# Johnson v. Fisher

> District Court, M.D. Pennsylvania · August 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10412077

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** August 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10412077

## How later opinions describe it (automated extraction)

- affirming same principle in Bivens context

## Opinion text

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

ZYKEEM JOHNSON, No. 1:20-CV-02137

Plaintiff, (Chief Judge Brann)

v.

B. FISHER, et al.,

Defendants.

MEMORANDUM OPINION

AUGUST 16, 2022
Plaintiff Zykeem Johnson filed this pro se Section 19831 action, asserting
constitutional and state-law tort claims against five prison officials at the State
Correctional Institution, Smithfield (SCI Smithfield), in Huntingdon, Pennsylvania.
Johnson claims that these officials failed to protect him from an assault by another
inmate. Presently pending is Defendants’ motion for summary judgment pursuant
to Federal Rule of Civil Procedure 56. The Court will grant in part and deny in
part Defendants’ Rule 56 motion.

1 42 U.S.C. § 1983. Section 1983 creates a private cause of action to redress constitutional
wrongs committed by state officials. The statute is not a source of substantive rights; it serves
as a mechanism for vindicating rights otherwise protected by federal law. See Gonzaga Univ.
I. FACTUAL BACKGROUND2
At all times relevant to the instant lawsuit, Johnson was confined at SCI

Smithfield.3 Johnson worked as a certified peer support specialist (CPSS), and
during the time at issue he was assigned to the Behavioral Management Unit
(BMU).4 A CPSS goes through extensive training and his or her duties consist of,

among other things, acting as a mentor and role model for other offenders, teaching
inmates communication skills and conflict resolution, assisting inmates with
establishing and completing long-term goals, demonstrating and assisting other
inmates with recovery, helping inmates to understand the prison grievance process,

and providing general support to other offenders.5
On December 11, 2018, Johnson was conducting his normal CPSS rounds in
the BMU.6 While speaking with inmate Raphael Spearman, Johnson recalls that he

was interrupted by inmate Kevin Coit, who asked Johnson to pass him hand-rolled
cigarettes from a neighboring cell.7 Johnson refused, explaining that the BMU

2 Local Rule of Court 56.1 requires that a motion for summary judgment be supported “by a
separate, short, and concise statement of the material facts, in numbered paragraphs, as to
which the moving party contends there is no genuine issue to be tried.” LOCAL RULE OF COURT
56.1. A party opposing a motion for summary judgment must file a separate statement of
material facts, responding to the numbered paragraphs set forth in the moving party’s statement
and identifying genuine issues to be tried. Id. Unless otherwise noted, the factual background
herein derives from the parties’ Rule 56.1 statements of material facts. Docs. 14, 31. To the
extent the parties’ statements are undisputed or supported by uncontroverted record evidence,
the court cites directly to the Rule 56.1 statements.
3 Doc. 14 ¶ 6. Johnson is currently incarcerated at SCI Frackville. Id. ¶ 5.
4 See id. ¶¶ 7, 24.
5 Id. ¶¶ 12-13.
6 Doc. 30-2 ¶ 1.
Unit Manager—defendant B. Fisher—had explicitly prohibited that type of
conduct. According to Johnson, Coit responded, “Fuck Fisher! We do what the

fuck we want down here!”8 Coit then attempted to get Johnson to bring him some
tobacco from general population and pass it to him during a one-on-one session.9
Johnson again refused, telling Coit that he would not smuggle contraband into the
BMU.10 Johnson attests that Coit, displeased with his responses, then “went on a

profanity[-]laced tirade, which included threats” of throwing feces on Johnson and
physically harming him when the opportunity presented itself.11
Johnson avers that he abruptly ended his meeting with Spearman and went

to Fisher’s office to report the interaction with Coit.12 Upon meeting with Fisher,
Johnson attests that he recounted everything that had happened, including that Coit
had become extremely angry with Johnson for refusing to smuggle tobacco to him

and had threatened to “throw feces on [him] and beat [him] the fuck up as soon as
he made phase.”13 Johnson recalls that Fisher told him that “Coit is a lost cause
and there is nothing we can do to help him,” and then thanked Johnson for
adhering to the facility’s rules and for refusing Coit’s illicit requests.14

8 Id.
9 Id. ¶ 2.
10 Id.
11 Id.
12 Doc. 30-2 ¶ 4.
13 Id. ¶¶ 5-7.
The next day, Johnson returned to the BMU for his scheduled rounds.15
Upon entering “B” wing, he was immediately accosted by Coit, who asked him

“what the fuck [he was] doing back down here.”16 Johnson attests that Coit then
threatened, “I’m going to kill your fat-rat ass, and there is nothing your bitch ass
can do to stop me!”17 Johnson attempted to ignore Coit’s threats and harassment
and finished his BMU rounds.18 When leaving the BMU, Johnson recounts that he

encountered defendant Correctional Officer Yoder in the exterior hallway and
informed Yoder that—for a second time—Coit had made serious threats of
physical violence against him.19 According to Johnson, Yoder’s response was,

“Coit is a nut case and nothing but trouble.”20
On December 18, Johnson returned to the BMU to conduct his scheduled
CPSS rounds.21 Upon entering the BMU, he underwent a routine strip search by
defendants Correctional Officer Killinger and Correctional Officer Shope.22

Killinger and Shope then informed Johnson that he had to meet with Coit for a
one-on-one CPSS session.23 Johnson asserts that he immediately protested,
explaining to Killinger and Shope that Coit had recently threatened to throw feces

15 Id. ¶ 8.
16 Id.
17 Id.
18 Doc. 30-2 ¶ 9.
19 Id.
20 Id.
21 Id. ¶ 10.
22 Id.
on him and to seriously physically harm him for refusing to smuggle tobacco into
the BMU.24

According to Johnson, Killinger and Shope “laughed [his] concerns off,”
telling him that “Coit don’t like nobody.”25 Johnson attests that he told Killinger
and Shope that this situation was different and more serious because Coit had

threatened to kill him, and further explained that he had reported Coit’s threats to
Fisher the previous week.26 Johnson recalls that Killinger’s response was, “Yeah
whatever, you still have to see him, this is a direct order.”27
Johnson recounts that, on their way to the B wing dayroom, he made yet

another plea to both officers to have a different CPSS worker conduct the one-on-
one session with Coit in light of Coit’s recent threats of violence.28 Johnson avers
that both officers ignored his pleas and that Killinger’s final response was, “This is
your job, this is what you signed up for, so you have to do it.”29 Shope purportedly

stated, “You’ll be fine. You’re twice as big as [] Coit.”30
Once in the dayroom, Johnson maintains that he purposefully positioned
himself in view of the dayroom’s surveillance camera.31 Coit—who was not

24 Doc. 30-2 ¶ 10.
25 Id.
26 Id.
27 Id.
28 Id. ¶ 11.
29 Id.
30 Doc. 30-2 ¶ 11.
wearing handcuffs, shackles, or any other means of restraint—was escorted into
the dayroom by Killinger and Shope, who then exited the room and closed and

locked the door.32 As Johnson predicted, Coit immediately began to physically
assault him.33 Johnson alleges that Coit “repeatedly punched [him] in the face,
neck, head, back and body.”34 At some point during the attack, correctional

officers deployed oleoresin capsicum spray (“OC” or “pepper” spray), which
Johnson claims left him incapacitated and vulnerable to continued assault by Coit
until officers were able to open the dayroom door and physically intervene.35
Johnson was then taken to a holding cell on A wing where he was allowed to

rinse his face with cold water to counteract the OC spray.36 Johnson claims that, at
this time, Killinger offered several apologies for not taking Johnson’s warnings
about Coit seriously.37 Johnson, however, admits that he was extremely angry and

upset, and yelled at Killinger, “I [] told y’all not to lock me in there with him! I []
told y’all he said he was going to beat me up! I told y’all to call somebody else! I
[] told y’all he was going to try to kill me!”38 Johnson was then taken to medical
for treatment.39 He alleges that he suffered “permanent bone disfigurement” or

32 Id.
33 Id.
34 Doc. 7 ¶ 35.
35 Doc. 30-2 ¶ 13.
36 Id. ¶ 14.
37 Id.
38 Id.
“displacement” from the assault, and that he continues to experience physical and
mental ailments from the attack.40

After exhausting his administrative remedies, Johnson filed suit in this Court
in November 2020.41 Johnson then amended his complaint as of right in January
2021.42 He names as defendants Fisher, Yoder, Killinger, Shope, and Deputy
Superintendent Rivello.43 In his amended complaint, he alleges violations of his

Eighth and Fourteenth Amendment rights by all Defendants for failure to protect
him from Coit’s attack.44 He also asserts a state-law claim of negligence against
each Defendant.45 Defendants move for summary judgment on all claims against

them.46 Their Rule 56 motion is fully briefed and ripe for disposition.
II. STANDARD OF REVIEW
“One of the principal purposes of the summary judgment rule is to isolate
and dispose of factually unsupported claims or defenses.”47 Summary judgment is

appropriate where “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.”48 Material
facts are those “that could alter the outcome” of the litigation, and “disputes are

40 Doc. 7 ¶¶ 55-56.
41 See generally Doc. 1.
42 See generally Doc. 7.
43 Id. ¶¶ 4-8.
44 Id. ¶¶ 45-50, 52, 54.
45 Id. ¶¶ 51, 53.
46 Doc. 13.
47 Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
‘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.”49

At the Rule 56 stage, the Court’s function is not to “weigh the evidence and
determine the truth of the matter” but rather “to determine whether there is a
genuine issue for trial.”50 The Court must view the facts and evidence presented

“in the light most favorable to the non-moving party” and must “draw all
reasonable inferences in that party’s favor.”51 This evidence, however, must be
adequate—as a matter of law—to sustain a judgment in favor of the nonmoving
party on the claim or claims at issue.52 A “scintilla of evidence” supporting the

nonmovant’s position is insufficient; “there must be evidence on which the jury
could reasonably find for the [nonmovant].”53 Succinctly stated, summary
judgment is “put up or shut up time” for the nonmoving party.54

III. DISCUSSION
Before addressing Defendants’ Rule 56 arguments, the Court must identify
the claimed constitutional violation or violations.55 Johnson asserts that

49 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010) (quoting Clark v. Modern
Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993)).
50 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
51 Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014).
52 Liberty Lobby, 477 U.S. at 250-57; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587-89 (1986).
53 Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 192 (3d Cir. 2015) (quoting Liberty Lobby, 477
U.S. at 252) (alteration in original).
54 Daubert v. NRA Grp., LLC, 861 F.3d 382, 391 (3d Cir. 2017) (quoting Berkeley Inv. Grp.
v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006)).
55 Albright v. Oliver, 510 U.S. 266, 271 (1994) (“The first step in any [Section 1983] claim is to
Defendants violated his Eighth and Fourteenth Amendment rights, but it is clear
that Johnson’s Section 1983 cause of action is a straightforward failure-to-protect

claim under the Eighth Amendment. Johnson’s invocation of the Fourteenth
Amendment appears to be solely in the context of applying the Eighth
Amendment’s prohibition of cruel and unusual punishment to Pennsylvania
through the Fourteenth Amendment.56

Defendants also read Johnson’s amended complaint as raising both an
Eighth Amendment failure-to-protect claim and an Eighth Amendment claim of
deliberate indifference to inmate safety.57 Those two claims, however, are one and

the same when the “substantial risk to health and safety” is assault from another
inmate.58 Thus, Johnson’s claims are (1) a Section 1983 claim against all
Defendants under the Eighth Amendment for failure to protect, and (2) a state-law

negligence claim against all Defendants. The Court will take Defendants’ Rule 56

386, 394 (1989) (explaining that analysis of a Section 1983 claim requires “identifying the
specific constitutional right allegedly infringed by the challenged” conduct).
56 See Holland v. Rosen, 895 F.3d 272, 288 (3d Cir. 2018) (citing Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)). Defendants interpret Johnson’s Fourteenth Amendment invocation as
asserting a substantive due process claim, (see Doc. 15 at 25-27), but Johnson makes no such
allegations or argument, and the Court declines to address a substantive due process claim that
Johnson plainly has not raised. Johnson all but concedes that his constitutional claims arise
under the Eighth Amendment but leaves it to “this Court” to “decide whether the claims are
duplicative” and are subject to the more-specific-provision rule. See Doc. 30 at 18. Johnson’s
failure-to-protect claims are clearly covered by the Eighth Amendment, and thus the
Fourteenth Amendment’s substantive due process protections do not apply. See Porter v. Pa.
Dep’t of Corr., 974 F.3d 431, 447-48 (3d Cir. 2020) (citation omitted).
57 See, e.g., Doc. 15 at 18.
58 See Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogated on other grounds by Mack
challenges to each claim in turn.
A. Eighth Amendment Failure to Protect Claims

“Being violently assaulted in prison is simply not part of the penalty that
criminal offenders pay for their offenses against society.”59 Prison officials,
therefore, have “a duty to protect prisoners from violence at the hands of other
prisoners.”60 To establish an Eighth Amendment failure-to-protect claim against a

prison official, the inmate must show that “(1) he was incarcerated under
conditions posing a substantial risk of serious harm, (2) the official was
deliberately indifferent to that substantial risk to [the prisoner’s] health and safety,

and (3) the official’s deliberate indifference caused [the prisoner] harm.”61 In this
context, deliberate indifference is a subjective standard; that is, “the prison official-
defendant must actually have known or been aware of the excessive risk to inmate
safety.”62 Actual knowledge or awareness of a substantial risk to an inmate’s

safety can be proven “in the usual ways, including inference from circumstantial
evidence.”63
Defendants argue that Johnson has not carried his burden to establish a

failure-to-protect claim against Fisher, Yoder, Killinger, or Shope. They also

59 Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012), abrogated on other grounds by Mack
v. Yost, 968 F.3d 311 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
60 Id. (quoting Farmer, 511 U.S. at 833).
61 Id. at 367.
62 Id. (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001)).
contend that Rivello had no personal involvement in the incident and cannot be
subject to supervisory liability because Johnson has not proffered any evidence of

a policy implemented by Rivello that led to a violation of Johnson’s constitutional
rights.
1. Failure to Protect – Fisher, Yoder, Killinger, and Shope

Johnson has carried his burden at summary judgment with respect to his
failure-to-protect claims against Yoder, Killinger, and Shope. He has not done so
for his claim against Fisher. Specifically, Johnson has not proffered any evidence
that Fisher was deliberately indifferent to an excessive risk of harm to Johnson or

that Fisher’s deliberate indifference caused Johnson’s harm.
Taking the evidence in a light most favorable to Johnson, the nonmovant,
the record reflects that Fisher was made aware of Coit’s threats of violence on

December 11, as Johnson attests that he informed Fisher about Coit’s threats
immediately after they were made. Johnson likewise produced an affidavit
indicating that inmate Spearman personally witnessed Coit’s threatening conduct
and that Fisher was aware of it because, on December 11, Coit continued to make

verbal threats against Johnson to Fisher after Johnson left the BMU.64

64 Doc. 30-4 ¶ 2. Spearman specifically attests that Coit told Fisher that “he better not bring cop
ass Johnson back down here” because Johnson is “a fucking cop and when [Coit] catch[es] his
bitch ass [he’s] going to fuck him up.” Id. Spearman recalls that “Fisher just laughed it off
But that is where Johnson’s claim with respect to Fisher’s involvement ends.
Johnson does not provide any evidence that Fisher was deliberately indifferent to a

substantial risk of serious harm to Johnson (i.e., actual physical assault by Coit), or
that Fisher’s deliberate indifference caused Johnson’s assault. Certainly, an
inference can be drawn from the record that Fisher was aware that Coit was an

abstract danger to Johnson. But nothing in the record indicates that Fisher knew or
had reason to know that Johnson was going to be put into harm’s way—that is, that
he would be placed alone into a locked room with an unrestrained Coit. Simply
put, there is no evidence showing that Fisher knew or had reason to know that Coit

would have unrestricted access to Johnson to make good on his threats of violence.
Instead, the evidence points to Yoder, Killinger, and Shope evincing
deliberate indifference to serious harm, which indifference resulted in Johnson’s

injuries. As previously noted, Johnson avers that he personally informed Yoder of
Coit’s threats of violence on December 12. Johnson additionally attests that, on
the day of the assault, he told Killinger and Shope multiple times about Coit’s
serious threats of physical violence and pleaded with them not to place him in a

one-on-one session with Coit. He further avers that Killinger and Shope ignored
these pleas and delivered an unrestrained Coit into the dayroom and locked the
door behind them.

Spearman attests that, on the day of the assault, Yoder, Killinger, and Shope
were present when Coit requested to see Johnson as a CPSS, and that Coit
explicitly asked Killinger if Johnson would be the responding CPSS.65 Spearman
states that, when Killinger responded that Johnson was on the CPSS schedule that

day and usually always showed up, Coit replied, “Good because I owe his fat-cop
ass an ass whooping.”66 Killinger allegedly shrugged off Coit’s threats and
jokingly said, “Johnson would squash you.”67 When Coit retorted that Johnson

was too slow to catch him, Killinger purportedly responded, “Well we will see
because Johnson should be here shortly,” and Coit shot back, “we will.”68
Johnson additionally supplied a copy of a December 18, 2018 grievance
filed by Jamel Brockington (another BMU inmate) asserting that Coit made

explicit threats that day about harming Johnson in the presence of the “2-10 shift”
officers but those threats were ignored.69 The grievance states that the officers
heard Coit “make at least ten threats to CPS Johnson” and did nothing.70 As such,

Johnson has proffered evidence sufficient to create a genuine dispute of material
fact that (1) Yoder, Killinger, and Shope had reason to suspect that the December
18 assault would occur and (2) their actions (or inactions, in Yoder’s case)
facilitated that assault.

65 Id. ¶¶ 4-5.
66 Id. ¶ 5.
67 Id.
68 Id.
69 Doc. 30-8 at 2-3. Defendants challenge the admissibility of this evidence. See Doc. 37 at 17-
18. But just because the grievance itself might be inadmissible as hearsay (which is not at all
certain), it does not follow that its contents “could not be presented in a form that would be
admissible in evidence,” such as testimony by Brockington about what he personally witnessed
on the day in question. See FED. R. CIV. P. 56(c)(2).
In sum, Johnson has proffered evidence to satisfy the elements of a failure-
to-protect claim against Yoder, Killinger, and Shope, but not as to Fisher.

Summary judgment, therefore, will be granted in Fisher’s favor on this Eighth
Amendment claim but denied as to Yoder, Killinger, and Shope.
2. Supervisory Liability – Rivello

As Defendants observe, and Johnson concedes, the amended complaint does
not allege direct personal involvement by Rivello in the failure-to-protect incident.
Nor does the amended complaint indicate that Rivello was aware of Coit’s threats
of violence. Instead, Johnson contends that Rivello should be held liable under

Section 1983 for failing to implement a policy that would have prevented the
December 18 attack. Specifically, Johnson posits that “Rivello failed to establish a
policy and/or protocol prohibiting CPSS workers from being locked in a room with
unrestrained BMU residents.”71

It is well established that, in Section 1983 actions, liability cannot be
“predicated solely on the operation of respondeat superior.”72 Thus, supervisors
cannot be held liable for the constitutional torts of their subordinates simply

because of their supervisory position.73 However, supervisors may be liable under
Section 1983 in certain circumstances, including for failing to implement a policy

71 Doc. 30 at 6.
72 Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted); see also Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009) (affirming same principle in Bivens context).
or procedure.74 To establish such a claim, the plaintiff must “(1) identify the
specific supervisory practice or procedure that the supervisor failed to employ, and

show that (2) the existing custom and practice without the identified, absent
custom or procedure created an unreasonable risk of the ultimate injury, (3) the
supervisor was aware that this unreasonable risk existed, (4) the supervisor was

indifferent to the risk; and (5) the [subordinate]’s violation resulted from the
supervisor’s failure to employ that supervisory practice or procedure.”75
Johnson’s supervisory claim against Rivello fails on at least the third and
fourth elements. Johnson has produced no evidence that Rivello was aware that an

unreasonable risk of assault existed absent the identified practice (prohibiting
CPSS workers from being locked in a room with unrestrained BMU residents).
Nor has Johnson produced evidence that Rivello was deliberately indifferent to that

risk.
For example, there is no evidence that any such attack ever occurred in the
past or that there was a pattern of such incidents,76 nor is there evidence that any of
the involved correctional officers (or anyone else, for that matter) had previously

put a CPSS worker in a room with an unrestrained BMU resident who then
attacked the worker.77 Johnson claims that “the facts known to defendant Rivello”

74 See Brown v. Muhlenberg Township, 269 F.3d 205, 216 (3d Cir. 2001).
75 Id. (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989).
76 See Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001); Sample, 885 F.2d at 1118.
77 It appears that, following Coit’s attack on Johnson, prison officials took corrective measures
are sufficient to take his claim to a jury.78 Yet the only “facts” to which Johnson
points are Department of Corrections regulations that show that inmates confined

in the BMU have—among other things—“demonstrated problematic behavior in
less secure environments,” have “chronic disciplinary issues,” and “demonstrate an
inability to adapt to the general population setting.”79

Contrary to Johnson’s contentions, these regulations do not establish that
Rivello was aware of an unreasonable risk of injury and was deliberately
indifferent to it. As Defendants explain, Johnson ignores the extensive, multi-step
phase system in place in the BMU that determines inmates’ activity restrictions

based on their progress within the BMU program.80 Furthermore, this is not a case
where there is “so great and so obvious” a risk that a constitutional violation would
result from the absence of a specified policy that its absence “will alone support

findings of an unreasonable risk, [] knowledge of that unreasonable risk, and []
indifference to it.”81
Although Johnson identifies what he believes to be a missing policy or
“protocol” at SCI Smithfield, he has not proffered any evidence to establish the

grievance appeal response, that “[t]he practice of locking dayroom doors has since been
changed as a best practice,” but also noted that “staff did not violate any policies by securing
the doors previously.” Doc. 30-3 at 15. Defendants correctly observe that such subsequent
remedial measures would likely be inadmissible at trial. See FED. R. EVID. 407.
78 Doc. 30 at 6.
79 Id. at 6-7 (quoting Doc. 30-7 at 2, 9-10).
80 See Doc. 30-7 at 16-21.
81 Sample, 885 F.2d at 1118; see Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d
necessary mens rea for Rivello such that a jury could reasonably find in Johnson’s
favor on the supervisory liability claim.82 Without some evidence of awareness of

an unreasonable risk of injury and deliberate indifference thereto, Johnson cannot
maintain his Section 1983 claim against Rivello. The Court must therefore grant
judgment in Rivello’s favor on Johnson’s Eighth Amendment failure-to-protect

claim.
B. State-Law Negligence Claims
Defendants next argue that Johnson’s state-law negligence claims are barred
by state statutory immunity. The Court agrees.

Commonwealth parties acting within the scope of their employment
generally are immune from suit except when immunity is explicitly waived.83
Pennsylvania’s General Assembly has carved out certain limited exceptions from
its grant of sovereign immunity to Commonwealth actors.84 Section 8522(b) of

Title 42 of the Pennsylvania Consolidated Statutes provides ten narrow categories85
where the state has waived its sovereign immunity for claims involving negligent

82 See Tafoya v. Salazar, 516 F.3d 912, 922 (10th Cir. 2008) (“At the summary judgment stage,
the requirement of deliberate indifference imposes a burden on the plaintiff to present evidence
from which a jury might reasonably infer that the prison official was actually aware of a
constitutionally infirm condition.”).
83 See 1 PA. CONS. STAT. § 2310; 42 PA. CONS. STAT. §§ 8521, 8522(a).
84 See generally 42 PA. CONS. STAT. §§ 8521, 8522.
85 The ten exceptions set forth in 42 PA. CONST. STAT. § 8522(b) concern: (1) vehicle liability;
(2) medical-professional liability; (3) care, custody or control of personal property; (4)
Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous
conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard
conduct by Commonwealth parties.86 This state statutory immunity applies to both
negligent and intentional torts committed by Commonwealth actors.87 Because

statutory immunity is an affirmative defense, the defendant bears the burden of
establishing that his conduct was within the scope of employment.88
Johnson does not claim that any of the ten exceptions to immunity apply.

His only argument in opposition to statutory immunity is that Defendants were not
acting within the scope of employment when the alleged torts occurred. He
contends that “the conduct of the defendants was not the kind they were employed
to perform”; that is, the Department of Corrections “did not employ the defendants

to deliberately place [Johnson] in danger then fail to prevent an attack resulting
from that danger.”89
Johnson’s argument is an oversimplification of the scope of employment

analysis. Under Johnson’s framing, any time a Commonwealth employee commits
a negligent action they would necessarily fall outside the scope of employment
(and thus be subject to liability) because no Commonwealth entity tasks its
employees with committing tortious acts.

Instead, whether a state official’s conduct is within the scope of employment
is determined by considering if (1) “it is the kind he is employed to perform,” (2) it

86 See id. § 8522(a), (b).
87 See La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Commw. Ct. 1992).
88 Justice v. Lombardo, 208 A.3d 1057, 1068 (Pa. 2019).
occurs “substantially within the authorized time and space limits,” and (3) “it is
actuated, at least in part, by a purpose to serve” the employer.90 As to Fisher,

Yoder, and Rivello, Johnson’s only assertion is that they did not take affirmative
steps to prevent the assault, like instituting a policy to keep unrestrained BMU
residents from meeting with CPSS workers. Yet deciding whether or not to

implement a policy is quintessentially within the scope of employment for a prison
official. And Johnson does not plead or explain how Yoder’s or Fisher’s alleged
inaction during the time in question falls outside the scope of employment such
that they should be subject to a negligence lawsuit.

As for Killinger and Shope, their conduct (while potentially tortious), was
also clearly within the scope of employment. Specifically, on December 18, 2018,
Killinger and Shope were working “within the authorized time and space limits” of

their jobs, and were performing the type of work they were employed to perform,
as they were responding to a request for a CPSS meeting by a BMU resident.
These actions were likewise “actuated, at least in part, by a purpose to serve” their
employer, as they were ostensibly attempting to resolve a BMU resident’s request

for one-on-one CPSS services.91

90 Justice, 208 A.3d at 1067 (citing RESTATEMENT (SECOND) OF AGENCY § 228(1) (1958)).
91 See, e.g., Hill v. Barnacle, 655 F. App’x 142, 148 (3d Cir. 2016) (nonprecedential) (explaining
that “even unauthorized acts may be within the scope of employment if they are clearly
incidental to the master’s business” (quoting Brumfield v. Sanders, 232 F.3d 376, 381 (3d Cir.
Defendants have met their burden to show that they were acting within the
scope of employment during the time in question. Because there is no genuine

issue of material fact as to scope of employment, state statutory immunity bars
Johnson’s negligence claims. These claims, therefore, must be dismissed for lack
of subject matter jurisdiction.92

IV. CONCLUSION
Based on the foregoing, the Court will grant in part and deny in part
Defendants’ motion (Doc. 13) for summary judgment. The Court will grant
Defendants’ Rule 56 motion as to Johnson’s Fourteenth Amendment failure-to-

protect claims against defendants Fisher and Rivello. The Court will deny
Defendants’ motion as to Johnson’s Fourteenth Amendment failure-to-protect
claims against defendants Yoder, Killinger, and Shope. Johnson’s state-law

negligence claims will be dismissed for lack of subject matter jurisdiction, as they
are barred by state statutory immunity. An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

92 See Gary v. Pa. Human Relations Comm’n, 497 F. App’x 223, 227 (3d Cir. 2012)
(nonprecedential) (holding that, because state statutory immunity barred state-law claims,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412077. Public record. Not legal advice.