Opinion
3:18-cv-232-SLH-KAP
01-14-2022
SOLOMON CARTER, Plaintiff v. SECURITY OFFICER POLITO, Defendant
REPORT AND RECOMMENDATION RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Plaintiff Solomon Carter, an inmate in the Pennsylvania prison system, see Commonwealth v. Carter, 249 A.3d 1188 (Pa.Super.2021), filed a complaint on November 20, 2018, subsequently amended on July 15, 2019, alleging federal and state law claims against employees of the Pennsylvania Department of Corrections as a result of the use of oleoresin capsicum (OC) spray against him on November 17, 2016 at S.C.I. Houtzdale by defendant corrections officer Polito. See ECF nos. 4, 21, respectively. Polito filed a motion for summary judgment and supporting documents on August 31, 2020. See ECF nos. 32, 41-44, respectively. After the grant of several extensions of time to file a response to the motion for summary judgment, I denied the last motion for extension and recommended granting Polito's motion for summary judgment. ECF no. 69. Carter then filed objections to the report and recommendation, attaching several exhibits thereto. ECF no. 71. The Court recommitted the matter to me to take into consideration Carter's objections, which can be regarded as a nunc pro tunc response to Polito's motion for summary judgment.
After review of the augmented record I adhere to my previous recommendation: defendant Polito's motion for summary judgment, ECF no. 41, should be granted.
Report
Carter, an inmate, alleges that on November 17, 2016, Polito, a corrections officer, “maliciously and sadistically” sprayed him with OC in conflict with a medical directive on record at the prison and thereby violated state law and the Eighth Amendment.
Standard
A party moving for summary judgment bears the initial burden of pointing the district court to the basis in the record for its argument that there is no genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). If the moving party does so, Fed.R.Civ.P. 56 then obliges the party opposing summary judgment to show by competent evidence that there is a genuine factual dispute, that is, that sufficient evidence exists so that a reasonable jury applying the relevant law could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986). Where there is a factual dispute, all reasonable inferences must be drawn in favor of the nonmoving party, in this case the plaintiff. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). This does not mean that the burden of proof shifts to Polito: Carter still has to show a genuine issue for trial, not just that it is conceivable that Polito's use of force could have violated his rights. The Supreme Court spoke to this very issue at the dawn of the modern era of summary judgment procedure, observing that evidence of collateral conspiracies was insufficient to create a genuine issue of fact about the existence of an antitrust conspiracy:
Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if petitioners had no rational [] motive to conspire, and if their conduct is consistent with other, equally plausible explanations, the conduct does not give rise to an inference of conspiracy. (my emphasis)Matsushita Elec. Indus. Co. v. Zenith Radio Corp., supra, 475 U.S. 574 at 596-97.
Facts
First, to clear up what is and what is not at issue, based on Carter's misinterpretation of statements made by DOC employees during the internal review of this matter Carter alleged in the course of discovery and alleges in his objections that there was a videorecording made from a handheld camera on the day of the incident and that it has been concealed by the Department of Corrections; Carter also alleges in his objections, particularly in Exhibit L, that the videorecording of the unit from the fixed camera on the unit that was a key piece of evidence in my initial review was “tampered with (i.e. Photo Shopped), ” and his movements, Polito's movements, the background witnesses, and the time stamp in the video have all been altered. There is no competent evidence in support of either assertion. It is black letter law that a party cannot defeat a properly supported motion for summary judgment by offering only conclusory allegations or denials. Hardwick v. Packer, 546 Fed.Appx. 73, 77 (3d Cir. 2013)(affirming summary judgment for corrections officer defendants against a claim of excessive use of force). It is apparent that Carter's recollection of events, discussed below, differs from the scene depicted by video. Differences between his recollection and the videorecord are not competent evidence that the videorecord is fraudulent.
In light of the foregoing, the record as previously presented by defendants is the record on which the motions should be decided, with two key additions: plaintiff's Exhibits J and K, ECF no. 71-10 and 11. Exhibit J is what plaintiff has referred to as the “medical directive:” it is a DOC form that has four columns used to document an inmate's contraindications for OC exposure and use of restraints that might trigger positional asphyxia. Fourteen diseases or conditions are listed in the left column, with boxes in the next two columns to check either “normal” or “abnormal” for the inmate. The right column provides space to describe any findings in support of a check in the “abnormal” column. Underneath all this is a line stating “Any of these conditions preclude the use of OC.” Carter has one check in the “abnormal” column for a condition described as a contraindication for OC, namely “Bronchitis, Asthma, or Emphysema -severe and uncontrolled.” The form is dated October 2014 and the examiner (whose signature is illegible) did not describe any findings in support of the checked condition.
Exhibit K is five pages of back and forth inmate requests to staff and replies in the Fall of 2020, in which plaintiff sought to retrieve what appears to ultimately have been Exhibit J from his medical records. The document was ultimately ordered produced through a motion to compel, see ECF no. 55, but in the course of the exchanges someone whose name looks like “Simpson” remarked that “as of 10-23-18 you were cleared for OC spray.”
Second, Carter has contended throughout that Polito was demoted as a result of his excessive use of force. See ECF no. 71 ¶6. The records of the DOC, discussed below, show that there was the usual internal investigation of the use of force, and reading the record closely suggests that Polito was believed by the investigative personnel to have improperly shaded his description of events to make it appear that Carter was more aggressive. The internal review did not find Polito used excessive force, nor was Polito sanctioned for excessive use of force. Where there is a disagreement between the accounts given by Carter and Polito, Rule 56 already requires me to assume a jury will accept Carter's account. Any sanction that might have been imposed on Polito is therefore not only irrelevant but superfluous.
As I wrote in my previous report, both parties provided accounts of the relevant events in their pleadings and in interviews during a formal investigation by the Pennsylvania Department of Corrections. See ECF no. 44-1. In addition, there is a video record of the entire confrontation, and the DOC investigation also included an interview of an eyewitness, Officer Stivison. The video record lacks sound and as I have noted where accounts of statements made are in conflict those conflicts must be resolved favorably to Carter, but the unambiguous video is conclusive evidence of what it depicts and I need not accept Carter's contrary statements about facts like the length of time Carter and Polito were together before other officers arrived, the distance at which Polito sprayed Carter, the duration of the spray, and the effect of the spray on Carter.
There is no real disagreement about the prelude to the use of OC. On November 17, 2016, Polito was making rounds when Carter approached him and questioned why Polito paused in front of his cell. Polito informed Carter that there were no issues and that Carter should return to his “block out” or he can go to his cell. At that point Carter approached the officers' station where Officer Stivison was working and requested a grievance; Carter claimed that Polito had a history of harassing him and he wanted it to stop. Officer Stivison could not find a grievance. Polito again demanded that Carter go to his block or cell. Carter refused and Polito then utilized his radio to notify Control that an inmate was refusing to return to his cell. After Polito used his radio he ordered Carter to put his hands behind his back to be placed in handcuffs.
Carter asserts that Polito's use of OC spray was to maliciously and sadistically prevent him from filing a grievance. See ECF no. 71 at 6, ¶ 5. The facts do not support this: Carter was not filing out a grievance form, nor according to Stivison's uncontradicted account was a grievance form even available to Carter at the time of the incident, nor is there any evidence that Polito or anyone else subsequently attempted to prevent Carter from filing a grievance.
As I previously wrote, it is not in dispute that Carter heard this order and did not comply with it. This is a key point. Carter himself describes the dialogue in his Amended Complaint as Polito telling him “now you're going to have to cuff up, ” to which Carter replied with an exculpatory explanation, and then Polito giving him an order to “lay down on the ground, get on your knees and lay down flat.” The videorecord that matches up with this exchange shows Polito notifying Control by radio and removing his OC spray from its holster. Here the accounts diverge, mostly because Carter tacitly assumes that because he was not defying all of Polito's order it cannot be said that he was defying Polito's order. But there is no dispute of fact that Carter did not comply with Polito's order to him to submit to being cuffed. In Carter's Amended Complaint and opposition to summary judgment he argues that by kneeling (the video shows Carter going to one knee, but Carter asserts in Exhibit L that he knelt down on both knees and only shifted to one knee after kneeling for about a minute) he complied with the order; he adds that if “[Polito] had actually [stepped] forward to handcuff [Carter] it is apparent [Polito] would have done so without incident.” See ECF no. 21, ¶10 et seq.; ECF no. 71, ¶ 5.
Polito, for his part, stated that Carter took a knee with the comment, “Now you can't spray me.” I disregard this statement to the extent that it implies active defiance or anything else about either Carter or Polito's state of mind. The video shows Carter going to one knee with his hands in front of his body as the other officers arrive on the scene. At this point Polito administers the pepper spray to Carter's eyes in what seems to me like a second-long burst (Polito himself estimated it more favorably to Carter as being a 2-4 second burst; Carter adds the unsupportable claim that despite the videorecord Polito had circled him for “2 minutes or more” looking for a clear shot at Carter's face while Carter knelt with his head down in the bend of his elbow.) The video shows that after being sprayed Carter stands up in what I have characterized as a reflexive stagger, then goes back down to one knee and then to a prone position. The assisting officers handcuffed Carter without further incident and took him to the infirmary for evaluation and decontamination.
The medical records in evidence, with pictures, show no injury was caused by the OC spray other than the discomfort intended by its use as shown in the videorecord. See ECF no. 44-1. Carter alleged in his original Complaint that “I had major breathing problems and I went into shock. The staff thought I was dead and took [me] to medical. I have suffered vision loss, PTSD, and has affected my Mental Condition [sic] to the point where I started cutting myself. These conditions still exist today.” ECF no. 4, p. 5. By the Amended Complaint, ECF no. 21, this has been reduced to a claim of “bodily harm and mental anguish and the like.” The video contradicts Carter's claim of breathing issues or shock as an immediate response to the OC. In his opposition to summary judgment, Carter's injuries disappear entirely: in ECF no. 71 at 13-14, Carter asserts that “he does indeed have” asthma, and that “the agitation of asthma should be held as serious injury.” That Carter had asthma in 2016 is not in dispute. Nothing else has any basis in the record.
Inferences
Polito argues, ECF no. 42 at 6, that Carter has not made a prima facie case that excessive force was used after Polito gave Carter “numerous” instructions to return to his cell. Taking the facts in the light most favorable to Carter, there was no repeated refusal of orders. There was however admitted noncompliance with the order to be cuffed, with Carter kneeling down only at the point when the other corrections officer arrived. If as I must assume a jury would disregard Polito's allegation that Carter said “now you can't spray me, ” it was simple and not defiant noncompliance, but noncompliance nonetheless.
Second, before Exhibit J was part of the record, I noted that there was no evidence in support of Carter's claim of a medical exemption from the use of OC gas and no evidence Polito knew about any such exemption. The first point is cleared up, but there still is no direct evidence that Polito knew about the existence of Exhibit J. However, Polito does not put the matter at issue and it seems reasonable to assume that the DOC would not have such a form unless it was intended to be used for guidance by corrections officers. As Carter notes, by 2016 he had been in custody for several years, and as is apparent from Carter's account of the incident Carter and Polito were familiar with each other. A jury could reasonably find that Polito knew of Exhibit J. I note that this might help Polito as much as it helps Carter: any jury viewing the video would notice Polito spraying at Carter's eyes (probably the most painful and therefore most effective spot) and not at his nose and mouth, and in a short burst, not in a spray that would saturate Carter's breathing air. There is no evidence to support Carter's claim that the form alerted anyone to a risk of death or serious injury from any particular amount of OC. The form's use of the word “preclude” suggests the obvious meaning of the word, that corrections officers were not to use OC on Carter. Polito could be found to have disobeyed the instruction on the form. It does not follow from this that Polito had any personal knowledge about any particular risk to Carter from the use of OC.
Third, no reasonable jury could find Carter suffered any injury beyond the immediate and temporary pain that OC is intended to cause. Carter produces nothing (and does not claim anything exists) showing any injury, including any “agitation” (i.e. aggravation) of his asthma. To the contrary, what little evidence is in the record suggests that by 2018, a year after the incident and a year before the complaint was filed, even the previous restriction on the use of OC gas against Carter was lifted. Carter has not provided or pointed to the existence of any evidence that he has ever sought treatment for any medical condition that could be attributable to the pepper spray used by Polito. Neither the original Complaint, filed almost two years after the incident, nor the Amended Complaint allege any such treatment.
Carter, maybe, is attempting to excuse the lack of evidence when he asserts, ECF no. 71 at 14, that he filed more than 15 requests for “the documents” and all were “circumvented.” Those “documents” are not his medical record. Plaintiff's two discovery requests are of record at ECF no. 35 and ECF no. 36: they ask (see Request for Documents no. 10) for what ultimately has been submitted as Exhibit J, but they do not even ask for any other medical records. Plaintiff's motions to compel at ECF no. 49 and ECF no. 50 are similarly focused (and as focused were granted by me at ECF no. 55; there was a subsequent dispute over whether plaintiff had to pay for his copies, see ECF no. 62) on Exhibit J. In any case Carter does not now assert any injury beyond the fact that he had asthma and was sprayed. He argues, ECF no. 71 at 12-13, that “Defendants sadistic intent offers that no injury whatsoever should have taken place in the first place” and “this alone is sufficient “dispute for a tribune.” I take that to mean he asserts that evidence of unnecessary use of force even without injury creates an issue to be resolved by a jury. I discuss that below.
Analysis
To restore or to maintain order, corrections officers are permitted to use force that would not be acceptable in other contexts. See Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (shotgun used against inmate plaintiff). An abundance of caselaw makes it clear how Whitley v. Albers applies to the use of OC: use of OC to bring a prisoner into compliance with an order is not a violation of Eighth Amendment rights, but use of OC as a form of corporal punishment is. Whitley v. Albers requires Carter to show at this stage of the proceeding that there is a genuine issue of fact about whether Polito used OC spray “maliciously and sadistically for the very purpose of causing harm.” Id. Excessiveness is not the test - that is applicable to pretrial detainees, see Kingsley v. Hendrickson, 576 U.S. 389, 402 (2015) - nor is deliberate indifference, see Whitley v. Albers, id.
Even in the pretrial detainee context where the only question is the objective reasonableness of the force used, a court is required to respect the fact that the objective reasonableness of the use of force is to be judged from the viewpoint of an officer on the scene and not from the viewpoint of a peaceful judge's chambers. See Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973). The decision about whether there is a genuine issue of fact certainly cannot be based on after the fact claims by Carter, that “if” Polito “would have actually set set forward to handcuff Plaintiff it is apparent Defendant would have done so without incident.” ECF no. 71 ¶ 5. No. jury can require an officer to read the mind of an inmate. And see Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002) (“conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment”).
In the past five decades no one has improved on Judge Friendly's opinion in Johnson v. Glick that the determination whether the constitutional line has been crossed should weigh factors such as the need for the application of force, the relationship between the need and the amount of force that was used, and the extent of injury inflicted. See Smith v. Mensinger, 293 F.3d 641, 648-49 (3d Cir.2002), quoting Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir.2000)(balancing the need for use of force, the relationship between the need and the amount of force used, the extent of injury inflicted, the threat to staff and other inmates perceived by the corrections officers, and any efforts made to temper the severity of the force used.)
The focus is on the use of force and not injury. Using OC on an inmate locked in his cell who posed no imminent threat to staff or inmates, even if no serious injury is caused, can be found by a jury to violate the Eighth Amendment. Robinson v. Danberg, 673 Fed.Appx. 205, 212 (3d Cir. 2016). On the other hand, evidence as to the type and severity of any injury suffered is relevant because a de minimis injury is inconsistent with many claims that excessive force was used, much less that it was sadistically used. See Grayer v. Edison Twp., 198 Fed.Appx. 203, 209 (3d Cir.1998) (Fourth Amendment).
Carter argues a claim of excessive force should not be dismissed just because he had the good fortune to escape serious injury. See ECF no. 71 ¶ 5. This is true as a point of pleading, and it is even relevant at the summary judgment stage in cases like sexual assault where no physical injury occurs but the use of force is repugnant to the conscience. See e.g. Ricks v. Shover, 891 F.3d 468, 474 (3d Cir. 2018). But here, Carter began with the allegation that the use of OC was malicious and sadistic because Polito almost killed him, and at this stage several years later is reduced to arguing in essence that Exhibit J imposes strict liability on Polito. That is not correct: while Exhibit J is some evidence in Carter's favor, it is evidence within the existing framework of the law. In light of Exhibit J, a reasonable jury could make a supportable finding that Polito's use of force disobeyed the DOC's internal guidelines for the protection of inmates like Carter. A jury could not even find deliberate indifference based on that without evidence (and there is none) that Polito subjectively believed there was a serious risk to Carter from his use of OC.
A fortiori, no reasonable jury following the law as given by the Supreme Court, the Third Circuit, or this district could find that Polito's use of OC spray was malicious or sadistic. See Passmore v. Ianello, 528 Fed.Appx. 144, 148 (3d Cir. 2013) (“[B]efore Defendant Ianello resorted to using the pepper spray, he warned Passmore, giving him one more chance to comply. In light of these undisputed facts, the use of pepper spray was reasonable in these circumstances and the District Court properly granted the Defendants' motion”); Giles v. Kearney, 516 F.Supp.2d 362, 369 (D. Del. 2007), aff'd, 571 F.3d 318 (3d Cir. 2009) (“[T]he use of force was justified in response to Giles defiant and argumentative behavior, as well as his repeated refusals to obey orders. By spraying capstun instead of using physical handling, Blades applied proportionate force to quell Giles' behavior.”); Enoch v. Perry, 2020 WL 4057643, at *7 (W.D.Pa. July 20, 2020) (“Here, although the use of pepper spray by an officer to secure compliance with an order would not seem to be objectively unreasonable, the same cannot be said for the later use of the spray, given Simmons' claim that he was unconscious. . . because the object of its usage was no longer to secure compliance but to inflict needless pain.”); Brown v. Beard, 2009 WL 10701467, at *12 (W.D. Pa. Mar. 9, 2009)(Where an inmate did not sustain any significant injuries, the use of both a stun gun and OC gas is not an excessive use of force.)
Brown v. Beard presents a useful comparison. In response to an inmate destroying his cell, an extraction team gave the inmate several direct orders to submit himself to be handcuffed through the food slot. The inmate did not comply, and although it is obvious that an inmate in his cell presents no threat to anyone outside the cell, a corrections officer administered a two-second burst of OC through the food aperture in the cell door. After that the inmate submitted to being handcuffed. When the inmate was removed for decontamination and a strip search, the inmate “refused several direct orders to spread his cheeks so that the Officer could check his anal cavity.” In response, another officer used another two-second burst of OC against the inmate. Then, while the inmate was being transferred from cuffs to a restraint chair, another officer used a stun gun on him when he began resisting the application of the arm restraints. He was then placed in a restraint chair for eight hours. 2009 WL 10701467, at *11.
Contrary to the way Carter frames the argument, his failure to comply with Polito's order need not have been accompanied by aggression against Polito to be a refusal justifying the use of force to restore or maintain order. Footdragging and partial compliance to orders are often as disruptive as total refusal, particularly as here where the encounter is out in the middle of the housing unit. Polito (and Stivison and every other corrections officer who can count) had to be aware that even with other officers arriving to assist they were and always are grossly outnumbered by unrestrained inmates. (It is not clear whether Polito knew that Carter was serving life for stabbing someone to death but Polito would of course know that many inmates present and watching that day had committed violent crimes.) Whether by himself or as a spark or excuse to other inmates on the unit Carter presented an incalculably greater danger to corrections officers than the inmate in Brown v. Beard who, already subdued and isolated, was simply not complying with an order to display his buttocks.
Short of turning every encounter into a wrestling match the only tools corrections officers have available to them are applied psychology and the threat of minor physical discomfort, whether immediate discomfort from OC gas or deferred discomfort from placement in the RHU. Here psychology failed, and even if a jury could lay that failure at the feet of the corrections officer and not the inmate, to find Polito's use of OC malicious and sadistic because Carter might have obeyed the order to be cuffed after additional officers arrived would be to govern Polito and every other corrections officer by the whim of the inmates. As far as a use of force goes, a 2-4 second burst of spray to the eyes (not at the nose or lungs or indiscriminately into a closed area) is objectively far less use of force than the handcuffs used by the arriving corrections officers to take Carter to be decontaminated. And as for injury, it was transitory.
In all contexts a court is required to avoid second-guessing judgment calls made by correction officers who are best suited to understand the reality of prison interactions. “[F]ederal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment.” Sandin v. Conner, 515 U.S. 472, 482-83 (1995) (citations omitted). See also Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979) (“[T]he problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.”); Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 322-23, (2012) (“In addressing this type of constitutional claim courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security.”); Id. at 326 (“Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face.”).
Corrections officers, like other government officials who are required to make judgments, are shielded from liability for money damages when their conduct does not violate clearly established legal rights. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). If official defendants “reasonably but mistakenly conclude[]” that their conduct conformed to the law they are entitled to immunity. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). Qualified immunity therefore operates to additionally protect Polito from liability at the “sometimes hazy border between excessive and acceptable force, ” unless he was on notice that his conduct was unlawful. Couden v. Duffy, 446 F.3d 483, 492 (3d Cir.2006) (Fourth Amendment), quoting Saucier v. Katz, 533 U.S. 194, 206 (2001). Another way of putting that is that to find Polito liable, Polito had to have “fair warning” that his “specific acts were unconstitutional.” Taylor v. Riojas, 141 S.Ct. 52, 53, 208 L.Ed.2d 164 (2020)(per curiam); see also McCoy v. Alamu, 141 S.Ct. 1364 (2021) (vacating the affirmance of a finding of qualified immunity for officer who used OC to spray an inmate in his cell without warning or provocation after another inmate had thrown something at the officer).
Everyone should be aware of the dangers of saturating the air with respiratory agonists, as the DOC has recognized most notoriously in the recently settled Busbee v. Pennsylvania Department of Corrections (1:20-cv-02401-CCC-SES (M.D. Pa.), in which the claim was that cans of OC were used against an asthmatic inmate who was then left handcuffed in the prison yard in obvious medical distress. The undisputable facts put Carter at the other end of the legal spectrum. There was a reason for Polito to use OC, the amount of OC used on Carter was minimal, Carter was promptly seen in the medical unit where he was treated, and there is no evidence of any injury beyond transitory pain. The bulk of caselaw would have told Polito that what he did was permissible; it certainly would not have given him fair warning that his use of a burst of OC on an unrestrained inmate out of his cell who had not complied with an order to be cuffed could subject him to liability.
State Claims
Carter claims that Polito's actions constitute negligence and intentional infliction of emotional distress. There are no state law claims against Polito. Under Pennsylvania law, 1 Pa.C.S.§ § 2310, “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.” Pennsylvania waives immunity “as a bar to an action against Commonwealth parties, ” 42 Pa.C.S.§ 8522(a), for injuries caused by negligence in one of the ten ways listed in 42 Pa.C.S.§ 8522(b), and only those. 42 Pa.C.S.§ 8521(a). None of the exceptions is applicable here. Therefore, sovereign immunity is a “bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.” 42 Pa.C.S.§ 8522(a). Polito is a Commonwealth party because he is an employee of the Pennsylvania Department of Corrections and he is allegedly liable to plaintiff because and only because of actions taken within the scope of his employment. See 42 Pa.C.S.§ 8501 (definitions).
Pursuant to 28 U.S.C.§ 636(b)(1), plaintiff can within fourteen days file written objections to this Report and Recommendation. Plaintiff is advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).