REPORT AND RECOMMENDATION

LISA PUPO LENIHAN, Magistrate Judge.

I. RECOMMENDATION

Presently before the Court is Defendants' Motion for Summary Judgment. (ECF No. 98). For the reasons that follow, it is respectfully recommended that the Motion be granted in part and denied in part. It should be granted as to the deliberate indifference to serious medical needs claim (Counts 4 and 6) against Defendant Watson. The motion for summary judgment should be denied as to the excessive force claim1 (Count 1) and the assault and battery claim (Count 2) against Defendants Morris, Grim, Hollowood, Solomon, Lasko and Bisko, and it also should be denied as to the intentional infliction of emotional distress claim (Count 5) against Morris.

II. REPORT

A. Procedural History

Kevin Bates ("Plaintiff") is a pro se inmate currently incarcerated at the State Correctional Institution at Greene ("SCI-Greene"). He instituted this prisoner civil rights action pursuant to 42 U.S.C. § 1983 with the filing of a Motion for Leave to Proceed in forma pauperis on June 15, 2015 (ECF No. 1) and his Complaint was docketed on June 18, 2015. (ECF No. 3). Plaintiff originally named as Defendants the following SCI-Greene employees: Lieutenant A.J. Morris, Sergeant Gagnon, John Watson, L.P.N.,2 Dr. Frederick Wilson, Block Sergeant John Doe, Correctional Officers ("CO") John Does 1-5, and Medical Nurse John Doe.3 In sum, Plaintiff claimed that an intentional refusal to provide him with meals caused him to go into diabetic shock. While in that state, Lieutenant Morris and others used excessive force by applying an electronic body immobilizer device ("EBID") to remove him from his cell on July 8, 2013, and medical personnel acted with deliberate indifference to his medical needs. Plaintiff's Complaint alleged Eighth Amendment claims for excessive force, cruel and unusual punishment, unsafe conditions, retaliation and deliberate indifference, as well as state law claims of assault and battery, intentional infliction of emotional distress and negligence.

Defendants Morris, Gagnon and Watson moved to dismiss a number of Plaintiff's claims. (ECF No. 19). Ultimately, the Court adopted as its Opinion the undersigned Magistrate Judge's Report and Recommendation and granted in part and denied in part the motion to dismiss.4 (ECF Nos. 24, 26 and 31).

On October 14, 2016, Plaintiff filed an Amended Complaint, which is nearly identical to his original Complaint, except that he inserted the names of Sergeant Grim, CO Hollowood, CO Solomon, CO Lasko and CO Bisko, who initially were referred to as CO John Does 1-5.5 (ECF No. 42).

Defendant Wilson subsequently moved to dismiss the claims against him for allegedly creating unsafe conditions, deliberate indifference, negligence and inadequate medical care. (ECF No. 45). The Court entered an order which adopted the undersigned's Report and Recommendation and granted Wilson's motion to dismiss.6 (ECF Nos. 50 and 59).

The remaining claims in this suit are as follows: Eighth Amendment excessive force claim against Defendants Morris, Grim, Hollowood, Solomon, Lasko and Bisko (Count 1); Eighth Amendment claim for deliberate indifference to serious medical needs against Defendant Watson (Counts 4 and 6); state law intentional infliction of emotional distress claim against Morris (Count 5);7 and state law assault and battery claim against Morris, Grim, Hollowood, Solomon, Lasko and Bisko (Count 2).8

On December 26, 2017, Defendants Morris, Watson, Grim, Hollowood, Solomon, Lasko and Bisko filed the pending summary judgment motion, supporting brief and appendix. (ECF Nos. 98, 99, 100, 101). Plaintiff filed a response in opposition to Defendants' Motion on March 16, 2018. (ECF Nos. 107, 108). The Motion is now ripe for review.

B. Factual Background9

On July 8, 2013, Sergeant Grim notified Lieutenant Morris that Plaintiff was unresponsive in his cell. (ECF No. 100-2 at 2; ECF No. 100-3, ¶ 6). After an officer was given a handheld video camera and instructed to turn it on, Lieutenant Morris ordered COs Hollowood, Solomon, Lasko and Bisko to enter Plaintiff's cell to secure him. (ECF No. 100-2 at 2; ECF No. 100-3, ¶ 7). According to the written reports by those involved, Plaintiff was non-compliant, combative and resisted the COs' attempts to handcuff him and apply leg restraints. (ECF No. 100-6 at 1; ECF No. 100-7 at 1; ECF No. 100-8 at 1; ECF No. 100-10 at 1). Sergeant Grim wrote that he used the EBID on Plaintiff two times because he was aggressive and resistant. (ECF No. 100-9 at 1). In addition, CO Hollowood believed that Plaintiff would spit on the staff because he was resistant, so he placed a spit mask on him. (ECF No. 100-10 at 1). The written reports of the incident specify that the application of the EBID was an unplanned use of force which was necessary because Plaintiff would not comply with the COs' attempts to restrain him. (ECF No. 100-2 at 2; ECF No. 100-7 at 1; ECF No 100-9 at 1).

Contrary to the written reports, the video is unclear as to what occurred when the COs attempted to secure Plaintiff. Initially, Plaintiff was lying on a bed positioned along the wall of his cell, and Lieutenant Morris ordered the COs to enter and secure him. (ECF No. 100-510 at 3:22:00-3:22:04). Four COs entered the cell and stood in front of Plaintiff's bed with their backs to the camera such that their bodies almost completely blocked the view of Plaintiff. Id. at 3:22:05-3:22:12. Lieutenant Morris remained in the background and was not involved in attempting to physically secure Plaintiff, but he is seen and heard on the video directing the COs while they handcuffed and shackled Plaintiff.

The COs stated "stop resisting," but it was impossible to see what Plaintiff was doing and whether he resisted their efforts to secure his arms and legs. (ECF No. 100-5 at 3:22:12-3:22:19). Sergeant Grim was directed to enter the cell and place the EBID on Plaintiff, and he positioned himself between the four COs who were standing next to Plaintiff's bed. Id. at 3:22:22-3:22:50. Lieutenant Morris instructed Plaintiff not to resist the officers or the EBID would be used against him. Id. at 3:22:52-3:22:55. At that point, all five COs still had their backs to the camera, which obscured the view of Plaintiff and made it impossible to see whether he was aggressive and resistant. Sergeant Grim then used the EBID on Plaintiff, and he appeared to move around on the bed, but his body was not entirely visible. Id. at 3:23:10-3:23:25. It also is unclear whether Plaintiff attempted to spit on the officers, but one of the COs placed a spit hood on him. Id. at 3:24:33. Eventually, the COs assisted Plaintiff to his feet and escorted him out of the cell. Id. at 3:25:00-3:25:19. The video does not show any medical personnel present during the incident in Plaintiff's cell, but Nurse Watson's report indicates that she arrived to Plaintiff's cell block after receiving a call that an inmate was unresponsive. (ECF No. 100-4).

The COs escorted Plaintiff to the triage room on the cell block, where he was evaluated by the nursing staff. (ECF No. 100-2 at 2; ECF No. 100-3, ¶ 15; ECF No. 100-5 at 3:27:59). Nurse Watson tested Plaintiff's blood sugar level, found that it was low and administered glucose gel, which Plaintiff swallowed without difficulty. (ECF No. 100-4; ECF No. 100-5 at 3:28:00-3:28:26, 3:29:14-3:29:25; ECF No. 100-11). Four subsequent tests showed that Plaintiff's blood sugar level increased, and Plaintiff reported feeling better, but Nurse Watson ordered that he be held for observation. (ECF No. 100-4; ECF No. 100-11). Nurse Watson did not observe that Plaintiff had any injuries from application of the EBId. (ECF No. 100-11). Plaintiff was not issued a misconduct for the events of July 8, 2013, because it was determined that his behavior was related to a medical condition. (ECF No. 100-2 at 2).

C. Standard of Review

Summary judgment will be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). To withstand summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson, 477 U.S. at 248. When considering a summary judgment motion, the court may not weigh the evidence or make credibility determinations, but rather is limited to deciding whether there are any disputed issues that are both genuine and material. Id.

If the moving party carries its burden under Rule 56, the non-movant must identify "specific facts which demonstrate that there exists a genuine issue for trial." Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Further, the non-moving party cannot rely on unsupported assertions, conclusory allegations or mere suspicions in attempting to survive summary judgment. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex, 477 U.S. at 325). The non-movant must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the nonmoving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n.3 (3d Cir. 1998) (citation omitted).

D. Analysis

By itself, 42 U.S.C. § 1983 does not create any rights, but rather provides a remedy for violations of those rights created by the Constitution or federal law. Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979). Here, Plaintiff claims that Defendants violated his Eighth Amendment rights in several respects when he was removed from his cell on July 8, 2013. See ECF No. 42, ¶¶ 94, 100, 104; ECF No. 108 at 3-4. He also claims that Defendants assaulted and battered him and caused him to suffer emotional distress. See ECF No. 42, ¶¶ 96, 102; ECF No. 108 at 5. Defendants argue that they are entitled to summary judgment because Plaintiff has failed to establish an Eighth Amendment claim against them, and the Court should decline to exercise jurisdiction over his state law claims. See ECF No. 99 at 3-9. Alternatively, Defendants assert that Plaintiff's state law claims are barred by sovereign immunity. See Id. at 9-11.

1. Eighth Amendment Claim for Excessive Force

Under the Eighth Amendment's Cruel and Unusual Punishment Clause, inmates are protected against the "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 319 (1986). The central question in evaluating an excessive force claim is "whether force was applied in a good-faith effort to maintain and restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992). Although the Eighth Amendment protects inmates against cruel and unusual punishment, it "does not protect an inmate against an objectively de minimis use of force." Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir. 2002).

Where, as here, the pertinent events are captured on video, courts should not rely on the parties' characterizations of the events, but rather should view the facts as they are depicted on the videotape. Scott v. Harris, 550 U.S. 372, 380-81 (2007). Summary judgment is appropriate if, viewing the evidence in the light most favorable to the plaintiff, no reasonable fact finder could view the video of the incident and determine that the defendants acted maliciously and sadistically. Tindell v. Beard, 351 F. App'x 591, 596 (3d Cir. 2009). In making this determination, courts consider the following relevant factors: "(1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them; and (5) any efforts to temper the severity of a forceful response." Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley, 475 U.S. at 321).

Summary judgment is not appropriate on Plaintiff's excessive force claim against Defendants Morris, Grim, Hollowood, Solomon, Lasko and Bisko. Plaintiff claims that he was not aggressive toward the COs, nor could he have refused to comply with their orders because he was in diabetic shock, thus use of the EBID was unnecessary and constituted excessive force. (ECF No. 42, ¶¶ 37-41; ECF No. 100-1 at 48:5-49:6, 50:18-50:25; ECF No. 108 at 3). Defendants contend that Plaintiff was non-compliant with their orders, resisted them and acted aggressively, thus use of the EBID was necessary to handcuff and shackle him and remove him from his cell. (ECF No. 99 at 5).

There is a genuine dispute in this case as to whether Plaintiff was aggressive and resisted the COs and thus whether use of the EBID was necessary. See Whitley, 475 U.S. at 321 (specifying that the court should consider, inter alia, the need for the application of force, the relationship between the need and the amount of force used and any efforts to temper the severity of the force used).11 The COs' written reports of the incident indicate that Sergeant Grim used the EBID on Plaintiff because he was non-compliant and resisted their attempts to handcuff and shackle him. See ECF Nos. 100-6 at 1; 100-7 at 1; 100-8 at 1; 100-9 at 1; 100-10 at 1. However, the video shows that all five COs had their backs to the camera during the incident, which obscured the view of Plaintiff and made it impossible to see whether he was aggressive and resistant before the EBID was used on him. See generally ECF No. 100-5; McDowell v. Sheerer, 374 F. App'x 288, 292-93 (3d Cir. 2010) (summary judgment not appropriate on excessive force claim where video showed that the plaintiff's body was completely obscured by the bodies of at least five officers while they handcuffed and shackled him).

In sum, the video evidence does not conclusively establish what occurred, and it is for the fact finder to evaluate the entirety of the parties' contentions as to what happened. Under these circumstances, and in light of the conflicting accounts, whether the use of force was necessary as Defendants argue, or unnecessary and excessive as Plaintiff contends, cannot be determined as a matter of law. Accordingly, Defendants' motion for summary judgment should be denied on Plaintiff's excessive force claim.

2. Eighth Amendment Claim for Deliberate Indifference to Serious Medical Needs

The Eighth Amendment imposes a duty on prison officials to provide "humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and citations omitted). In the context of medical treatment, an inmate must prove that: (1) he was suffering from a "serious medical need;" and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Estelle v. Gamble, 429 U.S. 97, 106 (1976).

As to the first element, a medical need is "serious" if it is "one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). The second element of deliberate indifference may be shown by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, a denial of prescribed medical treatment, or a denial of reasonable requests for treatment that results in suffering or risk of injury. Id. at 346-47 (citations omitted). A prisoner must demonstrate that the official acted with more than mere negligence. Estelle, 429 U.S. at 105-106. To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837.

Plaintiff contends that Nurse Watson knew that he was diabetic, yet she was deliberately indifferent to the fact that he may have been in diabetic shock and did nothing to stop the COs' alleged excessive use of force against him when they removed him from his cell. (ECF No. 42, ¶¶ 42, 43, 45, 100, 104; ECF No. 100-1 at 62:3-62:16; ECF No. 108 at 4). Plaintiff claims that Nurse Watson was "cognizant" that Plaintiff was diabetic because she had previously treated him, (ECF No. 108 at 4), but he produced no evidence to substantiate that claim.

Even if Nurse Watson knew that Plaintiff was diabetic, she did not refuse to provide him with medical care or otherwise act in a manner to indicate that she knew of and disregarded an excessive risk to his health or safety. When Plaintiff was brought to the triage room, Nurse Watson tested his blood sugar level, found that it was low and administered him glucose gel, which he swallowed without difficulty. (ECF No. 100-4; ECF No. 100-5 at 3:28:00-3:28:26, 3:29:14-3:29:25; ECF No. 100-11). Nurse Watson tested Plaintiff's blood sugar four more times and administered additional glucose gel. (ECF No. 100-4; ECF No. 100-11). Although the subsequent tests showed that Plaintiff's blood sugar level increased and that he reported feeling better, Nurse Watson ordered that he be held for observation. Id.

The evidence of record indicates that Nurse Watson took steps to promptly and appropriately treat Plaintiff's low blood sugar. Plaintiff has not pointed to any contradictory evidence. Accordingly, Defendant Watson's motion for summary judgment on Plaintiff's Eighth Amendment deliberate indifference claim should be granted.

3. State Law Claims

Plaintiff asserts an assault and battery claim against Defendants Morris, Grim, Hollowood, Solomon, Lasko and Bisko and an intentional infliction of emotional distress claim against Morris. Defendants contend that they are entitled to summary judgment on these claims because they are protected by sovereign immunity. (ECF No. 99 at 9-11).

Under Pennsylvania law, "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." 1 PA. CONS. STAT. § 2310. Sovereign immunity applies to intentional as well as negligent torts. Story v. Mechling, 412 F.Supp.2d 509, 518-19 (W.D. Pa. 2006). There are, however, nine exceptions to sovereign immunity: (1) vehicle liability; (2) medical/professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoid and vaccines. 42 PA. CONS. STAT. § 8522(b).

Although Plaintiff's state law claims against Defendants are not included in the categories for which sovereign immunity has been waived, Defendants are only entitled to immunity if they acted within the scope of their employment during the events that occurred on July 8, 2013. See 1 PA. CONS. STAT. § 2310. Under Pennsylvania law, conduct falls within the scope of employment if it "is of a kind and nature that the employee is employed to perform; it occurs substantially within the authorized time and space limits; it is actuated, at least in part, by a purpose to serve the employer; and if force is intentionally used by the employee against another, it is not unexpected by the employer." Strothers v. Nassan, Civ. No. 08-1624, 2009 WL 976604, at *8 (W.D. Pa. Apr. 9, 2009) (quoting Natt v. Labar, 543 A.2d 223, 225 (Pa. Commw. Ct. 1988)).

Here, Defendants contend that they were acting within the scope of their employment, thus they are entitled to sovereign immunity and summary judgment should be granted in their favor on Plaintiff's state law claims. (ECF No. 99 at 10-11). As previously discussed, the video is unclear whether Plaintiff was non-compliant and resistant such that use of the EBID was warranted. Consequently, a genuine issue of material fact remains regarding whether or not Defendants were acting within the scope of their employment when the EBID was used on Plaintiff. See Savage v. Judge, 644 F.Supp.2d 550, 566 (E.D. Pa. 2009) (citing Strothers, 2009 WL 976604, at *8 (explaining that the question of whether an individual has acted within the scope of his employment can be decided as a matter of law by a court only when the facts and the inferences to be drawn from them are not in dispute; it is ordinarily a question of fact for the jury to decide)). For this reason, Defendants' motion for summary judgment on Plaintiff's state law claims of assault and battery and intentional infliction of emotional distress should be denied.

III. CONCLUSION

For the reasons set forth above, it is respectfully recommended that Defendants' Motion for Summary Judgment (ECF No. 98) be granted in part and denied in part. The motion for summary judgment should be granted as to the deliberate indifference to serious medical needs claim (Counts 4 and 6) against Defendant Watson. The motion for summary judgment should be denied as to the excessive force claim12 (Count 1) and the assault and battery claim (Count 2) against Defendants Morris, Grim, Hollowood, Solomon, Lasko and Bisko, and it also should be denied as to the intentional infliction of emotional distress claim (Count 5) against Morris.

In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, Plaintiff shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.