Opinion
Civil Action 18-1581
03-17-2022
LANCE OWEN KING, JR, Plaintiff, v. C/O FERREYRA, LT, NEWMAN, C/O KOPKO, JANE DOE, JOHN DOE, PA DEPT. OF CORRECTIONS, Defendants.
Marilyn J. Horan Magistrate Judge.
REPORT AND RECOMMENDATION RE: ECF NO. 52
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
Pending before the Court is a Motion for Summary Judgment filed on behalf of Pennsylvania Department of Corrections (“DOC”) and DOC employees C/O Ferreyra, C/O Newman, C/O Kopko (collectively, the “Defendants). ECF No. 58. For the following reasons, it is respectfully recommended that motion be granted in part and denied in part.
II. REPORT
A. RELEVANT FACTUAL BACKGROUND
Plaintiff Lance Owen King, Jr. (“Plaintiff”) is an inmate at the State Correctional Institution at Greene (“SCI - Greene”), and presents a civil rights complaint alleging claims against all Defendants for the excessive use of force, sexual assault, and sexual harassment arising out of a pat down search at the State Correctional Institution at Fayette (“SCI - Fayette”). ECF No. 62.
The DOC has a policy authorizing a search of inmates “at any time and in any area of the facility.” ECF No. 53-5 at 5. During a pat search, an inmate must “remove all items from any pockets and place them on a suitable surface; stand still with feet apart and arms extended outward, palms upward; and follow the directions given by the staff member conducting the search.” Id.
On February 15, 2018, Plaintiff was selected for a pat search while entering the dining hall. ECF No. 62 ¶¶ 8-9; ECF No. 53 ¶ 2. Defendant Ferreyra conducted the pat search and reached into Plaintiff's pants to retrieve items that remained after Plaintiff was directed to empty his pockets. ECF No. 53 ¶ 4; ECF No. 62 ¶ 16. Plaintiff alleges that Ferreyra reached into his pants and “grabbed his penis and testicles.” ECF No. 62 ¶ 17. Plaintiff concedes that he “grabbed” Defendant Ferreyra's hand to pull it away. Id. ¶ 18; ECF No. 53-5 at 12 (“I, basically, just grabbed it. And then everything went to hell after that.”). Defendant Ferreyra took Plaintiff to the ground to gain compliance and was assisted by several officers. ECF No. 53 ¶ 6; ECF No. 53-1 Exhibit C (video footage of the incident). The Defendants state that Plaintiff continued to resist after being given a verbal order to stop, and resisted being handcuffed. ECF No. 53 ¶ 6-7. In his unverified Amended Complaint, Plaintiff alleges that Defendant Ferreyra slammed him to the ground, that Defendants Ferreyra, Kopko, and Newman repeatedly slammed his head into the ground, that Defendant Doe emptied a canister of pepper spray onto his face, and that his ankle was restrained to cause injury.ECF No. 62 ¶¶ 21-22. Plaintiff's deposition testimony under oath reveals that he does not recall either Kopko or Newman having any physical contact with him. However, he presents claims against each of them for failing to intervene to protect him from the alleged excessive or improper use of force. ECF No. 53-4 at 13-14. Id.
On March 1, 2022, the Court directed Plaintiff to show cause why Defendants Jane Doe and John Doe should not be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure due to Plaintiff's ongoing failure to timely identify and provide addresses for service of the Complaint. ECF No. 63. Plaintiff filed a noncompliant response that belatedly identifies each Doe Defendant and requests that the Court order service of the Complaint on the newly identified Doe Defendants. ECF No. 65. The Order to Show Cause remains unanswered and the disposition of this action as to the Doe Defendants is not yet resolved.
Plaintiff was escorted to a strip search cell and five tabs of Suboxone were retrieved from his pants. Plaintiff concedes he possessed “a small amount” of contraband; “smaller than half a sip of Listerine.” ECF No. 53-4 at 16; ECF No. 53-3 at 66-71; see also, Exhibit E, at 1:22 (video of search after incident). Plaintiff was transported to the medical unit via wheelchair and a nurse flushed Plaintiff's eyes twice and examined his ankle and hands for injury. She cleaned and treated a small cut above his right eye and an abrasion to a knuckle on his left hand. ECF No. 53-1 at 53-54; 64-65; ECF No. 53-1 Exhibit E (video of search after incident and administration of medical care). Plaintiff's ankle and face were x-rayed to rule out fractures, and all bony structures were found to be intact with residual soft tissue swelling. ECF No. 53-2 at 13-14. Plaintiff alleges that he could not shower to remove the remaining pepper spray for two days. ECF No. 53-4 at 10.
The incident was Plaintiff's third offense for possession or use of illegal drugs while incarcerated. ECF No. 12-7. As a result, Plaintiff was indefinitely restricted from contact visits and was issued a misconduct. Id.
Plaintiff filed grievances and reported a claim of sexual assault and inmate abuse based on Defendant Ferreyra's alleged contact with Plaintiff's genitals. ECF No. 12-4 - 12-6; ECF No. 53-2 at 2-3; ECF No. 53-6 at 1-6. DOC investigators interviewed all participants and available video and found no evidence to support Plaintiff's claims. ECF No. 53-6 at 1-6.
B. PROCEDURAL HISTORY
Five months after the conclusion of the internal investigation, Plaintiff commenced this action with the submission of a Complaint alleging that Defendant Ferreyra and unknown Defendants violated his Fourth and Eighth Amendment constitutional rights by employing excessive force against him and, as to Defendants Newman and Kopko, by failing to intervene to protect Plaintiff from the excessive use of force. ECF No. 12. Plaintiff also alleged state law claims against Defendants for sexual assault and assault and battery.
Defendants filed their Answer to the initial Complaint, ECF No. 17. The parties conducted discovery, including Plaintiff's deposition. Plaintiff belatedly filed a cursory Pretrial Statement, ECF No. 47. Defendants filed the pending Motion for Summary Judgment, a Brief in Support of Corrections Defendants' Motion for Summary Judgment, and a Concise Statement of Undisputed Material Facts. ECF Nos. 52, 53 and 54. Plaintiff has filed “Plaintiff's Traverse to Defendant's (sic) Motion to Dismiss”, and a “Brief in Support of Plaintiff's Traverse to Defendant's (sic) Motion to Dismiss, ” but has not responded to the Concise Statement of Undisputed Facts. ECF Nos. 56 and 57.
Along with his response to the pending motion, Plaintiff filed a Motion for Leave to File an Amended Complaint to abandon his claims against the DOC, claims against the individual Defendants in their official capacities, and his Fourth Amendment claim. ECF No. 58. The Court granted the Motion for Leave to file an Amended Complaint, ECF No. 61, and Defendants filed their Answer. ECF No. 64. Thus, Plaintiff's remaining claims are limited to an Eighth Amendment claim against Defendants Ferreyra, Kopka, Newman, and Doe for excessive and improper force during a routine search; an Eighth Amendment claim against Defendant Doe related to the use of pepper spray; an Eighth Amendment failure to protect claim; and state law claims for sexual assault and assault and battery against Defendant Ferreyra. While Plaintiff includes Defendants Kopka and Newman in his excessive use of force claim, his deposition testimony clarifies that to his knowledge, neither Defendant had physical contact with him during the incident. ECF No. 53-4 at 14.
The Motion for Summary Judgment is ripe for consideration.
C. STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that: “[t]he 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.” Fed.R.Civ.P. 56(a). An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (“A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof.”). Thus, summary judgment is warranted where, “after adequate time for discovery and upon motion ... a party ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of demonstrating to the Court that no evidence supports the non-moving party's case. Celotex, 477 U.S. at 322; see also Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). “[W]hen 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 nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal quotations omitted).
King is proceeding pro se and thus his filings are to be construed liberally. If the Court can reasonably read the pleadings together with his summary judgment submissions to show an entitlement to relief, the Court should do so despite any failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 414 F.2d 552, 555 (3d Cir. 1969) (although a filing prepared by a prisoner may be inartfully drawn, it should be read “with a measure of tolerance”). In examining the record, and in consideration of King's status, the factual allegations set forth in his verified Complaint will be considered as evidence to the extent that they are based on his personal knowledge. Jackson v. Armel, No. 17-1237, 2020 WL 2104748, at *5 (W.D. Pa. May 1, 2020) (citing Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985) (treating verified complaint as an affidavit on summary judgment motion)). See also Brooks v. Kyler, 204 F.3d 102, 108 n. 7 (3d Cir. 2000) (noting that an affidavit is “about the best that can be expected from [a pro se prisoner] at the summary judgment phase of the proceedings”).
Nonetheless, at the summary judgment stage of the proceedings, the Court need not credit bald assertions or legal conclusions unaccompanied by evidentiary support. Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). “[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.” Dawson v. Cook, 238 F.Supp.3d 712, 717 (E.D. Pa. 2017) (citation omitted). See also Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 408 (E.D. Pa. 2000)); Winfield v. Mazurkiewicz, No. 11-584, 2012 WL 4343176, at *1 (W.D. Pa. Sept. 21, 2012).
D. DISCUSSION
1. 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 at 106 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). 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).
In this case, Plaintiff concedes that he grabbed Defendant Ferreyra's hand during a pat search to push it away, and that the search revealed contraband that Plaintiff failed to remove when directed to empty his pockets. Thus, the need for force to gain control of Plaintiff and to retrieve contraband is established. The record also reflects that Plaintiff sustained soft tissue injuries to his face and ankle and minor abrasions to his face and hand, but did not suffer significant injury. However, “a showing of ‘significant' or ‘serious' injury is not necessary to make an Eighth Amendment claim.” Brooks, 204 F.3d at 107 (quoting Hudson, 503 U.S. at 8).
As to the remaining factors, the parties dispute the amount and reasonableness of the force used. Defendants flatly deny that any abuse occurred and contend that the force employed was in a good-faith effort to maintain or restore control after Plaintiff ignored direct orders and physically resisted the search. ECF No. 54 at 13; ECF No. 53-7 - 53-9 (Defendants' declarations under oath). That said, Defendants present no evidence as to any efforts taken to temper the use of force under the circumstances presented.
Plaintiff states that his head was repeatedly slammed to the ground and pepper spray was deployed to his face, and that neither measure was necessary because his conduct in removing Ferreyra's hand was not “aggressive”. ECF No. 53-4 at 8-11, 14; ECF No. 62 ¶¶ 18-22; ECF No. 57. The conflicting testimony presents a material factual dispute which cannot be resolved without a credibility determination - a task left for the factfinder - in this case, a jury.
Defendants argue that despite Plaintiff's version of the events, summary judgment is appropriate because videotape evidence establishes that the force employed was appropriate and necessary. ECF No. 54 at 13; No. 53 Exhibit C (video footage from stationary camera above pavilion). When an incident has been captured on video, the court must “view[] the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 380-81 (2007). In Scott, the videotape “utterly discredited” the plaintiff's version of events and thus was sufficient to establish the defendant's entitlement to summary judgment. Id. In this case, video of the incident is blurry and from a substantial distance away, and the altercation is obscured by the pavilion roof, architectural pillars, and at least a dozen responding officers, many physically in contact with Plaintiff. Under these circumstances, the videotape evidence neither contradicts nor supports Plaintiff's assertion that Defendant Ferreyra repeatedly and unnecessarily slammed his head into the ground.
Because the record includes Plaintiff's deposition testimony on which a reasonable jury could conclude that the force inflicted by Ferreyra was excessive and not employed in a “good faith effort to maintain or restore discipline, ” Plaintiff has raised a genuine issue of material fact that precludes summary judgment. Smith v. Price, 610 Fed.Appx. 113, 117 (3d Cir. 2015) (summary judgment not properly entered where video evidence fails to contradict plaintiff's allegations that guards assaulted him without provocation or cause). In contrast, Plaintiff does not present evidence that Kopka or Newman participated in the use of excessive force. Plaintiff concedes that his claims against them depend solely on their presence at the incident. ECF No. 53-4 at 13-14. Accordingly, it is recommended that the Motion for Summary Judgment as to Plaintiff's Eighth Amendment excessive use of force claim against Ferrerya be denied but granted as to Newman and Kopko.
2. Eighth Amendment - Failure to Protect and Supervisory Liability
Pursuant to 42 U.S.C. § 1983, liability cannot be imposed absent personal involvement in the alleged violation of rights otherwise protected by federal law. Rode v. Dellariprete, 845 F.2d 1195, 1207 (3d Cir. 1988); 42 U.S.C. § 1983. Defendants assert that Defendants Kopka and Newman are entitled to judgment in their favor as a matter of law because while they were present during the alleged assault, Plaintiff concedes they did not physically participate. ECF No. 54 at 9-11(citing ECF No. 53 ¶¶ 24-25). This argument appears to misconstrue Plaintiff's claim and his testimony that Kopka and Newman violated his Eighth Amendment rights when they failed to intervene to prevent or stop the excessive use of force.
The Eighth Amendment's prohibition against the infliction of cruel and unusual punishment has been interpreted to impose upon prison officials a duty to take reasonable measures to protect prisoners from assaults, whether committed by other prisoners or by guards. Sarvey v. Wetzel, No. 1:16-cv-157, 2019 WL 235322, at *10 (W.D. Pa. Jan. 16, 2019)(citing Farmer, 511 U.S. at 833).
Plaintiff's initial verified Complaint alleged that several unknown officers slammed him to the ground, and that Kopka and Newman “stood by idly” as Ferreyra placed his hands into Plaintiff's pants and again when Ferreyra employed “excessive violence” when Plaintiff “resisted Ferreyra's sexual advances.” ECF No. 12 at 6. Plaintiff claimed that by failing to intervene or protect him from assault, Kopka and Newman violated his Eighth Amendment rights. Id. at 7. Plaintiff's deposition testimony clarifies that Newman was the supervisory officer on the scene, and in that capacity failed to stop the escalation of the incident and the unwarranted use of force. See, ECF No. 53-4 at 14 (Newman was present “and didn't do anything…. And he, being the lieutenant, could have stopped the incident from going how far it went.”). Plaintiff also testified that Kopko was present and failed to render aid as he was assaulted. Id. at 13. Plaintiff's unverified Amended Complaint, filed after the close of discovery, alleges that both Newman and Kopko participated in the assault and failed to intervene but, again, Plaintiff's deposition clarifies that neither had physical contact with him. ECF No. 62 ¶¶ 20, 27; ECF No. 53-4.
Like Plaintiff's claim against Kopko, Newman's liability thus turns on whether the evidence supports a failure to intervene or protect claim. Defendants have not moved for summary judgment on this claim as to either Defendant. Accordingly, summary judgment is properly denied as to both Newman and Kopko based on conflicting evidence regarding their failure to intervene in the incident to prevent the alleged use of excessive and unwarranted force.
3. State Law Claims - Sexual Assault
Plaintiff brings state law claims against Ferreyra for sexual assault, sexual harassment, and assault and battery. See ECF No. 62 ¶¶ 25, 26; and A.1, 2, 3, 4. Defendants move for summary judgment on these claims as barred by sovereign immunity. ECF No. 54 at 14. Plaintiff does not address this argument in his response to the motion and thus any opposition may be treated as forfeited, and his claims abandoned. See Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 146-47 (3d Cir. 2017). However, given Plaintiff's pro se status, the proper application of sovereign immunity is considered.
To the extent that Plaintiff's Amended Complaint may be read to assert an Eighth Amendment claim for sexual assault and harassment, Defendant Ferreyra is entitled to summary judgment as a matter of law. Plaintiff alleges that Defendant Ferreyra sexually harassed him by commenting on the tightness of his pants and then sexually assaulted him by grabbing his penis and testes. ECF No. 62 at 2 ¶¶ 15-18. “The Third Circuit's framework for determining whether sexual harassment violates the Constitution requires a plaintiff to satisfy both a subjective and an objective element.” Preacher v. Overmyer, No. 1:17-cv-18, 2020 WL 43420, at *8 (W.D. Pa. Jan. 3, 2020) (citing Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018)). “Specifically, ‘the incident must be objectively, sufficiently intolerable and cruel, capable of causing harm, and the official must have a culpable state of mind.” Id. (quoting Ricks, at 475). “To evaluate the subjective prong, a reviewing court must consider ‘whether the official had a legitimate penological purpose or if he acted maliciously and sadistically for the very purposes of causing harm.” Preacher, 2020 WL 43420, at *8 (internal quotation marks omitted). It is not reasonably disputed that Defendant Ferreyra's contact with Plaintiff's genitalia, if any, was incidental to legitimate official duties. To that end, as Plaintiff concedes, the routine search revealed contraband that Plaintiff failed to remove as directed. Under these circumstances, and regardless of a stray comment about the tightness of Plaintiff's pants, no reasonable jury would conclude that the search was not legitimate. See Ricks, 891 F.3d at 476. It is only where sexual contact continues after a search fails to reveal contraband that an actionable Eighth Amendment claim may be presented. Id. at 257. Because the alleged sexual contact at issue was during a legitimate search, and is not alleged to have continued after the contraband was located, Plaintiff's claim fails as a matter of law. Accordingly, summary judgment is properly be entered in favor of Defendants as to any Eighth Amendment claim for sexual harassment or sexual assault.
As a general matter, employees of the Commonwealth of Pennsylvania acting within the scope of their duties enjoy sovereign immunity. Walton v. Harkleroad, No. 2:13-cv-1109, 2016 WL 11480713, at *7 (W.D. Pa. Mar. 3, 2016) (citing 1 Pa. Cons. Stat. § 2310). Sovereign immunity provides state officials with broad immunity from most state-law tort claims, “except as the General Assembly shall specifically waive the immunity.” 1 Pa. C.S. § 2310. Although the Pennsylvania General Assembly “has waived sovereign immunity for claims of negligence against Commonwealth employees in a very limited and express set of circumstances, ” it has not done so for intentional torts, or allegations of negligent sexual abuse of adults. Id. (citing 42 Pa. Cons. Stat. § 8522(b)). Kull v. Guisse, 81 A.3d 148, 157 (Pa. Commw. Ct. 2013) (“[S]tate employees do not lose their immunity for intentional torts, provided they are acting within the scope of their employment.”) (citations omitted, emphasis added). “Consequently, sovereign immunity ‘shields Commonwealth employees from liability when their actions: (1) cannot fit into one of the [ten] statutory exceptions in § 8522; (2) are not negligent; and (3) occurred when acting within the scope of his or her employment.'” Jackson v. O'Brien, No. 1:18-cv-32, 2020 WL 5702418, at *6 (W.D. Pa. Sept. 24, 2020) (quoting Tibbens v. Snyder, No. 1:18-cv-02112, 2020 WL 5372097, at *5 (M.D. Pa. June 24, 2020) and citing Kintzel v. Kleeman, 965 F.Supp.2d 601, 606 (M.D. Pa. 2013)).
Pennsylvania's sovereign immunity statute was amended in 2019 to waive immunity for sexual assault committed, inter alia, in an institutional setting. See 42 Pa. Cons. Stat. § 8522(b)(10), 42 Pa. Cons. Stat. § 5551(7). “But by its clear terms, § 5551(7) applies only to instances in which the ‘victim [of one of the listed offenses] was under 18 years of age at the time of the offense.'” Cunning v. W. Chester Univ., No. CV 20-836, 2021 WL 765729, at *2 (E.D. Pa. Feb. 25, 2021). Plaintiff does not allege that he was under the age of 18 at the time the alleged assault occurred.
Here, the allegations of sexual assault and assault and battery do not fall within the statutory exceptions enumerated in Section 8522. Cunning v. W. Chester Univ., 2021 WL 765729, at *2. Thus, so long as Ferreyra was acting within the scope of his employment, he is entitled to sovereign immunity from Plaintiff's sexual assault, sexual harassment, and assault and battery claims. “[C]onduct is within the scope of employment if, but only if: (a) it is the kind [the employee] is employed to perform; (b) it occurs substantially within the authorized time and space limits [and] (c) it is actuated, at least in part, by a purpose to serve the master.” Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (alterations in original). An employee may be found to act within the scope of his employment “[e]ven where the employee acts intentionally or criminally.” Tibbens, 2020 WL 5372097 (citing Brumfield, 232 F.3d at 381).
Ferreyra reached into Plaintiff's pants during a legitimate, authorized pat search. Plaintiff does not allege that the search occurred outside the performance of the authorized place or time for a search, and pat searches are routinely done for the very purpose implicated here - the discovery and confiscation of illegal contraband. As such, Ferreyra's conduct served DOC's interest and was within the scope of his employment, and he is entitled to sovereign immunity as to Plaintiff's state law claims for sexual assault, sexual harassment, and assault and battery. It is recommended that the Motion for Summary Judgment be granted on this basis as to each of Plaintiff's state law claims.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion for Summary Judgment, ECF No. 53 be granted in part and denied in part as follows:
1. As to Plaintiff's Eighth Amendment excessive use of force claim, it is recommended that the motion be granted as to Defendants Newman and Kopko; but denied as to Defendant Ferreyra.
2. As to Plaintiff's claims against Defendants Newman and Kopko for failure to protect, it is recommended that the motion be denied.
3. As to Plaintiff's state law claims against Defendant Ferreyra for sexual assault, sexual harassment, and assault and battery, it is recommended that the motion be granted.
4. As to Plaintiff's Fourth Amendment claim, and his claims against the DOC and official capacity claims against the individual Defendants, it is recommended that the motion be granted as to these abandoned claims.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. 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 file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.