IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kaleel Hinton, :

Appellant :

:

v. : No. 1192 C.D. 2020

: Submitted: April 30, 2021

Sergeant Beers, CO Nacoie, :

CO Steel, Nurse Denny, CO John Doe :

#1, CO John Doe #2, CO John Doe #3, :

CO John Doe #4, and Department of :

Corrections, sued in their individual :

and official capacities :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge 

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE LEAVITT1 FILED: February 15, 2022

Kaleel Hinton, pro se, appeals an order of the Court of Common Pleas 

of Greene County (trial court) that sustained the preliminary objection of Sergeant 

Beers and Corrections Officer Steel (collectively, Prison Employees) and dismissed 

Hinton’s complaint.2 Hinton seeks monetary damages for injuries he sustained while 

an inmate at the State Correctional Institution at Greene (SCI-Greene). Hinton’s 

complaint alleges that Prison Employees failed to intervene when he was assaulted 

by other employees of the Department of Corrections (Department). Hinton also 

1 This matter was assigned to the panel before January 3, 2022, when President Judge Emerita 

Leavitt became a senior judge on the Court.

2 The trial court previously dismissed the other named defendants from Hinton’s complaint 

because they were not served. Trial Court Order, 12/19/2019, at 2. 
2

seeks a declaratory judgment that Prison Employees’ actions violated his rights 

secured by the United States Constitution and federal statute. The trial court held 

that Hinton’s state law claims for damages were barred by sovereign immunity and 

that the federal claims were moot. We affirm the trial court’s order dismissing 

Hinton’s state law claims and vacate its order dismissing the federal claims. 

On June 4, 2019, Hinton filed a complaint with the trial court alleging 

that on June 17, 2018, while housed in the secure residential treatment unit at SCIGreene, an unidentified corrections officer antagonized Hinton by repeatedly calling 

him derogatory names, such as “rapist” and “special needs retard.” Complaint ¶¶18-

19. When the corrections officer opened Hinton’s tray slot to serve him dinner, 

Hinton threw bodily fluids at him. Id. ¶20. Sergeant Beers thereupon entered 

Hinton’s cell and ordered him to raise his hands. Id. ¶21. Confirming that Hinton 

did not have a weapon, Sergeant Beers left and returned with six other corrections

officers, including Corrections Officer Steel. Id. ¶¶23-24. Hinton complied with all 

ordersfrom the corrections officers while they handcuffed him and shackled his legs. 

Id. ¶¶25, 27. While Hinton was on his knees, a corrections officer jumped on 

Hinton’s back and two others punched him in the back of his head and face. Id. ¶26. 

“All of this transpired in the presence of” Prison Employees. Id. Hinton sustained 

injuries to his face, mouth, and wrists, and a loss of vision in his left eye. Id. ¶¶28-

30. Hinton suffered psychological injuries, including paranoia, anxiety and posttraumatic stress disorder. Id. ¶31. 

On June 22, 2018, Hinton filed a grievance with the prison

administration, which was denied because an investigation revealed that there was 

“no evidence” to substantiate the assault claim. Id. ¶33, Ex. M, Facility Manager
3

Decision, dated 12/19/2018. Hinton then filed the instant complaint with the trial 

court. 

Based on the above-recited allegations, the complaint asserts

intentional and negligent torts under state law as well as violations of the First and 

Eighth Amendments of the United States Constitution,

3 U.S. CONST. amend. I and 

VIII, and the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§12101-

12213. Complaint ¶¶41-54. The complaint seeks a declaration that rights secured 

under federal law have been violated; compensatory damages in the amount of 

$50,000; punitive damages in the amount of $50,000; costs; and any other relief 

deemed just, equitable and proper. Id. ¶¶56-60. 

On August 15, 2019, Hinton filed a motion for default judgment 

because Prison Employees did not answer his complaint. In response, the trial court 

convened a status conference, after which it gave Prison Employees 45 days to 

respond to Hinton’s motion for default judgment. Trial Court Order, 12/19/2019, at 

2. Prison Employees filed preliminary objections to Hinton’s complaint and 

responded to Hinton’s motion for default judgment.

In response to Hinton’s motion for default judgment, Prison Employees

asserted that they did not learn of Hinton’s action until the status conference with 

the trial court. This was because Hinton did not serve his complaint on the Attorney 

3 The complaint does not explicitly reference 42 U.S.C. §1983. However, it alleges that Prison 

Employees, in their capacity as employees of the prison, violated Hinton’s constitutional rights. 

Section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or 

usage, of any State or Territory or the District of Columbia, subjects, or causes to 

be subjected, any citizen of the United States or other person within the jurisdiction 

thereof to the deprivation of any rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured in an action at law[.]

42 U.S.C. §1983. Accordingly, we will treat Hinton’s complaint as asserting Section 1983 claims. 
4

General as required by Pennsylvania Rule of Civil Procedure 422(a).

4

 Because 

Hinton agreed to dismiss all defendants except Prison Employees, counsel for the 

Attorney General’s Office agreed to represent Prison Employees to avoid further 

delay. 

On February 24, 2020, the trial court issued an order denying Hinton’s 

motion for default judgment. Hinton appealed the trial court’s order to the Superior 

Court, which quashed Hinton’s appeal as interlocutory. On August 4, 2020, the trial 

court held another status conference with the parties, noting that a decision on Prison 

Employees’ preliminary objections would be forthcoming. 

In their preliminary objections, Prison Employees asserted that 

Hinton’s complaint should be dismissed for four reasons. First, Hinton failed to 

exhaust his administrative remedies because he did not appeal the denial of his 

grievance. Second, the complaint did not state a claim against Prison Employees 

because they were not involved in the assault and, in any case, the claim is barred 

by sovereign immunity. Third, the complaint did not plead a Section 1983 civil 

rights claim because it did not allege the personal involvement of Prison Employees 

in the wrongdoing. Further, Prison Employees are not public entities and, thus, 

cannot be held liable under the ADA. Fourth, the complaint did not allege facts

sufficient to support an award of punitive damages. 

The trial court overruled the preliminary objection based on failure to 

exhaust administrative remedies, but it sustained the preliminary objection raising 

sovereign immunity and dismissed the complaint. The trial court concluded that 

4 Rule 422(a) directs a party that names a Commonwealth agency or employee as a defendant to 

serve both the named defendant and the Attorney General. PA.R.CIV.P. 422(a). Failure to serve 

the Office of Attorney General deprives the trial court of personal jurisdiction over defendants. 

Reaves v. Knauer, 979 A.2d 404, 410 (Pa. Cmwlth. 2009). 
5

Prison Employees’ objections to the federal claims and request for punitive damages

were mooted by the dismissal of the complaint. Hinton appealed the trial court’s 

order to this Court. In his Concise Statement of the Errors Complained of on Appeal, 

Hinton asserted that the trial court erred in dismissing all his claims against Sergeant 

Beers and Corrections Officer Steel based on sovereign immunity. Hinton Statement 

of Errors, 12/2/2020, at 2. In its opinion pursuant to Rule of Appellate Procedure 

1925(a),5the trial court clarified that “[p]reliminary objections were granted based 

on sovereign immunity, but the Court also reviewed the [c]omplaint and noted no 

cause of action to move forward against [Prison Employees].” Trial Court 1925(a)

Op., 12/22/2020, at 2. Hinton then appealed to this Court.

On appeal, Hinton raises three issues. First, he argues that the defense 

of sovereign immunity must be raised in an answer, not in preliminary objections. 

Second, he argues that sovereign immunity does not bar his claims against Prison 

Employees because they acted outside the scope of their employment when they 

allowed the assault to take place without intervening, in violation of Department 

policies. Third, he argues that sovereign immunity did not bar his Section 1983 

claims against Prison Employees. 

Our review on appeal from an order sustaining preliminary objections 

determines whether the trial court abused its discretion or committed an error of law. 

Kittrell v. Watson, 88 A.3d 1091, 1095 (Pa. Cmwlth. 2014). When reviewing 

5 Pennsylvania Rule of Appellate Procedure 1925(a)(1) provides, in part:

upon receipt of the notice of appeal, the judge who entered the order giving rise to 

the notice of appeal, if the reasons for the order do not already appear of record, 

shall . . . file ofrecord at least a brief opinion of the reasons for the order, or for 

the rulings or other errors complained of, or shall specify in writing the place in the 

record where such reasons may be found.

PA.R.A.P. 1925(a)(1) (emphasis added.) 
6

preliminary objections, this Court considers as true all well-pleaded material facts 

set forth in the complaint and all inferences reasonably deducible therefrom. Id. As 

such review raises a question of law, our scope of review is plenary and standard of 

review is de novo. Szoko v. Township of Wilkins, 974 A.2d 1216, 1219 n.7 (Pa. 

Cmwlth. 2009). 

We begin with Hinton’s argument that the trial court erred in dismissing 

his complaint because Prison Employees were required to raise sovereign immunity 

as an affirmative defense. Under Pennsylvania Rule of Civil Procedure 1030(a),

6

the defendant’s assertion of immunity is an affirmative defense that must be pled in 

a responsive pleading as new matter. However, courts allow an exception where the 

defense is “clearly applicable on the face of the complaint.” Minor v. Kraynak, 155 

A.3d 114, 121 (Pa. Cmwlth. 2017) (quoting Sweeney v. Merrymead Farm, Inc., 799 

A.2d 972, 975-76 (Pa. Cmwlth. 2002)). Where the plaintiff does not file a 

preliminary objection to the defendant’s preliminary objection raising sovereign 

immunity, the court may rule on the defendant’s sovereign immunity issue. Minor, 

155 A.3d at 121; Smolsky v. Pennsylvania General Assembly, 34 A.3d 316, 321 n.7 

(Pa. Cmwlth. 2011) (courts have ruled on preliminary objections raising sovereign 

immunity where a plaintiff did not object to improper procedure). 

Here, Hinton responded to Prison Employees’ preliminary objection

and objected to their raising sovereign immunity as a preliminary objection. 

However, Hinton did not file his own preliminary objection to strike Prison 

Employees’ preliminary objection. Minor, 155 A.3d at 121. Thus, Hinton waived 

6

It states, in relevant part, as follows: 

[A]ll affirmative defenses including but not limited to . . . immunity from suit . . . 

shall be pleaded in a responsive pleading under the heading “New Matter”.

PA.R.CIV.P. 1030(a) (emphasis added).
7

his procedural challenge to Prison Employees raising sovereign immunity in a 

preliminary objection. 

Next, Hinton argues that the trial court erred in holding that his state 

law claims were barred by sovereign immunity. Hinton argues that because Prison 

Employees did not act within the scope of their employment by allowing the assault 

to proceed, they are not immune from suit. A Commonwealth employee is protected 

by sovereign immunity only for conduct occurring within the scope of his 

employment. 1 Pa. C.S. §2310;

7 Kull v. Guisse, 81 A.3d 148, 157-58 (Pa. Cmwlth. 

2013). Sovereign immunity has been waived in limited situations involving the 

negligence of a Commonwealth official or employee. 42 Pa. C.S. §8522.8 This 

Court has explained as follows: 

[T]he proper test to determine if a Commonwealth employee is 

protected from liability pursuant to 1 Pa. C.S. §2310 and 42 Pa.

C.S. §8522 is to consider whether the Commonwealth employee 

was acting within the scope of his or her employment; whether 

7

It states: 

Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is hereby 

declared to be the intent of the General Assembly 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. When the 

General Assembly specifically waives sovereign immunity, a claim against the 

Commonwealth and its officials and employees shall be brought only in such 

manner and in such courts and in such cases as directed by the provisions of Title 

42 (relating to judiciary and judicial procedure) or 62 (relating to procurement) 

unless otherwise specifically authorized by statute.

1 Pa. C.S. §2310 (emphasis added).

8 The General Assembly has waived immunity to claims for “damages” brought against 

Commonwealth agencies and employees caused by: (1) vehicle liability; (2) medical-professional 

liability; (3) the care, custody or control of personal property in the possession of the 

Commonwealth; (4) Commonwealth-owned real estate, highways and sidewalks; (5) potholes and 

other dangerous conditions; (6) the care, custody or control of animals; (7) liquor store sales; (8) 

National Guard activities; (9) toxoids and vaccines; and (10) sexual abuse. 42 Pa. C.S. §8522(b). 
8

the alleged act which causes injury was negligent and damages 

would be recoverable but for the availability of the immunity 

defense; and whether the act fits within [1] of the [10] exceptions 

to sovereign immunity.

La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992). In addition, an 

employee is liable for willful misconduct and intentional torts committed outside the 

scope of his employment. Kull, 81 A.3d at 157-58. An employee acts within the 

scope of his employment when he performs his assigned task; when the conduct 

occurs within the authorized time and place of employment; and when the conduct

serves the employer. This conduct may include the use of force where the use of 

force is expected by the employer. Justice v. Lombardo, 208 A.3d 1057, 1067 (Pa. 

2019) (citing RESTATEMENT (SECOND) OF AGENCY §228(1) (American Law Institute 

1958)). 

Hinton contends that Prison Employees were not acting within the 

scope of their employment when they failed to stop the assault. They contravened 

Department policies, specifically, the Code of Ethics9and the Policy Statement on 

9 PENNSYLVANIA DEPARTMENT OF CORRECTIONS CODE OF ETHICS, available at: 

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/Code%20of%20Ethics.pdf

(last visited February 14, 2022) (CODE OF ETHICS). It states, in relevant part:

1. Each employee in the correctional system is expected to subscribe to the principle 

that something positive can be done for each inmate. This principle is to be applied 

without exception. 

This involves an intelligent, humane, and impartial treatment of inmates. 

Profanity directed to inmates, or vengeful, brutal, or discriminatory treatment of 

inmates will not be tolerated. Corporal punishment shall not be utilized under any 

circumstances. 

2. Only the minimum amount of force necessary to defend oneself or others, to 

prevent escape, to prevent serious injury or damage to property or to quell a 

disturbance or riot will be used. Excessive force, violence or intimidation will not 

be tolerated. Fighting or horseplay while on duty is prohibited. 

CODE OF ETHICS, §B.1-2.
9

Use of Force.

10

 Complaint ¶¶1-2, 15. The assault far exceeded the requirement to 

use a “minimum amount of force” “to quell a disturbance.” CODE OF ETHICS, §B.2. 

Hinton contends that Prison Employees were “active participants” that neglected 

their “duty.” Hinton Brief at 4. Accordingly, they are not protected by sovereign 

immunity. 

Department policies allow employees to use force on inmates but only 

the “least amount” that is reasonably necessary to achieve the authorized purpose. 

USE OF FORCE POLICY at 2, §III.B. The complaint alleges that unidentified 

corrections officers, not Prison Employees, used excessive force on Hinton. 

Complaint ¶26. Although Hinton argues that Prison Employees’ failure to intervene 

made them “active participants,” he cites no authority for his position, such as a 

Department policy requiring intervention in the circumstances described in Hinton’s 

complaint. Hinton Brief at 4.

The complaint alleges that Prison Employees were present as members 

of a team assembled to extract Hinton from his cell, which was deemed necessary 

after Hinton threw bodily fluids at a corrections officer. Complaint ¶¶20-26. After 

Sergeant Beers confirmed that Hinton did not have a weapon, Prison Employees and 

others arrived on the scene wearing “military gear.” Id. ¶23. Corrections Officer 

Steel held a portable camera to videotape the cell extraction.11 These averments 

10 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, POLICY NO. DC-ADM

201: USE OF FORCE (2010), available at: 

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/201%20Use%20of%20Forc

e.pdf (last visited February 14, 2022) (USE OF FORCE POLICY). It states, in part, that “[w]hen force 

is used, the least amount of force the staff member reasonably believes is necessary to achieve the 

authorized purpose is to be used and the use of force will stop once control is achieved.” USE OF

FORCE POLICY at 2, §III.B.

11 To the extent that the cell extraction is considered a planned use of force, Department policy 

requires that the event be videotaped. See USE OF FORCE POLICY at 3, §III.F (“Planned uses of 
10

establish that Prison Employees participated in the cell extraction in the course of 

their employment. See Spencer v. Proce (M.D. Pa., No. 07-CV-1021, filed July 13, 

2010)12 (corrections officers acted within scope of employment when, on duty and 

in uniform, they removed inmate from prison cell). In short, the allegations in the 

complaint show that Prison Employees acted within the scope of employment when 

they participated in Hinton’s cell extraction and, thus, Hinton’s tort claims are barred 

by sovereign immunity. 

In his third issue, Hinton asserts that the trial court erred by dismissing 

his federal claims. He alleges a violation of the First and Eighth Amendments to the 

United States Constitution and a violation of federal statute, i.e., the ADA. After 

dismissing Hinton’s state law claims based on sovereign immunity, the trial court 

explained that “[g]iven the Court’s ruling with regard to sovereign immunity, we 

now determine that the final preliminary objection raised by [Prison Employees] is 

now MOOT.” Trial Court Order, 10/23/2020, at 6. After Hinton filed his statement 

of errors complained of on appeal, the trial court clarified, “[p]reliminary objections 

were granted based on sovereign immunity, but the Court also reviewed the 

[c]omplaint and noted no cause of action to move against [Prison Employees].” Trial 

Court 1925(a) Op., 12/22/2020, at 2. 

However, the trial court did not explain why Prison Employees’

preliminary objection to the federal claims was moot. After Hinton appealed, the 

trial court ruled that Hinton’s complaint did not state a viable federal claim, but it 

provided no analysis for this conclusion. This lack of analysis impedes appellate 

force shall be videotaped.”). Hinton acknowledges that Corrections Officer Steel videotaped the 

event as he submitted a request “to preserve camera footage of the incident.” Complaint ¶¶24, 32.

12 Unreported federal court decisions may be cited for their persuasive value. Nagle v. TrueBlue, 

Inc., 148 A.3d 946, 959 n.15 (Pa. Cmwlth. 2016). We cite Spencer solely for its persuasive value.
11

review of the trial court’s dismissal of the federal claims. In Miller Development 

Corporation v. Union Township Municipal Authority, 666 A.2d 391, 395 (Pa. 

Cmwlth. 1995), we explained that a short opinion is reviewable so long as reasons 

for the ruling can be discerned. There is no short statement here. Thus, we vacate 

the trial court’s order dismissing the federal claims and remand the matter to the trial 

court to explain its ruling that the complaint failed to present a federal claim. 

Based on the foregoing, we affirm the trial court’s order dismissing 

Hinton’s tort claims for damages based on sovereign immunity. We vacate the trial 

court’s order sustaining Prison Employees’ preliminary objection to the federal 

claims and remand the matter for the trial court to explain why Prison Employees’ 

preliminary objection to the federal claims was moot or, alternatively, to rule on the 

objection and explain the basis for its ruling.

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kaleel Hinton, :

Appellant :

:

v. : No. 1192 C.D. 2020

: 

Sergeant Beers, CO Nacoie, :

CO Steel, Nurse Denny, CO John Doe :

#1, CO John Doe #2, CO John Doe #3, :

CO John Doe #4, and Department of :

Corrections, sued in their individual :

and official capacities :

ORDER

AND NOW, this 15th day of February, 2022, the order of the Court of 

Common Pleas of Greene County dated October 23, 2020, is AFFIRMED, in part, 

and VACATED, in part, and this matter is REMANDED for further proceedings as 

set forth in the foregoing opinion.

Jurisdiction relinquished.

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita