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McCain v. Wetzel

United States District Court, M.D. Pennsylvania

July 17, 2018

AMIR McCAIN a/k/a JOHN McCAIN Plaintiff,
JOHN E. WETZEL, et al., Defendants.



         I. Introduction

         In this civil action, Plaintiff John McCain (“Plaintiff”) filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 on April 23, 2012 while incarcerated in a Pennsylvania Department of Corrections (“DOC”) facility. (Doc. 1.) Among other claims, Plaintiff asserts that a violation of his Eighth Amendment rights occurred while being housed at SCI-Waymart in 2010. (Id. at 3 of 23.) Defendant Thomas Roegner (“Roegner”) filed a motion to bifurcate seeking to address the issue of exhaustion of administrative remedies before holding a trial on the merits of Plaintiff's claims. (Doc. 367.) The court granted Defendant's motion and held a two day bench trial on the issue of exhaustion related to Plaintiff's Eighth Amendment claim. (Doc. 371.) Based on the evidence set forth at trial, the court now sets forth its findings of fact and conclusions of law.

         II. Background and Statement of the Case

         Plaintiff initiated this action by filing a complaint in the Middle District of Pennsylvania almost six years ago naming eleven Defendants and levying various claims. (Doc. 1, p. 3 of 23.) Plaintiff's allegations stem from private criminal complaints filed against various corrections officers and subsequent purported retaliatory responses from various other prison officials, including the alleged sexual assault by Roegner. (Id. at 3-4 of 23.) He avers that the eleven Defendants in this action destroyed legal documents and personal property, subsequently denied him access-to-courts, violated his First and Eighth Amendment rights stemming from Roegner's sexual assault, and that prison officials failed to adequately investigate, and protect Plaintiff from, the retaliatory sexual assault. (Id. at 3-6 of 23.)

         On July 2, 2012, Defendants filed a motion to dismiss primarily arguing that Plaintiff had failed to exhaust the administrative remedies required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a) (Doc. 20.) The Magistrate Judge issued a Report and Recommendation, which the court adopted, granting Defendants' motion to dismiss in part and denying the motion in part. (Docs. 50 & 64.) The claims against many of the Defendants were dismissed because of a failure to plead proper facts and other deficiencies; however, the claim against Roegner remained because he failed to meet his burden by showing only the types of complaints Plaintiff filed, rather than a lack of administrative exhaustion. (Doc. 50.) The court, “out of an abundance of caution, ” allowed Plaintiff to file an amended complaint. (Id. at 28.)

         To that end, Plaintiff made several attempts and found success in his second and final amended complaint filed on September 24, 2013, which detailed the same allegations as his other complaints. (Doc. 131.) Defendants filed another motion to dismiss arguing that Plaintiff again failed to follow the proper formatting of a complaint, plead sufficient facts to advance his retaliation claims, and identify constitutional protections associated with the manner in which the retaliation was investigated. (Doc. 134, pp. 10-12.) On August 6, 2014, the court issued a Report and Recommendation suggesting that all claims in Plaintiffs second amended complaint be dismissed, excluding the First and Eighth Amendment claims against Roegner. (Doc. 182, p. 19.) The court explained that Plaintiff failed to draw a link between constitutionally protected actions and the alleged retaliation, and that to move forward on the denial of access-to-courts claim he must sufficiently show the contents of the allegedly destroyed documents were accurate or would prove his innocence. (Id. at 12, 15.) On October 6, 2014, the court adopted the Report and Recommendation. (Doc. 195.)

         Thereafter, the sole remaining Defendant, Roegner, filed his answer to Plaintiffs second amended complaint, and among his eight defenses, Roegner stated that Plaintiff's claims may be barred for failure to exhaust administrative remedies. (Doc. 201, p. 4.) Eight months after filing his answer, Roegner filed a motion for partial summary judgment asserting that Plaintiff failed to exhaust his administrative remedies in regard to his First Amendment retaliation claim stemming from the alleged sexual assault. (Doc. 259; Doc. 261, p. 1). Plaintiff responded with a brief in opposition to Roegner's motion for summary judgment, a proposed statement of uncontested facts, his own motion for summary judgment, and a brief in support. (Docs. 285-287, 289.) On February 29, 2016, the court issued a Report and Recommendation advocating that Roegner's motion for partial summary judgment be granted based on Plaintiffs failure to show that his actions complied with the administrative procedures established by the prison's inmate grievance process or that he had a legally cognizable excuse for not doing so. (Doc. 319, pp. 12-14.) On April 19, 2016, the court adopted the Report and Recommendation (Doc. 328), and less than a month later, the court issued another Report and Recommendation (Doc. 335) denying Plaintiff's motion for summary judgment because of disputed material facts that Plaintiff himself raised, which the court later adopted (Doc. 340).

         Over a year later, the court issued a memorandum addressing and denying several of Plaintiffs many motions in this action (Docs. 349, 355, 360) and concluded that all dispositive motions had been decided. (Doc. 363, p. 4.) The court indicated to Plaintiff that discovery had been completed as of August 2015 (Doc. 268), and the only matter pending was his claim against Roegner for a violation of his Eighth Amendment rights arising from strip searches. (Doc. 363, p. 4.) Subsequently, the court set a date for trial. (Id.) On June 2, 2017, Roegner filed a motion for bifurcation and a supporting brief arguing that a bench trial should be held prior to any jury trial to address whether Plaintiff exhausted his administrative remedies when he failed to file a grievance regarding the current Eighth Amendment sexual assault claim. (Docs. 366-367.) Plaintiff responded on June 16, 2017, and requested that the court deny Roegner's motion. (Doc. 369.) On June 22, 2017, the court granted Roegner's motion to bifurcate and scheduled a bench trial on the issue of exhaustion of administrative remedies, which took place on July 24 and 27, 2017. (Id.)

         At the bench trial, the defense offered evidence that showed that Plaintiff filed several complaints to various prison officials, a majority of which concerned DC-ADM 804 general grievances and not sexual abuse allegations, and one string of letters and correspondence which detailed the allegations against Roegner.

         On September 29, 2010, Plaintiff sent a letter addressed to James C. Barnacle (“Barnacle”), Director of the Office the Office of Special Investigations and Intelligence (“OSII”), detailing allegations that corrections officers were denying Plaintiff showers, yard, and access to the law library as well as threatening bodily harm. (Trial Tr. Aug. 24, 2017, pp. 8-9.) The letter was forwarded to OPII and dismissed for not sufficiently citing enough detail to start an investigation based on the allegations. (Id. at 11-12.) OPII sent a form letter to Plaintiff to this effect on October 5, 2010. (Id. at 12.) A courtesy copy was also sent to Superintendent Nish of SCI-Waymart, where Plaintiff was being housed. (Id. at 13.) In response to the request for more details, Plaintiff sent a letter dated October 14, 2010 back to Barnacle stating allegations similar to that of the first letter, but this time identifying several corrections officers, including Roegner, but never connecting Roegner to abuse or assault. (Id. at 15-16.) The letter along with the allegations were forwarded to Superintendent Nish and investigated. (Id. at 18.) During the investigation, McCain signed a statement asking to be removed from Roegner's area for “security reasons.” (Id. at 19-20.) This statement was not enough to trigger action outside of the internal investigation. (Id. at 21.)

         On March 21, 2011, Wayne County District Attorney sent Plaintiff, with copies to Barnacle and Superintendent Nish, a letter addressing a private criminal complaint Plaintiff filed against Roegner on February 1, 2011. (Id. at 25.) The letter stated that the complaint would be forwarded to OSII (formerly the Office of Professional Responsibility (“OPR”))[1]. (Id. at 26.) Plaintiff's complaint attached to the letter outlined the allegations in the September correspondence to Barnacle and the subsequent investigation of the denial of shower, library, yard, and the additional general abuse allegations made against Roegner. (Id. at 28.) The complaint continues to allege that, subsequent to the investigation and Plaintiff's statement stemming from the October 14, 2010 letter to Barnacle, Roegner committed “sexual harassment, sexual abuse, threats, and sexual assaults . . . from October 18th, 2010, through November 18th, 2010.” (Id.) Chief of Investigations of OSII, Harold Kertes (“Kertes”) responded by assigning the incident with an abuse number and forwarded the investigation to a security lieutenant at SCI-Waymart. (Id. . at 31.)

         The letter forwarding the investigation to SCI-Waymart was done so pursuant to the Inmate Abuse Allegation Monitoring Process and administrative procedures manual DC ADM-001. (Id. at 34.) After the investigation was performed, the results were received by Kertes at OSII for review and approval on May 18th, 2011. (Id. at 38-40.) The investigators at SCI-Waymart concluded that the allegations were unfounded and the OSII review agreed with this determination (Id. at 42, 46.) On June 15, 2011, Kertes sent a DC ADM-001 closing letter to Superintendent Nish notifying him of the approval of the outcome. (Id. at 49-51.) Superintendent Nish was required to inform Plaintiff of the investigation's findings and that the matter would be closed (Id. at 51.) Again, the letter stated that an investigation was performed in accordance with the inmate abuse allegation monitoring process, and OSII reviewed the investigation and found the process and outcome satisfactory. (Id. . at 52-53.)

         On August 5, 2011, after receiving the determination, Plaintiff sent a letter to Secretary of Corrections Wetzel (“Secretary Wetzel”) concerning the same alleged sexual assault. (Id. at 52.) The matter was referred to OSII because any communications that allege sexual abuse received by any staff member are immediately forwarded to OSII. (Id. at 54.) On September 1, 2011, Plaintiff sent another letter to Secretary Wetzel asking for an update on the investigation as well as his previous letter. (Id. at 54-55.) Finally, on September 21, 2011, OSII sent Plaintiff a letter in regard to the ...

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