Solomon Carter v. Wetzel

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 22-1643

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SOLOMON CARTER,

Appellant

v.

JOHN E. WETZEL, Secretary; DONNA VARNER, Chief Grievance Officer; KERI

MOORE, Grievance Officer; SUPERINTENDENT BARRY R. SMITH, SCI Houtzdale;

SECURITY OFFICER POLITO; C/O III KELLY; INTELLIGENCE CAPTAIN;

PSYCHOLOGIST WALMER; F. NUNEZ, Hearing Examiner; GRIEVANCE

COORDINATOR; MS. REAMNEY, Grievance Coordinator

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 3:18-cv-00232)

District Judge: Honorable Stephanie L. Haines

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 17, 2025

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Before: PHIPPS, FREEMAN, and CHUNG, Circuit Judges

(Filed: April 2, 2025)

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OPINION*

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*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

PHIPPS, Circuit Judge.

After a Pennsylvania corrections officer sprayed an unrestrained, asthmatic inmate

in the face with pepper spray, the inmate initiated this suit for violations of federal and state

law. Following discovery, the corrections officer moved for summary judgment. Relying

on the factual premise that the inmate was repeatedly noncompliant with the officer’s order

at the time he was sprayed, the officer claimed immunity from suit with respect to the

inmate’s state-law tort claims. The District Court granted that motion. In resolving all

outstanding claims in the officer’s favor, the District Court also sua sponte relied on

qualified immunity as an alternative basis for entering judgment on the inmate’s federal

claim. On de novo review of the District Court’s order in this appeal, we will affirm.

FACTUAL BACKGROUND

A state prison in Pennsylvania, SCI-Houtzdale, generally allows for the use of

Oleoresin Capsicum spray, more commonly known as ‘pepper spray,’ as a means of

subduing violent, aggressive inmates. But SCI-Houtzdale has also issued medical

directives prohibiting the use of pepper spray on asthmatic inmates and inmates with a

history of abnormal alcohol and drug use.

In November 2016, one of the inmates, then-thirty-six-year-old Solomon Carter,

had asthma along with a history of alcohol and drug use. SCI-Houtzdale included on the

cover of his medical record a form identifying him as a chemically sensitive inmate not to

be sprayed with pepper spray.

On November 17, 2016, Carter, who also has schizoaffective disorder bipolar type

and antisocial personality disorder, confronted Acting Sergeant Douglas Polito in the

prison’s common area. Carter accused Polito of staring into his prison cell earlier that day.

Polito told Carter to go back to ‘block out,’ which meant to rejoin other prisoners in the

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common area. See Jackson v. Holland, 2024 WL 841489, at *1 (E.D. Pa. Feb. 28, 2024)

(describing ‘block out’ as referring to a period of time “when the inmates are permitted to

engage in social and recreational activities outside of their cells”). Instead, Carter walked

over to a desk to obtain a grievance form to report Polito for harassment. The on-duty desk

officer was unable to find a grievance form, so Polito told Carter to block out or return to

his cell. Instead of complying, Carter demanded to speak with a shift commander or a

lieutenant.

Carter and Polito provide different accounts of what happened next. Under Carter’s

version, Polito ordered Carter to kneel and lie down. Under Polito’s recounting, Polito told

Carter to submit to handcuffing.

After that, the situation escalated. Polito called for backup. And Carter neither laid

down nor submitted to handcuffing. Rather, as captured on an audio-less surveillance

video, Carter knelt on one knee with his hands resting on his leg. With Carter neither lying

down nor submitting to handcuffing, and less than three-minutes having elapsed since

Carter being told to block out, Polito shot a single three-second burst of pepper spray into

Carter’s face. Other correctional officers along with Polito then restrained Carter, and

Carter was taken to the medical ward for evaluation and decontamination.

Afterward, there were three developments. First, after holding a disciplinary

hearing, the prison did not punish Carter for disobeying Polito’s orders. Second, Carter

filed a grievance against Polito, which the prison denied. Third, two years after the

incident, Carter’s medical directive was removed, and he was cleared for pepper spray.

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PROCEDURAL HISTORY

On November 16, 2018, Carter initiated this suit against Polito in the District Court

as an in forma pauperis and pro se litigant.1 See Carter v. Wetzel, 2018 WL 11594389, at

*1 (W.D. Pa. Nov. 20, 2018). He sued Polito in his individual capacity2 for damages under

42 U.S.C. § 1983 for violating the Eighth Amendment and under state law for negligence

and the intentional infliction of emotional distress. Due to the federal civil rights claims

and the relatedness of the state-law claims, the District Court, acting through a referral to

a magistrate judge, see 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b), had subject-matter

jurisdiction over the case. See 28 U.S.C. §§ 1331, 1343, 1367.

Following discovery, Polito moved for summary judgment on all claims. He argued

that he was entitled to judgment as a matter of law on Carter’s Eighth Amendment claim

because his use of force was not malicious and sadistic and that Carter’s state tort theories

were barred by sovereign immunity. His motion attached as an exhibit a surveillance video

from the prison that captured the pepper-spray incident and had been produced in

discovery.3 In opposing that motion, Carter argued that the surveillance video had been

doctored such that a minute of its footage had been deleted.

1

As amended, Carter’s complaint also identifies nine other prison officials and medical

staff as defendants, but he did not perfect service upon them. See Carter v. Polito,

2022 WL 807027, at *1 n.1 (W.D. Pa. Mar. 17, 2022).

2

Although it may be that Carter attempted to sue Polito in both his official and individual

capacities, he did not perfect service on Polito in his official capacity. See Fed. R. Civ.

P. 4(j).

3

In addition to the produced surveillance video, Carter believed a second video existed

that documented his removal from the common area to the medical unit. See Carter v.

Polito, 2020 WL 13842915, at *1 (W.D. Pa. Dec. 7, 2020). He wanted that evidence

because he believed it would contradict his prison medical records which revealed he had

not been in acute distress or sustained serious physical or permanent injuries, and he sought

to obtain that video through a motion to compel. In denying that request, the Magistrate

Judge determined no such video ever existed. See id.

4

The Magistrate Judge recommended that summary judgment be granted in favor of

Polito for many of the reasons provided by Polito – including those relying on the

surveillance video. Carter v. Polito, 2022 WL 1126229 (W.D. Pa. Jan. 14, 2022), report

and recommendation adopted, 2022 WL 807027 (W.D. Pa. Mar. 17, 2022). In addition,

the Magistrate Judge sua sponte raised the issue of qualified immunity and recommended

it as an alternative basis for denying Carter’s Eighth Amendment claim. Carter, 2022 WL

1126229, at *7–8; see also 42 U.S.C. § 1997e(c)(1). Carter objected to the report and

recommendation, which the District Court overruled in its adoption of the report and

recommendation. See Carter, 2022 WL 807027, at *5.

After invoking this Court’s appellate jurisdiction through a timely notice of appeal,

see 28 U.S.C. § 1291, Carter successfully moved for appointment of counsel. See

generally Tabron v. Grace, 6 F.3d 147, 155–57 (3d Cir. 1993) (setting forth the factors

courts use to ascertain whether to appoint counsel for indigent defendants). But his

relationship with his pro bono counsel deteriorated, and after the filing of a counseled

opening brief and Polito’s response, counsel moved to withdraw – at Carter’s request. In

granting that request, this Court deemed the opening brief an amicus brief, and it also

allowed Carter to file his own pro se brief and Polito to submit a supplemental responsive

brief.

Carter now challenges the grant of summary judgment on his Eighth Amendment

and state tort claims.4

4

While this case was on appeal, Carter also twice unsuccessfully moved for sanctions

regarding the alleged doctoring of the first video and the allegedly missing second video.

5

DISCUSSION

A. Carter Did Not Forfeit His Challenges to Polito’s Immunity Defenses.

Polito’s first response to Carter’s appeal is an invocation of forfeiture. In his

opposition brief, Polito contends that Carter has not adequately contested the District

Court’s application of immunity principles because the opening brief did not present an

argument challenging the District Court’s immunity rulings. Polito is correct about the

opening brief, but this appeal presents an unusual circumstance for the doctrine of

forfeiture. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 147

(3d Cir. 2017) (explaining courts will not reach a forfeited claim unless there are

“exceptional circumstances” and that courts are “less reluctant to bar consideration of a

forfeited pure question of law”). After Carter’s pro bono counsel successfully moved to

withdraw, the opening brief was deemed an amicus brief filed on his behalf, and Polito was

also permitted to file a supplemental brief. The failure to raise an argument in an amicus

brief submitted on behalf of a party does not constitute forfeiture. Cf. Fed. R. App. P. 28(a);

3d Cir. L.A.R. 28.1 (2011). Thus, the opening-now-amicus brief’s failure to dispute the

immunity rulings does not operate as forfeiture.

In his supplemental brief, Polito takes another run at the forfeiture argument. There,

he asserts that Carter’s pro se brief also does not dispute the District Court’s immunity

rulings. But Carter’s pro se brief challenges the judgment against his claims on immunity

grounds, and it cites the legal authority and factual basis for that contention. Even though

he does not make the strongest or even successful arguments, his efforts suffice for the

minimal standards for presenting an argument. See Barna, 877 F.3d at 145 (“To be

preserved, all arguments must be supported specifically by ‘the reasons for them, with

citations to the authorities and parts of the record on which the appellant relies.’” (quoting

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Fed. R. App. P. 28(a)(8)(A))); cf. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244–45

(3d Cir. 2013) (explaining that although pro se litigants “must abide by the same

[procedural] rules that apply to all other litigants,” courts may “apply [a] relevant legal

principle” even when unstated).

For these reasons, Carter has not forfeited the ability to challenge the District

Court’s immunity rulings.

B. Summary Judgment Was Properly Granted in Favor of Polito.

Summary judgment is appropriate when there is no genuine dispute of material fact

and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a) (“The

court shall grant 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.”). In

contesting the entry of summary judgment against him, Carter argues that there is a genuine

dispute of material fact as to his compliance with Polito’s orders and that Polito is not

entitled to immunity.

1. The Professed Genuine Dispute of Material Fact

Carter argues that the factual dispute over whether he was in compliance with

Polito’s order when he was pepper sprayed is both genuine and material. See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (“When the moving

party has carried its burden under Rule 56(c), its opponent must do more than simply show

that there is some metaphysical doubt as to the material facts . . . . Where the record taken

as a whole could not lead a rational trier of fact to find for the non-moving party, there is

no ‘genuine issue for trial.’” (footnote omitted) (quoting First Nat. Bank of Ariz. v. Cities

Serv. Co., 391 U.S. 253, 289 (1968))).

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He is correct as to genuineness: there is a degree of ambiguity as to Polito’s precise

command. See generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)

(explaining a dispute is ‘genuine’ “if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party”). On his own grievance form, Carter admitted he was

told to lie down:

He started saying lay down on the ground, get on your knees and lay down

flat. I got on my knees, then realized what he was making me do.

Official Inmate Grievance No. 654622 (JA117). And in appealing that grievance, Carter

reiterated he was only on his knees. He gave the same version of facts during his interview

with the prison’s Intelligence Captain. However, the prison’s investigation determined that

Carter was told to submit to handcuffing. Thus, on the summary judgment record, either

Polito told Carter to kneel and lie down or to submit to being handcuffed.

The problem for Carter is that under either version of the events, that genuine

dispute is not material. See generally Anderson, 477 U.S. at 248 (explaining ‘material

facts’ are “facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment”).5 That is so because if the command

was to kneel and lie down, Carter only partially complied, and if the command was to

submit to handcuffing, Carter also did not comply. The surveillance video confirms as

much: Carter did not lie down flat and he did not put himself in a position to be handcuffed.

Rather, that video shows that Carter went down to one knee with his arms folded on the

5

Carter’s original complaint, which was verified, provides another account: Carter averred

that Polito told him to “get on [his] knees and lay on the ground [and that he] did as

ordered.” Compl. ¶ IV(C) (JA36). But that account is not in the summary judgment record.

The original complaint was not the operative pleading at the time of summary judgment

because Carter had amended it beforehand. Cf. generally Garrett v. Wexford Health,

938 F.3d 69, 82 (3d Cir. 2019) (“In general, an amended pleading supersedes the original

pleading and renders the original pleading a nullity.”). Nor did Carter rely on a statement

given under penalty of perjury contained in that verified complaint in opposing summary

judgment. See 28 U.S.C. § 1746; Fed. R. Civ. P. 56(c)(4).

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leg in front of him. Cf. Scott v. Harris, 550 U.S. 372, 380–84 (2007).6 Thus, while there

is a genuine dispute as to precisely what Carter was ordered to do, it is not material because

under either version, Carter did not comply – and his noncompliance is the material fact

for the immunity defenses.7 Accordingly, Carter cannot defeat summary judgment based

on a genuine dispute of material fact.

2. The Contentions That Polito Is Not Entitled to Judgment as a Matter

of Law

Carter’s other challenges contest Polito’s entitlement to judgment as a matter of law.

Specifically, Carter argues that Polito does not merit qualified immunity with respect to his

§ 1983 claim and that he should not receive state statutory immunity on the tort claims.

a. Qualified Immunity

As a legal principle, “qualified immunity shields officials from civil liability so long

as their conduct ‘does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015)

(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). And here, even assuming

arguendo that Polito violated Carter’s Eighth Amendment rights – the right of a chemically

sensitive inmate who was repeatedly non-complaint in a short period of time to not be

subjected to a quick, single burst of pepper spray – was not clearly established as of

November 17, 2016, when the incident occurred. See James v. N.J. State Police, 957 F.3d

165, 170 (3d Cir. 2020) (“[C]learly established rights are derived either from binding

6

While Carter, on appeal, maintains that the surveillance video has been altered, before the

District Court he attested that all that was missing from the video was him getting on both

knees. Even if what Carter says is true, Carter still would not have been compliant with

Polito’s order.

7

Amicus also asserts genuine disputes about two other facts – the severity of his medical

injuries and Polito’s motives for pepper spraying him. But those disputes – even if genuine

– are likewise not material to the relevant immunity defenses and are thus immaterial.

9

Supreme Court and Third Circuit precedent or from a ‘robust consensus of cases of

persuasive authority in the Courts of Appeals.’” (quoting Bland v. City of Newark, 900 F.3d

77, 84 (3d Cir. 2018))); District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (“To be

clearly established, a legal principle must have a sufficiently clear foundation in then-

existing precedent.”); cf. Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[T]he salient question

that the Court of Appeals ought to have asked is whether the state of the law in [the year in

which the conduct occurred] gave respondents fair warning that their alleged treatment of

[the inmate] was unconstitutional.”). And at that time, there was no precedent from either

the Supreme Court or this Court holding that such a right existed. Cf. Rivera v. Redfern,

98 F.4th 419, 421–25 (3d Cir. 2024) (explaining in the context of deliberate indifference

that failing to remove an asthmatic bystander prisoner from his cell before deploying

pepper spray near him, even when it had an opportunity to do so, was not a clearly

established Eighth Amendment violation). Nor was there a robust consensus of persuasive

authority for that proposition. Cf. Danley v. Allen, 540 F.3d 1298, 1307–08 (11th Cir.

2008) (explaining that the use of pepper spray without more on a pretrial detainee is not a

Fourteenth Amendment violation), overruled on other grounds by Randall v. Scott,

610 F.3d 701, 709 (11th Cir. 2010); Burns v. Eaton, 752 F.3d 1136, 1138, 1140 (8th Cir.

2014) (finding no Eighth Amendment violation where the inmate, who was aggressive and

threatening toward a prison guard, was warned he would be pepper sprayed if he did not

“catch the cuffs”); Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (holding that

deploying pepper spray when an inmate is “coughing and gagging” did not violate the

Eighth Amendment); Soto v. Dickey, 744 F.2d 1260, 1265–67, 1271 (7th Cir. 1984)

(finding no Eighth Amendment violation where mace was used to get segregated prisoners

to submit to handcuffing for failing to “obey a direct order”). Therefore, because it was

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not clear to all but the “plainly incompetent” that Polito’s actions violated Carter’s Eighth

Amendment rights, City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021) (quoting Wesby,

583 U.S. at 56), Polito is entitled as a matter of law to qualified immunity.

b. State Statutory Immunity

For state tort claims, Pennsylvania also provides statutory immunity to state officials

and employees. As a general rule, for such immunity to attach, the challenged actions must

have been within the scope of employment:

[T]he Commonwealth, and its officials and employees acting within the

scope of their [official] duties, shall continue to enjoy sovereign immunity

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

Assembly shall specifically waive the immunity.

1 Pa. Cons. Stat. § 2310; see also Pa. Const. art. I, § 11 (“Suits may be brought against the

Commonwealth in such manner, in such courts and in such cases as the Legislature may

by law direct.”). Thus, Polito will be statutory immunity if his challenged actions occurred

within the scope of his employment.

They did. Under Pennsylvania law, an employee acts within the scope of his

employment when he engages in conduct “of the kind he is employed to perform”; the

conduct “occurs substantially within the authorized time and space limits”; the conduct “is

actuated, at least in part, by a purpose to serve the [employer]”; and, “if force is

intentionally used by the [employee] against another, the use of force is not unexpectable

by the [employer].” McGuire ex rel. Neidig v. City of Pittsburgh, 285 A.3d 887, 892

(Pa. 2022) (quoting Restatement (Second) of Agency § 228 (Am. L. Inst. 1958)).

Each of those elements is satisfied based on the undisputed material facts here. At

the time he deployed a short burst of pepper spray, Polito was on duty in the prison serving

as an Acting Sergeant, so he was engaging in conduct that he was employed to perform

within the authorized time and space limits of his employment. And although Carter was

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an inmate subject to a medical directive, Polito was generally authorized to use pepper

spray to maintain prison order, and so Polito’s use of pepper spray cannot be viewed as

devoid of any purpose to benefit his employer. Nor could Polito’s use of pepper spray have

been entirely unexpected by the prison: Polito deployed it only after Carter ignored three

direct orders in a three-minute period. See Restatement (Second) of Agency § 230(b) (“A

master cannot direct a servant to accomplish a result and anticipate that he will always use

the means which he directs or will refrain from acts which it is natural to expect that

servants may do.”); cf. Justice v. Lombardo, 208 A.3d 1057, 1070 (Pa. 2019) (concluding

that a trooper who “aggressively jumped over the barrier wielding his handcuffs” and

“forcibly wrestled” a person who was not detained and who had complied with his orders

was outside the scope of employment). Thus, Polito was acting within the scope of his

employment when he sprayed Carter, and Pennsylvania’s immunity statute bars Carter’s

tort claims.

CONCLUSION

For the above reasons, we will affirm the judgment of the District Court.8

8

Judge Freeman respectfully dissents. In her view, the facts in the light most favorable to

Carter are that Carter was complying with the corrections officers’ orders when Polito

pepper-sprayed him. When Carter asked an officer for a grievance form and to speak with

a supervisor, he was in the common area where he was permitted during “block out.” And

Carter was submitting to handcuffing when he knelt before Polito. (After all, kneeling is a

classic submissive posture.) Polito is not entitled to qualified immunity on these facts

because, by the time of the incident on November 17, 2016, it was clearly established that

an inmate who poses no threat to safety or security and is complying with officers’ orders

has a right to be free from a gratuitous use of force. Jacobs v. Cumberland Cnty., 8 F.4th

187, 197 (3d Cir. 2021) (discussing decades-old Supreme Court authority that “officers

may not expose inmates to gratuitous force divorced from any legitimate penological

purpose”); Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009) (stating that it was

established by 2001 that an officer may not use gratuitous force against an inmate who had

previously resisted but who has been subdued). These facts also support relief on the merits

of Carter’s Eighth Amendment claim. Carter’s documented medical condition that

precluded the prison from using pepper spray on him only makes the use of force here more

unreasonable. Accordingly, Judge Freeman would reverse the District Court’s grant of

summary judgment to Polito on the Eighth Amendment claim.

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Judge Freeman would vacate the dismissal of the state-law claims and remand those

claims to the District Court for analysis of the merits. The facts, viewed in Carter’s favor,

do not support state statutory immunity. The prison could not have expected Polito to use

force gratuitously and without any legitimate penological purpose, particularly given the

prison’s directive that Carter was not to be pepper sprayed.