The opinion of the court was delivered by: District Judge Nora Barry Fischer
The above captioned case was initiated on June 9, 2006, when Defendants removed the action from the Court of Common Pleas of Allegheny County (doc. no. 1). It was referred to United States Magistrate Judge Lisa Pupo Lenihan for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrate Judges.
The Magistrate Judge's Report and Recommendation (doc. no. 35), filed on August 29, 2007, recommended that Defendants' Motion for Summary Judgment (doc. no. 26) be granted with the exception of Plaintiff's First Amendment retaliation claim that Defendant Orpen conducted a retaliatory cell search on June 3, 2002, and Plaintiff's Eighth Amendment claim of excessive force by Defendant Orpen on June 4, 2002. It further recommended that Plaintiff's Motion for Judgment on the Pleadings (doc. no. 34) be denied. In addition, the Report and Recommendation noted that Plaintiff's state law claims remained pending as Defendants did not move for dismissal of those claims. The parties were served with the Report and Recommendation and advised that they were allowed until September 17, 2007 to file written objections. Defendants filed Objections on August 31, 2007 (doc. no. 36).
In their first objection, Defendants assert that "the Report and Recommendation inaccurately and incorrectly states that defendants did not move for dismissal of plaintiff's state law claims." In so arguing, Defendants state that this argument is made beginning at page 5. However, page 5 is part of Defendants' "Statement of the Case" and merely sets forth Plaintiff's claims. Defendants' "Argument" is set forth after this section.
Specifically, Defendants argued on page 8 of their Brief and footnote 4 as follows.
It is indisputable that all the Corrections defendants here are "Commonwealth parties." It would seem Woods' claims that his treatment by certain of the defendants amounted to intentional infliction of emotional distress. All the state torts that are conceivably claimed instantly are intentional ones. Sovereign immunity has not been waived for intentional torts alleged to have been perpetrated by Commonwealth parties acting within "the scope of their employment."4
4. This concept is broadly defined. Brumfeld v. Saunders, 232 F.3d 376, 380 (3d Cir. 2000). Furthermore, assuming in arguendo that the provisions of the Pennsylvania Constitution's Declaration of Rights embody a private right of action, although the latest view of the state courts is that they do not, they would still sound in intentional tort and hence be subject to the bar of sovereign immunity. Jones v. City of Phila., ___ A.2d ___2005 WL 3695389 (Pa. Cmwlth. 2006); Agresta v. Goode, 898 F.Supp. 399 (E.D.Pa. 1992) at 409; Jrizarry v. Com. of Pa., PennDOT, 1999 WL 269917 (E.D.Pa.).
Reviewing the docket in this case, the Defendants did not file a motion to dismiss. Rather, in their Motion for Summary Judgment they seek dismissal of Plaintiff's state law claims under Federal Rules of Civil Procedure 12(c) and 12(b)(6) (Defendants' Brief, doc. no. 27, p. 5-6). It is the Defendants' burden to show that they are entitled to dismissal of the described claims. Initially, Defendants failed to cite the applicable law in their Brief. Instead, they referred to some citations in a footnote that did not adequately address their argument or the facts. Such briefing did not meet their burden of moving for dismissal of the state law claims on the basis of sovereign immunity.
It is well settled that Commonwealth parties are immune from suit for those actions taken within the scope of their duties, except in those instances in which that immunity has been specifically waived. The relevant law provides as follows.
Pursuant to section 11 of Article I 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 and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. . . .
Pa. Cons. Stat. Ann. § 2310.
Here, Woods claims that Defendant Orpen beat him while he was handcuffed posing no threat to security. Plaintiff submitted affidavits from other prisoners supporting his allegations. In their Brief in Support of Summary Judgment, Defendants did not show, as a matter of law, that such activity would be considered within the scope of Orpen's duties as a correctional officer.
Now, in their Objections, Defendants assert relevant law in support of their argument that Defendant Orpen is entitled to sovereign immunity in that his actions should be construed as being within the scope of his employment. See Objections, pp. 4-5 (doc. no. 36). Defendants are represented by experienced lawyers who should have included this legal analysis of their sovereign immunity argument in their initial Brief in Support of Summary Judgment. Notwithstanding, based on the law cited in Defendants' Objections, the Court is persuaded that Plaintiff's state law claims should be dismissed. An appropriate order follows.
Defendants' next objection is that the court should dismiss the retaliatory cell search claim because it does not amount to a cognizable cause of action under section 1983. In support, Defendants assert that, because a prisoner never has a Fourth Amendment reasonable expectation of privacy in his prison cell, a prison cell search cannot be "illegal." In support of their assertion, they cite to a case from the Southern District of New York, Salahuddin v. Mead, 2002 WL 1968329, *3 (S.D.N.Y.) (S.D.N.Y. 2002), again, not cited in their Brief in Support of Summary Judgment. That case involved a general facility search of an inmate's cell where the Defendant instructed a subordinate to pay special attention to the plaintiff's cell, books were found in the cell that were beyond the 25-book limit set by the facility, and plaintiff was forced to send those books ...