s retaliation claims against

Defendant McCoy. See id.

The Third Circuit’s mandate issued on July 30, 2020. (Doc. No. 45.) In an Order dated

that same day, the Court reopened the above-captioned case and directed Defendant McCoy to

file a motion for summary judgment addressing the merits of Plaintiff’s First Amendment claims.

(Doc. No. 46.) Defendant McCoy filed his motion for summary judgment and statement of

material facts on September 14, 2020 (Doc. Nos. 48, 49), and filed his brief in support of his

motion on September 28, 2020 (Doc. No. 50). After receiving an extension of time to do so

(Doc. No. 52), Plaintiff filed his oppositional materials on November 10, 2020. (Doc. Nos. 54,

55, 56, 57). Defendant McCoy filed his reply brief on November 24, 2020. (Doc. No. 59.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) requires the Court to render summary judgment “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.” See Fed. R. Civ. P. 56(a). “[T]his standard provides

that the mere existence of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement is that there be no

genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome

of the case under applicable substantive law. See id. at 248; Gray v. York Newspapers, Inc., 957

F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at

257; Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1287-88

(3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the Court must view

the facts and all reasonable inferences in favor of the nonmoving party. See Moore v. Tartler,

986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992);

White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment,

however, the nonmoving party may not rest on the unsubstantiated allegations of his or her

pleadings. When the party seeking summary judgment satisfies its burden under Rule 56 of

identifying evidence that demonstrates the absence of a genuine issue of material fact, the

nonmoving party is required to go beyond his pleadings with affidavits, depositions, answers to

interrogatories, or the like in order to demonstrate specific material facts that give rise to a

genuine issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the

motion “must do more than simply show that there is some metaphysical doubt as to the material

facts.” See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule

56 shifts the burden of production to the nonmoving party, that party must produce evidence to

show the existence of every element essential to its case that it bears the burden of proving at

trial, for “a complete failure of proof concerning an essential element of the nonmoving party’s

case necessarily renders all other facts immaterial.” See Celotex, 477 U.S. at 323; see also

Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).

In determining whether an issue of material fact exists, the Court must consider the

evidence in the light most favorable to the nonmoving party. See White, 862 F.2d at 59. In

doing so, the Court must accept the nonmovant’s allegations as true and resolve any conflicts in

his favor. See id. (citations omitted). However, a party opposing a summary judgment motion

must comply with Local Rule 56.1, which specifically directs the oppositional party to submit a

“statement of the material facts, responding to the numbered paragraphs set forth in the statement

required [to be filed by the movant], as to which it is contended that there exists a genuine issue

to be tried”; if the nonmovant fails to do so, “[a]ll material facts set forth in the statement

required to be served by the moving party will be deemed to be admitted.” See L.R. 56.1. A

party cannot evade these litigation responsibilities in this regard simply by citing the fact that he

is a pro se litigant. These rules apply with equal force to all parties. See Sanders v. Beard, No.

09-1384, 2010 WL 2853261, at *5 (M.D. Pa. July 20, 2010) (stating that pro se parties “are not

excused from complying with court orders and the local rules of court”); Thomas v. Norris, No.

02-01854, 2006 WL 2590488, at *4 (M.D. Pa. Sept. 8, 2006) (explaining that pro se parties must

follow the Federal Rules of Civil Procedure).

III. STATEMENT OF MATERIAL FACTS2

Plaintiff filed his complaint in the above-captioned case in May of 2017. (Doc. No. 49

¶ 1.) In his complaint, Plaintiff alleges that Defendant McCoy placed a “dark brown colored

foreign object” in his food. (Id. ¶ 4.) Plaintiff alleges that on the date that this occurred,

Defendant McCoy “made a ‘mischievous comment’ stating, ‘Don’t blame me.’”3 (Id. ¶ 6.)

Plaintiff did not keep the “brown foreign object” as evidence. (Id. ¶ 10.) In his complaint,

2 The Local Rules provide that in addition to the requirement that a party file a brief in

opposition to the moving party’s brief in support of its motion, “[t]he papers opposing a motion

for summary judgment shall include a separate, short and concise statement of material facts

responding to the numbered paragraphs set forth in the statement [of material facts filed by the

moving party] . . . as to which it is contended that there exists a genuine issue to be tried.” See

M.D. Pa. L.R. 56. 1. The Rule further requires the inclusion of references to the parts of the

record that support the statements. See id. Finally, the Rule states that the statement of material

facts required to be served by the moving party will be deemed to be admitted unless

controverted by the statement required to be served by the opposing party. See id. Unless

otherwise noted, the background herein is derived from Defendant McCoy’s Rule 56.1 statement

of facts. (Doc. No. 49.)

Plaintiff has complied with Local Rule 56.1 by filing a response to Defendant McCoy’s

statement of undisputed material facts. (Doc. No. 56.) Moreover, while Plaintiff’s verified

complaint (Doc. No. 1) may be treated as an affidavit in opposition to the motion for summary

judgment, the allegations must be based on personal knowledge, and the Court is not “required to

accept unsupported, self-serving testimony as evidence sufficient to create a jury question.” See

Hammonds v. Collins, No. 12-236, 2016 WL 1621986, at *3 (M.D. Pa. Apr. 20, 2016) (citing

Brooks v. Am. Broad. Co., 999 F.2d 167, 172 (6th Cir. 1993)). Accordingly, the Court recites

the undisputed facts above with footnotes setting forth the parties’ relevant factual disputes.

3 Plaintiff avers that on July 10, 2015, Defendant McCoy walked past his cell shortly after

Plaintiff had received his meal tray. (Doc. No. 1 ¶ 59.) He states that Defendant McCoy made a

“mischievous comment” at the cell door, stating “Don’t blame me.” (Id.) Plaintiff discovered

the “dark brown colored foreign object in his food.” (Id. ¶ 60.) He pressed the cell’s emergency

button, but Defendant McCoy “refused to do something positive” and told Plaintiff to eat the

object. (Id. ¶¶ 61-62.) Plaintiff maintains further that Defendant McCoy told him that it was not

a medical emergency even though Plaintiff at no time had requested medical assistance. (Id.

¶¶ 62-63.) Plaintiff showed the object to the other corrections officer who was assisting

Defendant McCoy with collecting the meal trays. (Id. ¶ 68.)

Plaintiff also alleges that a photograph of his deceased father was destroyed.4 (Id. ¶ 5.) Plaintiff

alleges that Defendant McCoy took the photograph.5 (Id. ¶ 7.)

IV. DISCUSSION

A. Plaintiff’s Retaliation Claim

To state a retaliation claim under the First Amendment, a plaintiff bears the burden of

satisfying three (3) elements. First, a plaintiff must prove that he was engaged in a

constitutionally protected activity. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).

Second, a plaintiff must demonstrate that he “suffered some ‘adverse action’ at the hands of

prison officials.” See id. (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). This

requirement is satisfied when the adverse action is “sufficient ‘to deter a person of ordinary

firmness’ from exercising his First Amendment rights.” See id. (quoting Suppon v. Dadonna,

Plaintiff asserts that on September 25, 2015, he placed the photograph beneath his mattress

4before preparing for a shower. (Id. ¶ 77.) Corrections Officer Brito came to the cell to escort

P laintiff to his shower, but Defendant McCoy indicated that he would take care of that task. (Id.

¶ 78.) Both Brito and Defendant McCoy escorted Plaintiff to the shower. (Id. ¶ 81.) Defendant

McCoy then proceeded to enter Plaintiff’s cell. (Id. ¶ 82.) Plaintiff avers that, from the shower,

he watched Defendant McCoy enter his cell, turn the light on, and remain in the cell for four (4)

to five (5) minutes. (Id. ¶ 83.) Shortly thereafter, Brito and another corrections officer

immediately escorted Plaintiff back to his cell. (Id. ¶ 84.) When he entered the cell, “the first

thing [Plaintiff] noticed” was that his mattress was flipped over in “disarray.” (Id. ¶ 85.) He

noted that the photograph of his father “was no longer in the location where he [had] placed it.”

(Id.)

5 In his complaint, Plaintiff further avers that, in response to his act of filing grievances,

Defendant McCoy made sexually explicit, derogatory remarks,5 and also labeled him as a “rat”

in front of other inmates. (Id. ¶¶ 22, 24, 27, 30, 33.) Plaintiff maintains further that on February

4, 2015, Defendant McCoy refused to give Plaintiff his commissary items (id. ¶ 25), and that on

April 16, 2015, he collected Plaintiff’s commissary slip, “blew a kiss at [Plaintiff],” walked away

“smiling and laughing,” and then discarded the slip, causing Plaintiff to not receive commissary

the following week (id. ¶ 46). Plaintiff has also submitted a declaration, sworn under the penalty

of perjury, setting forth the facts noted above. (Doc. No. 57 at 11-24.) He has also submitted

declarations from inmates David Serrano and Cody Wright, sworn under the penalty of perjury,

that Defendant McCoy labeled him as a “rat” and used sexually explicit, derogatory language

towards him. (Id. at 4-8.)

2013 F.3d 228, 235 (3d Cir. 2000)). Third, a prisoner must prove that “his constitutionally

protected conduct was ‘a substantial or motivating factor’ in the decision to discipline him.” See

Rauser, 241 F.3d at 333-34 (quoting Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 287 (1977)).

The mere fact that an adverse action occurs after either a complaint or grievance is filed

is relevant, but not dispositive, for the purpose of establishing a causal link between the two

events. See Lape v. Pennsylvania, 157 F. App’x 491, 498 (3d Cir. 2005). Only when the facts of

a particular case are “unusually suggestive” of a retaliatory motive will temporal proximity, on

its own, support an inference of causation. See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503

(3d Cir. 1997). If a prisoner establishes a prima facie case of retaliation, the burden shifts to

prison officials to show, by a preponderance of the evidence, that “they would have made the

same decision absent the protected conduct for reasons reasonably related to a legitimate

penological interest.” See Rauser, 241 F.3d at 334. “This is often referred to as the ‘same

decision defense.’” Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). If the prison officials

can make this showing, it defeats the retaliation claim. See Carter v. McGrady, 292 F.3d 152,

159 (3d Cir. 2002).

It is well-settled that Plaintiff engaged in protected activity by filing grievances. See

Mearin v. Vidonish, 450 F. App’x 100, 102 (3d Cir. 2011). The Court, therefore, must next

consider whether Plaintiff suffered adverse action. To be actionable under § 1983, the adverse

action “need not be great” but “must be more than de minimus.” See McKee v. Hart, 436 F.3d

165, 170 (3d Cir. 2006). Moreover, “[t]he cumulative impact of retaliatory acts may become

actionable even though the actions would be de minimis if considered in isolation.” See Brennan

v. Norton, 350 F.3d 399, 422 n.17 (3d Cir. 2003). Defendant McCoy does not directly address

the adverse action prong, but rather asserts that “Plaintiff has no facts in support of his claims,

and his failure to retain the ‘brown foreign object’ has prejudiced [his] ability to defend the

claim.” (Doc. No. 50 at 5.) For the reasons discussed below, the Court disagrees.

In support of summary judgment, Defendant McCoy avers that Plaintiff has admitted that

there are no facts or evidence to support his claims because of “his failure to answer the

Statement of Material Facts from the original Summary Judgment Motion.” (Id. at 5.)

Defendant McCoy’s argument, however, is misplaced. While Defendant McCoy is correct that

the Court did deem his original statement of material facts to be undisputed because of Plaintiff’s

failure to file a response (Doc. No. 38 at 6 n.2), that statement of facts is not before the Court at

this time. This Court’s previous grant of summary judgment was based solely upon a conclusion

that Plaintiff failed to properly exhaust his administrative remedies and at no time addressed any

material facts regarding the merits of his retaliation claim. As noted supra, Plaintiff has filed a

response, including a response to the statement of material facts, to the motion for summary

judgment that is currently before the Court.

In any event, Defendant McCoy is incorrect that Plaintiff has failed to provide evidence

in support of his retaliation claims. Plaintiff’s complaint is verified and, therefore, may be

treated as an affidavit in opposition to summary judgment. See Reese v. Sparks, 760 F.2d 64, 67

(3d Cir. 1985). Moreover, as noted supra, Plaintiff has provided his own declaration as well as

two (2) declarations from other inmates in support of his claims.6 (Doc. No. 57 at 4-8, 11-24.)

6 In his reply brief, Defendant McCoy asserts that Plaintiff’s affidavit from David Serrano is

inadmissible hearsay because Serrano is now deceased. (Doc. No. 59 at 3.) In support of that

assertion, Defendant McCoy cites to Hickey v. Merritt-Scully, 4:18-cv-1793 (M.D. Pa.), in

which Kathleen Hickey has brought suit against various Department of Corrections officials and

medical staff in her role as the administratrix of the estate of Michael A. Serrano. Defendant

McCoy, however, has provided no evidence to the Court suggesting that David Serrano and

Defendant McCoy has not provided an affidavit in support of his motion for summary judgment

but instead relies solely upon responses to Plaintiff’s grievances regarding these alleged

occurrences. These grievances, however, only concern the food tampering allegation and,

essentially, credited Defendant McCoy’s denial of tampering with Plaintiff’s meal tray over

Plaintiff’s allegation. (Doc. No. 50-1.)

In light of the evidence presented by the parties, it is the Court’s view that there are

genuine issues of material fact regarding whether Defendant McCoy subjected Plaintiff to

adverse action in response to Plaintiff engaging in protected activity by filing grievances.7 Such

Michael A. Serrano are the same individual. Thus, without more, the Court cannot conclude at

this time that the David Serrano affidavit constitutes inadmissible hearsay.

Defendant McCoy further contends that “[t]he allegations in the Cody Wright affidavit are also

virtually all hearsay since it discusses conversations with unknown inmates.” (Doc. No. 59 at 3.)

Within the Third Circuit, however, “hearsay statements can be considered on a motion for

summary judgment if they are capable of being admissible at trial.” See Fraternal Order of

Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016) (quoting Stelwagon Mfg.

Co. v. Tarmac Roofing Sys., 63 F.3d 1267, 1275 n.17 (3d Cir. 1995)). Nothing in the record

before the Court suggests that inmate Wright would be unavailable to testify should this case go

to trial. See id.; see also McMillian v. Wetzel, 790 F. App’x 455, 458-59 (3d Cir. 2019)

(concluding that district court erred in determining that inmate’s affidavits, which contained

hearsay, could not be considered to oppose a motion for summary judgment).

7 Defendant McCoy asserts that the portion of Plaintiff’s retaliation claim concerning food

tampering should be dismissed because Plaintiff failed to preserve the item and, therefore,

engaged in spoliation which prevents him “from defending against this claim.” (Doc. No. 50 at

6.) He maintains that Plaintiff’s allegation that he showed the item to an unnamed corrections

officer “is convenient since by failing to identify the Officer, the inmate’s story could not be

substantiated.” (Id.) Defendant McCoy argues that without the item, he cannot defend against

the allegation because “an inspection of the item could prove it could not have been provided by

him, could prove that the item was de minimus, or prove that it was simply a burnt portion of the

meal which would do no harm and would not be caused by” him. (Id. at 6-7.)

“Spoliation occurs where: the evidence was in the party’s control; the evidence is relevant to the

claims or defenses in the case; there has been actual suppression or withholding of evidence; and,

the duty to preserve the evidence was reasonably foreseeable to the party.” Bull v. United Parcel

Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012). A finding of spoliation can lead to sanctions, such as

summary judgment in favor of the prejudiced party. See Hysick v. Razor USA, LLC, No. 1:15-

issues of fact will likely turn on a credibility assessment, a task in which this Court may not

partake at the summary judgment stage. See Anderson, 477 U.S. at 252. Given the

discrepancies in the parties’ view of events, and viewing the facts in the light most favorable to

Plaintiff, a reasonable juror could conclude that Defendant McCoy used sexually explicit

language, called Plaintiff a “rat,” tampered with his food tray, took the photograph of his father,

failed to provide his commissary, and discarded his commissary slip because of Plaintiff’s

conduct of submitting grievances. Accordingly, the Court will deny summary judgment as to

Plaintiff’s retaliation claim against Defendant McCoy.8

B. Plaintiff’s State Law Claims

Plaintiff raises various state law tort claims based upon Defendant McCoy’s actions,

including claims for defamation of character, intentional infliction of emotional distress,

cv-745, 2017 WL 4084054, at *5 (M.D. Pa. Jan. 9, 2017). Moreover, “a finding of bad faith is

pivotal to a spoliation determination.” See Bull, 665 F.3d at 79.

The Court cannot agree that a finding of spoliation is warranted in this matter. The record is

silent as to what happened to the object after Plaintiff attempted to report it. See Hysick, 2017

WL 4084054, at *6 (concluding that spoliation was not warranted on the same basis). Moreover,

Defendant McCoy has not met his burden of demonstrating that Plaintiff acted in bad faith.

Accordingly, the Court concludes that Defendant McCoy’s spoliation argument is not a basis

upon which to grant summary judgment.

8 Defendant McCoy’s brief in support of summary judgment does not thoroughly address the

causation prong of a retaliation claim, only vaguely asserting that Plaintiff does not “allege the

amount of delay that occurred” after his commissary slip was discarded. (Doc. No. 50 at 8.)

While causation may be established by direct or circumstantial evidence, “motivation is almost

never subject to proof by direct evidence.” See Watson v. Rozum, 834 F.3d 417, 422 (3d Cir.

2016). Thus, motivation is typically demonstrated by “evidence of 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 that suggests a causal link.” See id. Given

the discrepancies in the parties’ view of events, there are also genuine issues of material fact

regarding whether any adverse action Plaintiff suffered was causally connected to his act of

filing grievances. Furthermore, Defendant McCoy does not raise qualified immunity as a

defense to Plaintiff’s retaliation claim.

nuisance, sexual harassment, slander, and wanton misconduct. (Doc. No. 1 ¶ 125.) Defendant

McCoy asserts that he is protected from these claims by operation of the doctrine of sovereign

immunity. (Doc. No. 50 at 8-9.)

Under Pennsylvania’s sovereign immunity statute, “the Commonwealth, and its officials

and employees acting within the scope of their duties, shall continue to enjoy sovereign and

official immunity and remain immune from suit except as the General Assembly shall

specifically waive the immunity.” See 1 Pa. Cons. Stat. Ann. § 2310. Pursuant to Section

8522(b) of Title 42, the following nine exceptions to sovereign immunity are recognized: (1)

operation of any motor vehicle in the possession or control of a Commonwealth party; (2) acts of

health care employees of Commonwealth agency medical facilities or institutions; (3) care,

custody, or control of personal property in the possession or control of Commonwealth parties;

(4) dangerous conditions posed by Commonwealth agency real estate and sidewalks; (5)

dangerous conditions of highways under the jurisdiction of Commonwealth agency that are

created by potholes or sinkholes or other similar conditions created by natural elements; (6) care,

custody, or control of animals in the possession or control of a Commonwealth party; (7) sale of

liquor at Pennsylvania liquor stores; (8) acts of a member of the Pennsylvania military forces;

and (9) administration, manufacture and use of a toxoid or vaccine. See 42 Pa. Cons. Stat. Ann.

§ 8522(b). In the instant case, Plaintiff’s claims do not fall within any of these nine (9)

exceptions.

Moreover, sovereign immunity applies even to intentional torts committed by

Commonwealth defendants acting in their individual capacities. See Story v. Mechling, 412 F.

Supp. 2d 509, 518 (W.D. Pa. 2006), aff’d, 214 F. App’x 161 (3d Cir. 2007). 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.’” See Larsen v. State

Emps’ Ret. Sys., 553 F. Supp. 2d 403, 420 (M.D. Pa. 2008).

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 the employer.

Savage v. Judge, No. 05-2551, 2007 WL 29283, at *5 (E.D. Pa. Jan. 2, 2007). Moreover, “even

unauthorized acts may be within the scope of employment ‘if they are clearly incidental to the

[employer’s] business.’” See Brumfield v. Sanders, 232 F.3d 376, 381 (3d Cir. 2000) (quoting

Shuman Estate v. Weber, 276 Pa. Super. 209, 216, 419 A.2d 169 (1980)). In the instant action,

the relevant evidence of record demonstrates that Defendant McCoy was acting within the scope

of his employment. Accordingly, because he is entitled to sovereign immunity, the Court will

grant Defendant McCoy summary judgment as to Plaintiff’s state law tort claims.

V. CONCLUSION

For the foregoing reasons, the Court will grant in part and deny in part Defendant

McCoy’s motion for summary judgment. (Doc. No. 48.) The motion will be granted with

respect to Plaintiff’s state law claims and denied with respect to Plaintiff’s First Amendment

retaliation claims. An appropriate Order follows.