Opinion
Civil Action No. 03-6325.
August 9, 2004
OPINION
Defendants James Boyd and Mary Canino ("removing defendants") have removed this case from the Philadelphia Court of Common Pleas and filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Plaintiff Steven Maples has timely filed a motion to remand under 28 U.S.C. § 1447(c), claiming a defect in removal procedure. After considering the submissions of both parties, I will deny Maples's motion to remand I will also grant in part the motion to dismiss, dismissing as to Boyd and Canino three of the four claims comprising Maples's complaint.
Factual and Procedural Background
The events that gave rise to this action allegedly began while Maples, a prisoner in the custody of the Pennsylvania Department of Corrections ("DOC"), was housed at the Luzerne Treatment Center ("Luzerne") as part of the Residential Substance Abuse Treatment ("RSAT") program. The court will assume for purposes of this opinion that the facts alleged in the plaintiff's complaint and briefing are true.
In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), "all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party." Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987).
After Maples arrived at Luzerne on June 17, 2002, his case manager, Kavin Bailey, told him that to stay out of prison Maples had to pay Bailey $150 per week. Maples initially complied with Bailey's demand, paying Bailey approximately $600 before discovering that the payments were not officially required. On July 22, 2002, when Bailey demanded his weekly payment, Maples refused to make any further payments, and Bailey threatened to return Maples to prison for failing to pay.
On August 6, 2002, Maples reported Bailey's actions to Luzerne Supervisor Adrin Green. Green told Maples that there was nothing he could do to help. Maples subsequently wrote a letter to Contract Facility Coordinator James Boyd on August 29, 2002, requesting an interview to discuss the improper conduct by the Luzerne staff. Boyd did not respond to the letter.
One week after sending his letter to Boyd, on September 6, 2002, Maples signed out of Luzerne for treatment and did not return that night at the expiration of his treatment pass. He was arrested by Pennsylvania state police at his mother's house on January 14, 2003, and placed in custody at the Curran-Fromhold Correctional Facility in Philadelphia. On January 27, 2003, he was transferred to SCI Graterford in Graterford, Pennsylvania, and placed in solitary confinement under administrative custody.
On January 31, 2003, Boyd issued a misconduct report concerning Maples's failure to return to Luzerne as scheduled, charging him with escape and violating a condition of a pre-release program. A disciplinary hearing was conducted before hearing examiner Mary Canino on February 3, 2003. At the hearing, Maples argued that he had not "escaped" from Luzerne, because by signing out of the facility he had permission to leave. He also explained that he did not return to Luzerne due to the duress caused by the actions (or inaction) of Bailey, Green, and Boyd. Maples attempted to submit to Canino a copy of his letter to Boyd as evidence of his duress, but Canino refused to accept it as evidence, and also failed to contact officials at Luzerne to verify Maples's allegations. Canino determined that Maples's allegations were untrue, and told Maples that she believed he had escaped "because he wanted to." Canino found Maples guilty of the charges in Boyd's report, and ordered that his outside pre-release status be revoked. Maples remains incarcerated today, at SCI-Dallas in Dallas, Pennsylvania.
On August 11, 2003, Maples filed this action in the Court of Common Pleas for Philadelphia County, alleging that Bailey, Green, Boyd, and Canino violated his civil rights under the United States Constitution and Pennsylvania law. It appears from the record before the court that Maples undertook to send copies of the complaint and summons to the Court of Common Pleas and the four defendants on May 20, 2003, but the action was not officially filed with the court until nearly three months later. The Court of Common Pleas subsequently granted Maples's motion to proceed in forma pauperis.
On November 19, 2003, the removing defendants, Boyd and Canino, filed a notice of removal to this court under 28 U.S.C. §§ 1441 and 1446. The removing defendants proceeded to file a motion to dismiss under Rule 12(b)(6), contending that Maples had failed to state a claim for relief. Maples responded by filing a motion to remand pursuant to 28 U.S.C. § 1447(c), and a brief in opposition to the motion to dismiss.
Maples's Motion to Remand
Although the basis for his motion to remand is not entirely clear, Maples's opposition to removal appears to be based on three grounds: (1) that the removing defendants improperly sought removal "based on a false contention of lack of service"; (2) that removal is improper because there is no diversity of citizenship among the parties; and (3) that removal would be "prejudicial" to Maples because "state employees will escape state sanction for their deprivation of right[s] under state law." All three arguments are unavailing. 1. False contention of lack of service
Plaintiff has apparently misconstrued the argument of the removing defendants, as the absence of adequate service was not, nor could ever be, the basis for removal. Instead, the removing defendants cited the absence of proper service to support their contention that their removal of the case was timely. A notice of removal must be filed within thirty days after simultaneous service of the state court complaint and summons, or within thirty days after receipt of the complaint after service of the summons. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999) (interpreting thirty-day period under 28 U.S.C. § 1446(b)). In Murphy Brothers, the Supreme Court expressly rejected the contention that the "mere receipt of the complaint unattended by any formal service" could trigger a defendant's time to remove. Id. Accordingly, if the removing defendants in the present case were not formally served before they filed their notice of removal, then the thirty-day period for removal could not have run, and the notice of removal was timely.
Based on the record before the court, it appears that none of the defendants have ever been formally served. In support of his motion to remand, Maples has submitted copies of receipts indicating that he has mailed copies of his complaint to the four defendants. However, mailing the complaint does not constitute proper service of process. Weaver v. Martin, 655 A.2d 180, 193 (Pa.Super.Ct. 1995). In Pennsylvania, "original process shall be served . . . only by the sheriff." Pa. R. Civ. P. 400(a). The fact that a plaintiff has been granted permission to proceed in forma pauperis, as Maples has in the present case, does not exempt that plaintiff from following the Rules of Civil Procedure concerning service of process. Mooney by Mooney v. Borough of West Mifflin, 578 A.2d 1384, 1386 (Pa.Commw.Ct. 1990). Therefore, the notice of removal was timely filed.
Although there are exceptions to this rule, see Pa. R. Civ. P. 400(b), 400(c), 400.1, and 1930.4, none apply to the circumstances of the present case.
Although Maples does not raise the issue, it should be noted that the absence of adequate service in this case also permits the removing defendants to remove the case without the consent of the two other defendants, Bailey and Green. As a general matter, in order to remove a matter under 28 U.S.C. §§ 1441(b) and 1446, all defendants must join in the removal petition or otherwise consent within thirty days of the petition's filing. Knowles v. Am. Tempering Inc., 629 F. Supp. 832, 835 (E.D. Pa. 1985). One exception to the rule arises when a defendant has not yet been served with the complaint at the time the removing defendants file their petition. Id. Under such circumstances, the removal petition is effective, provided that it explains the absence of the nonjoining defendants' joinder or consent. Id. at 835 n. 1. By alleging that, as of the date of its filing, "no defendant has been served, nor has service been waived," Notice of Removal at ¶ 2, the notice of removal in the present case meets this requirement. 2. Lack of diversity jurisdiction
Maples's second objection to removal is that there is no diversity of citizenship among the parties. However, the basis for federal subject matter jurisdiction in this case is not diversity, but the existence of a federal question. When removal is sought on the basis of a claim presenting a federal question, the citizenship of the parties is immaterial. See 28 U.S.C. § 1441(b).
Federal question jurisdiction exists where it appears from the complaint that the plaintiff's claim "aris[es] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The third count of Maples's complaint charges that Boyd, Green, and Canino retaliated against Maples for attempting to report Bailey's alleged extortion, depriving Maples of his rights "protected under the first amendment." Complaint ¶ 21. In essence, this count charges that Maples suffered detriment due to his attempted exercise of his First Amendment "right . . . to petition the Government for a redress of grievances" — a right to petition which, pursuant to the Fourteenth Amendment, extends to addressing petitions to state governments. When, as here, it appears from the complaint that the plaintiff's "right to relief depends upon the construction or application of the Constitution . . . of the United States," Smith v. Kansas City Title, 225 U.S. 180, 199 (1921), federal question jurisdiction exists. Accordingly, there is no jurisdictional obstacle to removal in this case. 3. Prejudice
Finally, Maples argues that "it would be prejudicial to plaintiff['s] cause of action if this court would allow this matter to be removed to this court, in that state employees will escape state sanction for their deprivation of right[s] under state law," and that removal would "deprive plaintif [ sic] of a fair hearing and/or opportunity to have his claims heard at the state level." Motion for Remand at 3. The basis stated by Maples is not a proper basis for remand under 28 U.S.C. § 1447(c), which provides for remand only on the basis of a defect in removal procedure or a lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c); Begley v. Maho Bay Camps, Inc., 850 F. Supp. 172, 175 (E.D.N.Y. 1994). Because, as discussed above, removal was proper and this court has subject matter jurisdiction, Maples's motion to remand will be denied.
Removing Defendants' Motion to Dismiss
Dismissal of a complaint for failure to state a claim is appropriate "only if, accepting all well pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997). The court's review of the sufficiency of a pro se complaint, "however inartfully pleaded," is less stringent than its review of pleadings prepared by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The complaint may be dismissed for failure to state a claim only if it is "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Maples's complaint contains four "counts": "Deprivation of Rights Under State Law," "Willful Misconduct," "Retaliation Claim," and "Intentional Infliction of Emotional Distress." The first two of these "counts" do not appear to be cognizable legal claims so much as background for, or legal argument in support of, separate claims contained elsewhere in the complaint; therefore, I will not consider them as claims advanced by Maples.
However, in construing pleadings filed pro se, this court is obligated to "apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 687 (3d Cir. 2002). I will thus read Maples's complaint as asserting two additional claims not included in its list of "counts": procedural due process under the Fourteenth Amendment, and civil conspiracy under 42 U.S.C. § 1983. So read, Maples's complaint advances four claims: (1) procedural due process under the Fourteenth Amendment; (2) retaliation in violation of the First Amendment; (3) civil conspiracy under 42 U.S.C. § 1983; and (4) intentional infliction of emotional distress under Pennsylvania law. In this opinion I will address each claim in turn as it relates to the two removing defendants.
1. Procedural due process
Maples maintains that Boyd violated his procedural due process rights by issuing a misconduct report that was knowingly false, in that the report (a) did not make any mention of the reasons Maples failed to return to Luzerne as required, and (b) did not include the August 29, 2002, letter Maples wrote to Boyd complaining of wrongdoing by Luzerne employees. Maples also contends that Canino violated his right to due process at his disciplinary hearing by refusing to consider as evidence a copy of the August 29 letter and by her failure to contact officials at Luzerne to verify Maples's allegations before finding him guilty.
To prevail on his due process claim, Maples must establish that he was deprived of a protected liberty interest. Fraise v. Terhune, 283 F.3d 506, 522 (3d Cir. 2002). A protected liberty interest can arise from one of two sources: the Due Process Clause itself or the laws of a state. Asquith v. Dep't of Corrections, 186 F.3d 407, 409 (3d Cir. 1999).
The Due Process Clause, standing alone, can be the source of a liberty interest when the deprivation of liberty exceeds the sentence imposed upon the prisoner "in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force." Sandin v. Conner, 515 U.S. 472, 484 (1995). Otherwise, the Supreme Court has recognized, "[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight." Montanye v. Haymes, 427 U.S. 236, 242 (1976).
The Supreme Court has held that the Due Process Clause does not protect a prisoner's interest in being placed in a preferred facility while in confinement. Montanye, 427 U.S. at 242; Meachum v. Fano, 427 U.S. 215, 224-25 (1976). Once an inmate has been released on parole, however, the Due Process Clause protects the parolee's liberty interest in remaining conditionally free from institutional confinement, because the parolee's "condition is very different from that of confinement in a prison." Morrissey v. Brewer, 408 U.S. 471, 482 (1972). The Court has also held that where an inmate is enrolled in a pre-parole conditional supervision program in which the limitations on his freedom are comparable to those placed on a parolee, the pre-parolee has a protected liberty interest entitling him to due process before he can be removed from the program. Young v. Harper, 520 U.S. 143 (1997).
If Maples's removal from the RSAT program at Luzerne and return to confinement at Graterford more closely resembles the inter-prison transfers at issue in Montanye and Meachum, then, under the Supreme Court's jurisprudence, Maples cannot claim to have a liberty interest protected by the Due Process Clause of its own force. See also Asquith, 186 F.3d at 411 (finding that resident of halfway house remained in institutional confinement and hence had no liberty interest protected by Due Process Clause). If, on the other hand, the RSAT program at Luzerne provides a degree of liberty that is substantially similar to the liberty protected in Morrissey and Young, then Maples's removal from that program may implicate a protected liberty interest.
A protected liberty interest may also derive from the laws or regulations of a state. In Sandin, the Supreme Court held that a prisoner is deprived of a state-created liberty interest only if the deprivation "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. In order to determine whether a deprivation creates an "atypical and significant hardship," the court must consider "what a sentenced inmate may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law." Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997).
Based on the limited factual record that currently exists in this case, I cannot conclude at this preliminary stage that Maples's removal from Luzerne to Graterford does not implicate a liberty interest arising from either the Due Process Clause or Pennsylvania law. In Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003), the Third Circuit was asked to consider whether a prisoner's placement in disciplinary custody deprived him of a protected liberty interest. Finding the record to be too sparse for the "fact-specific nature of the Sandin test," id. at 532, the court remanded for the district court, after development of the record, to consider the duration of the prisoner's disciplinary confinement and the conditions of that confinement in relation to the ordinary incidents of prison life. Id. at 532-33. This court, too, has declined to rule on the existence of a protected liberty interest where the record is incomplete. See Carter v. Kane, 938 F. Supp. 282, 286-87 (E.D. Pa. 1996) (denying motion for summary judgment on procedural due process claim where record contained "very little information on the characteristics of life in the general prison population"). Here, factors crucial to the court's analysis are absent from the record, including the living conditions and restrictions involved in the RSAT program at Luzerne and the characteristics of life in custody at Graterford. Until the record has been more fully developed, I cannot say with certainty that Maples can prove no set of facts that would entitle him to relief. Accordingly, I will deny the removing defendants' motion to dismiss Maples's procedural due process claim.
2. First Amendment retaliation
Maples also alleges that Boyd and Canino retaliated against him for exercising his First Amendment rights. He claims that Boyd issued his misconduct report, and Canino found Maples guilty of the charges therein, in retaliation for Maples's delivery of a letter to Boyd reporting the alleged wrongdoings of Bailey and Green.
In order to state a claim for retaliation under 42 U.S.C. § 1983, a prisoner must allege that (1) he engaged in constitutionally protected activity, (2) he suffered some adverse action at the hands of prison officials, and (3) his constitutionally protected conduct was "a substantial or motivating factor" for the adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). The burden then shifts to the defendants, who "may still prevail by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest." Id. at 334. See also Texas v. Lesage, 528 U.S. 18, 21 (1999) ("where a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting relief under § 1983").
Even if Maples's letter to Boyd, complaining about the conduct of Bailey and Green, was a substantial or motivating factor in Boyd's decision to issue the misconduct report, it is apparent that Maples would have been disciplined even in the absence of the improper motive. Maples concedes in his complaint that he signed out of Luzerne on September 6, 2002, and did not return until he was apprehended more than three months later. Whatever the motivation behind Maples's unauthorized departure from Luzerne, that departure provided Boyd with a legitimate basis for issuing a misconduct report.
Similarly, it is manifest that, at the disciplinary hearing, Canino would have found Maples guilty of the charges in Boyd's report even in the absence of any retaliatory motive she might have harbored, and that this decision would have been reasonably related to a legitimate penological interest. Maples did not dispute at the hearing, nor does he dispute now, that he had failed to return as required at the expiration of his treatment pass.
Where it is apparent that a plaintiff cannot prevail on his retaliation claim, the claim must be dismissed. See, e.g., Nellom v. Luber, No. Civ. A. 02-2190, 2004 WL 816922, at *10-*12 (E.D. Pa. Mar. 18, 2004) (dismissing claim after finding, inter alia, that parole board would have denied parole regardless of prisoner's exercise of his First Amendment rights); Scantling v. Vaughn, No. Civ. A. 03-0067, 2004 WL 306126, at *10 (E.D. Pa. Feb. 12, 2004) (dismissing claim because prisoner "fail[ed] to allege sufficient facts to support such a claim"). Because I find that no relief could be granted on this claim consistent with the allegations contained in the complaint, I will grant the motion to dismiss Maples's retaliation claim against Boyd and Canino.
3. Civil conspiracy
Under Pennsylvania law, "'to state a cause of action of civil conspiracy, the following elements are required: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage.'" General Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297, 313 (3d Cir. 2003) (quoting Strickland v. Univ. of Scranton, 700 A.2d 979, 987-88 (Pa.Super.Ct. 1997)).
It is not clear from the face of Maples's complaint that he intended to advance a claim of civil conspiracy under 42 U.S.C. § 1983. None of the four "counts" contained in the complaint are titled "conspiracy" or even focused on the alleged conspiracy among the defendants in this action. However, as noted by the removing defendants, Maples appears to allege a conspiracy as part of his First Amendment retaliation claim. Paragraph 1 of the complaint avers that "each Defendant acted under the color of Law, using their position to conspire to retaliate against the Plaintiff collectively and individually." Paragraph 20 states that the defendants "acted in concert . . . [in] punishing him for the good faith use of the chains of command to stop a crime from being committed further, and have conspired among themselves to punish the Plaintiff. . . ." And paragraph 22 alleges that the defendants, "act[ing] in concert and under color of law, willfully Retaliated against the Plaintiff to discourage him from exposing a criminal enterprise, that was happening at the Center." Applying the liberal pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, I will presume that these three allegations that the defendants "conspired" or acted "in concert" represent an attempt to bring a claim of civil conspiracy.
Even under Rule 8's liberal pleading standard, however, the allegations in Maples's complaint do not suffice to support a conspiracy claim under 42 U.S.C. § 1983. It is a longstanding rule in the Third Circuit that a "general allegation of conspiracy without a statement of the facts is an allegation of a legal conclusion and insufficient of itself to constitute a cause of action." Black Yates, Inc. v. Mahogany Ass'n, 129 F.2d 227, 231 (3d Cir. 1941). "[M]ere incantation of the words 'conspiracy' or 'acted in concert' does not talismanically satisfy" Rule 8's requirement of "a short and plain statement of the claim showing that the pleader is entitled to relief." Loftus v. Southeastern Pa. Transp. Auth., 843 F. Supp. 981, 987 (E.D. Pa. 1994); Fed.R.Civ.P. 8(a)(2). Instead, a complaint alleging a conspiracy "'must contain sufficient information for the court to determine whether or not a valid claim for relief has been stated and to enable the opposing side to prepare an adequate responsive pleading.'" Rose v. Bartle, 871 F.3d 331, 366 n. 60 (3d Cir. 1989) (quoting 5 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1233 (2d ed. 1990)). "Although detail is unnecessary, the plaintiff must plead the facts constituting the conspiracy, its object and accomplishment." Black Yates, 129 F.2d at 231. "Only allegations of conspiracy which are particularized, such as those addressing the period of the conspiracy, the object of the conspiracy, and certain actions of the alleged conspirators taken to achieve that purpose, will be deemed sufficient." Rose, 871 F.2d at 366 (quoting Kalmanovitz v. G. Heileman Brewing Co., 595 F. Supp. 1385, 1401 (D. Del. 1984)).
Maples's complaint uses the terms "conspired" and "acted in concert," but does not aver facts sufficient to shed light on the circumstances of the alleged conspiracy. There is no factual allegation of an agreement or understanding among the defendants to cause harm to Maples. Instead, Maples, in his complaint and his brief in opposition to the motion to dismiss, merely supposes that because the end result of the defendants' actions harmed him, a conspiracy must have existed between them. As the previously cited excerpts from the complaint reveal, Maples's complaint "does not proceed far enough beyond mere invocation of the word 'conspiracy' to plead an adequate cause of action" under the law of this circuit. Wright v. Onembo, No. Civ. A. 99-4778, 2000 WL 1521567 (E.D. Pa. Oct. 4, 2000). Therefore, to the extent that Maples has attempted to make out a civil conspiracy claim, I will dismiss this claim with respect to Boyd and Canino. However, I will do so without prejudice to Maples's entitlement to amend the complaint to correct the deficiencies just discussed. 4. Intentional infliction of emotional distress
Finally, Maples asserts a claim, pursuant to state law, against all four defendants for intentional infliction of emotional distress. The removing defendants contend that dismissal of this claim against them is warranted, because they are protected from the imposition of liability for state law claims under the doctrine of sovereign immunity. A claim may be dismissed pursuant to Rule 12(b)(6) where the defendants demonstrate that under the facts alleged they are entitled to immunity, even though immunity is typically raised as an affirmative defense. Frazier v. Southeastern Pa. Transp. Auth., 868 F. Supp. 757, 760 (E.D. Pa. 1994).
Pursuant to Pennsylvania law, Commonwealth employees acting within the scope of their duties are immune from liability for state-law tort claims, except for nine enumerated categories of claims not implicated in this case. 1 Pa. Cons. Stat. § 2310; 42 Pa. Cons. Stat. § 8522. Sovereign immunity applies to claims advanced against Commonwealth employees in both their official and their individual capacities. Dill v. Oslick, No. Civ. A. 97-6753, 1999 WL 508675, at *4 (E.D. Pa. July 19, 1999). Here, Boyd is sued for his failure to respond to Maples's complaints of wrongdoing by Bailey and Green, and his issuance of a misconduct report concerning Maples's escape from Luzerne. Canino is sued for her conduct while presiding at his disciplinary hearing — namely, her failure to accept a copy of Maples's letter as evidence, her failure to contact Luzerne officials to verify his claims of misconduct, and her finding that he was guilty as charged in Boyd's misconduct report. These alleged acts or omissions by Boyd and Canino are within the scope of their duties as a DOC contract facility coordinator and a DOC hearing examiner, respectively. See La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa.Commw.Ct. 1992) (finding that state trooper acted within scope of his duties when he arrested plaintiff and initiated prosecution, and thus that trooper was immune from liability for abuse of process).
The sovereign immunity statute provides, in relevant part, that "the Commonwealth, and its officials and employees acting within the scope of their 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. The nine areas in which the General Assembly has expressly waived sovereign immunity are: (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 activities; and (9) toxoids and vaccines. 42 Pa. Cons. Stat. § 8522(b).
In his opposition to the motion to dismiss, Maples contends that the actions of Boyd and Canino constitute willful misconduct, or intentional tort, that divests them of sovereign immunity. However, willful misconduct can only abrogate sovereign immunity for employees of local, or municipal, agencies. See 42 Pa. Cons. Stat. § 8550 (abrogating immunity for "local agency or employee thereof" when employee's action constituted "crime, actual fraud, actual malice or willful misconduct"). Employees of Commonwealth agencies are immune from liability even for intentional torts. Pierce v. Montgomery County Opportunity Bd., Inc., 884 F. Supp. 965, 972 (E.D. Pa. 1995); La Frankie, 618 A.2d at 1149. Accordingly, Pennsylvania's sovereign immunity statute bars Maples from asserting a state law claim of intentional infliction of emotional distress against Boyd and Canino, and the claim will be dismissed with respect to these two defendants.
"'Willful misconduct, for the purpose of tort law, has been defined by our Supreme Court to mean conduct whereby the actor desired to bring about the result that followed or at least was aware that it was substantially certain to follow, so that such desire can be implied. In other words, the term "willful misconduct" is synonymous with the term "intentional tort."'" Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994) (quoting King v. Breach, 540 A.2d 976, 981 (Pa.Commw.Ct. 1988)).
Conclusion
In the accompanying order, I will deny Maples's motion to remand, and grant in part the removing defendants' motion to dismiss. Maples's claims of retaliation, civil conspiracy, and intentional infliction of emotional distress will be dismissed as to Boyd and Canino, leaving the procedural due process claim as the lone remaining claim against them.
ORDER
AND NOW, this 9th day of August, 2004, for the reasons given in the accompanying opinion, it is hereby ORDERED that:
(1) Plaintiff's Motion in Opposition to Removal With Motion to Remand (Docket #3) is DENIED.
(2) Defendants James Boyd and Mary Canino's Motion to Dismiss (Docket #2) is GRANTED IN PART and DENIED IN PART:
(a) The Boyd-Canino motion to dismiss plaintiff's procedural due process claim is DENIED.
(b) The Boyd-Canino motion to dismiss plaintiff's civil conspiracy claim is GRANTED, and this claim is, as to Boyd and Canino, DISMISSED WITHOUT PREJUDICE.
(c) The Boyd-Canino motions to dismiss plaintiff's claims of retaliation and intentional infliction of emotional distress are GRANTED, and these claims are, as to Boyd and Canino, DISMISSED WITH PREJUDICE.