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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. Mariani, 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 Plaintiffs Amended Complaint.[3] (Doc. 170, Doc. 174, Doc. 178). The third motion for summary judgment, filed by DOC Defendants, urges the Court to grant summary judgment to DOC Defendants with respect to all of Plaintiff's claims against DOC Defendants (Counts II, III, V, VI, VII, IX, XIV, XV, and XVI) on various grounds, including applicable statute of limitations, sovereign immunity, and the merits. (Doc. 178, Doc. 179). In his Report and Recommendation (R&R) addressing the third motion for summary judgment, Magistrate Judge Carlson recommends granting in part and denying in part the third motion for summary judgment. (Doc. 204). DOC Defendants have raised Objections to the R&R (Doc. 211, Doc. 212). Landau did not respond to DOC Defendants' Objections, but instead raised his own set of Objections to the R&R (Doc. 219) to which DOC Defendants have responded (Doc. 220) and Landau has replied (Doc. 221). Upon de novo review of the R&R, the Court will sustain in part and overrule in part DOC Defendants' Objections, overrule Landau's Objections, and adopt in part and not adopt in part the R&R for the reasons set forth below.

         II. Relevant Factual Background

         It serves little purpose to engage in an extended recounting of the undisputed facts of this case, as the parties dispute much of the events that transpired in 2013 and 2014 that underly Landau's lawsuit. Rather, it suffices for the Court to summarize the relevant material facts and allegations, noting where the parties disagree. Additionally, as Landau has named a great number of individuals as defendants under a variety of legal theories and their liability is connected to their roles as DOC officials and employees, it is helpful to classify them according to their involvement with Landau and his claims.

         Landau is an inmate incarcerated in the Pennsylvania DOC. (Doc. 180 ¶ 1). Landau was incarcerated at SCI-Rockview when the events underlying this lawsuit began in August 2013, and he was later transferred to SCI-Benner. (Id. ¶¶ 4-5, 8). Zong was a corrections officer or corrections officer trainee with the DOC and worked at SCI-Rockview between August 2013 and June 2014. (Id. ¶¶ 3, 8, Doc. 88 ¶ 17). Landau alleges that Zong sexually harassed, abused, and raped him. (Doc. 180 ¶ 8, Doc. 88 ¶¶ 30-78). These allegations include: Zong made unwelcome sexual advances on Landau (Doc. 88 ¶¶ 30-39, Doc. 187-2 at 52:7-15, 56:5-57:11, 66:3-13, 77:18-78:19); Zong coerced Landau into performing "demeaning sexual acts by threatening Landau with a report of sexual misconduct if Landau refused to follow Zong's instructions," including touching Landau and forcing him to masturbate in front of her (Doc. 88 ¶¶ 46-66, Doc. 187-2 at 52:7-53:25, 77:18-78:19); and most seriously, forcing Landau to engage in sexual activity, including intercourse, in the chapel at SCI-Rockview on two occasions in April and May 2014 (Doc. 88 ¶¶ 69-78, Doc. 187-2 at 130:8-136:17, 142:12-144:13). Zong claimed at her deposition and in other parts of the factual record that Landau coerced her into engaging in sexual activity. (Doc. 187-1 at 72:5-9, Doc. 192-5 at 6-7, Doc. 192-6 at 2). DOC Defendants claim that Landau and Zong engaged in a consensual sexual relationship. (Doc. 175 at 10-12, Doc. 176 ¶¶ 17-58). Landau alleges that certain DOC Defendants knew of Zong's abuse but did nothing. (Doc. 88 ¶¶ 79-89, Doc. 194 ¶¶ 38, 40, 43, 46). DOC Defendants dispute this. (Doc. 180 ¶¶ 38, 40, 43, 46).

         Landau states that with the assistance of his friend, inmate Mike Brown, he anonymously reported Zong to DOC Defendant Tice in June 2014 by providing a copy of a letter Zong wrote him. (Doc. 187-2 at 148:1-150:10). Zong was investigated by DOC and fired and was later prosecuted by the Commonwealth. (Doc. 180 ¶¶ 27, 33, Doc. 194 ¶¶ 27, 33). Landau was transferred to SCI-Benner and contends that he was mistreated, harassed, and punished instead of being treated as a victim of sexual assault. (Doc. 88 ¶¶ 95-98, 104-06, 114-18, 169, 184, 186, 232-44). He also argues that DOC Defendants treated him differently than other inmates who have been the victims of sexual assault committed by male prison guards. (Id. ¶¶ 166, 170, 173). He further argues that DOC Defendants did not conduct proper training under the federal Prison Rape Elimination Act ("PREA"), 34 U.S.C. § 30301, et seq. (formerly cited as 42 U.S.C. § 15601, et seq.) (Doc. 88 ¶¶ 194-231); failed to take other proper measures to prevent sexual abuse (id. ¶¶ 160-65, 167-68); and failed to supervise and discipline Zong (id. ¶¶ 133-38, 176-77, 189-90). He also claims that certain DOC Defendants callously engaged in a betting pool or lottery regarding sexual relations between Landau and Zong rather than taking the alleged sexual abuse seriously, as required by prison regulations and the law. (Id. ¶¶ 145, 149-55). DOC Defendants deny these allegations.

         DOC Defendants can be broadly categorized into four groups, based on their roles at DOC and their alleged involvement in the events at issue. The first group is DOC corrections officers at SCI-Rockview: Defendants Rogers, Bumbarger, Foster, Nicholas, Cienfuegos, Miller, Harpster, and Snyder. The second group is DOC security officers at SCI-Rockview: Defendants Tice, Hoover, and Vance. The third group is DOC management officials at SCI-Rockview and SCI-Benner: Lamas, Glunt, and Ferguson. The final group is DOC training, hiring, and compliance officials: Defendants Garman, Salamon, Evans, Dooley, Gallo, and Young.

         III. 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).

         IV. Analysis

         DOC Defendants' third motion for summary judgment raises numerous arguments seeking summary judgment on all claims Landau has alleged against them. Many of the claims are related; for example, Landau's Eighth Amendment claims all allege some failing of the DOC Defendants to prevent or properly respond to Landau's complaints of sexual harassment and abuse against Zong. Accordingly, the Court will address Landau's claims in related groups: (A) his Eighth Amendment claims in Counts II (deliberate indifference claim against all Defendants), V (failure-to-intervene claim against Defendants Harpster, Rogers, Bumbarger, Foster, Nicholas, Cienfuegos, Snyder, and Miller), VI (failure-to- supervise claim against Defendants Lamas, Glunt, Ferguson, Harpster, Rogers, Garman, and Salamon), and VII (failure-to-train claim against Defendants Garman, Salamon, Evans, Dooley, Gallo, and Young); (B) his Fourteenth Amendment invasion of privacy claim in Count III against Defendants Rogers, Bumbarger, Foster, Nicholas, Cienfuegos, and Miller related to the alleged betting pool/lottery; (C) his Fourteenth Amendment equal protection claim in Count IX against Defendants Lamas, Glunt, Ferguson, Tice, Hoover, Vance, Evans, Dooley, Gallo, Young, Salamon, Garman, Harpster, and Rogers related to DOC's treatment of Landau as a possible victim and response to Zong as a possible perpetrator; (D) his IIED claim in Count XIV against Defendants Glunt, Ferguson, Tice, Hoover, Vance, Harpster, Rogers, Salamon, Bumbarger, Foster, Nicholas, Cienfuegos, and Miller; and (E) his defamation and state law invasion of privacy claims in Counts XV and XVI against Defendants Rogers, Bumbarger, Foster, Nicholas, Cienfuegos, and Miller related to the alleged betting pool/lottery.

         A. Eighth Amendment Claims (Counts II, V, VI, and VII)

         Landau raises four related, overlapping Eighth Amendment claims against various DOC Defendants. As the R&R addresses each claim in piecemeal fashion by organizing its discussion around particular groups of DOC Defendants rather than by claim, the Court will attempt to untangle the claims and focus its analysis accordingly.

         1. Deliberate Indifference to Substantial Risk of Serious Harm (Count II)

         Landau brings an Eighth Amendment claim of deliberate indifference to substantial risk of serious harm against all DOC Defendants. (Doc. 88 ¶¶ 274-87). The parameters of these claims differ as to each defendant but relate to DOC Defendants' alleged failures to implement or follow certain policies and trainings and respond to and stop Zong's purported abuse of Landau.

         DOC Defendants move for summary judgment on this claim, arguing that "there is no evidence of personal involvement or knowledge and acquiescence in any sexual relationship between Zong and Plaintiff [and that] [t]here is no evidence of knowledge of deficiencies that created a substantial risk to Plaintiff." (Doc. 179 at 13). They contend that "DOC has a PREA policy[, ] [s]taff are trained[, and] [v]iolators have been escorted off premises, terminated and prosecuted." (Id.) They do not cite to any portion of the factual record in making these arguments in their brief, which Landau points out in opposing summary judgment (Doc. 195 at 14) and to which DOC Defendants again reply that Landau has not provided any evidence. (Doc. 202 at 10).

         The R&R is unclear in its recommendations regarding this claim. It only explicitly considers the deliberate indifference claim with respect to the DOC Defendants who are corrections officers at SCI-Rockview (Harpster, Rogers, Bumbarger, Foster, Nicholas, Cienfuegos, Snyder, and Miller) and recommends denying summary judgment due to factual disputes in the record regarding their knowledge of Zong's alleged abuse of Landau. (Doc. 204 at 31-35). The R&R recommends granting summary judgment in favor of Vance, Tice, and Hoover "based upon allegations that they harshly questioned Landau after the fact about this sexual contact with Zong as part of the investigation into this incident and suggested that he, too, may have engaged in illegal conduct[, ]" because this conduct does not rise to the level of a constitutional violation, but the R&R does not specifically state this recommendation is in reference to the deliberate indifference claim against Vance, Tice, and Hoover. (id. at 44-47). And the R&R only tangentially considers the deliberate indifference claim with respect to the remaining DOC Defendants and in the context of Landau's similar Eighth Amendment failure-to-supervise and failure-to-train claims against those defendants (Lamas, Glunt, Ferguson, Garman, Salamon, Evans, Dooley, Gallo, and Young) by recommending granting summary judgment as to these claims. (Id. at 37-44). This is perhaps because Landau's deliberate indifference claims against these defendants appear indistinguishable from his failure-to-supervise and failure-to-train claims against them in which he alleges they failed to implement or follow certain policies and procedures to protect him from harm.[4] (Doc. 88 ¶¶ 276-81, 302-04, 306, 309-12). Thus, as best the Court can discern, the R&R explicitly recommends denying summary judgment on the deliberate indifference claim as to Harpster, Rogers, Bumbarger, Foster, Nicholas, Cienfuegos, Snyder, and Miller, and the R&R implicitly recommends granting summary judgment as to Vance, Tice, Hoover, Lamas, Glunt, Ferguson, Garman, Salamon, Evans, Dooley, Gallo, and Young. The parties have submitted objections to the R&R. The Court will adopt the R&R in part and not adopt the R&R in part with respect to Landau's deliberate indifference claim in Count II.

         To be liable for a claim for deliberate indifference to a substantial risk of serious harm under the Eighth Amendment, the Third Circuit has stated that:

a defendant prison official must both "know[ ] of and disregard[ ] an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994). The knowledge element of deliberate indifference is subjective, not objective knowledge, meaning that the official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware. See Id. at 837-38, 114 S.Ct. 1970. However, subjective knowledge on the part of the official can be proved by circumstantial evidence to the effect that the excessive risk was so obvious that the official must have known of the risk. See Id. at 842, 114 S.Ct. 1970. Finally, a defendant can rebut a prima facie demonstration of deliberate indifference either by establishing that he did not have the requisite level of knowledge or awareness of the risk, or that, although he did know of the risk, he took reasonable steps to prevent the harm from occurring. See Id. at 844 114 S.Ct. 1970.

Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (full citation to Farmer added). The Third Circuit has further elaborated:

A properly stated Eighth Amendment claim must allege a subjective and objective element. Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). First, it must appear from the complaint that the defendant official acted with a "sufficiently culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Second, the conduct must have been objectively "harmful enough," or "sufficiently serious" to violate the Constitution. Id. at 298, 303, 111 S.Ct. 2321.

Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018). "[R]isk of harm is evaluated objectively." Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010) (citing Atkinson v. Taylor, 316 F.3d 257, 262 (3d Cir. 2003)). "Objectively serious harm also requires an assessment of society's view of the risk; i.e., whether 'it violates contemporary standards of decency to expose anyone unwillingly to such a risk.'" Betts, 621 F.3d at 257 (quoting Helling v. McKinney, 509 U.S. 25, 36 (1993)).

         The legal standard discussed above is applicable in a situation based on "direct liability (i.e., insofar as the defendants are alleged to have known of and ignored the particular risk that [Zong] posed)." Beers-Capitol, 256 F.3d at 135. The legal standard differs somewhat for a claim based on the deliberate indifference of a policymaker, either in the supervision or training context. (Doc. 51 at 12-13 (discussing legal standards)); see also Beers-Capitol, 256 F.3d at 135 ("For the plaintiffs' claims seeking to hold supervisors liable for their deficient policies, Sample's four-part test provides the analytical structure for determining whether the policymakers exhibited deliberate indifference to the plaintiffs' risk of injury, it being simply the deliberate indifference test applied to the specific situation of a policymaker.") (citing Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989)). The Court will elaborate on the legal standard governing the failure-to-supervise and failure-to-train claims in Counts VI and VII in the sections of this Memorandum Opinion discussing those claims. Additionally, as the deliberate indifference claims pleaded against Lamas, Glunt, Ferguson, Garman, Salamon, Evans, Dooley, Gallo, and Young are predicated on their alleged failures as policymakers in supervision and training, the Court will address Landau's Eighth Amendment claims against them in the failure-to-supervise and failure-to train portions of the Memorandum Opinion addressing Counts VI and VII.

         Turning to the R&R's analysis of Landau's deliberate indifference claim in Count II and its discussion of particular DOC Defendants, the Court begins with the R&R's recommendation to deny summary judgment on Count II as to Rogers, Bumbarger, Nicholas, and Cienfuegos. The R&R states that there is "an irreconcilable conflict in the evidence" with respect to these defendants' knowledge of Zong's abuse of Landau. (Doc. 204 at 34). DOC Defendants do not object to this recommendation. (Doc. 212 at 6). Upon review for clear error, the Court agrees with this finding in the R&R and will adopt it.

         Stating that there is a similar factual dispute with respect to Harpster, Foster, Snyder, and Miller, the R&R also recommends denying summary judgment on Count II as to them. (Doc. 204 at 34). DOC Defendants object to this recommendation, arguing that there is no evidence in the record to support Landau's claim that these defendants knew about Zong's abuse of Landau. (Doc. 212 at 6-7). Unlike DOC Defendants' lax approach to citing the factual record at other points in the process of briefing summary judgment and responding to the various R&Rs, they cite to Landau's deposition transcript in an attempt to establish that Landau did not state that Harpster, Foster, Snyder and Miller knew that Zong was abusing him. (Doc. 187-2, Doc. 187-3). Landau did not submit an opposition to DOC Defendants' objections. The Court has reviewed the portions of the record to which DOC Defendants cite (Doc. 187-2 at 156, Doc. 187-3 at 349-50, 364-69) and agrees that they have established an absence of a genuine dispute of material fact with respect to the subjective knowledge of Harpster and Snyder. These portions of Landau's deposition do not establish that these defendants knew of Zong's specific misconduct, while they may have known that Zong spent time in front of Landau's cell or about Zong's allegedly generally promiscuous behavior. However, Landau also testified that Foster and Miller knew of the abuse insofar as they were participants in the betting pool/lottery. (Doc. 187-2 at 156, Doc. 187-3 at 350-51, 365-66). Accordingly, the Court will not adopt this portion of the R&R with respect to Count II as to Harpster and Snyder and will grant summary judgment in their favor on Count II, but the Court will adopt the R&R as to Foster and Miller and will deny them summary judgment on Count II.

         Finally, the R&R recommends granting summary judgment as to Vance, Tice, and Hoover because it construes Landau's claims against them to be for verbal harassment, which does not state an Eighth Amendment claim. (Doc. 204 at 44). Landau objects that the R&R misunderstands its allegations against Vance, Tice, and Hoover, contending instead that Landau's claims are based on a "malicious deviation from the DOC protocol for victims of sexual abuse." (Doc. 219 at 14). However, the Court agrees with the R&R that Landau's claim against Vance, Tice, and Hoover is essentially for ridiculing him and treating him harshly while investigating the incident of sexual abuse with Zong. (Doc. 88 ¶¶ 236-44). For the reasons stated in the R&R, such a claim is not actionable under the Eighth Amendment.

         Accordingly, for the reasons stated above, the Court will adopt the R&R in part and not adopt it in part. The Court will grant summary judgment on Count II (deliberate indifference) in favor of Harpster, Snyder, Vance, Tice, and Hoover and deny summary judgment on Count II to Rogers, Bumbarger, Nicholas, Cienfuegos, Foster, and Miller.[5]

         2. Failure to Intervene (Count V)

         In addition to his deliberate indifference claim, Landau also brings a related Eighth Amendment claim of failure to intervene in Count V against DOC Defendants who are corrections officers at SCI-Rockview: Harpster, Rogers, Bumbarger, Foster, Nicholas, Cienfuegos, Snyder, and Miller. (Doc. 88 ¶¶ 296-300). Landau alleges that these defendants either directly knew about Zong's abuse (Rogers, Bumbarger, Foster, Nicholas, Cienfuegos, and Miller) (Doc. 88 ¶ 298), knew about Zong's generally inappropriate behavior towards Landau (Harpster and Rogers) (Doc. 88 ¶ 297), or knew that Zong was a danger to prisoners because of her "sexual practices" (Snyder and Foster) (Doc. 88 ¶ 299).

         In seeking summary judgment on this claim, DOC Defendants make a similar argument to the one they make with respect to the deliberate indifference claim, arguing that "there is no evidence Harpster, Rogers, Foster, Snyder, Nicholas, or Miller were personally involved or knew of and had acquiesced in any relationship between Zong and Plaintiff[, and] [additionally, both Bumbarger and Cienfuegos deny knowledge." (Doc. 179 at 13). They again do not cite to any portion of the factual record in making these arguments in their brief, which Landau points out in opposing summary judgment. (Doc. 195 at 14). DOC Defendants reply that Landau has not provided any evidence that Harpster, ...


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