           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Thomas Anderson,                                :
                              Petitioner        :
                                                :
                  v.                            :
                                                :
Superintendent Coleman; Deputy                  :
Armel; Captain Trempus; Lieutenant              :
Bursey; Officer Shipley; Officer                :
Jennings; Doctor Herbic; Mrs. Berrier           :
Mrs. Mankey, Unit Manager; Captain              :
PA State Trooper B Area 4,                      : No. 179 M.D. 2016
                          Respondents           : Submitted: October 21, 2016


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                       FILED: November 14, 2016


               Before this Court in our original jurisdiction are preliminary
objections filed by Respondents Superintendent Coleman, Deputy Superintendent
Armel, Intelligence Security Captain Trempus, Corrections Officers Bursey,
Shipley and Jennings, Health Care Administrator Berrier, Unit Manager Mankey
(Corrections Respondents) and Dr. Herbik1 (collectively, Respondents) to an

       1
         Dr. Herbik, incorrectly identified in the petition for review as Dr. Herbic, is separately
represented in this action and, therefore, filed his own separate preliminary objections. We note
that while the caption of the amended petition lists a “Captain PA State Trooper B Area 4” as a
respondent and the body of the petition refers to a “Defendant Epstein” allegedly with the
(Footnote continued on next page…)
amended petition for review filed by pro se petitioner Thomas Anderson
(Anderson) seeking declaratory relief and compensatory damages for various
constitutional claims and intentional torts.2            For the reasons that follow, the
preliminary objections are sustained.


               Anderson, an inmate, brought this action for an incident that occurred
when he was incarcerated at SCI Fayette.3 According to his amended petition,4 on
January 14, 2011, Anderson was involved in a physical altercation at SCI Fayette
with Officer Shipley and both individuals fell to the ground. Twelve unnamed
corrections officers responded to the altercation and punched and kicked Anderson
while handcuffing him behind his back. While the other officers held Anderson
down, Officer Shipley struck Anderson in his face with a closed fist approximately


(continued…)

Pennsylvania State Police, it does not appear that any individuals from the State Police have been
properly served and no counsel has entered an appearance on behalf of any State Police
Respondent.

       2
         Because Anderson failed to file an appropriate brief in opposition to either set of
preliminary objections, despite being granted an extension of time in which to do so, on October
17, 2016, we issued an order stating we would consider the Respondents’ preliminary objections
without Anderson’s brief.

       3
        Anderson filed his initial petition for review in the Court of Common Pleas of Fayette
County (lower court) on January 16, 2013, and an amended petition on February 24, 2014. On
March 1, 2016, the lower court issued an order transferring the matter to this Court because the
Respondents are state employees.

       4
         When addressing preliminary objections, we are “required to accept as true the well-
pled averments set forth in the . . . complaint, and all inferences reasonably deducible
therefrom.” Pa. State Lodge, Fraternal Order of Police v. Department of Conservation &
Natural Resources, 909 A.2d 413, 415 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007).


                                                2
35 to 45 times. Lieutenant Bursey witnessed the incident and failed to intervene.
Anderson also alleges that Officer Jennings then lifted him by his arms and
dragged him throughout the institution.


               Once in the medical department, Anderson told Administrator Berrier
that he had been assaulted.     Lieutenant Bursey and Officer Jennings verbally
abused and threatened him. Anderson told Dr. Herbik that he had been assaulted,
but Dr. Herbik failed to report the assault and refused to examine Anderson. Dr.
Herbik instructed a physician’s assistant to place stitches in Anderson’s eye and
cheek areas.


               Anderson claims he was then placed in the restricted housing unit
(RHU) without a blanket or mattress and with no clothing other than a suicide
gown.    Anderson contacted Superintendent Coleman, Deputy Superintendent
Armel and Captain Trempus via inmate request slips, advising them that he had
been assaulted and was forced to reside in a bare cell without protection from the
cold, but they all refused to answer Anderson’s request slips. Anderson filed
numerous sick call requests complaining of pain in his neck, back, ribs and face
and severe headaches; however, medical personnel did not perform any physical
examinations and only prescribed Tylenol for his pain.


               Anderson alleges that Officer Shipley’s actions amount to excessive
force and cruel and unusual punishment in violation of the Eighth Amendment to
the United States Constitution, as well as state law tort claims of assault and
battery. He alleges that Officer Jennings’ actions and Lieutenant Bursey’s failure
to intervene also constitute cruel and unusual punishment. Anderson claims that

                                          3
Respondents Coleman, Trempus and Armel’s failure to take disciplinary action or
otherwise curb the pattern of physical abuse by the officers constitutes deliberate
indifference in violation of the Eighth Amendment, and that their failure to remove
him from the RHU was a violation of his Eighth Amendment right to be free from
cruel and unusual punishment. Finally, Anderson alleges that Dr. Herbik and
Administrator Berrier’s failure to notify prison officials about the assault
constitutes cruel and unusual punishment, and that Dr. Herbik failed to provide
him with medical care in violation of the Eighth Amendment.


               The Corrections Respondents filed preliminary objections contending
that all of Anderson’s federal claims against them should be dismissed with
prejudice because he failed to exhaust his administrative remedies pursuant to the
Department of Corrections’ (Department) Inmate Grievance Review System
(Grievance Policy), DC-ADM 804.5 An affidavit was attached to their preliminary
objections indicating that Anderson did not file any grievances related to the
allegations in the amended complaint, and none of the grievances he did file during
the relevant time period were exhausted to final review.


               The Corrections Respondents also filed a preliminary objection to
Anderson’s intentional state tort claims against Officer Shipley, the officer alleged
to have beaten him, because Officer Shipley is immune from suit under the
Sovereign Immunity Act.6 See LaFrankie v. Miklich, 618 A.2d 1145, 1149 (Pa.

      5
         The Department’s Administrative Directives, including DC-ADM 804, are available at
http://www.cor.pa.gov.

      6
          42 Pa. C.S. §§ 8521–8528.


                                            4
Cmwlth. 1992). Finally, they argue that the federal civil rights claims brought
pursuant to 42 U.S.C. § 1983 must fail because Anderson has not demonstrated
that Respondents Coleman, Armel, Trempus and Mankey were personally involved
in, had actual knowledge of or acquiesced in the conduct of which Anderson
complains. See Rizzo v. Good, 423 U.S. 862 (1976); Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988).


               Dr. Herbik7 filed separate preliminary objections asserting that the
claims against him should also be dismissed for failure to exhaust administrative
       7
          The lower court transferred this matter to this Court because the Respondents were
Commonwealth employees. Dr. Herbik’s brief notes that he was not an employee of the
Commonwealth, but of a private company that contracted with the Commonwealth to provide
medical services within state correctional facilities. Though it makes no difference to our
analysis, we note that an “employee” is defined for purposes of tort immunity as:

               Any person who is acting or who has acted on behalf of a
               government unit whether on a permanent or temporary basis,
               whether compensated or not and whether within or without
               territorial boundaries of the government unit, including any
               volunteer fireman and any elected officer, member of a governing
               body or other person designated to act for the governing unit.
               Independent contractors under contract to the government unit and
               their employees and agents and persons performing tasks over
               which the government unit has no legal right or control are not
               employees of the government unit.

42 Pa. C.S. § 8501. Under this definition, there is no requirement that a person be an employee
in the traditional sense, but only that the employee is acting on behalf of the governmental entity.
In Walls v. Hazleton State Hospital, 629 A.2d 232 (Pa. Cmwlth. 1993), an action was brought by
a patient alleging that he received negligent medical care from a doctor employed by a medical
group retained as an independent contractor to provide medical services to a state hospital.
While the doctor was not a traditional “employee,” he was held to be an employee of a
Commonwealth party because he fell within the definition as “a person who acted on behalf of
the government unit whether on a temporary or permanent basis.” See also County of Schuylkill
v. Maurer, 536 A.2d 479 (Pa. Cmwlth. 1988).


                                                 5
remedies, and that Anderson’s claims are legally and factually insufficient to make
out a claim for cruel and unusual punishment or deliberate indifference.8


               Regarding the Respondents’ preliminary objection to dismiss the
amended petition due to Anderson’s failure to exhaust his administrative remedies
before bringing an action alleging cruel and unusual punishment under the Eighth
Amendment to the United States Constitution, the federal Prison Litigation Reform
Act (PLRA) states that exhaustion of administrative remedies is mandatory when
federal claims are asserted. See 42 U.S.C. § 1997e; Kittrell v. Watson, 88 A.3d
1091, 1095 (Pa. Cmwlth. 2014). Exhaustion must also be “proper” and “[p]roper
exhaustion demands compliance with an agency’s deadlines and other critical
procedural rules because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.” Woodford v.
Ngo, 548 U.S. 81, 90-91 (2006).


               The administrative remedies available at the state prison level are set
forth in the Department’s Grievance Policy and regulations. Specifically, “Section
93.9 [of the Department’s regulations] establishes an inmate grievance system that
provides a forum for prison inmates to complain to the Department about problems
that arise ‘during the course of confinement.’ 37 Pa. Code § 93.9.” Morgalo v.
Gorniak, 134 A.3d 1139, 1150 (Pa. Cmwlth. 2016) (quoting McCray v.


       8
         “The court will sustain a preliminary objection if, after accepting all well-pleaded facts
as true and accepting all reasonable inferences that follow from those facts, the law will not
allow recovery. . . . Only in circumstances that are free from doubt may preliminary objections
be sustained.” Humphrey v. Department of Corrections, 939 A.2d 987, 990 n.4 (Pa. Cmwlth.
2007), aff’d, 955 A.2d 348 (Pa. 2008) (citations omitted).


                                                6
Department of Corrections, 872 A.2d 1127, 1131 (Pa. 2005)). The Department’s
Grievance Policy and Inmate Handbook provide that:

             the inmate grievance process begins with the filing of a
             grievance with the Facility Grievance Coordinator. . . .
             ‘The [process] requires an inmate who has received an
             initial determination on his grievance to appeal to the
             Superintendent and, thereafter, seek final review with
             [the Department]. If the inmate fails to complete each of
             these steps, he fails to exhaust his administrative
             remedies.’ Kittrell v. Watson, 88 A.3d 1091, 1095 (Pa.
             Cmwlth. 2014).


Morgalo, 134 A.3d at 1150-51.


             Here, there is an affidavit attached to the Corrections Respondents’
preliminary objections stating that Anderson has not filed any grievances related to
the underlying incident. Anderson’s amended petition also fails to allege that he
filed a grievance pertaining to his federal claims, he appealed a grievance officer’s
decision to final review, or even that he is appealing any Department order to this
Court, all of which must occur before he is able to maintain his federal claims.
Because Anderson has failed to exhaust all administrative remedies, his Section
1983 claims against Respondents for cruel and unusual punishment and deliberate
indifference under the Eighth Amendment to the United States Constitution are
dismissed. See Humphrey v. Department of Corrections, 939 A.2d 987, 993 (Pa.
Cmwlth. 2007), aff’d, 955 A.2d 348 (Pa. 2008) (citing St. Clair v. Board of
Probation and Parole, 493 A.2d 146, 152-53 (Pa. Cmwlth. 1985)).




                                         7
              The Corrections Respondents also assert that Officer Shipley is
immune from liability for the intentional torts of assault and battery. It is well
established that “when an employee of a Commonwealth agency was acting within
the scope of his or her duties, the Commonwealth employee is protected by
sovereign immunity from the imposition of liability for intentional tort claims.”
LaFrankie, 618 A.2d at 1149 (citing Yakowicz v. McDermott, 548 A.2d 1330 (Pa.
Cmwlth. 1988)); see also Holt v. Northwest Pennsylvania Training Partnership
Consortium, Inc., 694 A.2d 1134, 1140 (Pa. Cmwlth. 1997) (stating “willful
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 acts which cause
emotional distress.”). Because Officer Shipley is immune from liability, we will
grant the Commonwealth Respondents’ preliminary objection and dismiss
Anderson’s intentional tort claims.


              Accordingly, the Respondents’ preliminary objections are sustained
and Anderson’s petition for review is dismissed.9



                                           ___________________________________
                                           DAN PELLEGRINI, Senior Judge




       9
          Because of the manner in which we resolve this matter, we do not reach the remainder
of the preliminary objections raised by the Respondents.

                                              8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Thomas Anderson,                          :
                         Petitioner       :
                                          :
               v.                         :
                                          :
Superintendent Coleman; Deputy            :
Armel; Captain Trempus; Lieutenant        :
Bursey; Officer Shipley; Officer          :
Jennings; Doctor Herbic; Mrs. Berrier     :
Mrs. Mankey, Unit Manager; Captain        :
PA State Trooper B Area 4,                :
                          Respondents     : No. 179 M.D. 2016




                                      ORDER


            AND NOW, this 14th day of November, 2016, the preliminary
objections filed by the Corrections Respondents and Respondent Dr. Herbik are
sustained and the petition for review filed by Thomas Anderson is dismissed.



                                        ___________________________________
                                        DAN PELLEGRINI, Senior Judge
