The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
Plaintiff inmate Andre Jacobs ("Jacobs" or "plaintiff") brought this action pursuant to 42 U.S.C. § 1983 against the following defendants: Pennsylvania Department of Corrections ("DOC"), Thomas McConnell ("McConnell"), Carol Scire ("Scire"), Gregory Giddens ("Giddens"), Allen Lynch ("Lynch"), Robert Bittner ("Bittner"), Captain J. Simpson ("Simpson"), Kristin P. Ressing ("Ressing"), Michael Ferson ("Ferson"), Shelly Mankey ("Mankey"), William Stickman ("Stickman"), Frank Cherico ("Cherico"), David McCoy ("McCoy") and Jeffery Beard ("Beard") (each a "defendant" and collectively "defendants"). Jacobs asserted claims against each defendant alleging violations of his First Amendment right to access the courts ("access to courts claim"), conspiracy to violate his civil rights ("conspiracy claim"), and retaliation for attempting to exercise his constitutional rights ("retaliation claim").
Jacobs alleged that during his confinement at SCI-Pittsburgh, defendants engaged in a conspiracy to deny him access to courts by seizing his legal documents, and that defendants retaliated against him for filing grievances and initiating litigation. Jacobs alleged that certain defendants confiscated some of Jacobs' legal documents he needed for another case. As a result of not having access to the confiscated documents, Jacobs alleged that he lost his right to file an exception to the time bar under the Post Conviction Relief Act, 42 PA. CONS. STAT. §§ 9541-45 ("PCRA"). Jacobs included a Pennsylvania common law claim of defamation against defendant Giddens.
At the close of Jacobs' case in chief, the defense moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a), with respect to plaintiff's claims. The court, pursuant to Federal Rule of Civil Procedure 50(b), deferred ruling on the motion until after the jury verdict was returned.
The jury returned a verdict in favor of Jacobs on the access to courts claim with respect to Giddens and McConnell; on the conspiracy claim with respect to McConnell, Scire and Giddens; on the retaliation claim with respect to McConnell, Scire and Giddens; and on the defamation claim with respect to Giddens. (Trial Tr. Nov. 19 & 24, 2008 at 4-8.) The jury returned a verdict in favor of all the other defendants in the claims asserted against them. (Id.)
Following the jury verdict, the defense renewed its motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b) with respect to the defamation claim against Giddens, the retaliation claims against Scire and McConnell, the conspiracy claims against Scire and McConnell, and the access to courts claim against Scire, McConnell and Giddens. For the reasons set forth below, defendants motion will be granted in part and denied in part.
Defendants Giddens, McConnell and Scire move for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), which provides:
If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 10 days after the entry of judgment -- or if the motion addresses a jury issue not decided by a verdict, no later than 10 days after the jury was discharged -- the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law. FED. R. CIV. P. 50(b).
Entry of judgment as a matter of law is a "sparingly" invoked remedy. CGB Occup. Therapy, Inc. v. RHA Health Servs. Inc., 357 F.3d 375, 383 (3d Cir. 2004). It should only be granted if "viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability." Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). The court may not weigh evidence, determine the credibility of witnesses or substitute its version of the facts for that of the jury. The court may, however, grant the motion if upon review of the record, it can be said as a matter of law that the verdict is not supported by legally sufficient evidence. Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 691-92 (3d Cir. 1993). A mere scintilla of evidence presented by the plaintiff is not sufficient to deny a motion for judgment as a matter of law. Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993). "'The question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party.'" Lightning Lube, 4 F.3d at 1166 (quotingPatzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978)). In resolving this motion, the court should consider all the evidence available, excluding only evidence which the jury was not entitled to believe, and drawing all reasonable inferences in the light most favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150 (2000).
Defendants Giddens, McConnell and Scire claim without citation to independent legal authority, that the court should consider only the evidence presented at the time defendants made the initial motion for judgment as a matter of law, i.e., only the evidence presented in plaintiff's case in chief. Those defendants argue that Rule 50(a)(1) implies that the court should only consider the evidence of record at that time. Rule 50(a)(1) provides:
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
FED. R. CIV. P. 50(a)(1). Defendants Giddens, McConnell and Scire argue that after plaintiff's case in chief, plaintiff "has been fully heard on an issue," and the court should be precluded from considering subsequent evidence. This argument, however, does not consider Rule 50(b) which contemplates a court declining to rule on a motion before sending the issue to the jury -- "If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion." FED. R. CIV. P. 50(b).
In this case, the court did not rule on the Rule 50 motion when it was filed. Under these circumstances, the case law interpreting the reasoning behind Rule 50 supports the court considering all the evidence presented. In order for the court to consider a Rule 50(b) motion by a party after the jury verdict (traditionally referred to as judgment n. o. v.), that party must have previously moved for judgment as a matter of law pursuant to Rule 50(a) on that issue (traditionally referred to as a directed verdict). Mallick v. International Broth. of Elec. Workers, 644 F.2d 228, 233 (3d Cir. 1981). Rule 50(a)(2) requires that a Rule 50(a) motion must "specify the judgment sought and the law and facts that entitle the movant to the judgment." Courts have interpreted this provision to require enough specificity to put the opponent on notice so that he may cure any possible technical defects in his case. Acosta v. Honda Motor Co., 717 F.2d 828, 831-32 (3d Cir. 1983).
The United States Court of Appeals for the Third Circuit explained the reasoning behind enabling an opponent to cure defects in Acosta:
Rule 50(b) is essentially a notice provision that, among other functions, protects the important seventh amendment right of trial by jury. A motion for a judgment n.o.v. must be preceded by a motion for a directed verdict sufficiently specific to afford the party against whom the motion is directed an opportunity "to cure possibly technical defects in proof which might otherwise make his case legally insufficient. A motion for judgment notwithstanding the verdict made after trial, in the absence of prior notice of the alleged defect, comes too late for possibly curative action, short of a completely new trial. Thus, whether or not the Constitution compels the rule forbidding a party to advance by judgment notwithstanding the verdict motion a ground not first advanced in a motion for directed verdict, the rule is certainly consistent with the general spirit animating the Federal Rules of Civil Procedure. That spirit suggests avoidance of surprises and tactical victories at the expense of substantive interests."
Id. (quoting Wall v. United States, 592 F.2d 154 (3d Cir. 1979)).
Even if a court errs in denying a Rule 50(a) motion, the error can be cured by evidence offered by the moving party. 9B CHARLES ALAN WRIGHT & ARTHUR R. MILLER , FEDERAL PRACTICE AND PROCEDURE § 2534, at 523-24 (3d ed. 2008). With respect to a motion for a directed verdict, which was the terminology used for a motion for judgment as a matter of law pursuant to Rule 50(a) prior to the 1991 revision to Rule 50,*fn1 the Court of Appeals for the Third Circuit held that:
By proceeding to offer evidence in its own defense, a defendant waives the right to a directed verdict. If the motion for directed verdict is renewed at the close of all the evidence, the court will decide it according to the record as it then stands. Peterson v. Hager, 724 F.2d 851 (10th Cir. 1984); 9 J. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2534 (1971) (initial error by district court "is cured if subsequent testimony on behalf of the moving party repairs the defects of his opponent's case"); 5A J. MOORE & J. LUCAS, MOORE'S FEDERAL PRACTICE ¶ 50.05  (2d ed. 1986) (same). Accordingly, any defects in [the plaintiff]'s case in chief were cured by evidence adduced during [the defendant]'s defense.
Trustees of Univ. of Pa. v. Lexingtons Ins. Co., 815 F.2d 890, 903 (3d Cir. 1987).
In this case, when the court declined to rule on the Rule 50(a) motion, and sent the case to the jury, Jacobs was given the opportunity to cure any defects he may have had in his case in chief. The court will consider all the competent evidence presented, including the evidence that was presented after defendants' Rule 50(a) motion was filed.
A. Defamation Claim Against Giddens
Jacobs brought a state law defamation action against defendant Giddens, alleging that Giddens defamed him by making false statements that Jacobs fabricated the grievance in which he claimed that his legal documents were improperly confiscated. At trial, defendant Giddens raised the affirmative defense of sovereign immunity. The jury found for plaintiff on the defamation claim. (Trial Tr. Nov. 19 & 24, 2008 at 6.)
The jury returned a verdict in favor of Jacobs and against Giddens with respect to Jacobs' defamation claim based upon statements made by Giddens in connection with a misconduct report issued against Jacobs. Prior to submitting the claim to the jury, defendants argued that the defamation claim should be dismissed because Giddens was acting within the scope of his employment when he issued the misconduct report and was covered by sovereign immunity. This court determined that there were genuine issues of material fact with respect to whether Giddens was acting within the scope of his employment when he made the allegedly defamatory statements and submitted the issue to the jury. Giddens argues that the jury had insufficient evidence to conclude that he was not acting within the scope of his employment at the time of the defamatory statements.
Under 1 PA. CONS. STAT. § 2310, the Commonwealth and its employees enjoy the protection of sovereign immunity so long as the employees are acting within the scope of their employment, subject to certain exceptions*fn2 which are not relevant to the matter at hand. La Frankie v. Miklich, 618 A.2d 1145, 1148 (Pa. Commw. Ct. 1992). This protection means that employees of the Commonwealth, and in particular corrections officers at State Corrections Institutions such as SCI-Pittsburgh, are protected from intentional tort claims like defamation, to the extent that they are acting within the scope of their employment at the time of the tort. Williams v. Stickman, 917 A.2d 915, 917 (Pa. Commw. Ct. 2007).
Pennsylvania has adopted the Restatement (Second) of Agency § 228 with respect to the issue of scope of employment. Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000). An employee is acting within the scope of his employment if the conduct at issue: 1) is the kind the employee is employed to perform; 2) occurs substantially within the authorized time and space limits; and 3) is actuated, at least in part, by a purpose to serve the master. Id. (citing RESTATEMENT (SECOND) OF AGENCY § 228 (1957)). The question whether an employee was acting within the scope of his employment is generally a matter for the jury. Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1276 (3d Cir. 1979).
"[T]he mere existence of a personal motivation is insufficient" to bring an employee's actions outside the scope of his employment where the conduct was within the scope of employment generally. Brumfield, 232 F.3d at 380. Pennsylvania courts have also held that the definition contained in section 228 of the Restatement (Second) of Agency applies even when the employee's actions are "intentional or criminal." Butler v. Flo-Ron Vending Co., 557 A.2d 730, 736 (Pa. Super. Ct. 1989). While it is not necessary that the action be expressly authorized by the employer, the action must be "clearly incidental" to the employer's business. See Shuman Estate v. Weber, 419 A.2d 169, 173 (Pa. Super. Ct. 1980) (actions of employee were outside scope of employment when employee, hired to drive employer's car from repair shop to destination, embarked on personal errands far from the authorized time and space limits of the employment).
The jury was instructed that if they found that Giddens was acting within the scope of his employment at the time he made the defamatory statements, then they were to return a verdict in favor of Giddens. (Trial Tr. Nov. 18, 2008 at 98.)
At trial, Jacobs introduced evidence that Giddens' fabricated a misconduct report against him, falsely accusing Jacobs of lying when he claimed that corrections officers had improperly confiscated his legal materials. (Trial Tr. Nov. 5, 2008 at 45.) On cross examination, Giddens admitted that his misconduct accusing Jacobs of fabricating the grievance was incorrect, although he testified it was a good faith mistake. (Trial Tr. Nov. 13, 2008 at 38.) Jacobs testified that Giddens had a bias against Jacobs, and that Giddens' actions were motivated by a personal animus against Jacobs, rather than by a desire to ...