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Landau v. Lamas

United States District Court, M.D. Pennsylvania

August 1, 2019

BRIAN LANDAU, Plaintiff,
v.
MARIROSA LAMAS, et al., Defendants.

          MEMORANDUM OPINION

          Robert D. Marlani, United States District Judge

         I. Introduction

         Plaintiff Brian Landau, an inmate in Pennsylvania state prison, originally filed this action in July 2015 against twenty-one current and former Pennsylvania Department of Corrections ("DOC") employees and officials.[1] Landau asserts thirteen federal constitutional and state tort claims arising out of alleged incidents of sexual harassment and assault committed against Landau by Defendant Rebecca Zong, a former DOC corrections officer.[2] (Doc. 88). Collectively, Defendants have filed three separate motions for summary judgment against Plaintiff, with each motion raising various arguments against the numerous claims in Plaintiff s Amended Complaint.[3] (Doc. 170, Doc. 174, Doc. 178). The second motion for summary judgment, joined in by all Defendants, urges the Court to grant summary judgment to Defendants with respect to all of Plaintiffs federal constitutional claims (Counts I, II, III, IV, V, VI, VII, and IX) on the grounds of consent and qualified immunity. (Doc. 174, Doc. 175). In his Report and Recommendation (R&R) addressing the second motion for summary judgment, Magistrate Judge Carlson recommends denying the second motion for summary judgment because there are disputed issues of fact relating to consent and whether nonconsensual sexual contact between prison staff and inmates violates clearly established constitutional rights under the Eighth Amendment. (Doc. 203). DOC Defendants have raised Objections to the R&R (Doc. 207) that have been briefed (Doc. 208, Doc. 215, Doc. 217). Zong did not file Objections to the R&R. Upon de novo review of the R&R's finding with respect to consent and clear error review of the R&R's finding with respect to qualified immunity, the Court will overrule DOC Defendants' Objections and adopt the R&R in its entirety for the reasons set forth below. The Court will address factual disputes between the parties and between the parties and the R&R's Statement of the Facts and of the Case (Doc. 203 at 1-8) where relevant throughout this Memorandum Opinion.

         II. Standard of Review

         A District Court may "designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition" of certain matters pending before the Court. 28 U.S.C. § 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate Judge's Report and Recommendation, the District Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. at § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3); M.D. Pa. Local Rule 72.3; Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). "If a party does not object timely to a magistrate judge's report and recommendation, the party may lose its right to de novo review by the district court." EEOC v. City of Long Branch, 866 F.3d 93, 99-100 (3d Cir. 2017). However, "because a district court must take some action for a report and recommendation to become a final order and because the authority and the responsibility to make an informed, final determination remains with the judge, even absent objections to the report and recommendation, a district court should afford some level of review to dispositive legal issues raised by the report." Id. at 100 (internal citations and quotation marks omitted).

         Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact." Fed.R.Civ.P. 56(a). "As to materiality, ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

         The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record... or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, "[t]he court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3). "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 N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert, denied 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).

         However, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. 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. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

         III. Analysis

         Defendants' second motion for summary judgment raises the affirmative defenses of consent and qualified immunity. Although the defenses are somewhat intertwined, the Court will first address the defense of consent before turning to qualified immunity.

         A. Consent

         In their second motion for summary judgment, Defendants point to what they claim are genuinely undisputed facts to argue that "Zong engaged in a mutual relationship with Plaintiff that culminated in sexual contact." (Doc. 175 at 9-10). As a result, they contend, Landau was not subjected to "cruel and unusual punishment." (Id. at 10-12). In making this argument, they reference items from the factual record, such as Landau's personal journal, a letter sent by Landau to his friend and fellow inmate, and written records from DOC staff containing statements from Landau that Defendants maintain indicate that Landau welcomed a sexual relationship with Zong. (Id.) However, they do not make specific citations to the factual record in their brief in support of their motion, instead relying on their separate statement of material facts.

         Landau responds that he has set forth "credible evidence that he did not want to have a sexual relationship with Zong." (Doc. 191 at 6-7). He states that the written remarks of DOC staff are "not Landau's words" and that at his deposition he testified that "several of his terse written statements in 2014 were coerced or even dictated by the security officers who interrogated him." (Id.) He also references the report of his expert witness, Professor Lara Stemple, to argue that a "jury could easily find Landau to have been an unwilling victim." (Id. at 7). Landau also contends that consent is unavailable as an affirmative defense as a matter of law because it is not permitted as an affirmative defense under DOC policy and because "unwillingness on the part of the prisoner is not an element of the crime" of institutional sexual assault under Pennsylvania law. (Id. at 8-10). Defendants reply that the factual disputes between the parties regarding consent are not genuine, Landau's expert report is irrelevant and inadmissible opinion on an ultimate issue of law, and that prior case law indicates that consent is available as an affirmative defense as a matter of law. (Doc. 198 at 3-5, 7-10).

         In the R&R, Magistrate Judge Carlson notes the conflicted state of the law on the availability of "consent as a defense to constitutional tort claims based upon sexual contact between correctional staff and inmates," but finds that "the majority view expressed by the appellate courts can best be characterized as a cautious and halting acceptance of consent as a defense." (Doc. 203 at 14). However, quoting the Third Circuit's recent decision in Ricks v. Shover,891 F.3d 468 (3d Cir. 2018), with respect to whether sexual contact is sufficiently objectively serious enough to constitute a constitutional violation, the R&R notes that the inquiry into claims of sexual abuse in prisons "is necessarily contextual [and] fact-specific." (Doc. 203 at 15 (quoting Ricks, 891 F.3d at 478)). Therefore, the R&R concludes that the issue of consent in cases like this one is not a matter of law and instead requires a trial. (Doc. 203 at 16 (quoting Chao v. Ballista,772 F.Supp.2d 337, 350 (D. Mass. 2011)). The R&R further states that in this case, "the question of whether Landau and Zong engaged in a consensual relationship is one which is riddled with factual disputes, and entails an assessment of the often conflicting and completely contradictory statements which both ...


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