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 c apacities :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE MICHA E L H. WOJCIK , Judge HONORABLE ELLEN CEISLER , Judge

OPINION NOT REPORTED

MEMO RANDUM OPINION BY JUDGE LEAVITT 1 FILED: February 15, 2022

Kaleel Hinton, pro se , appeals an order of the C ourt of Common Pleas of Greene County (trial court) that sustained the preliminary objection of Sergeant
Beers and C orrections Officer Steel ( collectively, Prison Employees) and dismissed Hinton’s complaint. 2 Hinton seeks mone tary damages for injuries he sustained wh ile 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 Correction s (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

secure d by the United States Constitution and federal statute. The trial court held that Hinton’s state law claims for damages w ere 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 SCI

Greene , an unidentified correction s officer antagonized Hinton by repeatedly calling him derogatory names, such as “rapist” and “special needs retard.” Complaint ¶ ¶ 1 8

- 1 9

. When t h e correction s officer opened Hinton’s tray slot t o 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 correction s officers, including Corrections Officer Steel. Id

. ¶ ¶23

- 24 . Hinton complied with all
orders from the corrections officer s while they handcuffed him and shackled his legs.
Id

. ¶ ¶ 2 5 , 27

. While Hinton was on his knees, a correction s officer jumped on Hinton’s back and two other s punch ed 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 h is left eye

. Id

. ¶ ¶ 28

- 30 . Hinton suffered psychological injuries , including paranoia, anxiety and post

traumatic 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 Manager3

Decision , dated 12/19/2018

. H inton then filed the instant complaint with the trial

court

. Based on the above

- recited allegations, t he complaint assert s intentional and negligent torts under state law as well as violations of the F irst and Eighth Amendments of the United States Constitution , 3 U.S. C ONST . 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; c ompensatory damages in the amount of $50,000 ; punitive damages in the amount of $50,000 ; costs ; and any other relief
dee med 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 com plaint and
respon ded to Hinton’s motion for default judgment.

In respon se to Hinton’s motion for default judgment , Prison Employees
asserted that the y 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, w e will treat Hinton’s compl aint as asserting Section 1983 claim s

.4

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

. 4 B ecause H inton 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 Empl oyees 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 d id not state a claim against Prison Employees because they w ere not i nvolved in the assault and, in any case, the claim is barred by sovereign immunity. Third, the complaint did not ple a d a Section 1983 civil rights claim because it did not allege the personal involvement of Prison E mployees in the wrongdoing

. Further, Prison Employees are not public entities and, th us , cannot be held liable under th e ADA. F ourth , the complaint did not allege facts sufficient to support an award of punitive damages

.

The trial court overrul ed the preliminary objection based on failure to exhaust administrative remedies, but it sustain ed the preliminary objectio n 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. P A .R.C IV .P. 422(a). Fail ure to serve the Office of Attorney General deprives the trial court of personal jurisdiction over defendants. Reaves v. Knauer , 979 A.2d 404, 41 0 (Pa. Cmwlth. 2009).5

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

were moot ed by the dismissal of the complaint. Hinton appealed th e 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 dis missing all h i s claims against Sergeant
Beers and Corrections Officer Steel based on sovereign immunity. Hinton Statement
of Errors , 12/2/2020, at 2. I n its opinion pursuant to Rule of Appellate Procedure 1925(a), 5 the 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)
O p

. , 12/22/2020, at 2. Hinton then appealed to t his 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
all owed the assault to take place without intervening , in violation of Department policies

. Third, he argues that sovereign immunity d id not bar his Section 1983
claims against Prison Employees

.

Our review on appeal from an order sustaining preliminary ob jections
determines whether the trial court abused its discretion or committed an error of law.
Kittrell v. W

at son , 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, th e 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 of record 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. P A .R.A.P. 1925(a) (1) ( e mphasis 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

s uch 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 12 16, 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 Proce dure 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, c ourts 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 sov ereign 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 a s 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”. P A .R. C IV .P. 1030(a) (emphasis added).7

his procedural challenge to Prison Employees r aising 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)

. S overeign 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 sov ereign 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 authori zed by statute. 1 Pa. C.S. §2310 (emphasis added).
8 T he 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, cu stody 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) N ational G uard activities; (9) toxoids and vaccines; and (10) sexual abuse. 42 Pa. C.S. §8522(b).8 the alleged act which causes injury was neglig ent 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 i s 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 wi thin 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 expect ed by the employer. Justice v. Lombardo , 208 A.3d 1057, 1067 (Pa. 2019) (citing R ESTATEMENT (S ECOND ) OF A GENCY §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 , speci fically, the Code of Ethics 9 and the Policy Statement on

9 P ENNSYLVANIA D EPARTMENT OF C ORRECTIONS C ODE OF E THICS , available at : https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/Code%20of%20Ethics.pdf (last visited February 14 , 2022) ( C ODE OF E THICS ) . 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 i nmates. 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. C ODE O F E TH ICS , §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. ” C ODE OF E THICS , §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

. U SE OF F ORCE P OLICY at 2, §III

. B. The complaint alleges that unidentified
corrections officers , not Prison Employees, used excessive f orce on Hinton

. Complaint ¶26. Although Hinton argues that Pr ison Employees ’ failure to intervene
made them “active participants
, ” he cite s no authority for his p osition, 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

a fter 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 The se averments

10 C OMMONWEALTH OF P ENNSYLVANIA , D EPARTMENT OF C ORRECTIONS , P OLICY N O

. DC

- ADM 201: U SE OF F ORCE (2010), available at : https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/201%20Use%20of%20Forc e.pdf (last visited February 14 , 2022) ( U SE OF F ORCE P OLICY ). 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. ” U SE OF F ORCE P OLICY 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 U SE OF F ORCE P OLICY at 3, §III.F (“Planned uses of10

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 wh en , on duty and in uniform, they removed inmate from prison cell)

. In short, the allegations in t he complaint show that Prison Employees acted within the scope of employment when
th ey 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
d ismissing Hinton’s state law claims based on sovereign immunity , the trial court

exp lained 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. A fter Hinton filed his statement
of error s co mplained 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 w as moot

. After Hinton appealed, the
trial court ruled that Hinton’s complaint did not s t ate 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 decision s may be cited for their persuasive value. Nagle v. TrueBlue, Inc. , 148 A.3d 946, 959 n.15 (Pa. Cmw l th. 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, w e 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, w e affirm the trial court’s order dismissing
Hinton’s tort claims for damages based on sovereign immunity . We v acate the trial
court’ s order sustaining Prison Employees’ preliminary objection to the federal
claims and reman d the matter for the trial court to explain why Prison Employees’ preliminary objection to the federal claims wa s moot or, alternatively, to rule on the objection and explain the basis for its ruling.

____________________________________________ MARY HANNAH LEAVITT, President Judge EmeritaIN 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 c apacities :
ORDER

AND NOW, this 15 th 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