The opinion of the court was delivered by: Magistrate Judge Carlson
On May 17-18, 2010, Plaintiff's claims for Eighth Amendment violations for Defendants' alleged use of excessive force during a cell extraction were tried to a jury. On May 18, 2010, that jury returned a verdict in favor of Defendants on Plaintiff's excessive force claims. Plaintiff's related claims that the conditions of his confinement following his forcible extraction from his prison cell violated the Eighth Amendment were bifurcated prior to trial, and are presently being litigated, with a trial scheduled -- if necessary -- to take place in December 2010.
Following trial on Plaintiff's claims of excessive force, Plaintiff, acting pro se, filed two separate motions, which are pending before the Court.*fn1 In the first motion, Plaintiff claims that he has brought a claim for assault and battery against Defendants arising out of May 13, 2006 cell extraction, and he seeks permission to try this claim at the time he tries his bifurcated claim challenging the conditions of his confinement that followed the cell extraction. (Doc. 200.) In the second motion, Plaintiff seeks leave to represent himself pro se throughout the remainder of this litigation, including at trial, with any court-appointed counsel to serve in merely an advisory or stand-by capacity. (Doc. 202.) The motions are fully briefed and they will be denied.
A. Motion for a Trial on Plaintiff's Assault and Battery Claim
In the first motion, Plaintiff contends that he "repeatedly asked counsel to raise" a claim for assault and battery under Pennsylvania law as part of his first trial, but counsel failed to raise this issue in accordance with Spencer's requests. (Doc. 201, ¶ 1.) Plaintiff now seeks entry of an order authorizing him to litigate this claim as part of the second phase of this litigation concerning the conditions of his confinement.
Plaintiff correctly notes that he did include a claim for assault and battery as part of his second amended complaint (Doc. 81), and he maintains that the Court was aware that Plaintiff was advancing this state-law claim in addition to the claims brought for alleged violations of the Eighth Amendment. Plaintiff suggests that because the parties are continuing to litigate Plaintiff's claim regarding the conditions of his confinement following the May 13, 2006 cell extraction, the Court should also "allow litigation on the assault and battery claim and have the trials together because they derive from the same 5-13-06 incident." (Doc. 201, at 3.)
Although it is true that Plaintiff purported to bring a claim for assault and battery under Pennsylvania law as part of his second amended complaint, it appears that the parties did not address the claim in any meaningful way at any time prior to the first trial in this action. Notably, when the bifurcation of Plaintiff's excessive force and conditions of confinement claims was expressly discussed with counsel -- in Plaintiff's presence -- prior to the commencement of the May 17, 2010 trial, no party mentioned Plaintiff's assault and battery allegations. It was thus something of a surprise when, less than two weeks after losing on his claims of excessive force, Plaintiff sought to revive his assault and battery claim -- a claim that relates to the very same incident and conduct that was tried before a jury on May 17 and May 18. We are, of course, mindful that Plaintiff is alleging that his appointed counsel simply refused to advance this claim despite Plaintiff's repeated urging that he do so. However, whatever may have occurred between Plaintiff and his lawyer with respect to this matter is ultimately irrelevant, because the Defendants would be entitled to sovereign immunity on any claim for assault and battery arising out of Plaintiff's cell extraction, and thus there is no state-law claim for Plaintiff to advance in any event.*fn2
Sovereign immunity operates to bar claims asserted against the Commonwealth, its agencies, and Commonwealth employees who are acting within the scope of their office or employment. See 1 Pa. Cons. Stat. Ann. § 2310.5 ("Pursuant to section 11 of Article 11 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."). The General Assembly has declared only nine exceptions to the broad grant of sovereign immunity, none of which is implicated by Plaintiff's claims for assault and battery.*fn3
The Pennsylvania Department of Corrections is an agency of the Commonwealth of Pennsylvania, and is thus governed by 42 Pa. Cons. Stat. Ann. § 8522, which does not contain an exception for alleged willful misconduct. See Lavia v. Pennsylvania Dept. of Corrections, 234 F.3d 190, 195 (3d Cir. 2000); see also Holt v. Northwest Pennsylvania Training P'ship Consortium, Inc., 694 A.2d 1134, 1140 (Pa. Commw. Ct. 1997) ("[W]illful misconduct does not vitiate a Commonwealth employee's immunity because sovereign immunity protects a Commonwealth employee acting within the scope of his or her employment from liability even for intentional torts . . . .").
In his reply brief, Plaintiff endeavors to argue that the Defendants do not enjoy sovereign immunity because they were acting outside the scope of their duties when they allegedly assaulted him in his prison cell. (Doc. 213.) As an initial matter, Plaintiff's argument is predicated upon allegations of assault that are not only unproven, but which a jury has already considered and essentially rejected by finding in favor of Defendants on Plaintiff's claims that the corrections officers used excessive force in removing him from his prison cell. Furthermore, and even more fundamentally, it is beyond any reasonable dispute that Defendants were, in fact, acting within the scope of their employment when they removed Plaintiff from his cell on May 13, 2006. Under Pennsylvania law, an action falls within the scope of an employee's employment if it:
(1) is the kind that the employee is employed to perform;
(2) occurs substantially within the job's authorized time and space limits; (3) is motivated at least in part by a desire to serve the employer; and (4) if force was used by the employee against another, ...