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Minor v. Kraynak

Commonwealth Court of Pennsylvania

February 17, 2017

Fred Minor, Appellant
v.
Sgt. Dave Kraynak, D.K. Starling, COI Walters, COI John Doe

          Submitted: December 2, 2016

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          RENÉE COHN JUBELIRER, JUDGE [1]

         Fred Minor (Minor) appeals, pro se, from the Order of the Court of Common Pleas of Schuylkill County (common pleas), sustaining the Preliminary Objections (POs) of Sgt. Dave Kraynak, D.K. Starling, COI Walters, and COI John Doe (together, Defendants). Minor is an incarcerated individual at the State Correctional Institution (SCI) at Frackville and Defendants are employees of the Department of Corrections (Department) at the same. (Compl. ¶¶ 3-7.) The Complaint asserts claims against all Defendants in their individual capacities under the Eighth and Fourteenth Amendments to the United States Constitution and for common law assault and battery. (Id. ¶¶ 48-56.) Common pleas sustained Defendants' POs alleging that Minor's common law claims are barred by sovereign immunity and that Minor failed to exhaust his administrative remedies. Because it is not clear that sovereign immunity applies, and because common pleas should have conducted additional fact-finding to determine whether Minor exhausted his administrative remedies, we vacate and remand for further proceedings.

         Minor's Complaint alleges as follows. On February 24, 2015, following an interview with the Security Lieutenant, Minor was escorted to the property room at SCI-Frackville. (Id. ¶ 10.) While handcuffed, Minor was locked in a cell in the reception area. (Id. ¶ 11.) Minor was wearing layers of heavy winter clothing and asked Kraynak to remove his handcuffs, "at least temporarily, " so that he could shed some of the clothing. (Id. ¶ 12.) Kraynak refused to remove the handcuffs and told Minor to "stop complaining." (Id. ¶ 13.) Minor is claustrophobic and "began to sweat profusely from the lack of ventilation, heat and clothing he was wearing." (Id. ¶ 14.) Minor yelled out the cell door for help, only to receive the response from Kraynak that "you sound like you're breathing to me." (Id. ¶¶ 15-16.) Seeking fresh air, Minor laid prostrate on the floor and placed his face near the space between the door and the floor. (Id. ¶ 17.) Kraynak and Doe entered the cell and forcibly picked Minor up off the floor. (Id. ¶ 18.) Minor told Kraynak and Doe that he "was having difficulties breathing and the floor was the only air coming into the room." (Id. ¶ 19.) Kraynak responded that he did not care and directed Minor to stay the "h[**]l off the floor." (Id. ¶ 20.)

         Kraynak and Doe left the cell, with Minor remaining handcuffed. (Id. ¶ 21.) Minor soon passed out and was awakened by kicks to his body by Kraynak and Starling. (Id. ¶¶ 23-24.) Doe was standing at the entrance of the cell, apparently standing guard. (Id ¶ 24.) Walters arrived and jumped on Minor and pulled a wool hat over Minor's face. (Id ¶ 25.) All four Defendants then began to punch Minor in his head, face, and body. (Id ¶¶ 26, 28.) Minor attempted to call for help, but his pleas were muffled by the hat pulled over his face. (Id ¶ 27.) After four to five minutes of beating, Defendants ran away. (Id ¶ 28.) Minor used a bar in the window to remove the hat from his face and saw a Lieutenant standing in the doorway of the cell. (Id ¶¶ 29-30.) Minor was then taken to the medical department where he was examined and photographed. (Id ¶ 32.) He was then taken to the Restricted Housing Unit and served with a disciplinary report. (Id ¶ 33.) Minor immediately requested an inmate grievance form so that he could report the incident. (Id ¶ 35.) He was told by an unnamed officer that he could not file such a grievance because Minor was served with a disciplinary report that day. (Id.) Minor requested an inmate grievance form the next day and was again told by an unnamed person that his "misconduct barred him from grieving the incident." (Id ¶ 36.)

         Kraynak later charged Minor with assault. (Id ¶ 34.) A hearing was held by a Department hearing examiner on March 3, 2015. (Id ¶ 37.) It was at this hearing where Minor completed a "misconduct inmate version form" alerting prison officials to the incident. (Id ¶ 38.) Minor admitted to the hearing examiner that he kicked Kraynak during the incident, but asserted that it was in self-defense to the beating he was receiving by Defendants and requested that the hearing officer view the video and audio footage of the incident. (Id ¶¶ 39-41.) Based on his admission of kicking Kraynak, Minor received 90 days in the Restricted Housing Unit. (Id ¶ 42.) Minor appealed the hearing examiner's determination to the Program Review Committee, and later to the Facility Manager, which were both denied. (Id ¶¶ 43-46.)

         The Complaint alleges that all four Defendants were employed at SCI-Frackville at all times relevant to the Complaint, and that while employed by the Commonwealth under the color of state law, acted outside the scope of their duties as employees of the Department. (Id ¶ 8.) The Complaint specifically alleges that Kraynak, Starling, and Walters inflicted unnecessary and wanton pain upon him in violation of his rights guaranteed under the Eighth and Fourteenth Amendments to the United States Constitution. (Id ¶¶ 48-49.) It is further alleged that Kraynak, Starling, and Walters, acting intentionally and maliciously, committed the torts of assault and battery.[2] (Id ¶¶ 50-51.) With regard to Doe, the Complaint alleges that Doe deprived Minor of his rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution by standing by and not intervening to prevent the assault upon Minor's person, and that by not intervening Doe acquiesced in the assault and battery committed by Kraynak, Starling, and Walters. (Id ¶¶ 52-53.) The Complaint avers that, as a result of the Defendants' actions, Minor suffers, and will continue to suffer, "physical and emotional pain, fear, shock, panic attacks, paranoia, headaches, emotional stress[, ] and constant body aches." (Id ¶ 59.) The Complaint alleges that none of the Defendants are protected by sovereign immunity and seeks declaratory relief, as well as compensatory, punitive, and nominal damages. (Id ¶¶ 56, 62-63.)

         Defendants filed two POs on December 4, 2015.[3] The POs make a series of factual allegations. Most notably, the POs allege that although Minor alleges that he was not given the opportunity to file a grievance, Minor filed approximately five grievances between February 24, 2015 and June 1, 2015. (POs ¶¶ 9-10.) Attached to the POs were a "Grievance Packet, " a spreadsheet showing grievances filed by Minor, and the unsworn declaration of the Department's custodian of grievance appeals purporting to show that Minor did not exhaust his administrative remedies. (Id, Exs. A-C.) Defendants further allege the following facts:

11. Grievance [No.] 554732 was completed on February 26, 2015 by Minor and received by the Institution on March 3, 2015.
. . .
13. Grievance [No.] 554732 is regarding the underlying action, where Minor names only Sgt. Kraynak, fails to assert financial relief and a cause of action.
14. On March 11, 2015, Grievance [No.] 554732 was denied by Captain Downs.
15. On March 20, 2015, Minor appealed the denial to the next level of appeal.
16. On March 31, 2015, the Superintendent upheld the original response.
17.Minor never appealed Grievance [No.] 554732 to final review.

(Id ¶¶ 11, 13-17 (record citations omitted).)

         Defendants' first PO is in the nature of a demurrer and alleges that Minor's assault and battery claims are barred by sovereign immunity. (Id ¶¶ 20-25.) Defendants' second PO asserts that Minor's tort and constitutional claims should be dismissed because he did not exhaust his statutory remedy as required by the federal Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), and its Pennsylvania counterpart, 42 Pa. C.S. §§ 6601 - 6608 (PLRA). (POs ¶¶ 26-40.)

         Minor filed a memorandum of law in response to the POs as required by local rule.[4] Therein, he argued that Defendants are not entitled to sovereign immunity because they acted outside the scope of their employment. (Memorandum of Law at 2-3.) Minor alleged that whether a person acted within the scope of employment is ordinarily a question for the jury and that Defendants' PO should be overruled because it is not free from doubt that he will not be able to prove Defendants acted outside the scope of their employment. (Id at 3.) Minor further argued that the exhaustion requirement only applies to his federal claims and not his state law tort claims. (Id at 4.) And further, Minor contended that even assuming that he was required to exhaust his remedies, the remedial scheme was not available to him. (Id at 5-6.) He claimed that he appealed Grievance No. 554735 to the Facilities Manager, not Grievance No. 554732, and was told that he was not allowed to file a grievance related to the February 24, 2015, incident because the incident related to an allegation of misconduct against him. (Id at 5.) Minor alleged that the Exhibits attached to the POs "show forgery and variance" and that the question of whether he exhausted his remedies is a question that should not be decided by preliminary objection. (Id at 6.)[5]

         Common pleas sustained Defendants' POs on March 14, 2016. With regard to Defendants' PO alleging sovereign immunity, common pleas noted that while sovereign immunity is an affirmative defense, it was appropriate to address the issue when raised as a preliminary objection because "under the [PLRA], 'the court shall dismiss prison conditions litigation at any time . . . if the court determines . . . the defendant is entitled to assert a valid affirmative defense, including immunity, which, if asserted, would preclude the relief, ' 42 Pa. C.S. § 6602(e)(2), "[6] and because Minor did not file preliminary objections to Defendants' POs. (Common pleas Op. at 3.) Common pleas held that Defendants were entitled to sovereign immunity, reasoning as follows.

[T]he Plaintiff does not allege that any of the exceptions apply, but asserts that the correctional officers were not acting within the scope of their duties when they used excessive force on him. In reviewing the matter, we note that he has not alleged that the correctional officers were acting from personal concerns. Also, they were clearly on duty and working within the prison walls when they allegedly took the action. The Defendants have set forth an explanation for their actions that is consistent with their duties in addressing order and discipline within the prison. Further, if the allegations set forth in the complaint are true, the actions, while not condoned, are not unexpected. See Robus [v. Pa. Dep't of Corr., No. 04-2175], 2006 WL 2060615, at *9 [(E.D. Pa. July 20, 2006)] ("[s]uch acts, while barbaric, do not represent such a great departure from the roughhewn reality of a correction officer's daily routine as to fall outside of the scope of . . . employment")

(Id at 4 (citations omitted).)

         With regard to Defendants' POs alleging the failure to exhaust administrative remedies, common pleas concluded that it was appropriate to resolve the factual dispute between the parties over whether Minor was able to file a grievance based on the documents attached to the POs. Common pleas concluded that Rule 1028 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P No. 1028, "requires courts to resolve factual issues related to the exhaustion of administrative remedies through review of relevant evidence." (Common pleas Op. at 7.) As to the substance of the PO, common pleas reasoned as follows.

[Minor] contends that he was informed that he could not file a grievance because the Department issued a misconduct related to the same incident. The Defendants, however, attached [Minor]'s grievance related to the incident to their preliminary objections. The Defendants also attach a spreadsheet of grievances that shows that [Minor] is aware of how to use the grievance system, but that he did not appeal this grievance through the three step process. [Minor] then asserts that he did attempt to file grievances but that he was informed that they were not received. He has not attached copies of these grievances to the complaint or asserted that they are available. Further, in his efforts to challenge the grievances that the Defendants attached to the preliminary objections, [Minor] notes that the appeal was of ...

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