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Rosado v. Kissinger

January 24, 2007

MARIA ROSADO, ET AL., PLAINTIFFS,
v.
RICHARD KISSINGER, JR., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Jones

ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is a Motion for Summary Judgment ("Motion"), filed by Defendants Martin Dragovich, Marilyn Brooks, Shirley Moore, Diane Lenig-Mushinski,*fn1 and Donald Kelchner ("Defendants") on December 1, 2006. (Rec. Doc. 112). For the reasons that follow, the Motion will be denied.

PROCEDURAL BACKGROUND:

On March 28, 2003, Plaintiff Maria Rosado ("Rosado") filed her first Complaint in this action. (Rec. Doc. 1). On January 9, 2004, Plaintiff Elizabeth Mitchell ("Mitchell") filed a similar Complaint, docketed with this Court at Civil No. 04-CV-42. On January 23, 2004, Rosado filed an Amended Complaint with leave of Court. (Rec. Doc. 51). The two cases were consolidated at Civil No. 03-535 on March 22, 2004.

On December 1, 2006, Defendants filed the instant Motion. (Rec. Doc. 112). As the Motion has been fully briefed by the parties, the Motion is, therefore, ripe for disposition.

STANDARD OF REVIEW:

Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a fact finder could draw from them. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).

Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. See id. at 325.

Rule 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. See Celotex, 477 U.S. at 322-23.

It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (citations omitted).

Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

STATEMENT OF RELEVANT FACTS:

Although the parties agree about the general circumstances that gave rise to the instant case, they disagree on several critical areas. In our disposition of the instant Motion, we will first examine the facts, undisputed and disputed, as presented by the parties. Then we will, where necessary, view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party, Plaintiffs, in our analysis of the pending Motion.

Plaintiffs Mitchell and Rosado (collectively "Plaintiffs") are former inmates who were incarcerated at the State Correctional Institution in Muncy, Pennsylvania ("SCI-Muncy"). (Rec. Docs. 114, ¶ 1; 125, ¶ 1; 128, ¶ 1). Defendants, Donald Kelchner ("Kelchner"), Martin Dragovich ("Dragovich"), Marilyn Brooks ("Brooks"), Shirley Moore ("Moore"), Diane Lenig-Mushinski ("LenigMushinski"), and Richard Kissinger ("Kissinger"), are present or former employees at SCI-Muncy. (Rec. Docs. 114, ¶ 2; 125, ¶ 2; 128, ¶ 2). In September 2001, Defendant Brooks transferred from SCI-Muncy, having been promoted to Superintendent at another State Correctional Institution. (Rec. Docs. 114, ¶ 3; 125, ¶ 3; 128, ¶ 3).

Prior to January 11, 2002, no sexual misconduct on the part of Corrections Officer Kissinger had been reported to Defendants. (Rec. Docs. 114, ¶ 7; 125, ¶ 7; 128, ¶ 7). Similarly, prior to January 11, 2002, neither the Department of Corrections Office of Professional Responsibility nor the SCI-Muncy Security Office had any record of complaints in which anyone -- inmate, staff, visitor, or relative of an inmate -- alleged that Kissinger had sexually harassed an inmate or had sexual contact with an inmate. (Rec. Docs. 114, ¶¶ 4-5; 125, ¶¶ 4-5; 128, ¶¶ 4-5). In fact, prior to February 17, 2002, the automated grievance tracking system at SCI-Muncy had no record of complaints in which anyone -- inmate, staff, visitor, or relative of an inmate -- alleged that Kissinger had sexually harassed an inmate or had sexual contact with an inmate. (Rec. Docs. 114, ¶ 6; 125, ¶ 6; 128, ¶ 6).

However, on Friday, January 11, 2002, inmate Danielle Wallace ("Wallace") filed a Form DC 135A Inmate Request to Staff Member ("Request") requesting transfer to another institution. (Rec. Docs. 114, ¶ 8; 125, ¶ 8; 128, ¶ 8). The Request voiced complaints concerning conditions in the Restricted Housing Unit ("RHU") ranging from mistreatment of inmates by corrections officers to a lack of heat in the RHU. (Rec. Docs. 114, ¶ 9; 125, ¶ 9; 128, ¶ 9). Notably, the Request also mentioned "one officer . . . ," "sexually and/or physically assaulting the females" in the RHU. (Rec. Docs. 114, ¶ 10; 125, ¶ 10; 128, ¶ 10). The Request did not specifically name the officer or any inmate(s) involved in the alleged assault(s). (Rec. Docs. 114, ¶ 11; 125, ¶ 11; 128, ¶ 11).

On Wednesday, January 16, 2002, the SCI-Muncy Security Office received a memo directing the commencement of an investigation of Wallace's RHU allegations in the Request. (Rec. Docs. 114, ¶ 12; 125, ¶ 12; 128, ¶ 12). Sometime thereafter, Security Lieutenant Lenig-Mushinski was assigned to conduct the investigation. (Rec. Docs. 114, ¶ 13; 125, ¶ 13; 128, ¶ 13). Upon initiation of the investigation, Security Lieutenant Lenig-Mushinski conducted several interviews with inmates concerning Wallace's RHU allegations. (Rec. Docs. 114, ¶ 14; 125, ¶ 14; 128, ¶ 14).

The parties disagree as to when Security Lieutenant Lenig-Mushinski began her interviews. Defendants claim that Security Lieutenant Lenig-Mushinski conducted so-called "verbal interviews" of inmates Wallace, Brianna Bullet ("Bullet"), and Michelle Harris ("Harris") sometime between January 16, 2002 and January 28, 2002. (See Rec. Doc. 114, ΒΆΒΆ 19-20). Further, Defendants assert that on or about January 28, 2002, Security Lieutenant Lenig-Mushinski's immediate superior, Security Captain Fultz, directed Lenig-Meshinski to conduct formal re-interviews of the inmates that she had verbally interviewed, and that on January 28, 2002, Lenig-Meshinski re-interviewed Wallace, ...


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