Opinion
1:23-CV-93-SPB-RAL
07-29-2024
JONATHAN VOORHIS, Plaintiff v. LT. LINDSEY, et al., Defendants
SUSAN PARADISE BAXTER, United States District Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS ECF NO. 47
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that Defendants' Motion to Dismiss [ECF No. 47] Plaintiffs Complaint [ECF No. 7] be granted in part and denied in part.
This matter has been referred to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1). .
II. Report
A. Background
For purposes of this motion, the following factual allegations of Plaintiff Jonathan Voorhis' Complaint are accepted as true. On January 20, 2023, Plaintiff Voorhis arrived at the Erie County Prison with another inmate, Eric Ruf, who became his cellmate. ECF No. 7 at p. 18. During intake, Ruf mentioned to medical staff that he had “a little bit of a cough.” Id. The following day, Ruf tested positive for Covid. Id. Voorhis asked two Defendants - Corrections Officer Amann and Nurse Lindsey - to be moved to another cell because his asthmatic condition made him particularly vulnerable to serious risk of illness or injury from Covid. Id. at 19. Nurse Lindsey and C.O. Amann told him that he could not be moved because he had already been exposed. Id. Other Defendants, including Corrections Officer Cruz and Corrections Officer White, also refused to move him to another cell. Id. at 20-21. Despite remaining in a cell with Ruf, it does not appear that Voorhis ever contracted Covid.
After learning that he would not be moved, Voorhis began banging on his cell door. Id. at 21. Lieutenant Lindsey approached Voorhis in his cell and informed him that he was a “clown” and would not be moved. Id. Voorhis explained his asthmatic condition, but Lindsey responded that he “[did] not care” and that Voorhis would not be moving. Id. When Voorhis continued banging on his cell door, Lieutenant Lindsey “maliciously and sadistically deployed an unnecessary amount of OC spray on to Plaintiff s face and body.” Id. at 22-23.
“OC spray” refers to oleoresin capsicum spray, otherwise know as pepper spray.
After the OC spray incident, Lieutenant Lindsey placed Voorhis on suicide watch “for no legitimate reason.” Id. at 23. While on suicide watch, Voorhis had to endure bright lights for 24 hours each day and was deprived of soap, showers, and more desirable meal choices. Id. at 24. He also had to dress in a “suicide gown,” a loose-fitting garment that Voorhis feared could potentially expose his genitals to other staff and inmates. Id. When he asked for a grievance form to complain about his treatment, Corrections Officer White refused to give him one. Id. The staff also refused to provide him with cleaning supplies for several days. Id. at 25.
Upon initially being placed on suicide watch, Voorhis was assigned to a cell with another inmate, Giles, despite the availability of an open cell in the same unit. Id. Voorhis objected to sharing a cell with Giles because they were each wearing a suicide gown and he feared that, “if an altercation occurred, he and [Giles'] genitalia would be easily exposed.” Id. When Voorhis refused to enter Giles' cell, Lieutenant Lindsey and Cruz shoved him in. Id. at 27. This caused Voorhis to fall on top of Giles “who lifted his hands and foot in an attempt to shield himself... caus[ing] inmate Giles' foot to strike the plaintiffs penis and scrotum causing humiliation and pain.” Id. at 27-28. Lieutenant Lindsey then told Voorhis that he was going to “make [his] week here miserable” and “grabbed Plaintiffs throat and squeezed, closing Plaintiffs carotid arteries.” Id. at 28. After Voorhis regained his breath and objected, Lieutenant Lindsey again grabbed his throat and squeezed. Id. He then pushed Voorhis and Giles onto their bunks “and forced their faces in direct view of each other's genitalia” for more than one minute. Id.
Following this incident, Giles was moved to another cell. Id. at 29. Voorhis remained in his cell with the door closed and his hands in cuffs. Id. Although Voorhis was restrained and compliant, Lieutenant Lindsey opened the cell hatch and maliciously deployed another burst of OC spray. Id. Ten minutes later, while Voorhis was trying to wash off the last burst of OC spray, Lieutenant Lindsey returned and sprayed him for a third time. Id. C.O. White told him that he “brought this on himself.” Id. at 30. White later warned Voorhis that “they are coming back with the big can [of spray]” and stated: “I hope you don't really have asthma cause that big can killed the last person they sprayed with asthma.” Id. at 30. This caused Voorhis to fear for his life. Id. at 31.
Based on the foregoing, Voorhis asserts the following constitutional claims: 1) Lieutenant Lindsey violated his Eighth Amendment right to be free from excessive force by unnecessarily deploying OC spray and applying malicious force to his neck and throat; 2) Nurse Lindsey, Amann, Cruz, White, and Lieutenant Lindsey acted with deliberate indifference to his serious medical needs by placing him in a cell with an inmate who tested positive for Covid; and 3) Lieutenant Lindsey, Cruz, White, and two John Doe corrections officers engaged in sexual harassment and abuse by placing him in a situation where he and another inmate might incidentally view each other's genitals. He also asserts a state law tort claim for intentional infliction of emotional distress against Lieutenant Lindsey and White based on their threat to spray him with “the big can” of OC spray. Finally, he generally alleges that Counselor Wagner, Counselor Billie, Captain Bolt, and Warden Kevin Sutter (hereinafter referred to as the “Supervisory Defendants”) are liable for the unconstitutional acts of their subordinates based on their supervisory positions at the Erie County Prison or their involvement in the administrative review process.
Presently pending is Defendants' motion to dismiss. ECF No. 47. Voorhis has filed a response, see ECF No. 51, and Defendants have filed a Reply. ECF No. 52. As such, this matter is ripe for review.
B. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, it must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan, 478 U.S. at 286). See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because Plaintiff is proceeding pro se, the allegations of his complaint must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant's pleading to state a valid claim upon which relief can be granted, it must do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be in artfully drawn and should be read “with a measure of tolerance”).
C. Analysis
1. Personal involvement
As noted above, Voorhis' pleading alleges that Nurse Lindsey, Corrections Officers Amann, Cruz, White, Lieutenant Lindsey, and two John Doe Defendants violated his constitutional rights in various ways. His claims against the Supervisory Defendants -Counselor Wagner, Counselor Billie, Captain Bolt, and Warden Kevin Sutter - stem entirely from their supervisory positions in the prison hierarchy and their participation in the prison's administrative review process. Such claims are untenable.
As this Court has frequently noted, a successful § 1983 plaintiff must prove that a defendant, acting under color of state law, deprived him of a right secured by the Constitution or laws of the United States. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). When a plaintiffs claims implicate multiple defendants, he “must show that each and every defendant was ‘personal[ly] involve[d]' in depriving him of his rights.” Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa. 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). This means that each defendant must have played an “affirmative part” in the complained-of misconduct. Ashcroft v. Iqbal, 556 U.S. 667 (2009) (“In a § 1983 suit... [a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”).
These principles apply with equal force where the defendants are supervising prison officials. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998) (noting that liability for supervisory officials must still be based on “personal involvement in the alleged wrongs”); Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (“[L]iability cannot be predicated solely on the operation of respondeat superior."}. Although a supervisor cannot encourage constitutional violations, “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990). Rather, a supervisor-defendant may only be liable for unconstitutional acts undertaken by subordinates if the supervisor either: (1) with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm; or (2) participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in the subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).
The crux of Voorhis' claim against Wagner, Bolt, and Billie is that they “were made aware of the excessive force and abuse the plaintiff had to endure and refused to intervene or discipline any of the staff involved.” ECF No. 7 at 36. His lone allegation against Warden Sutter is that he “was aware that staff at the prison are notorious to use excessive force, refuse grievances, and fail to protect inmates from abuse.” Id. There is nothing in Voorhis' pleading to suggest that these supervisory Defendants disregarded any facts that put Voor his at risk of being assaulted by an officer or that they directed, participated in, or acquiesced to a course of conduct that led to the alleged assault. Nor has he alleged that Sutter established and maintained a policy, practice or custom which led to the constitutional harm. Accordingly, each of these Defendants must be dismissed from this action for lack of personal involvement. See, e.g., Kloss v. SCI-Albion, 2018 WL 4609144, at *4 (W.D. Pa. Aug. 15, 2018) (allegation that supervisory defendant was “made aware of several issues of the plaintiff s and . . . failed to help him is insufficient to state a claim for relief); Beale v. Wetzel, 2015 WL 2449622, at *5 (W.D. Pa. May 21, 2015) (dismissing claims against senior prison officials because the only allegations against them arose in the context of their participation in an administrative appeal process).
2. Excessive force
In an excessive force claim, the “core judicial inquiry” is whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). In Whitley v. Albers, the United States Supreme Court articulated several factors for courts to consider in determining whether a correctional officer has used excessive force in violation of the Eighth Amendment, including: “(1) ‘the need for the application of force'; (2) ‘the relationship between the need and the amount of force that was used'; (3) ‘the extent of injury inflicted'; (4) ‘the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them'; and (5) ‘any efforts made to temper the severity of a forceful response.'” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley v. Albers, 475 U.S. 312 (1986)).
At this stage in the proceedings, Voorhis' allegations against Lieutenant Lindsey - that he choked him and deployed OC spray without justification - are sufficient to satisfy the Whitley factors. The Court can perceive no plausible justification for the application of potentially deadly force to a restrained inmate's throat and neck, and while the use of tear gas “to subdue recalcitrant prisoners does not constitute cruel and inhumane punishment,” the use of OC spray after an inmate “[has] been restrained in handcuffs and the altercation [has] ended supports a plausible inference that force was no longer necessary.” Major v. Halligan, 2021 WL 6283944, at *7 (W.D. Pa. Nov. 17, 2021). See also Baez v. Froehlich, 2021 WL 4341191, at *7 (W.D. Pa. Sept. 23, 2021) (same). Accordingly, Voorhis' excessive force claims against Lieutenant Lindsey should be permitted to proceed to discovery.
3. Deliberate indifference
Voorhis next claims that Nurse Lindsey, Sergeant Lindsey, and corrections officers Amann, Cruz, and White failed to adequately protect him from the risk of contracting COVID-19 by refusing to remove him from a cell occupied by another inmate who had tested positive for the virus. To state a viable failure-to-protect claim, a plaintiff must establish that: (1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the defendant was deliberately indifferent to that substantial risk; and (3) the defendant's deliberate indifference caused the plaintiff to suffer harm. Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012). This standard has both an objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective requirement, the plaintiff must show an “objectively intolerable risk of harm.” Id. To satisfy the subjective requirement, the plaintiff must show that the defendants: (1) were aware of facts from which the inference could be drawn that a substantial risk of harm existed; (2) subjectively drew the inference that the risk existed; and (3) disregarded the risk. Id. at 837.
This Court has already recognized “the unprecedented magnitude of the COVID-19 pandemic and the extremely serious health risks it presents, particularly within the prison setting.” Easley v. Wetzel, 2021 WL 1200214, at *4 (W.D. Pa. Feb. 26, 2021). A thorough review of recent COVID-19 caselaw makes clear that simply placing an inmate in the same unit or cell as other inmates who are COVID-positive is not enough to violate the Constitution. In Chapolini v. City of Philadelphia, for example, the plaintiff alleged that he was forced to share a cell with numerous inmates who had not gone through the appropriate COVID quarantine protocol. Chapolini, 2022 WL 815444, at *14 (E.D. Pa. Mar. 17, 2022). As in the instant case, his numerous complaints to prison staff were disregarded. Id. The Court held that these allegations were insufficient to state a claim, noting that, “even if quarantine protocols were inadequate and improperly followed, these allegations show negligence on the part of [prison officials], which is not the constitutional standard.” Id. at *15. Other courts have consistently reached the same conclusion. See, e.g., Arnold v. Oberlander, 2023 WL 3480926, at *4-5 (W.D. Pa. May 16, 2023) (collecting cases); DeJesus v. Steinhart, 2023 WL 2471342, at *6 (M.D. Pa. Mar. 10, 2023) (prison officials were not liable for failure to protect despite “knowingly disregarding the ‘inconclusive' lab test results, and DOC's strict six foot social distancing protocol, while co-signing orders for Mr. DeJesus to be moved to double occupancy cell #41 on FA-housing unit with [an inmate who] affirmatively tested positive for COVID-19”); Lanko v. Wetzel, 2023 WL 2307101, at *8 (W.D. Pa. Mar. 1, 2023) (rejecting claim of failure to protect based on prison's inconsistent enforcement of COVID protocols); Pumba v. Kowal, 2022 WL 2805520, at *4 (E.D. Pa. July 18, 2022) (no violation where a sergeant permitted a pod worker who tested positive to clean the plaintiffs cell without wearing a mask); Greene v. Ellis, 2022 WL 4288279, at *3 (D.N.J. Sept. 16, 2022) (prisoner's allegation that jail did not provide adequate social distancing and that there was not a mask exchange program was insufficient to state a constitutional violation).
This outcome is consistent with the well-established principle that federal courts “are not overseers of the day-to-day management of prisons.” Brooks v. Samuel, 2018 WL 2287510, at *2 (M.D. Pa. May 18, 2018). See also Turner v. Safley, 482 U.S. 78, 85-85 (1987) (“Prison administration is ... a task that has been committed to the responsibility of [the legislative and executive] branches, and separation of powers concerns counsel a policy of judicial restraint.”). Indeed, “prison administrators are accorded wide-ranging deference in the adoption and execution of policies and practices that are needed to preserve internal order and to maintain institutional security.” Harris v. Centurion, 2021 WL 5177431, at *6 (D. Del. Nov. 8, 2021) (citing Wolff, 418 U.S. at 566). This deference extends to “the DOC's housing decisions during the COVID pandemic.” Id. (dismissing inmate's request for an order “directing the DOC to take certain action on the housing of inmates who have, and who have not, received COVID-19 vaccinations.”).
In short, while Voorhis may have preferred a different housing assignment, he has failed to demonstrate that his placement in a cell with Ruf violated the Constitution. Defendants' motion to dismiss this claim should be granted.
4. Sexual harassment
Voorhis' next claim - that Defendants subjected him to sexual abuse by placing him in a cell with another inmate while wearing a suicide smock and accidentally causing him to view the other inmate's genitals - can be quickly dismissed. Sexual abuse claims against prison officials are analyzed through the prism of “the Supreme Court's excessive force precedents and its holding in Farmer v. Brennan that sexual assaults of inmates by inmates can implicate the right to be free from cruel and unusual punishment.” Ricks v. Shaver, 891 F.3d 468, 474 (3d Cir. 2018) (confirming that the Farmer framework for excessive force claims “encompass[es] claims for sexual abuse and harassment by prison officials as well”). This framework requires a plaintiff to satisfy both a subjective and an objective element. Id. at 473 (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). In other words, “the incident must be objectively, sufficiently intolerable and cruel, capable of causing harm, and the official must have a culpable state of mind.” Id. 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 purpose of causing harm.'” Id. at 475 (quoting Whitley v. Albers, 475 U.S. 312, 319-20 (1986)). In the sexual abuse context, “[t]he nature of the violative conduct itself will often be enough to demonstrate the prison official's culpable state of mind.” Id. For example, “if. . . the officer intentionally brings his or her genitalia into contact with the inmate in order to arouse or gratify the officer's sexual desire or humiliate the inmate, a violation is self-evident because there can be no penological justification for such contact.” Crawford, 796 F.3d at 252. See also Boddie, 105 F.3d at 861 (“Where no legitimate law enforcement or penological purpose can be inferred from the defendant's alleged conduct, the abuse itself may, in some circumstances, be sufficient evidence of a culpable state of mind.”). On the other hand, where the contact is “incidental to legitimate official duties, such as a justifiable pat frisk or strip search,” then it is less likely that the search was undertaken “to arouse or gratify the officer or humiliate the inmate.” Ricks, 891 F.3d at 476 (quoting Crawford, 796 F.3d at 257-58).
In addition to satisfying the subjective element, an inmate must demonstrate that the incident was so objectively “intolerable and cruel” or “capable of causing harm” as to violate the Eighth Amendment. Rick, 891 F.3d at 475. As courts have frequently observed, “not... every malevolent touch by a prison guard gives rise to a federal cause of action.” Id. (quoting Hudson, 503 U.S. at 9). Rather, “the Eighth Amendment shields inmates from only those actions ‘repugnant to the conscience of mankind.'” Id. (quoting Hudson, 503 U.S. at 10). Thus, even if sexualized touching lacks a penological purpose, it may still fall below the threshold of constitutional cognizability based on a lack of objective seriousness.” Ricks, 891 F.3d at 476, 477-78 (declining to impose a “zero tolerance” standard for “all minor sexualized touching in prison,” such that all such “inappropriate touching is per se unconstitutional.”).
Critically, “sexual harassment in the absence of contact or touching does not establish an Eighth Amendment violation.” McCain v. Wetzel, 2018 WL 1211507, at *3 (W.D. Pa. Mar. 8, 2018) (citing Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000)). This is because “[v]erbal harassment, including lewd comments, sexual propositioning, and the like, is not sufficient to satisfy the objective element of an Eighth Amendment sexual harassment claim. Id. (citing Manon v. Garrison, 2012 WL 3542328 (M.D. Pa. Aug. 15, 2012)). Rather, “physical sexual assault or threats of physical assault is required for the objective element to be met.” Id.
This principle is fatal to Voorhis' claim. His allegation of sexual abuse is based on a single inadvertent exposure to another inmate's genitals rather than a pattern of misconduct. See Ricks, 891 F.3d at 474. Aside from another inmate's foot briefly contacting his own genitals during a scuffle, he has not alleged physical contact or touching of any sort, let alone contact that could conceivably be described as “sexual.” Nor was the limited incident described in his complaint so “severe or serious” as to be “repugnant to the conscience of mankind. Ricks, 891 F.3d at 474 (quoting Hudson, 503 U.S. at 10). To the contrary, federal courts have routinely held that isolated incidents of similar or greater severity were insufficient to support a cognizable Eighth Amendment claim. See, e.g., McIntyre v. Kellinger, 741 Fed.Appx. 891 (3d Cir. July 16, 2018) (holding that incident in which defendant dragged his hands down plaintiff s buttocks, gripped his buttocks, patted his thighs, and “squeezed [his] ass as if [he] was a woman” while whispering “in a sexual manner” during a pat-search was not objectively severe or serious to establish an Eighth Amendment violation); Ricks, 891 F.3d at 479 (suggesting that an “isolated, momentary” incident in which guard “rubbed his erect penis against [plaintiff s] buttocks through both men's clothing” was not sufficiently severe, but allowing opportunity to amend); Watson v. Wingard, 2018 WL 2108316 (W.D. Pa. Jan. 31, 2018) (allegations that defendant gave plaintiff an “upper cut” to the groin with his forearm, “groped and massaged [his] penis,” and examined plaintiffs “butt... like a doctor” did not amount to sexual abuse); Hughes v. Smith, 237 Fed.Appx. 756, 759 (3d Cir. 2007) (no Eighth Amendment violation where correctional officer allegedly touched the inmate's testicles through his clothing during a single pat-down frisk). For the same reasons, Voorhis' claim of sexual harassment should be dismissed.
5. Intentional infliction of emotional distress
Finally, Voorhis raises a state law tort claim for intentional infliction of emotional distress. This claim is based on his allegation that Defendants White and Lindsey caused him to fear for his life by threatening to spray him with “the big can [of OC spray].” ECF No. 7 at 30.
In general, employees of the Commonwealth of Pennsylvania acting within the scope of their duties enjoy sovereign immunity. Walton v. Harkleroad, 2016 WL 11480713, at *7 (W.D. Pa. Mar. 3, 2016) (citing 1 Pa. C.S. § 2310). The doctrine of 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, except in certain enumerated circumstances. Id. (citing 42 Pa.C.S. § 8522(b)). Kull v. Guisse, 81 A.3d 148, 157 (Pa. Comm. 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 nine statutory exceptions in § 8522; (2) are not negligent; and (3) occurred when acting within the scope of his or her employment.” Tibbens v. Snyder, 2020 WL 5372097, at *5 (M.D. Pa. June 24, 2020) (citing Kintzel v. Kleeman, 965 F.Supp.2d 601, 606 (M.D. Pa. 2013)).
Specifically, the General Assembly has waived immunity in cases of: (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. C.S.A. § 8522.
Intentional infliction of emotional distress is an intentional tort that does not fall within the statutory exceptions enumerated in § 8522. See, e.g., Snider v. Pennsylvania DOC, 505 F.Supp.3d 360, 445-446 (M.D. Pa. Dec. 8, 2020) (acknowledging that intentional infliction of emotional distress not fall within the § 8522 exceptions). Thus, so long as they were acting within the scope of their employment, Defendants are entitled to sovereign immunity from Voorhis' intentional infliction of emotional distress claim. Rosa-Diaz v. Dow, 683 Fed.Appx. 103, 107 n. 8 (3d Cir. 2017) (“The District Court properly concluded that [plaintiff s] state-law claims - negligent and intentional infliction of emotional distress - were barred by Pennsylvania's sovereign immunity statute.”). Conduct 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).
In the instant case, there is no dispute that White's threat to spray Voorhis with “the big can” of OC spray took place within the authorized time and space limits of the Erie County Prison. At the time of the threat, White and Lieutenant Lindsay were effectuating a cell transfer for Voorhis and another inmate, a duty squarely within the province of a prison corrections officer. Voorhis has not pleaded any facts to suggest that the incident did not serve, at least in part, their employer's interest in maintaining a safe and secure prison. Because Defendants were acting within the scope of their employment, they are entitled to sovereign immunity from Voorhis' intentional tort claim and dismissal is warranted.
III. Conclusion
For the reasons stated herein, it is respectfully recommended that Defendants' motion to dismiss [ECF No. 47] be granted in part and denied in part. Defendants' motion should be DENIED as to Voorhis' claim against Lieutenant Lindsey for excessive force but granted in all other respects. Because the facts alleged in the Complaint demonstrate that Voorhis has no potentially viable claim against any Defendant except Lieutenant Lindsay, the claims against Defendants Nurse Lindsey, Amann, White, Cruz, Billie, Bolt, Wagner, and Sutter should be dismissed, with prejudice, and these Defendants should be terminated as parties to this action.
Defendants' motion requested exclusively dismissal of claims pursuant to Fed.R.Civ.P. 12(b)(6). Their brief in support of the motion, however, included requests for alternative relief, including a motion for more definite statement and a motion to strike allegations of sexual assault and misconduct. This Report and Recommendation has been prepared solely based on the relief requested in the motion. In any case, the alternative requests for relief in Defendants' brief will be rendered moot if this Report and Recommendation is adopted.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).