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Landau v. Lamas

United States District Court, M.D. Pennsylvania

August 1, 2019

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


          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 Plaintiff's Amended Complaint.[3] (Doc. 170, Doc. 174, Doc. 178). The first motion for summary judgment, joined in by all Defendants, urges the Court to grant summary judgment to Defendants with respect to all of Plaintiff's federal constitutional claims, except those claims related to Zong's conduct on May 14, 2014 in the SCI-Rockview chapel, on the grounds of failure to exhaust administrative remedies.[4] (Doc. 170, Doc. 171 at 7-8). In his Report and Recommendation (R&R) addressing the first motion for summary judgment, Magistrate Judge Carlson recommends denying the first motion for summary judgment because administrative remedies were not available to Landau due to the confusing and opaque grievance policies in place at the DOC with respect to complaints regarding sexual harassment and abuse. (Doc. 205). DOC Defendants have raised Objections to the R&R (Doc. 213) that have been briefed (Doc. 214, Doc. 216, Doc. 218). Zong did not file Objections to the R&R. By order dated July 9, 2019, the Court informed the parties that pursuant to Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018), the Court would consider the issue of exhaustion of administrative remedies in its role as fact finder under Small v. Camden County, 728 F.3d 265 (3d Cir. 2013), and permitted the parties to supplement the record with any evidence relevant to the issue. (Doc. 222). Landau responded on July 23, 2019 with a supplement to the record. (Doc. 225). DOC Defendants filed a response to Plaintiffs supplement on July 31, 2019. (Doc. 226). Upon de novo review of the R&R and consideration of the record, 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. 205 at 1-9) 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' first motion for summary judgment raises the affirmative defense of failure to exhaust administrative remedies. (Doc. 171 at 5-7). Defendants contend that Landau failed to file proper grievances under DOC's required grievance procedure, DC-ADM 804, and pursue those grievances through final appeal before commencing this suit in federal court. (Id.) Landau responds that Defendants fail to sustain the affirmative defense because no administrative remedy was available to him; DC-ADM 804 directs inmates to follow the grievance procedures in DC-ADM 008, which provides no remedies, when making complaints regarding sexual harassment or abuse. (Doc. 186 at 6-7).

         In his R&R, Magistrate Judge Carlson agrees with Landau's characterization of the administrative remedial scheme for inmate complaints regarding sexual harassment or abuse as a deficient, practically unavailable pathway for reporting and resolving such complaints. In reaching this conclusion, the R&R examines both DC-ADM 804 and DC-ADM 008, both of which were undergoing revision around the time of the alleged misconduct that is the subject of this lawsuit. Magistrate Judge Carlson finds "the shifting wording of DC-ADM 008 and DC-ADM 804 to be so opaque that the administrative remedy scheme with regard to these types of claims was 'practically speaking, incapable of use' in the fashion proposed by the defendants." (Doc. 205 at 21 (quoting Ross v. Blake, 136 S.Ct. 1850, 1859-60 (2016)). Additionally, because DC-ADM 008 permits oral complaints to staff to report sexual harassment or abuse, Magistrate Judge Carlson finds granting summary judgment on the grounds of failure to exhaust inappropriate due to factual disputes regarding what Landau may have reported to staff and when he may have made such reports. (Doc. 205 at 22-23).

         DOC Defendants object to the R&R. They argue that nothing in Landau's responses to discovery requests or his deposition testimony indicate that Landau was confused by the administrative grievance procedures or found them opaque, and so it was an error for the R&R to "find an excuse where none exists from Plaintiffs perspective as evidenced by the record." (Doc. 214 at 3-4). They also argue that nothing in the DC-ADM 804 grievance policy "precludes grieving failure to intervene, supervise or train claims" or invasion of privacy or equal protection claims. (Id. at 4). They further contend that any effort by Landau to report these types of claims under DC-ADM 008 is ...

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