KENDRICK v. SHAW

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PAUL KENDRICK, )

)

Plaintiff, ) Civil Action No. 22-1805

) District Judge William S. Stickman

v. ) Magistrate Judge Maureen P. Kelly

)

C.O. SHAW, sued in his official and ) Re: ECF No. 40

individual capacity, )

)

Defendant. )

REPORT AND RECOMMENDATION

I. RECOMMENDATION

Pending before the Court is a Motion for Summary Judgment filed on behalf of Defendant

C.O. Shaw (“Shaw”). ECF No. 40. For the following reasons, it is respectfully recommended that

the Motion for Summary Judgment be granted in part and denied in part.

II. REPORT

A. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Paul Kendrick (“Kendrick”) is a prisoner incarcerated at the State Correctional

Institution at Fayette (“SCI – Fayette”). He brings this pro se civil rights action under 42 U.S.C.

§ 1983 and asserts an Eight Amendment claim against Shaw, an SCI – Fayette Corrections Officer,

for the alleged excessive use of force. ECF No. 5. Kendrick also alleges state law assault and

battery claims. Id. The facts below derive from Kendrick’s Complaint, filed under penalty of

perjury, and the undisputed evidence of record, unless otherwise noted.

As to the underlying incident, the parties accounts markedly differ. On July 2, 2022,

Kendrick was incarcerated at SCI – Fayette in administrative custody. Kendrick alleges that

sustained injuries in an unplanned use of force incident that occurred when Shaw escorted

Kendrick to a property room to receive a box containing personal items. Id. at 2. He contends that

during the exchange, Shaw threatened him with physical force and then ordered Kendrick to step

forward to turn on a television set to determine whether it was working order. When Kendrick

moved toward the television, Shaw grabbed him and swung him to the ground. Kendrick “felt and

heard his elbow pop.” Id. at 3. Shaw laid on Kendrick’s chest and repeatedly punched Kendrick in

the face and neck while stating, “I told you I was going to get you.” Id. During the incident,

Kendrick was handcuffed and sustained “deeper cuts” to his wrist because Shaw twisted

Kendrick’s wrist and asked, “How do you like that?” Kendrick contends he did not resist or

threaten Shaw “in any fashion.” Id.; ECF No. 52-6 at 26.

Shaw disputes Kendrick’s account and contends that Kendrick became orally abusive when

he was denied property considered contraband by DOC or prison policy. ECF No. 42 at 10-11.

Shaw states that C.O. Ainsley was present during the interaction, and that Kendrick threatened

both officers with physical violence. At that point, Shaw and Ainsley approached Kendrick to

return him to his cell, “and he shrugged them off.” Id. at 11. Kendrick’s shoulder contacted Shaw’s

face and caused a “slight brush burn underneath [Shaw’s] eye.” Id. “[A]t that time, [Kendrick]

was placed on the ground in recovery position, and the unit was notified that they needed assistance

in the property room.” Id. Shaw denies punching or elbowing Kendrick and contends that Kendrick

continued to move and squirm despite attempts to control his movements. Id. at 12. Ainsley denies

that Shaw punched, struck, or elbowed Kendrick, and denies that Shaw threatened Kendrick. Id.

at 15. The room where the incident occurred lacks a security camera and it is undisputed that there

is no video of the use of force incident. ECF No. 43-7 at 5.

Shaw presents a Medical Incident/Injury Report that states that Kendrick at first failed to

cooperate with a medical assessment. ECF No. 42 at 6. Upon placement in “IRS,” Kendrick

cooperated and stated he had no complaints of pain or shortness of breath. He “had a steady gait,

no signs of trauma, did not appear confused or unable to finish a sentence and showed no signs of

shortness of breath or respiratory distress.” Id.

It is undisputed that photographs taken after the incident depict superficial injuries to

Kendrick’s face, hands, wrists, and right elbow. Id. at 7.

On July 3, 2022, Kendrick submitted Grievance No. 987439, and alleged that Shaw

threatened him, stating that “I do know why your [sic] in the hole.”1 Id. at 4; ECF No. 43-3 at 2.

Kendrick complained that Shaw then taunted and assaulted him, and that the assault resulted in

injuries to his wrist, elbow, face, and neck. Id. He requested punitive damages, an order of

separation from Shaw, and that any video and photographic evidence be preserved. Id. The

Grievance Coordinator accepted the grievance on July 5, 2022. According to the Pennsylvania

Department of Corrections Inmate Grievance System Policy Statement, after a grievance is

accepted, “[t]he Grievance Officer shall … [provide a response] to the inmate within 15 working

days from the date the grievance was entered” into the Grievance Tracking System. ECF No. 43-

2 at 11. Thus. the Grievance Officer marked Kendrick’s grievance with the “due” date of July 26,

2022. ECF No. 43-3 at 2. On August 8, 2022, Kendrick submitted an Appeal to Facility Manager

and stated that the time for a response had passed, and that he was seeking compensation in the

amount of $300,000 in punitive damages because of Shaw’s unlawful use of force. ECF No. 52-2

at 2. On August 9, 2022, the Facility Grievance Coordinator sent Kendrick an “Initial Level

1 This is an apparent reference to criminal charges pending against Kendrick in the Somerset County Pennsylvania

Court of Common Pleas at Docket Number CP-56-CR0000264-2018 for the February 15, 2018 murder of a corrections

officer and the assault of another officer at SCI-Somerset. See Kendrick v. Little, No. 23-cv-187 at ECF No. 53 (W.D.

Pa. Sept. 18, 2023).

Extension” form and stated that additional time to respond was necessary “to appropriately

investigate and respond to your allegations of abuse.” ECF No. 52-3. The grievance was denied 9

months later, on May 23, 2023 – five months after Kendrick filed this litigation. ECF No. 43-3 at

4.

Kendrick commenced this action on December 16, 2022, with a Motion for Leave to

Proceed in forma pauperis (“IFP”). ECF No. 1. The Court granted the motion to proceed IFP on

January 6, 2023, and the Complaint was filed that day. ECF Nos. 4, 5. After service of the

Complaint, Shaw filed his Answer. ECF No. 16. The Court issued two Case Management Orders.

ECF Nos. 119, 24. The Court later granted Kendrick’s motion to extend time to complete

discovery. ECF Nos. 31, 32. At the conclusion of discovery, Shaw filed the pending Motion for

Summary Judgment, Brief in Support, Concise Statement of Material Facts, and Appendix to the

Concise Statement of Material Facts containing relevant exhibits. ECF Nos. 40-43. Kendrick filed

his Response to the Motion for Summary Judgment with a Declaration in Opposition to

Defendant’s Motion for Summary Judgment, a Statement of Disputed Factual Issues, and a Brief

in Opposition to the Motion for Summary Judgment with Exhibits. ECF Nos. 50-52.

The Motion for Summary Judgment is ripe for consideration.

B. STANDARD OF REVIEW

Summary judgment is properly entered “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.” Fed. R.

Civ. P. 56(a); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In making this

assessment, “[t]he 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] fact is ‘material’ where ‘its existence or nonexistence might impact the outcome

of the suit under the applicable substantive law.’” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742,

752 (3d Cir. 2019) (citations omitted). Further, “[a] dispute is ‘genuine’ if ‘a reasonable jury could

return a verdict for the nonmoving party.’” Clews v. Cnty. of Schuylkill, 12 F.4th 353, 358 (3d

Cir. 2021) (quoting Anderson, 477 U.S. at 248).

The court must view the facts in the light most favorable to the nonmoving party and must

draw all reasonable inferences and resolve all doubts in favor of the nonmoving party. Matreale v.

N.J. Dep’t of Mil. & Veterans Affs., 487 F.3d 150, 152 (3d Cir. 2007); Woodside v. Sch. Dist. of

Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001). If the non-moving party “fails to make a

showing sufficient to establish the existence of an element essential to [the non-movant’s] case,

and on which [the non-movant] will bear the burden of proof at trial,” Rule 56 requires the entry

of summary judgment because such a failure “necessarily renders all other facts immaterial.”

Celotex, 477 U.S. at 322–23; Jakimas v. Hoffman La Roche, Inc., 485 F.3d 770, 777 (3d Cir.

2007).

Kendrick is proceeding pro se. A filing from a pro se litigant is to be “liberally construed”

and a “pro se complaint, however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle

v. Gamble, 429 U.S. 97, 206 (1976)); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Additionally, when considering a motion in a pro se plaintiff’s case, a court must “apply the

applicable law, irrespective of whether a pro se litigant has mentioned it by name.” Holley v. Dep’t

of Veteran’s Affs., 165 F.3d 244, 247-48 (3d Cir. 1999). On a motion for summary judgment,

however, “a pro se plaintiff is not relieved of his obligation under [Federal Rule of Civil Procedure]

56 to point to competent evidence in the record that is capable of refuting a defendant's motion for

summary judgment.” Thompson v. Slatzer, No. 1:19-0028, 2021 WL 3639682, at *4 (W.D. Pa.

July 30, 2021), report and recommendation adopted, 2021 WL 3635110 (W.D. Pa. Aug. 17, 2021)

(quoting Dawson v. Cook, 238 F. Supp. 3d 712, 717 (E.D. Pa. 2017) (citation omitted)). “Put

another way, just because a non-moving party is proceeding pro se, he is not relieved of [the]

‘obligation under Rule 56(c) to produce evidence that raises a genuine issue of material fact.’” Id.

(citations omitted).

C. DISCUSSION

1. Exhaustion of Administrative Remedies

Shaw contends that Kendrick failed to properly exhaust administrative remedies by failing

to timely appeal the denial of his grievance related to the incident at issue. ECF No. 41 at 5-7. For

the following reasons, the prison’s failure to timely respond to Kendrick’s grievance precludes the

entry of summary judgment based on exhaustion.

The Prison Litigation Reform Act (“PLRA”) provides:

No action shall be brought with respect to prison conditions under section 1983 of

this title by a prisoner confined in jail, prison, or other correctional facility until

such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). The United States Court of Appeals for the Third Circuit has explained that

the PLRA’s exhaustion requirement serves the following Congressional objectives: “(1) to return

control of the inmate grievance process to prison administrators; (2) to encourage development of

an administrative record, and perhaps settlements, within the inmate grievance process; and (3) to

reduce the burden on the federal courts by erecting barriers to frivolous prisoner lawsuits.” Spruill

v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004). As the statute’s language makes clear, the exhaustion

requirement is mandatory and applies to “all inmate suits about prison life, whether they involve

general circumstances or particular episodes, and whether they allege excessive force or some

other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002); see also Woodford v. Ngo, 548 U.S. 81,

85 (2006).

The exhaustion requirement of the PLRA is one of “proper exhaustion.” Woodford, 548

U.S. at 84. Failure to comply with the procedural requirements of the available grievance system

will result in a claim being found procedurally defaulted. Id. at 90; Spruill, 372 F.3d at 227-32;

Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 153 (3d Cir. 2016). In assessing default,

the prison’s grievance policy is what “define[s] the boundaries of proper exhaustion.” Jones v.

Bock, 549 U.S. 199, 218 (2007).

The Pennsylvania Department of Corrections’ administrative remedies for inmate

grievances are provided for in DOC Administrative Directive 804 (“DC-ADM 804”). See DOC

Policies, DC-ADM 804, Inmate Grievance System Policy.2 DC-ADM 804 provides a three-step

process through which inmates can seek to resolve issues relating to their incarceration. Id. The

three steps are: (1) file an initial grievance; (2) appeal to the superintendent; and (3) final appeal

to SOIGA. Redshaw v. Pillai, No. 12-190J, 2013 WL 3802464, at *3 (W.D. Pa. July 18, 2013).

An inmate must follow each of the steps to properly exhaust his administrative remedies under the

PLRA. See Booth v. Churner, 206 F.3d 289, 299 (3d Cir. 2000), aff’d, 532 U.S. 731(2001) (holding

that plaintiff “did not take full advantage of the administrative procedures available to him” in

failing to use steps two and three of DC-ADM 804).

In this case, Shaw contends that Kendrick’s failure to appeal to the superintendent and

submit a final appeal to SOIGA bars his claim. ECF No. 41 at 7. However, the grievance policy

also requires that the initial grievance response be provided to the inmate within 15 working days,

unless an extension of ten more working days is requested from the Facility Grievance Coordinator

2 https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx

because an investigation of the grievance is ongoing. See DC-ADM 804, §1.C.5.g,h; ECF No. 43-

2 at 11-12. It is undisputed that Kendrick presented Grievance No. 987439 on July 3, 2022, and

the grievance was entered into the Automated Inmate Grievance Tracking System on July 5, 2022.

ECF No. 42 ¶ 14; ECF No. 52-2 at 1. The Court takes judicial notice that fifteen working days

expired on July 26, 2022. There is no evidence that an extension of time was requested before July

26, 2022, and the time to respond lapsed as of that date. ECF No. 52-2.

Shaw does not address the failure to timely respond but provides evidence that “[o]n

August 9, 2022, Plaintiff received an Initial Level Extension in which he was provided notice that

staff required an extension for responding to his grievance.” It is undisputed that Plaintiff did not

receive an Initial Review Response from the assigned grievance officer until May 23, 2023, some

nine months later. ECF No. 42 ¶ 23.

In Shifflett v. Korszniak, 934 F.3d 356, 365-66 (3d Cir. 2019), the Third Circuit held that

when an inmate submits a timely grievance appeal but fails to receive a response within the time

specified in the grievance policy, “[a]t that moment he obtain[s] the right to come into federal

court.” “The PLRA requires that prisoners comply with the procedural demands of a system

created by their jailors. No less must prisons comply with the demands of the system they created.

Hence we hold that as soon as a prison fails to respond to a properly submitted grievance or appeal

within the time limits prescribed by its own policies, it has made its administrative remedies

unavailable and the prisoner has fully discharged the PLRA’s exhaustion requirement.” Id.

Shaw presents no grounds to avoid the holding in Shifflett. Accordingly, it is recommended

that the Court deny the Motion for Summary Judgment based on exhaustion.

2. Eighth Amendment – Excessive Force

“Being violently assaulted in prison is simply not part of the penalty that criminal offenders

pay for their offenses against society.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Thus, the

Eighth Amendment provides a remedy when prison officials unnecessarily and wantonly inflict

pain on prisoners in a manner that offends contemporary standards of decency. See Hudson v.

McMillian, 503 U.S. 1, 8 (1992). Courts look to several factors to determine whether a correctional

officer has used excessive force in violation of the Eighth Amendment, including: “(1) ‘the need

for the application of force’; (2) ‘the relationship between the need and the amount of force that

was used’; (3) ‘the extent of injury inflicted’; (4) ‘the extent of the threat to the safety of staff and

inmates, as reasonably perceived by responsible officials on the basis of the facts known to them’;

and (5) ‘any efforts made to temper the severity of a forceful response.’” Brooks v. Kyler, 204

F.3d 102, 106 (3d Cir. 2000) (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986), abrogated on

other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010)). The central question is “whether force

was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically

to cause harm.” Hudson, 503 U.S. at 7. “Summary judgment in favor of a defendant is not

appropriate if ‘it appears that the evidence, viewed in the light most favorable to the plaintiff, will

support a reliable inference of wantonness in the infliction of pain.’” Brooks, 204 F.3d at 106

(quoting Whitley, 475 U.S. at 322).

Shaw argues that application of the five Whitley factors requires the entry of summary

judgment in his favor. Id. Shaw contends that Kendrick’s version of events is “wholly unsupported

by the record viewed in the light most favorable to Plaintiff. No evidence adduced in discovery

supports Plaintiff’s allegations.” ECF No. 41 at 9. Shaw also argues that Kendrick suffered only

superficial injuries and thus cannot establish an Eighth Amendment claim. Id. at 10.

Shaw’s argument fails to address or account for Kendrick’s Complaint, deposition

testimony, and “Declaration in Opposition to Defendant[’s] Motion for Summary Judgment,” all

of which are sworn to under penalty of law. ECF No. 5 at 5; ECF No. 52-6 at 4, 12-28; ECF No.

50. See Parkell, at 320 n.2 (verified complaints and other court filings signed under penalty of

perjury in accordance with 28 U.S.C. § 1746 are considered equivalent to statements in an affidavit

and are properly considered in opposition to summary judgment). In the referenced documents,

Kendrick presents evidence to refute Shaw’s arguments related to the need for the use of force, the

extent of force used, whether Shaw reasonably perceived a threat to his or any other individual’s

safety at the time force was employed, and whether Shaw attempted to temper the severity of the

force used. In addition, as to the purportedly de minimis nature of the force used, Kendrick states

that while he was handcuffed and laying on the ground, Shaw repeatedly punched him in the face

without a basis to do so, and that he sustained injuries to his wrist and elbow. ECF No. 52 at 6-7,

ECF No. 50 at 3.

Turning to the severity of injuries sustained, in Smith v. Mensinger, 293 F.3d 641, 648-49

(3d Cir. 2002), the United States Court of Appeals for the Third Circuit declined to find that an

asserted de minimis injury can defeat an excessive use of force claim. Instead, “injuries are only

one of several factors that a court must consider” to determine whether force was applied in a

good-faith effort to maintain or restore discipline. Id. (citing Brooks, 204 F.3d at 108) (de minimis

injuries do not necessarily establish de minimis force). In the case before it, the record contained

evidence that the plaintiff was handcuffed and had been punched and kicked while under the

control of at least six prison guards. With no extraordinary circumstances to justify that kind of

force, the Third Circuit concluded that the evidence was sufficient to create a genuine issue of

material fact.

In this case, Kendrick’s statements related to the necessity and circumstances of the use of

force present several material issues fact about each Whitley factor that cannot be resolved without

assessing witness credibility – a task left for the factfinder – here, a jury. Therefore, it is

recommended that the Court deny the Motion for Summary Judgment as to Kendrick’s Eighth

Amendment excessive use of force claim.

3. Official Capacity Claims

Shaw argues that Kendrick cannot sustain a claim against him in his official capacity. ECF

No. 40 at 2; ECF No. 41 at 3-5. The Court agrees that as to Kendrick’s demand for monetary

damages in Shaw’s official capacity, the claim is properly dismissed as barred by the Eleventh

Amendment. See Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 309-210 (3d Cir. 2020) (citing

Kentucky v. Graham, 473 U.S. 159, 169 (1985))(noting that the “Eleventh Amendment immunity

bars actions for retroactive relief against state officials in their official capacity.”).

That said, Shaw fails to address Kendrick’s separate requests declaratory and injunctive

relief. ECF No. 52 at 2. Kendrick argues that such relief is not barred by sovereign immunity. Id.

(citing Ex parte Young, 209 U.S. 123, 159-60 (1908); Verizon Md., Inc. v. Pub. Serv. Comm’n,

535 U.S. 635, 645 (2002); and MCI Telecomm. Corp. v. Bell Atl. Pennsylvania, 271 F.3d 491,

506 (3d Cir. 2001)).

“‘[C]laims requesting prospective injunctive relief from official-capacity defendants do not

run afoul of sovereign immunity.’” Morris v. Scheuer, No. 22-cv-00082, 2023 WL 2088169, at *3

(W.D. Pa. Feb. 17, 2023) (citing Iles v. de Jongh, 638 F.3d 169, 177 (3d Cir. 2011)). To avoid the

bar of the Eleventh Amendment, “[t]he relief sought must be prospective, declaratory, or injunctive

relief governing an officer’s future conduct and cannot be retrospective....” MCI Telecomm., 271

F.3d at 506 (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984)). “In

determining whether the Eleventh Amendment bars the claim, ‘a court need only conduct a

straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as prospective.’” Morris, 2023 WL 2088169, at *3 (citing

Verizon, 535 U.S. at 645 (alteration in original)).

Upon review, Kendrick’s claim for declaratory judgment stating that Shaw’s “physical

abuse” violated his rights under the Eighth Amendment is retrospective. “A request for declaratory

relief is not an appropriate avenue to challenge violations of rights that have already occurred.”

Cnty. of Butler v. Wolf, No. 20-cv-677, 2020 WL 2769105, at *3 (W.D. Pa. May 28, 2020) (citing

Corliss v. Obrien, 200 F. App’x. 80 (3d. Cir. 2006)).” “‘Nor is declaratory judgment meant simply

to proclaim that one party is liable to another.’” Id. (quoting Corliss at 84-5 and citing ACLU of

Massachusetts v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 53 (1st Cir. 2013) (“With limited

exceptions, not present here, issuance of a declaratory judgment deeming past conduct illegal is

also not permissible as it would be merely advisory.”)). “The remedy for examining allegations of

past violations of constitutional rights and for determining liability and damages for the same is a

traditional action for damages under 28 U.S.C. § 1983.” Butler, 2020 WL 2769105, at *3. Thus,

summary judgment is properly entered in Shaw’s favor as to Kendrick’s retrospective claim for

declaratory relief.

Yet Kendrick also seeks an injunction ordering Shaw to be separated from him to avoid

“future abuse,” and asserts that he remains incarcerated in the same facility where the incident

occurred and in the same unit that Shaw is assigned. Id.; see also ECF No. 5 at 4; ECF No. 43-8 at

38. Thus, his request for injunctive relief is prospective. This claim has not been addressed by

Shaw, who provides no basis to disallow it. See Parkell v. Danberg, 833 F.3d 313, 332 (3d Cir.

2016) (citing Argueta v. U.S. Immigr. & Customs Enf’t, 643 F.3d 60, 70, 77 (3d Cir. 2011)

(Plaintiffs “are still free to pursue their official capacity claims for injunctive relief against any

further intimidation or unlawful entry into their home.”); Koehl v. Dalsheim, 85 F.3d 86, 88–89

(2d Cir. 1996) (similar)).

That said, Kendrick has not established that Shaw has the authority to respond to the

requested relief involving a separation order or placement in a different unit or facility. Parkell,

833 F.3d at 332 (“In seeking a prospective injunction against the implementation of an

unconstitutional state policy, [plaintiff] is required to name an official or officials ‘who can

appropriately respond to injunctive relief.’”)(citing Hartmann v. Cal. Dep’t of Corr. & Rehab., 707

F.3d 1114, 1127 (9th Cir. 2013); Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (per

curiam) (proper defendant is one “responsible for ensuring that any injunctive relief is carried

out”)).

Shaw’s motion thus requires the Court to consider an undeveloped record related to

Kendrick’s continued placement in a facility and unit with Shaw if a jury determines that Shaw

violated Kendrick’s Eighth Amendment rights. The record also fails to provide evidence about

Shaw’s ability to implement the requested relief in the form of reassignment. Given the material

factual issues to be resolved, it is recommended that the Court deny the Motion for Summary

Judgment as to Kendrick’s request for injunctive relief without prejudice to be raised at trial.

4. State Law Claims

Shaw seeks summary judgment in his favor as to Kendrick’s state law claims for assault

and battery based on sovereign immunity under Pennsylvania law. ECF No. 41 at 11-14 (citing 1

Pa. C.S. § 2310 and 42 Pa. C.S. § 8522). Shaw correctly states that as a DOC employee, he is

entitled to immunity for intentional torts including assault and battery if committed within the

scope of his employment. Morris, 2024 WL 2188585, at *7 (citing Brown v. Smith, No. 1: 18-cv-

00193, 2019 WL 2411749, at *4 (W.D. Pa. June 7, 2019) (noting that assault and battery fall

outside Pennsylvania’s waiver of sovereign immunity for claims against Commonwealth

employees). Under Pennsylvania law:

Conduct of [an employee] is within the scope of employment if, but only

if: (a) it is of the kind he is employed to perform; (b) it occurs

substantially within the authorized time and space limits; (c) it is

actuated, at least in part, by a purpose to serve the [employer], and (d)

if force is intentionally used by the [employee] against another, the use

of force is not unexpectable by the [employer].

Fought v. City of Wilkes-Barre, Pennsylvania, 466 F. Supp.3d 477, 521 (M.D. Pa.

2020) (quoting Restatement (Second) of Agency § 228(1) (1958)). An employee

can be found to be acting within the scope of their employment even where the

employee acts intentionally or criminally. Tibbens [v. Snyder, No. 18-cv-2112,

2020 WL 5372097, at *5 (M.D. Pa. June 24, 2020)]. Conduct falls outside the scope

of employment if the conduct is done in an outrageous manner. Abney v. Younker,

No. 1:13-CV-1418, 2019 WL 7812383, at *9 (M.D. Pa. Oct. 3, 2019), report and

recommendation adopted, No. 1:13-CV-01418, 2020 WL 488894 (M.D. Pa. Jan.

30, 2020).

Id. at *5–6. “[C]ourts in this Circuit have held that intentionally tortious conduct which is

unprovoked, unnecessary, or unjustified by security concerns or penological goals does not fall

within the scope of employment for purposes of sovereign immunity.” Morris, at *7 (quoting

Angle v. Smith, No. 1:22-cv-33, 2023 WL 2873255, at *8 (W.D. Pa. Feb. 7, 2023) (internal

quotation marks omitted)). See also Abney, 2019 WL 7812383, at * 9 (“a correctional officer is

not acting within the scope of his or her employment, and thus not entitled to the protection of

sovereign immunity, when they assault an inmate without justification”); Gray v. Wakefield, No.

09-cv-0979, 2014 WL 2526619, at *4 (M.D. Pa. June 4, 2014) (explaining that, where the use of

force by corrections officers is unprovoked, unnecessary, and unjustified by security concerns or

penological goals, it does not, as a matter of law, fall within the scope of employment); Robus v.

Pennsylvania Dep’t of Corr., No. 04-2175, 2006 WL 2060615, at *8 (E.D. Pa. July 20, 2006) (“[I]n

Pennsylvania, ‘an assault committed by an employee upon another for personal reasons ... is not

actuated by an intent to perform the business of the employer and, as such, is not within the scope

of employment.’” (quoting R.A. ex rel. N.A. v. First Church of Christ, 748 A.2d 692, 700 (Pa.

Super. 2000))); but see Robus at * 9 (“As for the final requirement, if Robus’s allegations are true,

the force used by Hardnett and Humphrey and ordered by DiGuglielmo was reprehensible, but not

entirely unexpectable. As one court observed in a case involving guards who severely beat an

inmate, ‘[s]uch acts, while barbaric, do not represent such a great departure from the roughhewn

reality of a correction officer’s daily routine as to fall outside of the scope of ... employment.’”

(quoting Pizzuto v. County of Nassau, 239 F. Supp. 2d 301, 315 (E.D.N.Y. 2003))).

The evidence presented by the parties presents material issues of fact as to whether Shaw’s

use of force fell within the scope of his employment. Thus, it is recommended that the Court deny

the Motion for Summary Judgment motion as to the state law assault and battery claims.

D. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the Motion for Summary

Judgment, ECF No. 40, be granted as to Kendrick’s retrospective claims for monetary damages

and declaratory judgment against Shaw in his official capacity, but denied on all other grounds.

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule

72.D.2, the parties may file written objections within fourteen days, or seventeen days for

unregistered ECF Users. Objections are to be submitted to the Clerk of Court, United States

District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file

objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir.

2011). Any party opposing objections may respond to the objections within 14 days in accordance

with Local Civil Rule 72.D.2.

Respectfully submitted,

/s/ Maureen P. Kelly

MAUREEN P. KELLY

UNITED STATES MAGISTRATE JUDGE

Dated: August 20, 2024

cc: The Honorable William S. Stickman

United States District Judge

All counsel of record by Notice of Electronic Filing