Noncompliance Controls: Qualified Immunity and Pennsylvania Sovereign Immunity for a Single Pepper‑Spray Burst Against a Medically Restricted Inmate

Introduction

This commentary analyzes the Third Circuit’s non-precedential decision in Solomon Carter v. Wetzel (No. 22‑1643, Apr. 2, 2025), affirming summary judgment in favor of Acting Sergeant Douglas Polito after he deployed a single, three‑second burst of pepper spray at inmate Solomon Carter. The case sits at the intersection of Eighth Amendment excessive force doctrine, the “clearly established” prong of qualified immunity, and Pennsylvania’s sovereign immunity for Commonwealth employees acting within the scope of employment. It also addresses how factual “noncompliance” can become dispositive for multiple immunity defenses, and how internal prison medical directives interface with those doctrines.

The facts are stark: Carter, an asthmatic and “chemically sensitive” inmate flagged by a medical directive prohibiting use of pepper spray on him, confronted Polito in SCI‑Houtzdale’s common area. After Carter did not comply with commands—disputed as either “kneel and lie down” or “submit to handcuffing”—Polito administered a single short burst of pepper spray. Carter was immediately restrained and decontaminated. Carter sued under 42 U.S.C. § 1983 for Eighth Amendment violations and asserted state tort claims (negligence and intentional infliction of emotional distress). The district court granted summary judgment to Polito, invoking Pennsylvania statutory immunity for the state claims and, sua sponte, qualified immunity for the § 1983 claim. The Third Circuit affirmed.

Key issues included: (1) whether Carter forfeited appellate challenges to the immunity rulings after his appointed counsel withdrew and the opening brief was re-designated as an amicus brief; (2) whether a genuine dispute of material fact precluded summary judgment; (3) whether qualified immunity applied as of November 17, 2016 to a single, short OC deployment against a noncompliant, medically restricted inmate; and (4) whether Pennsylvania’s sovereign immunity shielded Polito from state tort liability despite the prison’s medical directive forbidding use of pepper spray on Carter. A dissent would have reversed on the Eighth Amendment claim and remanded the state claims.

Summary of the Opinion

• No forfeiture. Although the counseled opening brief (later treated as an amicus brief) did not press immunity arguments, Carter’s subsequent pro se brief did. The Court held there was no forfeiture under these unusual circumstances.
• No material factual dispute. There was a genuine dispute about the exact command (lie down versus submit to handcuffing), but it was immaterial because, under either version, the undisputed video evidence showed Carter did not comply fully: he was on one knee with hands on his leg rather than lying flat or positioned for handcuffing.
• Qualified immunity. Assuming arguendo an Eighth Amendment violation, the right Carter asserted—freedom from a quick, single pepper-spray burst when repeatedly noncompliant in a short period despite a medical restriction—was not clearly established on November 17, 2016. No Supreme Court or Third Circuit case, nor a robust consensus from other circuits, had clearly recognized that particularized right at that time.
• Pennsylvania sovereign immunity. Polito acted within the scope of his employment under Pennsylvania law, even though Carter had a medical directive barring OC use. Therefore, 1 Pa. Cons. Stat. § 2310 barred the state tort claims.
• Dissent. Judge Freeman would find that a kneeling inmate can be “submitting” to handcuffing; gratuitous force against a compliant, nonthreatening inmate was clearly established to be unlawful well before 2016; and, given the medical directive, Pennsylvania’s scope-of-employment immunity should not apply on these facts.

Detailed Analysis

Precedents Cited and Their Influence

• Qualified Immunity Framework
  • Mullenix v. Luna, 577 U.S. 7 (2015), and Pearson v. Callahan, 555 U.S. 223 (2009): Qualified immunity shields officials unless their conduct violates clearly established rights.
  • District of Columbia v. Wesby, 583 U.S. 48 (2018): A right is “clearly established” only if precedent places the question “beyond debate,” with a sufficiently clear foundation in pre-existing law.
  • City of Tahlequah v. Bond, 595 U.S. 9 (2021): Reinforces the “plainly incompetent or knowingly violate the law” threshold; underscores particularization of the right.
  • James v. New Jersey State Police, 957 F.3d 165 (3d Cir. 2020), and Bland v. City of Newark, 900 F.3d 77 (3d Cir. 2018): “Clearly established” may come from binding Supreme Court/Third Circuit authority or a robust consensus of persuasive appellate decisions.
  • Hope v. Pelzer, 536 U.S. 730 (2002): The “obviousness” pathway—some conduct is so egregious that general principles give fair warning even without factually identical precedent. The majority implicitly finds that this was not such a case.
• Pepper Spray and Prison Compliance Cases (persuasive authority at the time)
  • Danley v. Allen, 540 F.3d 1298 (11th Cir. 2008): Use of pepper spray, without more, against a noncompliant pretrial detainee did not violate the Fourteenth Amendment (later overruled in part on other grounds).
  • Burns v. Eaton, 752 F.3d 1136 (8th Cir. 2014): No Eighth Amendment violation where an aggressive inmate was warned he would be sprayed if he didn’t “catch the cuffs.”
  • Clement v. Gomez, 298 F.3d 898 (9th Cir. 2002): OC deployment did not violate the Eighth Amendment even when the inmate was coughing and gagging.
  • Soto v. Dickey, 744 F.2d 1260 (7th Cir. 1984): Mace could be used to compel segregated prisoners to submit to handcuffing for failing to obey direct orders.
  • Rivera v. Redfern, 98 F.4th 419 (3d Cir. 2024): Not clearly established (in the deliberate indifference context) that officers must remove an asthmatic bystander before deploying pepper spray nearby. The Third Circuit used this to underscore that, as of 2016, it was not “clearly established” that OC use in proximity to asthmatics was categorically unconstitutional.
• Eighth Amendment Excessive Force (merits backdrop)
  • Whitley v. Albers, 475 U.S. 312 (1986), and Hudson v. McMillian, 503 U.S. 1 (1992): The core merits standard—force violates the Eighth Amendment if applied “maliciously and sadistically” for the purpose of causing harm rather than in a good-faith effort to maintain or restore discipline.
  • Giles v. Kearney, 571 F.3d 318 (3d Cir. 2009): It is unlawful to use gratuitous force against a subdued inmate. The dissent relies on this principle; the majority deems it too general to clearly establish the particularized scenario here given the noncompliance captured on video.
  • Jacobs v. Cumberland County, 8 F.4th 187 (3d Cir. 2021): Discusses long-standing authority that prisoners may not be subjected to gratuitous force devoid of a legitimate penological purpose. The dissent leans on Jacobs; the majority emphasizes the 2016 temporal focus and factual particularization.
• Summary Judgment and Video Evidence
  • Anderson v. Liberty Lobby, 477 U.S. 242 (1986): A dispute is “genuine” if a reasonable jury could return a verdict for the nonmovant; “material” if it affects the outcome under governing law.
  • Matsushita, 475 U.S. 574 (1986): Nonmovant must do more than raise metaphysical doubt; the record must support a jury verdict.
  • Scott v. Harris, 550 U.S. 372 (2007): Courts may consider video evidence that blatantly contradicts a party’s version of events. The audio-less surveillance video here drove the “noncompliance” finding.
• Pennsylvania Sovereign Immunity and Scope of Employment
  • 1 Pa. Cons. Stat. § 2310; Pa. Const. art. I, § 11: Commonwealth employees have sovereign immunity when acting within the scope of their duties, subject only to narrow statutory exceptions (not applicable here).
  • McGuire ex rel. Neidig v. City of Pittsburgh, 285 A.3d 887 (Pa. 2022): Adopts Restatement (Second) of Agency § 228 factors for scope of employment: nature of the conduct, time/space limits, purpose to serve employer, and expectability of force.
  • Justice v. Lombardo, 208 A.3d 1057 (Pa. 2019): Trooper’s gratuitous aggression against a compliant, non-detained person could fall outside scope. The Third Circuit distinguishes it, finding the force here expectable given repeated disobedience and the general authorization to use OC to restore order.
• Appellate Procedure / Forfeiture
  • Barna v. Board of School Directors, 877 F.3d 136 (3d Cir. 2017): Forfeiture principles and the court’s willingness to consider pure legal issues under exceptional circumstances.
  • Mala v. Crown Bay Marina, 704 F.3d 239 (3d Cir. 2013): Courts may apply relevant legal principles for pro se litigants even when not perfectly articulated.
  • Fed. R. App. P. 28; 3d Cir. L.A.R. 28.1: Briefing standards and treatment of amicus briefs. The Court’s procedural ruling prevents forfeiture where an opening brief is re-designated as an amicus brief following counsel’s withdrawal.
  • 42 U.S.C. § 1997e(c)(1): PLRA provision permitting early resolution of prisoner suits; cited to support the magistrate judge’s sua sponte consideration of qualified immunity as an alternative basis.

Legal Reasoning

1. Forfeiture rejected. Because the opening brief, once counsel withdrew, was treated as an amicus submission, its omissions did not bind Carter. His pro se brief sufficiently raised immunity challenges with citations and record references, satisfying the minimal Rule 28 threshold.
2. Materiality of “noncompliance.” The panel accepted that a “genuine” factual dispute existed over the exact command—“kneel and lie down” or “submit to handcuffing.” But it held the dispute immaterial because, under both commands, the surveillance video showed Carter neither lying flat nor positioning for handcuffing. The noncompliance finding became a hinge fact permeating both immunity analyses.
3. Qualified immunity (2016).
   • Right framed with specificity. The panel assumed arguendo that the Eighth Amendment might be violated but asked whether, on November 17, 2016, it was clearly established that an inmate who is chemically sensitive and repeatedly noncompliant within minutes could not be subjected to a brief OC spray to gain compliance.
   • No controlling precedent or robust consensus. The Court found no Supreme Court or Third Circuit case, and no robust out-of-circuit consensus, holding that such pepper-spray use was unconstitutional in like circumstances. Cited cases (Seventh, Eighth, Ninth, Eleventh Circuits) permitted OC deployment to compel compliance.
   • Not an “obvious” case. Unlike the gratuitous beatings in Hudson or restraints in Hope, this was characterized as a limited, compliance-directed use of force during an active refusal to obey orders. As such, the panel concluded a reasonable officer could believe the conduct lawful, warranting qualified immunity.
4. Pennsylvania sovereign immunity (scope of employment).
   • Restatement § 228 applied. Polito was performing correctional duties in time and place, motivated at least in part to restore order, and the use of force was not unexpected given repeated disobedience in a short interval.
   • Medical directive not dispositive. Although the prison had flagged Carter as medically ineligible for OC, the Court treated that internal restriction as not negating “scope”; OC was generally authorized to maintain discipline, and its deployment after multiple ignored orders could not be said to lack any employer-serving purpose or be wholly unexpected.
   • Commonwealth employee nuance. For Commonwealth employees (as opposed to local agency employees), sovereign immunity is not vitiated by willful misconduct so long as the act is within scope and no statutory exception applies. Thus, Carter’s intentional tort theories remained barred.

Impact and Implications

• Qualified immunity in prison OC cases—level of generality matters.
  • Plaintiffs must identify pre-incident precedent (or an “obvious” rule) matching the specific context: brief OC deployment; noncompliance; temporal proximity; officer’s compliance-seeking motive; and, if relevant, the inmate’s medical vulnerability.
  • General principles (e.g., no gratuitous force against compliant inmates) may be insufficient if the record leaves room to characterize the inmate as still noncompliant at the moment of force.
  • The panel’s reliance on Rivera v. Redfern signals that pepper-spray proximity to asthmatics was not clearly established as unconstitutional even by 2024 in certain contexts, reinforcing the difficulty of the “clearly established” showing for incidents predating 2016.
• Video evidence can control materiality.
  • Under Scott v. Harris, video that contradicts a litigant’s position can foreclose disputes from being “material.” Here, the video’s depiction of posture (kneeling on one knee, hands resting) eclipsed disputes about the exact verbal command.
  • Practically, the difference between “kneeling” and “lying flat” or “presenting for cuffs” became outcome determinative for both immunities.
• Internal medical directives and state immunity.
  • For Commonwealth employees, violating an internal directive does not by itself move the conduct outside the scope of employment. Scope turns on the Restatement § 228 factors, not on internal policy compliance.
  • This has significant consequences for state-law tort claims in corrections settings: unless plaintiffs can show conduct that lacks any employer-serving purpose or is truly “unexpected” in the employer-employee relationship, sovereign immunity will often bar damages claims.
• Strategic litigation guidance.
  • To overcome qualified immunity in similar OC cases, plaintiffs should:
    • Develop strong record evidence of full compliance or submission at the moment of force, ideally corroborated by video and witness testimony.
    • Identify pre-incident caselaw recognizing OC use as unconstitutional in materially similar circumstances, or argue that the conduct is “obviously” unlawful under Hope.
    • Consider injunctive or declaratory relief when available (not barred by qualified immunity), though mootness can arise if circumstances change.
  • For Pennsylvania tort claims against Commonwealth officers:
    • Focus on “outside scope” arguments under § 228 (e.g., entirely personal motives, lack of any employer-serving purpose, truly unexpected force) rather than “willful misconduct.”
    • Note that internal directives are persuasive but not dispositive on scope; plaintiffs should marshal facts suggesting the force was gratuitous and divorced from restoration of order.
  • Appellate practice: Where counsel withdraws and briefing posture changes mid-appeal, ensure a pro se (or supplemental) brief squarely addresses all dispositive rulings. This decision demonstrates the Third Circuit’s willingness to reach such issues and avoid forfeiture by technicality.

Complex Concepts Simplified

• Qualified immunity. A defense shielding officials from damages unless, at the time they acted, it was clearly established that their specific conduct was unconstitutional. “Clearly established” usually requires prior cases with closely similar facts from controlling courts, or truly obvious illegality.
• “Clearly established” right—particularization. Courts do not define rights at a high level of generality (e.g., “no excessive force”). They ask whether existing law put the unlawfulness of this officer’s conduct in this factual scenario beyond debate.
• Summary judgment; “genuine” vs. “material.” A dispute is “genuine” if a jury could find for the nonmovant; “material” if it could affect the outcome under governing law. Video can render a dispute immaterial if it shows a dispositive fact (here, noncompliance).
• Pennsylvania sovereign immunity (Commonwealth employees). The Commonwealth and its employees are immune from state-law damages unless a statutory exception applies. Even intentional torts are immunized if the employee acted within the scope of employment (unlike local agency employees under the Tort Claims Act).
• Scope of employment (Restatement § 228). Conduct is within scope if it is of the kind the employee is hired to perform, occurs during authorized time and place, serves (at least in part) the employer, and, if force is used, the force is not unexpected in the role.
• “Block out.” A prison period when inmates may be in the common area for social/recreational activities. Carter’s confrontation with Polito occurred during such a period.

The Dissent and the Core Disagreement

Judge Freeman’s dissent underscores the pivotal factual and doctrinal fault lines. Factually, she views kneeling as a classic submission posture—i.e., Carter was complying. Doctrinally, she anchors the analysis in long-standing Eighth Amendment law forbidding gratuitous force against nonthreatening, compliant inmates (drawing from Giles and Jacobs), and she would hold that such a right was clearly established before 2016. On the state-law side, she reasons that gratuitous force, particularly in the face of a medical directive prohibiting OC, cannot be “expected” by the employer, thus defeating scope-of-employment immunity.

The majority’s response rests on two moves: (1) the video-supported conclusion that Carter remained noncompliant at the critical moment; and (2) the Supreme Court’s insistence on a narrowly particularized “clearly established” right. Those two moves together drive both the qualified immunity and sovereign immunity outcomes.

Conclusion

Although non-precedential, Carter v. Wetzel (Polito) crystallizes several important practical lessons. First, in prison force cases involving OC spray, a plaintiff’s ability to prove full compliance at the moment of force—often via video—may be outcome determinative across both federal and state claims. Second, the “clearly established” inquiry remains exacting: as of 2016, there was no controlling or robust consensus authority clearly forbidding a brief OC deployment to obtain compliance from a noncompliant inmate, even one with an asthma-based medical restriction. Third, Pennsylvania’s sovereign immunity for Commonwealth employees turns on scope-of-employment factors, not internal policy compliance; thus, violations of a medical directive do not automatically defeat immunity if the force was used to restore order in an expectable way.

The dissent highlights a continuing tension in qualified immunity jurisprudence—the battle over how narrowly to define the right and how to characterize the facts on compliance. That tension will continue to shape prisoner excessive force litigation. For now, this opinion reinforces a throughline: when video depicts ongoing noncompliance, limited compliance-directed uses of OC spray are likely to be shielded by qualified immunity for damages and, under Pennsylvania law, by sovereign immunity from state tort liability.