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Moore v. Lamas

United States District Court, M.D. Pennsylvania

September 21, 2017

THOMAS MOORE, Plaintiff,
MORIROSA LAMAS, et al., Defendants.

          Mehalchick Magistrate Judge.



         Here the Court considers the Report and Recommendation concerning the issue of exhaustion of administrative remedies in the above-captioned action. (Doc. 93.) After conducting two evidentiary hearings and considering extensive post-hearing briefing and related documents, Magistrate Judge Karoline Mehalchick concluded that Plaintiff's Amended Complaint (Doc. 28) should be dismissed with prejudice for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act (“PLRA”). (Doc. 93 at 15.)

         Plaintiff timely filed his objections to the Report and Recommendation and supporting brief on June 6, 2017. (Docs. 94, 95.) Multiple responsive filings followed. (Docs. 96, 97, 101.) After carefully considering the matters raised with Plaintiff's objections, the Court adopts the Report and Recommendation in part but concludes that Defendants have not met their burden of showing that all of Plaintiff's claims must be dismissed for failure to exhaust administrative remedies.

         Plaintiff's prolific filings to prison/Department of Corrections (“DOC”) officials regarding multiple claims and the unsettled state of the law on some relevant issues complicate the presentation of facts and analysis of the exhaustion of administrative remedies at issue in this case. However, the importance of the exhaustion inquiry and the record created in this matter counsels against truncated consideration of the evidence and issues presented. For the sake of more concise presentation of key facts, the Court uses appendixes to present details relevant to pertinent matters outlined in the Background section of the Memorandum.

         I. Background

         A. Procedural Background

         Plaintiff initiated this 42 U.S.C. § 1983 action pro se on February 6, 2012, naming as Defendants SCI-Rockview Unit Manager Kenny Granlund, Warden Marirosa Lamas, and Deputy Warden Jeff Horton.[1] (Doc. 1.) Plaintiff's allegations of wrongdoing relate to his incarceration at SCI-Rockview in 2010 and 2011. (See Doc. 28.) He was transferred from SCI-Rockview to SCI-Albion on December 19, 2011. (Doc. 28 ¶ 62.)

         Plaintiff filed a counseled Amended Complaint on February 13, 2013, in which he named the Commonwealth of Pennsylvania Department of Corrections, and Defendants Granlund and Lamas as well as four additional defendants: Rockview corrections officers Perks, Hall, and Fisher, and Lynn Eaton, identified as a prison guard supervisor.[2] (Doc. 28 at 2.) The Amended Complaint contains four counts: Count One, Civil Rights Violation/Retaliation against all Defendants; Count Two, Civil Rights Violations against Defendant Lamas for failure to establish appropriate policies, practices, or customs, and for sanctioning an alleged “cover up”; Count Three, Assault and Battery against Defendant Granlund; and Count Four, False Imprisonment and Conspiracy, against all Defendants. (Doc. 28 at 7-9.)

         Defendants filed a Motion to Dismiss (Doc. 35) which was granted in part (Doc. 40). With the disposition of the motion, the following claims remain: 1) the claim that Defendant Granlund engaged in improper sexual contact with Plaintiff during the fall of 2010; 2) the claim that Defendant Granlund physically assaulted Plaintiff on December 6, 2010, when he struck Plaintiff in the mouth; 3) conditions of confinement claims while in the RHU including the lack of heat and food deprivation the claim that Defendants Hall, Perks, and Fisher mopped chemical cleaning fluid into Plaintiff's cell on February 19, 2011; 4) and claims of retaliation against Defendant Granlund. (Docs. 39, 40.)

         Defendants filed an Answer (Doc. 43) and subsequently filed Defendants' Motion for Summary Judgment (Doc. 57) following a period of discovery. In their supporting brief, Defendants Lamas, Eaton, Granlund, Perks, Hall, and Fisher identified the remaining claims to be sexual abuse, physical assault and retaliation against Defendant Granlund, and conditions of confinement in the RHU claims against Defendants Lamas, Eaton, Perks, Hall, and Fisher. (Doc. 58 at 1.) With their motion, Defendants asserted that entry of summary judgment was appropriate because Plaintiff had failed to exhaust his available administrative remedies. (See Doc. 58 at 4.) In his response to the motion, Plaintiff included a cross-motion seeking entry of partial summary judgment on the sexual abuse claim. (See Doc. 63.) After concluding that the representations made by the parties regarding administrative exhaustion involved credibility issues which needed to be resolved before the matter could proceed, the Court found that it was precluded from granting the pending summary judgment requests and that an evidentiary hearing on the exhaustion issue was warranted. (Doc. 70 at 8-9.) Thus, by Order of March 10, 2016, the Court denied the parties' pending motions (Docs. 57, 63), and referred the matter to Magistrate Judge Karoline Mehalchick for the purpose of conducting an evidentiary hearing on the exhaustion issue. (Doc. 70 at 9.)

         As noted above, Magistrate Judge Mehalchick conducted two evidentiary hearings (Docs. 81, 83) and considered extensive post- hearing briefing (Docs. 84-91) and related documents. She concluded in the Report and Recommendation that Plaintiff failed to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act (“PLRA”), his failure to exhaust is not excused, and Plaintiff's Amended Complaint (Doc. 28) should be dismissed with prejudice (Doc. 93 at 15).

         Plaintiff objects to the findings that he had not exhausted available administrative remedies, that he did not exhaust his remedies pursuant to DC-ADM 001, and that the alleged failure to exhaust was not excused under relevant substantive and procedural law. (Doc. 94 at 1-2.) He also objects to the discussion of legal authority in the context of summary judgment and the recommendation of relief in the form of a motion to dismiss the complaint. (Id. at 2.)

         In Defendants' Brief in Opposition to Plaintiff's Objections to the Report and Recommendation, Defendants note that they “may not agree with the entire R & R as written, ” but the Report and Recommendation was correct in finding that Plaintiff did not exhaust available administrative remedies under DC-ADM 804 and such failure is not excused, and it was correct in finding that reporting abuse under DC-ADM 001 does not constitute exhaustion. (Doc. 96 at 3.)

         B. Pennsylvania Department of Corrections and SCI-Rockview Policies and Procedures

         The Pennsylvania Department of Corrections (“DOC”) Inmate Handbook provides inmates with information about how to raise and resolve problems through various channels.[3] (See, e.g., DOC Inmate Handbook, 2017 Edition, andbook at 6-10.) Policies at issue in this case include DC-ADM 804 concerning the Inmate Grievance System and DC-ADM 001 concerning Inmate Abuse. Here the Court summarizes the most relevant aspects of the policies and compares/contrasts the policies as pertinent to the matters at issue. Significant provisions of the policies are set out in greater detail in Appendix 1 attached to this Memorandum. Testimony regarding their use and interaction is set out in the Discussion section of the Memorandum.

         1. DC-ADM 804

         The subject of the Pennsylvania Department of Corrections policy number DC-ADM 804 is “Inmate Grievance System.” (Doc. 60-2 at 5.) A new DC-ADM 804 Policy Statement became effective on December 8, 2010, replacing the DC-ADM 804 Policy Statement which became effective on January 3, 2005. (See Doc. 60-1; Doc. 60-2.) Although some of Plaintiff's allegations predate December 8, 2010, the DC-ADM 804 grievances which the Court considers relevant to the disposition of the matters at issue at this stage of the proceedings were filed after December 8, 2010, so only the later version of the policy is cited here.

         DC-ADM 804 is a multi-level procedure by which an inmate can formally present a concern to prison and DOC officials in a strictly prescribed manner. Through detailed mechanisms, the inmate receives a Greivance Rejection Form enumerating the reason(s) the grievance was rejected or an Initial Review Response explaining the disposition of his grievance (Doc. 60-2 at 12); the receipt of either of these triggers the inmate's right to appeal the initial disposition to the Facility Manager (id. at 15); and the receipt of the Facility Manager's response allows the inmate to appeal to Final Review to the DOC's Secretary's Office of Inmate Grievances and Appeals (“SOIGA”) (id. at 17).

         2. DC-ADM 001

         The subject of the Pennsylvania Department of Corrections policy number DC-ADM 001 is “Inmate Abuse.”[4] (DC-ADM 001 at 1.) It contains the following policy statement: “It is the policy of the Department to ensure than an inmate is not subjected to corporal or unusual punishment, or personal abuse or injury.”[5]

         DC-ADM 001 lacks the strict filing provisions of DC-ADM 804, including the time for filing--DC-ADM 001 has no time limit for reporting an allegation of abuse.[6] The policy provides multiple ways for an inmate to report abuse: he can report it verbally or in writing to any staff member, file a DC-ADM 804 grievance, or report it in writing to the Department's Office of Special Investigations and Intelligence (OSII). (DC-ADM 001 at 1-1.) A facility employee who receives a written or verbal notification of an incident of abuse must report it to the Security Office and an Central Office employee who receivees such a notification must report it to OSII. (DC-ADM 001 at 1-2.)

         In all cases, an investigation ensues and is conducted either by the Security Office or OSII. (Id.) DC-ADM 001 includes detailed provisions as to the timing, content, and review of investigations. (DC-ADM 001 at 1-2 through 1-5.) It also provides the manner in which the inmate is to be notified of the results of the investigation: if the Security Office conducted the investigation, it is tasked with doing so and, if OSII conducted the investigation, OSII informs the inmate by letter. (DC-ADM 001 at 1-5.)

         3. Interaction of DC-ADM 804 and DC-ADM 001

         DC-ADM 804 states that allegations of abuse “shall be” handled according to DC-ADM 001 and adds that

[t]his may extend the time for responding to the grievance, but will not alter the inmate's ability to appeal upon his/her receipt of the Initial Review Response. When a grievance is related to an allegation of abuse and the grievance is the first notice made by the inmate to the Security Office, the Security Office is afforded 30 working days to respond to the initial grievance as opposed to the normal 15 working days due to the need for investigation.

         (Doc. 60-2 at 12.)

         DC-ADM 001 contains a provision which applies to a complaint of abuse made by filing a grievance under DC-ADM 804:

A grievance dealing with allegations of abuse shall be handled in accordance with this procedures manual. This may extend the time for responding to the grievance, but will not alter the inmate's ability to appeal upon his/her receipt of the Initial Review Response. When a grievance is related to an allegation of abuse, the Grievance Coordinator will issue an Extension Notice to the inmate by checking the box “Notice of Investigation.” The initial review response will be completed by the assigned Grievance Officer when the results from the OSII are received. If the Grievance is not in compliance with Department Policy DC-ADM 804, “Inmate Grievance System, ” the rejected grievance will be forwarded to the facility Security Office so an investigation can be initiated.
Inmate grievances alleging abuse that are sent directly to the Central Office shall be forwarded to the OSII.

(DC-ADM 001 at 1-1.)

         C. Factual Background

         Details related to factual allegations and filings are set out in detail in Appendix 2 attached to this Memorandum. Only a brief summary of relevant matters is included here.

         1. Sexual Abuse Allegations

         Plaintiff alleges that Defendant Granlund engaged in improper sexual contact with him on several occasions in the fall of 2010.[7](Doc. 28 ¶ 12.) He raised several verified sexual abuse allegations--through DC-ADM 804 grievances which were filed after the prescribed time (see, e.g., Doc. 60-6 at 16), through multiple Inmate's Request To Staff (see, e.g., Doc. 63-1 at 33), and through direct communication with DOC officials and OSII (see, e.g., Doc. 63-1 at 51). DC-ADM 001 was specifically mentioned in some of these documents.

         SCI-Rockview and OSII personnel confirmed that Plaintiff raised claims of sexual abuse by Defendant Granlund. (Doc. 81 at 31; Doc. 83 at 98.) No investigation of sexual abuse allegations is documented in the record. The only response to Plaintiff specifically referenced in the record is a July 7, 2011, entry in the OSII Tracking Summary which contains a notation that a letter was sent to Plaintiff informing him that his claims “were investigated and unsubstantiated.” (Doc. 63-1 at 51.)

         2. December 2010 Physical Abuse Allegations

         Plaintiff timely filed DC-ADM 804 grievances alleging that Defendant Granlund physically abused him by punching him in the mouth on December 6, 2010. (Doc. 60-6 at 12, 14.) In January 2011, Plaintiff was informed by the assigned Grievance Officer, Defendant Eaton, by way of Initial Review Responses that the allegations were being investigated pursuant to DC-ADM 001. (Id. at 13, 15.) The Grievance Chart indicates the grievances were denied in January 2011 with no further action noted. (Doc. 60-5 at 2.)

         The record shows that SCI-Rockview officials investigated the physical abuse allegations. (Doc. 68 at 4.) After inquiring about the results of the investigation and grievances on multiple occasions to both SCI-Rockview officials and OSII (see, e.g., Doc. 63-1 at 22, 42-43), Plaintiff never received definitive responses from SCI-Rockview personnel. The only indication that the investigation was completed and reviewed was the OSII Tracking Summary entry of July 7, 2011, which referenced the letter to Plaintiff noted above.[8] (Doc. 63-1 at 51.)

         3. February 2011 Abuse Allegations

         Plaintiff timely filed a DC-ADM 804 grievance alleging that Defendants Hall, Perks, and Fisher poured chemicals under his cell door and cut off circulation in his cell on February 19, 2011, which caused him to become ill and require medical attention. (Doc. 60-6 at 24.) The record contains a Grievance Withdrawal Form for this grievance signed by the assigned Grievance Officer, Lieutenant Gregory Dyke. (Id. at 25.) The Grievance Chart does not indicate that the grievance was withdrawn. (Doc. 60-5 at 2.)

         Plaintiff testified that Lt. Dyke asked him to withdraw the grievance but he refused and Lt. Dyke then said he would take care of it himself. (Doc. 83 at 60-62.) Lt. Dyke testified that Plaintiff withdrew the grievance but he did not recall any details. (Doc. 81 at 55.) Other evidence of record shows that Grievance Coordinator Rackovan continued to refer to the grievance as reviewed, the review was received by Plaintiff, and the review was appealable. (Doc. 60-6 at 29, 32-33.)

         An April 4, 2011, Tracking System Summary entry states that the matter was being investigated (Doc. 63-1 at 51), but the record contains no evidence of an investigation into the February 19, 2011, incident.

         4. Conditions of Confinement Claims

         Plaintiff alleges that he was denied food on multiple occasions while in the RHU and he filed DC-ADM 804 grievances about this in February 2011. (Doc. 60-6 at 22, 24.) The first grievance was denied. (Doc. 60-6 at 23.) The second grievance also contained the February 19, 2011, chemical incident allegations and, as discussed above, was allegedly withdrawn. (Doc. 60-6 at 25.)

         II. Discussion

         Plaintiff objects to the findings in the Report and Recommendation that he did not exhaust available administrative remedies, he did not exhaust his remedies pursuant to DC-ADM 001, and the alleged failure to exhaust was not excused under relevant substantive and procedural law. (Doc. 94 at 1-2.) He also objects to the discussion of legal authority in the context of summary judgment and the recommendation of relief in the form of a motion to dismiss the complaint. (Id. at 2.)

         When a magistrate judge makes a finding or ruling on a motion or issue, his determination should become that of the court unless objections are filed. See Thomas v. Arn, 474 U.S. 140, 150-53 (1985). When no objections are filed, the district court is required only to review the record for “clear error” prior to accepting a magistrate judge's recommendation. See Cruz v. Chater, 990 F.Supp. 375, 378 (M.D. Pa. 1998). When objections are filed, the district judge makes a de novo review of those portions of the report or specified proposed findings or recommendations to which objection is made. See Cippolone v. Liggett Group, Inc., 822 F.2d 335, 340 (3d Cir. 1987), cert. denied, 484 U.S. 976 (1987). The de novo standard applies only to objections which are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). Although the review is de novo, the court may rely on the magistrate judge's recommendations do the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7. The court may accept, reject, or modify, in whole or in part, the findings made by the magistrate judge. 28 U.S.C. § 636(b)(1).

         Plaintiff's objections require the Court to consider exhaustion of administrative remedies generally and as applied here. The disposition of the objections includes the determination of whether DC-ADM 001 was an available administrative remedy generally and as applied in this case and whether DC-ADM 804 was available to Plaintiff.

         As a general matter, Plaintiff raises allegations that implicate his Eighth Amendment right to be free of cruel and unusual punishment in his Amended Complaint. (See Doc. 28.) Focusing on his claims of abuse that are the crux of his case, it is well recognized that “the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986); see also Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000). The Supreme Court has also recognized that sexual assaults on inmates by prison personnel constitute Eighth Amendment violations. Farmer v. Brennan, 511 U.S. 825 (1994).

         An inmate has access to federal court to raise a claim of deprivation of constitutional rights by prison personnel at a state institution pursuant to 42 U.S.C. § 1983 which must be grounded in a state actor's deprivation of rights and privileges secured by the Constitution or laws of the United States. However, a prisoner's ability to exercise his § 1983 right to bring his constitutional deprivation claims in federal court is circumscribed by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e.

         The PLRA specifically provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

         The question here is whether Plaintiff exhausted such remedies as were available to him regarding the allegations contained in his Amended Complaint. With Plaintiff's multiple claims and filings, the answer to this exhaustion question is not a simple one.

         A. Prison Litigation Reform Act

         To properly exhaust administrative remedies, the inmate “must ‘complete the administrative review process in accordance with the applicable procedural rules, ' . . . rules that are defined not by the PLRA, but by the prison grievance process itself. Compliance with the prison grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.'” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)).

         An inmate does not have to allege that he exhausted administrative remedies; failure to exhaust administrative remedies is an affirmative defense which must be proved by the defendants. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002); Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). Defendants agree that they “have the burden of proof by a preponderance of the evidence. . . . Failure to exhaust is proven if, after considering all evidence in the case, that Defendants have succeeded in proving that the ...

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