RICHARD P. CONABOY, District 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.
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.
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.
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.)
The Pennsylvania Department of Corrections ("DOC") Inmate Handbook provides inmates with information about how to raise and resolve problems through various channels.
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).
The subject of the Pennsylvania Department of Corrections policy number DC-ADM 001 is "Inmate Abuse."
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.
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.)
DC-ADM 804 states that allegations of abuse "shall be" handled according to DC-ADM 001 and adds that
(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:
(DC-ADM 001 at 1-1.)
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.
Plaintiff alleges that Defendant Granlund engaged in improper sexual contact with him on several occasions in the fall of 2010.
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.)
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.
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.
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.)
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.
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 required facts are more likely so than not so." (Doc. 96 at 7 (citing Third Circuit Model Civil Jury Table of Contents and Instructions 1.10).)
Finding that the district court did not err by acting as the fact finder because exhaustion constitutes a preliminary issue for which no right to a jury trial exists, the Third Circuit Court of Appeals held that "judges may resolve factual disputes relevant to the exhaustion issue without the participation of a jury." Small v. Camden County, 728 F.3d 265, 271 (3d Cir. 2013).
Regarding § 1997e(a)'s exhaustion language, the Supreme Court observed in Ross v. Blake, 136 S.Ct. 1850 (2016), "that language is `mandatory.'" Id. at 1856 (citations omitted). However, as Ross goes on to explain, "that edict contains one significant qualifier: the remedies must indeed be `available' to the prisoner." Id. "[A]n inmate is required to exhaust those, but only those, grievance procedures that are `capable of use' to obtain some relief for the action complained of." Booth v. Churner, 532 U.S. 731, 738 (2001). Ross reviewed "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." 136 S. Ct. at 1859.
First, "an administrative procedure is unavailable when (despite what regulations or guidance may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. (citing Booth, 532 U.S. at 736, 738). For example, "`where the relevant administrative procedure lacks authority to provide any relief,' the inmate has `nothing to exhaust.'" Id. at 1859 (quoting Booth, 532 U.S. at 736, and n.4).
Second, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it. . . . When rules are so confusing that no reasonable prisoner can use them, then they're no longer available." 136 S. Ct. at 1859 (internal quotation omitted). Ross went on to explain that
136 S. Ct. at 1859-60 (citations omitted).
Third, exhaustion is not required "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." 136 S.Ct. 1860. The Court further explained this third situation, first referencing Woodford v. Ngo, 548 U.S. 81 (2006), where the Court
Ross, 136 S. Ct. at 1860.
Because of questions about the state's grievance process, particularly the relationship between the standard grievance process and a related investigation process which investigated allegations of employee misconduct including claims of excessive force, the Court remanded the case for further consideration of whether the inmate had "available" remedies to exhaust. 136 S. Ct. at 1855, 1860-62.
In Robinson v. Superintendent Rockview SCI, 831 F.3d 148 (3d Cir. 2016), the Court of Appeals for the Third Circuit cited Ross as confirming the Circuit's decision in Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002), which "held that when prison officials thwart a prisoner's efforts to exhaust his administrative remedies, they render them unavailable." Id. at 153 (internal quotation omitted). Robinson went on to agree with five sister courts which held that a prison's failure to timely respond to an inmate's properly filed grievance renders its remedies "unavailable." 831 F.3d at 153 (citations omitted.). In so doing, Robinson referenced the Circuit's decision in Small v. Camden County, 728 F.3d 265 (3d Cir. 2013), where
831 F.3d at 154. The facts in Robinson show that the plaintiff pursued his claim correctly at every step but SCI-Rockview failed to respond within its self-imposed deadline and refused to update him on the status of his grievance after receiving three requests to do so. Robinson noted that "[a]s in Small, filing suit was Robinson's only method to advance his claim since SCI-Rockview prohibited inmates from filing appeals prior to receiving a decision." 831 F.3d at 154. The Circuit Court concluded the District Court had erred in finding that SCI-Rockview's response "which was provided more than four months late and six weeks after Robinson filed suit and did not even address the correct incident— rendered the prison's administrative remedies `unavailable' to him under the PLRA." Id. Commenting on the importance of the proper administration of the grievance process, the Court noted "[i]f prisons ignore or fail to fully investigate allegations of abuse, prisoners will feel disrespected and come to believe that internal grievance procedures are ineffective," and this belief in the end may "tax[] the judicial resources that Congress meant to conserve by passing the PLRA."
As set out in the background section of this Memorandum, the Pennsylvania Department of Corrections "Inmate Grievance System," DC-ADM 804, spells out the procedures an inmate is to follow to file grievances and the "Inmate Abuse" policy, DC-ADM 001, outlines procedures for reporting allegations of abuse. Neither the policies themselves nor DOC/SCI-Rockview written materials definitively resolve the issue of whether DC-ADM 001 is an alternative method of exhausting administrative remedies for claims of abuse.
A panel of the Court of Appeals for the Third Circuit noted that the Circuit Court
Victor v. Lawler, 565 F. App'x 126, 129 (3d Cir. 2014) (not precedential).
Defendants argue that the Middle District cases do not control for several reasons: 1) they predate Small which held exhaustion is a question of law for the court to decide; 2) none of the cases involved an evidentiary hearing; and 3) none of these cases contained evidence in the record explaining DOC policies 804 and 001. (Doc. 96 at 1.) Defendants first two arguments do not undermine the proposition that DC-ADM 001 is an alternative avenue of exhaustion in cases of abuse, they go to who decides the issue and when it is decided. With their third argument, Defendants urge the Court to conclude that the cases simply got it wrong because defendants in those cases did not explain the differences between the policies at issue, DC-ADM 804 is the only grievance policy, and "what started out as a mistake in Carter has now snowballed into a long line of cases that wrongfully hold 001 is an alternative administrative remedy that satisfies the exhaustion requirement." (Id. at 5-6.) For these reasons, Defendants request that the Court not follow the cases holding that DC-ADM 001 is an alternative to DC-ADM 804 for exhaustion of administrative remedies dealing with abuse. (Id. at 6.)
Plaintiff maintains that, given the state of the law in 2010 and 2011, he should not be penalized for using DC-ADM 001 to attempt to exhaust administrative remedies for claims of abuse.
(Doc. 97 at 2-6.)
Without wading into the consideration of whether the numerous cases concluding that DC-ADM 001 was an appropriate method of exhaustion of abuse claims got it wrong, those cases and the Third Circuit panel's Victor decision, although not precedential, remain the uncontradicted opinions on the issue. At the time Plaintiff was submitting his inmate requests, letters, and grievances on the matters at issue in this case, Carter, McKinney, and Knauss had concluded that DC-ADM 001 was an appropriate avenue of exhaustion for a Pennsylvania prisoner claiming abuse. McKinney, 2010 WL 1135722, at *6-7; Knauss, 2010 WL 5698929, at *7-8; Carter, 2006 WL 3791342, at *1. Seen in the context of Defendants' current argument, the line of cases cited above at least shows "systemic confusion" and no evidence suggests that this confusion has been addressed by appropriate officials, policy amendment, or the Inmate Handbook. See Ross, 136 S. Ct. at 1861-62.
Review of SCI-Rockview Grievance Coordinator Jeffrey Rackovan's testimony shows that he was not able to provide answers to key questions and he could not clarify the interaction between DC-ADM 804 and DC-ADM 001. He generally explained the interaction of DC-ADM 804 and DC-ADM 001 using qualifying terms; he acknowledged confusion regarding the interaction; and he could not definitively say that DC-ADM 001 was not an alternative to DC-ADM 804 for exhaustion of administrative remedies. For example, when asked at the April 6, 2016, evidentiary hearing whether he was aware of any policy other than DC-ADM 804 by which an inmate could seek a remedy, Mr. Rackovan responded "[t]he DC-ADM 001 is an Abuse Allegation Policy which, I guess, ultimately, they could seek monetary redress through that."
Review of the testimony of Harold Kertes, the supervising criminal investigator for OSII, shows that he testified more definitively than Mr. Rackovan in some respects, but his testimony did not elucidate certain areas of confusion noted in Mr. Rackovan's testimony. (See Doc. 83 at 89-102.) For example, when asked by defense counsel whether there was anything in DC-ADM 001 that permits an investigator who found abuse of an inmate to compensate that inmate with money or provide any type of remedy, Mr. Kertes responded: "No, the 001 specifically directs that back it [sic] to the 804 process, inmate grievance process" (id. at 94), but he does not explain how DC-ADM 001 refers an inmate to DC-ADM 804 when the inmate is seeking a remedy and neither the current DC-ADM 001 policy nor the Inmate Handbook reveals such a reference.
Mr. Kertes' explanation of what happens under DC-ADM 804 and DC-ADM 001 when an inmate filed a grievance under 804 alleging sexual abuse back in 2010-2011 further illustrates a lack of clarity. While Mr. Kertes was clear that all allegations of abuse were investigated no matter how reported and he stated that he does not deal with grievances (Doc. 83 at 96), his comments about the appeal process ("there's a process set out in the 804 where it's considered resolved right in the beginning so it doesn't cut back on the time appeal, and the grievance folks will have to explain that even more" (Doc. 83 at 94)) are, at best, difficult to decipher. The Court's attempts to make sense of a grievance considered resolved before the abuse is investigated relative to an appeal certainly show that "the grievance folks" need to "explain that even more." (Id.)
The testimony from Mr. Rackovan and Mr. Kertes supports Plaintiff's argument that he should not be penalized for using the DC-ADM 001 policy which courts recognized to be an acceptable method of exhaustion at the time he lodged allegations of abuse. DOC officials have had ample time to clarify the alleged error found in many district court opinions through policy amendment, handbook explanation, or other inmate education tools explaining that DC-ADM 001 is not an alternative method of exhausting claims of abuse. Defendants present no evidence that the DOC has done so and certain aspects of the testimony from Mr. Kertes and Mr. Rackovan indicate that internal confusion on the issue remains.
As such, the Court declines Defendants' invitation to categorically reject the finding in numerous cases that DC-ADM 001 offered an alternative to DC-ADM 804 for cases of assault. Based on this record and the arguments presented here, the Court concludes DC-ADM 001 was an appropriate administrative remedy which an inmate could use to exhaust claims of abuse pursuant to the PLRA during the relevant time period. Further, the Court concurs with the Report and Recommendation that the mere act of reporting abuse under DC-ADM 001 does not constitute exhaustion. (See Doc. 93 at 10.) Consistent with Victor and the purposes of the PLRA, absent special circumstances, the inmate must wait for an investigation to be complete before filing a complaint in federal court.
Contrary to Plaintiff's objections regarding the appropriate standard and matters of credibility (see Doc. 94 at 2; Doc. 95 at 17-19), Magistrate Judge Mehalchick used the standard applicable to questions of exhaustion and properly considered matters of credibility on the issue of DC-ADM 804 appeals pursuant to Small, 728 F.3d 265. The Magistrate Judge did not decide whether Plaintiff's underlying claims of abuse, conditions of confinement, and retaliation had merit—her determinations went only to the filing of appeals regarding those matters. (See Doc. 93.)
The Court concurs with Magistrate Judge Mehalchick that Defendants have satisfied their burden of showing that Plaintiff did not exhaust his claims through DC-ADM 804 regarding any claim for which he received an Initial Review Response indicating that the grievance was rejected or denied at the initial level in that, for those claims, he failed to file appeals to the next level of review and he did not satisfactorily show that he was thwarted from doing so. (Doc. 93 at 14-15.) Thus, Plaintiff's conditions of confinement claims regarding the deprivation of food, etc., are properly dismissed for failure to exhaust administrative remedies. Similarly, to the extent Plaintiff referred to retaliation by Defendant Granlund or inferred supervisory liability on the part of Defendants Lamas and Eaton in his grievances, these claims are also properly dismissed.
Importantly, this conclusion does not apply to grievances for which Plaintiff did not receive a denial upon initial review (grievance numbers 346858 and 347374 based on the December 6, 2010, alleged physical abuse by Defendant Granlund, and grievance number 355976 based on the February 19, 2011, alleged abuse by Defendants Hall, Perks, and Fisher) or to claims of abuse which are subject to review pursuant to DC-ADM 001 (claims of sexual and physical abuse by Defendant Granlund and claims of physical abuse by Defendants Hall, Perks, and Fisher). Therefore, the question of exhaustion of the following claims remains: the claim of sexual abuse by Defendant Granlund in the fall of 2010; the claim of physical abuse by Defendant Granlund in December 2010; and the claim of physical abuse by Defendants Hall, Perks, and Fisher in February 2011.
Plaintiff filed two DC-ADM 804 grievances concerning the alleged physical abuse by Defendant Granlund on December 6, 2010, within the time frame provided by the policy—Grievance numbers 346858 and 347374 dated December 10 and December 15, 2010, respectively. (Doc. 60-6 at 12, 14.) Defendant Eaton, the head of the Security Office at SCI-Rockview, was assigned as the Grievance Officer for both grievances and the Initial Review Responses were signed by her on January 3 and January 6, 2011. (Doc. 60-3 at 13, 15.) The statement in the responses which indicated that Plaintiff's grievances would be handled in accordance with DC-ADM 001 and would be investigated by the Security Office with the results forwarded to OPR (OSII) was initialed JAR:nja with copies sent to Deputy Horton, Captain Eaton, DC-15, and Mr. Rackovan. (Id.)
Plaintiff does not dispute that he did not complete the three-step grievance process outlined by DC-ADM 804. Rather, he argues that DC-ADM 804 was not an available administrative remedy. (See, e.g., Doc. 95 at 3.) Therefore, the pertinent issue is whether DC-ADM 804 was "available" to Plaintiff to exhaust his claim of physical abuse by Defendant Granlund.
Under the terms of DC-ADM 804, Plaintiff had to receive a denial of the grievances before he could appeal to the next level of review. (Doc. 60-2 at 15.) He argues that he never received these denials nor was he informed of the results of the investigation the grievances triggered and, thus, no appeal was "available." (See, e.g., Doc. 97 at 2 n.4.) Defendants assert that Plaintiff testified at his deposition that he received a response and that it was denied. (Doc. 96 at 8 (citing Doc. 60-7 at 26).)
The Court concludes the testimony cited is far less clear than Defendants posit.
Defendants' cursory consideration of exhaustion of the December 6, 2010, related grievances (Doc. 96 at 8-9) and their conclusory statements regarding whether administrative remedies were available to Plaintiff pursuant to Ross (id. at 19) may be enough to find that they have not satisfied their burden of proving by a preponderance of the evidence that Plaintiff failed to exhaust his physical abuse claims against Defendant Granlund under DC-ADM 804. However, the Court will take a more in-depth look at whether DC-ADM 804 was available to Plaintiff in that the record as a whole facilitates such consideration. Because the question of the availability of administrative remedies pursuant to Ross requires a reviewing court to consider factual averments in the context of policy provisions and procedures on the ground from both individual and system-wide perspectives, 136 S. Ct. at 1859-62, and because the parties debate whether Plaintiff received responses to his grievances, the Court will review evidence showing significant differences between what happened here and what the policies and announced procedures provided.
DC-ADM 804 directed that the grievances related to the alleged December 6, 2010, abuse incident were to be entered into the Automated Inmate Grievance Tracking System and handled according to DC-ADM 001, and, if the first notice to the Security Office, the Security Office Staff had thirty working days from the date the grievances were entered into the tracking system to respond. (Doc. 60-2 at 11-12.) DC-ADM 001 also provides that when the grievance is related to an allegation of abuse, the Grievance Coordinator, Mr. Rackovan, was to "issue an Extension Notice" to Plaintiff by "checking the box `Notice of Investigation.'" (DC-ADM 001 at 1-1.)
Here the grievances were entered into the Tracking System as per the Grievance Chart on December 15th and December 20
At that point the SCI-Rockview Security Office was to investigate the allegation of abuse and compile a report. Investigation notes show that a timely investigation ensued.
Security Office Investigation notes do not indicate the date it completed the investigation, but it was to have done so within thirty business days of receiving the OSII tracking number. (DC-ADM 001 at 1-3.) Because the Security Office had received the tracking number by January 10, 2011, at the latest (the Memorandum of Interview of that date identified the tracking number (see Doc. 68 at 4)), the investigation report was to have been forwarded to OSII no later than thirty business days from then, i.e., February 22, 2011.
The record contains no request for extension. Therefore, assuming the Security Office forwarded its investigation report to OSII for review by February 22, 2011, OSII was to complete its review of the report by March 15, 2011, (fifteen business days from February 22, 2011) as per DC-ADM 001.
Pursuant to policies, procedures and evidence of record, Plaintiff should have been notified by the SCI-Rockview Security office about the results of the investigation into the December 6, 2012, incident by the end of March 2011. Thereafter, he should have received denials of his grievances from Defendant Eaton, the assigned Grievance Officer.
The documentary record does not contain direct evidence that SCI-Rockview sent an investigation report to OSII, that OSII informed SCI-Rockview personnel that the investigation was satisfactory, or that SCI-Rockview personnel informed Plaintiff of the results of the investigation and provided him with Initial Review Responses indicating that his grievances were denied.
The record supports the conclusion that the notification to Plaintiff did not occur as anticipated by the policies in that Plaintiff continued to seek information about the status of his claim regarding the December 6, 2010, incident: he sent an Inmate's Request to Staff form to Shirley Moore on March 20, 2011 (Doc. 63-1 at 22); he sought help getting information about his claims, including those related to Defendant Granlund's physical abuse, in an "Official Inmate Grievance" addressed to Defendant Lamas and received on May 3, 2011 (Doc. 63-1 at 32); in an Official Inmate Grievance dated June 30, 2011, addressed to Mr. Rackovan, Plaintiff complained that SCI-Rockview had never gotten back to him on some grievances relating to the December 6, 2010, incident (Doc. 60-6 at 38); in a letter dated July 4, 2011, to the OSII director, Plaintiff repeated his allegations about the December 6, 2010, abuse and said SCI-Rockview had overlooked the matter, he had heard nothing back from OSII, and he awaited OSII's response (Doc. 63-1 at 42-43); and in a grievance dated July 6, 2011, (number 372264), Plaintiff said he had been interviewed about the December 6, 2010, incident, he had asked Lt. Vance for a copy of the statement he had taken but did not get one, and he asked about the investigation of the sexual allegations (Doc. 60-6 at 40). In response to the July 6th grievance, Mr. Rackovan referenced Defendant Eaton's June 30, 2011, response to an Inmate's Request to Staff Member and stated that "both of your allegations have been investigated by the Security Office and reviewed by OSII." (Doc. 60-6 at 41.) In the referenced June 30
This chronological summary shows that, despite the procedural provisions set out in DC-ADM 804 and DC-ADM 001 and Plaintiff's numerous inquiries after the time he should have been notified, Plaintiff was not notified by any SCI-Rockview personnel about the result of the investigation into the December 6, 2010, alleged assault or the disposition of the two grievances related to the incident. Defendant Eaton, the Greivance Officer assigned to the case and the officer in charge of the SCI-Rockview Security office, testified at her deposition on November 21, 2014, that her statement in June 2011 that all of Plaintiff's "allegations either were or are being addressed" (Doc. 63-1 at 33) would have been made after referencing the Security Office abuse log (a log of abuse allegations that were turned over to OSII) but she did not remember anything more specific (Doc. 63-1 at 84-86).
The OSII Tracking Summary entry of July 7, 2011, states that a letter was sent to Plaintiff informing him that his allegations were investigated and found unsubstantiated. (Doc. 63-1 at 51.) This appears to be the only documentary indication that Plaintiff may have been notified of the disposition of the investigation initiated as a result of his December 2010 grievances related to the December 6, 2010, alleged abuse. The record does not contain a copy of this letter, evidence detailing the substantive contents of the letter, or verification of its receipt.
Looking at the terms of relevant DOC policies and the facts of this case, several issues raised in Ross are relevant. First, "an administrative procedure is unavailable when (despite what regulations or guidance may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Ross, 136 S. Ct at 1859 (citing Booth, 532 U.S. at 736, 738). Here the individuals charged with informing Plaintiff of the results of the investigation and providing a response to his grievances did nothing, even after Plaintiff made several inquiries. Although Defendant Eaton (the person in charge of the Security Office and the assigned Grievance Officer who was responsible for informing Plaintiff of the results of the investigation and providing him with the Initial Review Response to his grievances following the investigation) said she would have looked at Security Office logs to form her response that allegations "were or are being investigated" and Mr. Rackovan, SCI-Rockview's Grievance Coordinator, said that Plaintiff's allegations had been investigated and reviewed, neither of these individuals informed Plaintiff of the results. These responses show a consistent unwillingness on the part of SCI-Rockview personnel to provide Plaintiff relief regarding the allegations lodged in his DC-ADM 804 grievances filed in December 2010 alleging abuse on December 6, 2010. Thus, pursuant to Ross, the administrative process operated as a dead end and was unavailable to Plaintiff.
Second, the Court considers whether the administrative scheme operating at SCI-Rockview in cases of alleged abuse was "so opaque that it becomes, practically speaking, incapable of use." 136 S. Ct. at 1859. This is the situation where "some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. Ross added that "When rules are so confusing that no reasonable prisoner can use them, then they're no longer available." Id.
The timeline set out above and additional evidence of record point to systemic problems regarding the handling of abuse claims under DC-ADM 804. An in-depth look at the interaction of DC-ADM 804 and DC-ADM 001 shows that DC-ADM 804 was not "available" under the principles established in Ross because the interactive scheme, at least as applied here, was "so opaque" that it was, "practically speaking, incapable of use." 136 S. Ct. at 1859.
The lack of clarity exhibited in the testimony of those individuals charged with administering DC-ADM 804 and DC-ADM 001 is exacerbated when the two individuals' testimony is compared and when their testimony is further compared with the policies themselves and their practical application. For example, Mr. Rackovan's testimony that following OSII's approval of the Security Office's investigation, "it slides back to the Grievance Policy, and the inmate ultimately gets his response to that grievance that he filed" (Doc. 81 at 12) does not appear to be consistent with Mr. Kertes' testimony "it's considered resolved right in the beginning" (Doc. 83 at 94). Mr. Rackovan's additional testimony that "the inmate gets his response from Security, approved by OSII, and then he can follow his appeals the same way he would with a normal grievance" (Doc. 81 at 12), infers that the inmate will be informed of the results in a manner consistent with DC-ADM 804. DC-ADM 804 relates an inmate's ability to appeal a grievance dealing with abuse (which must be handled pursuant to DC-ADM 001) to the inmate's receipt of the Initial Review Response and DC-ADM 001 confirms that the Grievance Officer is to inform the inmate of the disposition of the related grievance after OSII approves the investigation. (Doc. 60-2 at 12; DC-ADM 001 at 1-1.) Setting aside for the moment Mr. Kertes' confusing comments regarding appeal noted above, testimony and policy provision comparison leads to the question of whether a letter from the facility's Security Office or OSII (if OSII investigates the allegations of abuse) which is not identified as an "Initial Review Response" triggers the inmate's fifteen-day period within which to appeal "an Initial Review Response/Rejection" (Doc. 60-2 at 15).
An additional layer of confusion is illustrated by the handling of the grievances alleging abuse related to the December 6, 2010, incident discussed previously: Initial Review Responses indicated the matter would be investigated in accordance with DC-ADM 001 (Doc. 60-6 at 13, 15); the Grievance Chart indicated these grievances were denied at about the same time that Plaintiff was informed the allegations were being investigated (Doc. 60-5 at 2); and the Grievance Chart indicated that no further action was taken on the grievances (id.). These apparent inconsistencies may be indicative of the workings of the "process set out in the 804 where it's considered resolved right in the beginning so it doesn't cut back on the time appeal, and the grievance folks will have to explain that even more" explained by Mr. Kertes (Doc. 83 at 94), but making sense of things is another matter. As the Court previously noted, attempts to make sense of a grievance considered resolved before the abuse is investigated relative to an appeal certainly show that, as Mr. Kertes noted, "the grievance folks" need to "explain that even more." (Id.)
Importantly, if the "Initial Review Response" triggers the fifteen-day time period to appeal and the only "Initial Review Response" to the grievance received by the inmate informs him that the matter is being investigated, where is an explanation of how the inmate is to proceed with the grievance process? No such explanation is found in the policies at issue or in the testimony reviewed above. As set out previously, here Plaintiff made multiple inquiries about the status of the allegations related to the December 6, 2010, incident and the record does not show that he ever received a letter from the Security Office or the Facility Manager/designee—the former being charged with the responsibility when the Security Office conducted the investigation (as was the case here) as per testimony from Mr. Rackovan and Mr. Kertes, and the latter being charged with the responsiblity as per DC-ADM 001. (DC-ADM 001 at 1-4, 1-5.) Also as discussed above, the only indication that Plaintiff was informed of the results of the investigation is the July 7, 2011, Tracking System Summary reference to a letter which reportedly advised Plaintiff that "his allegations were investigated and unsubstantiated" (Doc. 63-1 at 51). The letter itself is not contained in the record and there is no evidence that it was identified as an "Initial Review Response" or contained any other indicia that the letter was the trigger for the inmate's period to appeal to the next level of review. If this is indicative of standard practice for SCI-Rockview and OSII in handling claims of abuse filed pursuant to DC-ADM 804, "the facts on the ground" demonstrate an almost impenetrable process. See Ross, 136 S.Ct. 1859.
Whether Plaintiff was thwarted from taking advantage of the standard grievance process set out in DC-ADM 804 "through machination, misrepresentation, or intimidation," Ross, 136 S. Ct. at 1860, is also a relevant question because of the lack of communication regarding his DC-ADM 804 grievances and DC-ADM 001 requests which Plaintiff was told were being investigated pursuant to DC-ADM 001. Here, prison officials thwarted Plaintiff from taking advantage of the grievance process through misrepresentation in that they did not inform him of the status of the investigation or provide him denials of related grievances. As found in Robinson, an inmate's attempt to use the grievance system is thwarted and unavailable when prison officials do not provide the responses required by the relevant procedures. 831 F.3d 148.
The Court also agrees with Robinson's concern about SCI-Rockview grievance handling processes, 831 F.3d at 155, given the consistent obfuscation of the real status of matters related to his grievances and allegations. Even if the SCI-Rockview Security Office had timely submitted its investigation to OSII and OSII had not timely advised SCI-Rockview officials of the results of the OSII review of the Security Office investigation, SCI-Rockview officials, as per the abuse log, would have known the Security Office had completed the investigation and Plaintiff's inquiries should have prompted officials to pursue the matter with OSII. No evidence shows that they did so.
For all of these reasons, the Court concludes Defendants have not shown that DC-ADM 804 presented an available remedy for Plaintiff to exhaust his allegations of physical abuse related to the December 6, 2010, incident with Defendant Granlund. Therefore, the claim of physical abuse by Defendant Granlund goes forward.
If Plaintiff's December 6, 2010, physical assault claim is considered pursuant to DC-ADM 001 based on his direct reporting of the incident to OSII (initially by letter received by OSII on January 7, 2011 (Doc. 63-1 at 39-40)), the result would be the same in that the letter to Plaintiff referenced in OSII's July 2011 Tracking Summary entry, if received by Plaintiff, would have allowed Plaintiff to file suit pursuant to the Third Circuit panel's decision in Victor and relevant decisions in this Court. See 565 F. App'x at 129. If the letter was not received or did not adequately inform Plaintiff of the results of the investigation, the lack of response would present a "special circumstance" under Victor and/or the DC-ADM 001 remedy would be deemed unavailable pursuant to Robinson and Ross.
In sum, Defendants have not met their burden of showing that Plaintiff's allegation of physical abuse by Defendant Granlund on December 6, 2010, must be dismissed for failure to exhaust administrative remedies pursuant to the PLRA. Therefore, this claim properly goes forward.
Plaintiff does not dispute that he did not complete the three-step grievance process outlined by DC-ADM 804 regarding his claim of sexual abuse by Defendant Granlund. (See, e.g., Doc. 95 at 3.) Because no evidence suggests that he filed a timely grievance alleging sexual misconduct by Defendant Granlund in the fall of 2010, the Court will limit the analysis to whether Plaintiff exhausted the sexual abuse claim under DC-ADM 001. Defendants did not address this issue, maintaining that DC-ADM 001 did not satisfy the PLRA exhaustion requirement. (See Docs. 96, 101.) Although the Court could find that Defendants did not meet their burden of showing a lack of DC-ADM 001 exhaustion, given the interplay of issues in this case, the Court will briefly outline the facts/issues related to exhaustion of the sexual abuse claim under DC-ADM 001, i.e., whether Plaintiff adequately raised the claims and whether he waited for the investigation to be complete before filing his case in this Court or whether the need to do so was excused pursuant to Victor, 565 F. App'x at 129.
A review of documents indicates that Plaintiff claims to have raised allegations of sexual misconduct in the fall of 2010, but the first verifiable claim is found in Plaintiff's January 7, 2011, letter, which was received by OSII on January 10, 2011. (Doc. 63-1 at 39-40.) The record shows that on the date of receipt OSII faxed the document to Defendant Eaton at SCI-Rockview to include in their pending investigation of abuse. (Doc. 63-1 at 51.) The investigation pending at the time related to Defendant Granlund's alleged physical abuse discussed above. Unlike the claim of physical abuse, the record does not show any evidence aside from inferences and undocumented references that an investigation into the sexual abuse allegations was conducted by the SCI-Rockview Security Office or any other DOC entity. On the contrary, the record shows that no such investigation occurred. Key evidence on this point includes the undated investigation report referenced in the physical assault discussion above where Lt. Green stated that the Plaintiff's letter received by OSII on January 10th says that Plaintiff's letter
(Doc. 68 at 5.) This investigation note contains absolutely no reference to allegations of sexual misconduct contained in Plaintiff's letter. Other investigation documents are similarly devoid of any mention of allegations or investigation of sexual misconduct in 2011. (Doc. 68 at 3, 4.)
Further, the OSII Tracking System Summary entry dated January 10, 2011, confirms that Plaintiff's letter included allegations of sexual misconduct by Defendant Granlund and indicates "Complaint faxed to Capt. Eaton to include with their pending abuse investigation." (Doc. 63-1 at 51.) While the Court cannot confirm receipt of the fax based on the summary, the record shows that the SCI-Rockview Security Office was made aware of Plaintiff's sexual misconduct allegations—Defendant Eaton herself received and responded to an Inmate Request from Plaintiff on the issue on at least one occasion. (See Doc. 63-1 at 33.)
The record also shows that SCI-Rockview Grievance Coordinator Rackovan was made aware of the allegations with Plaintiff's grievance number 349821 received on January 11, 2011. (Doc. 60-6 at 16.) Mr. Rackovan rejected this grievance on January 11, 2011, for several reasons (id. at 17) with no indication that he forwarded the rejected grievance to SCI-Rockview's Security Office for investigation which was the procedure specifically set out in DC-ADM 001. (See DC-ADM 001 at 1-1.) Sexual misconduct claims were again raised in grievance number 354666 received on February 16, 2011, and the grievance denial dated March 1, 2011, stated that "the allegations regarding UM Granlund were addressed in Grievance number 349821." (Doc. 60-6 at 1.) Thus, neither of these grievances triggered an investigation into sexual misconduct by Defendant Granlund pursuant to DC-ADM 001 although DC-ADM 804 stated that a grievance dealing with abuse should be handled under DC-ADM 001. (See Doc. 60-2 at 12.)
Many other documents show that Plaintiff continued to raise his claim of sexual abuse by Defendant Granlund and nothing in the record shows that any action was taken: the Inmate's Request to Staff Member addressed to Ms. Shirley Moore at Camp Hill on March 20, 2011, which included allegations of Defendant Granlund's sexual misconduct (Doc. 63-1 at 22) should have triggered an investigation under DC-ADM 001 but there is no evidence that it did so; Inmate's Request to Staff Member addressed to Defendant Eaton on June 30, 2011, again raised the sexual allegations against Defendant Granlund and she merely responded "[a]ll of your allegations either were or are being addressed" without saying what allegations were addressed or what the decision on the allegations had been or what allegations are being addressed (Doc. 63-1 at 33); Official Inmate Grievance number 371781 dated June 30, 2011, addressed to Mr. Rackovan, in which Plaintiff stated that he was asking Rockview for an investigation against UM Granlund for sexual abuse, referenced a grievance filed on the issue to Ms. Lamas in October 2010 as well as the December 6, 2010, incident, and asked to be sent "copies of responses on the matters above" was rejected on July 6, 2011 for several reasons and a note at the bottom of the page stated "[i]f you want an investigation, contact the Security Office" (Doc. 60-6 at 38, 39), a response not consistent with the handling of sexual abuse grievance claims under DC-ADM 001 and DC-ADM 804; Plaintiff's letter dated July 4, 2011, and received by OSII on July 7, 2011, repeated his allegations about Defendant Granlund's physical and sexual assaults and the fact that he had not heard anything from OSII on these matters (Doc. 63-1 at 42-43) and the OSII Tracking Summary indicates only that he was sent a letter advising him that "his allegations were investigated and unsubstantiated" (Doc. 63-1 at 51); and in Official Inmate Grievance number 372264 dated July 6, 2011, Plaintiff reviewed his interaction with Defendant Eaton regarding the sexual and physical abuse claims, and specifically referenced the lack of investigation of his sexual abuse claims (the officer investigating the physical abuse claims would not show him his statement in which he said "how UM Granlund would force me to let him masterbait [sic] me and so on) (Doc. 60-6 at 40)); and Mr. Rackovan stated in the denial of the grievance that the allegations "have been addressed through appropriate DC-ADM 001 and 804 procedures" (Doc. 60-4 at 41).
This evidence shows that Plaintiff undoubtedly adequately raised claims of sexual abuse by Defendant Granlund under DC-ADM 001. It also shows that, despite inferences by Defendant Eaton, Mr. Rackovan, and OSII that the sexual allegations had been investigated, no record evidence confirms that any investigation actually took place. Further, if there was no investigation into sexual misconduct allegations, there could be no review of such an investigation by OSII.
This conclusion is bolstered by the testimony of SCI-Rockview personnel that they had not seen any evidence that the sexual allegations were investigated. Mr. Rackovan stated that he did not see any evidence that these allegations were investigated by the SCI-Rockview Security Office or OSII. (Doc. 81 at 31-32.)
Defendant Eaton, the individual in charge of the Security Office which would have conducted the investigation, stated that an inmate who had made an allegation of improper sexual contact with a staff member would have been interviewed and she had no recollection of interviewing Plaintiff or Defendant Granlund. (Doc. 63-1 at 81.) Defendant Eaton said she would have referenced the Security Office log in formulating her response that "All of your allegations either were or are being addressed." (Doc. 63-1 at 83.) She confirmed that at the time she wrote her response "it looks like" she would have been familiar with Plaintiff's allegations of being sexually abused and she believed at the time that the allegations were being or had been addressed but she had no idea at the time of her deposition how they had been addressed. (Id. at 84-86.)
Initially Defendant Lamas pointed to the OSII's close of the investigation report as a document which showed that the DOC had investigated Plaintiff's allegations of sexual abuse. (Doc. 63-1 at 63, 65.) However, after reviewing an OSII file to see if anything indicated that OSII investigated the sexual allegations, Defendant Lamas could not point to anything specific. (Id. at 65-66.)
Because Plaintiff raised the allegations of sexual abuse in accordance with DC-ADM 001, ordinarily receipt of the investigation results before filing suit was the only other thing that needed to happen before the federal claim would be considered properly filed pursuant to Victor. 565 F. App'x at 129. The fact that the matter was never investigated certainly presents a "special circumstance" under Victor, id., and pursuant to Ross and Robinson, administrative remedies regarding the sexual abuse claim would be deemed unavailable to Plaintiff. 136 S.Ct. 1850, 831 F.3d 148. Therefore, Plaintiff's claim of sexual abuse by Defendant Granlund goes forward.
As with his claims of physical abuse by Defendant Granlund in December 2010, Plaintiff attempted to use DC-ADM 804 to address his allegations of abuse by Defendants Hall, Perks, and Fisher regarding the February 19, 2011, chemical incident. He did so initially with the filing of grievance number 355976 dated February 23, 2011. (Doc. 60-6 at 24.) He also reasserted the allegations in numerous other filings. (See, e.g., Docs. 63-1 at 26, 60-6 at 32, 33.) Thus Plaintiff's February 19, 2011, abuse allegations will be considered pursuant to DC-ADM 804 and DC-ADM 001.
In the timely-filed grievance dated February 23, 2011, and stamped as received on February 28, 2011, Plaintiff claimed that the three corrections officers poured chemicals into his cell (CO Hall said "now try that out") and cut off ventilation which caused him to become sick and fall on the floor and eventually be taken to the medical unit. (Id.)
A Grievance Withdrawn form regarding grievance number 355976 dated March 21, 2011, signed by G. Dyke, the assigned Grievance Officer, contained the type-written statement: "Inmate Moore elected to withdraw this grievance." (Doc. 60-6 at 25.) No reason is provided.
Ordinarily this would end the DC-ADM 804 exhaustion question because a withdrawn grievance cannot be appealed (Doc. 60-2 at 10-11) but, in this case, Plaintiff alleges that he was thwarted from exhausting his administrative remedies because his signature was forged on the Grievance Withdrawn form (Doc. 95 at 7).
(Doc. 96 at 15.)
While Defendants' argument has some facial appeal, a review of the record shows that it was not just Plaintiff's subsequent inquiries which should be considered but also Mr. Rackovan's references to the chemical incident claim and the lack of consistent documentary evidence on withdrawal. The lack of consistency in documentary evidence is exhibited by the relevant Grievance Chart entry which does not state that the grievance was withdrawn. (Doc. 60-5 at 2.) It indicates the following: grievance number 355976 for problems with staff was received on March 1, 2011; the "Disposition" and "Complete" columns are blank as are all others except the "Initial" column containing the word "yes." (Id.)
Post March 21, 2011—the date on the Grievance Withdrawn form related to the chemical incident grievance (number 355976)—Mr. Rackovan never referred to the grievance as withdrawn but referenced it in terms of reviewed and responded to: in response to another grievance containing allegations related to the chemical incident (number 359868 dated March 25, 2011), Mr. Rackovan rejected the grievance in part because the issue of the chemical incident contained in grievance number 355976 had been reviewed and answered, Plaintiff was sent a copy of the response, and he had the opportunity to appeal (Doc. 60-6 at 29); and Mr. Rackovan similarly rejected grievance number 360139 dated March 30, 2011, which had again raised the chemical incident (Doc. 60-6 at 32-33).
The Court concludes the conflicting evidence of record renders the Grievance Withdrawn form itself insufficient evidence to support Defendants' burden of showing it is more likely than not that Plaintiff signed the Grievance Withdrawn form and/or intended to withdraw his grievance. Thus, the Grievance Withdrawn form alone does not show that the DC-ADM 804 grievance process was available to Plaintiff regarding the February 19, 2011, chemical incident allegations. This conclusion is based on Plaintiff's averment that he did not voluntarily withdraw his grievance (Doc. 95 at 7 & n.7), the numerous inquiries about the incident (including complaints about officials' lack of response to the allegations) following the alleged withdrawal, the inconsistencies evidenced by the Grievance Chart, and the inconsistencies discussed regarding Grievance Coordinator Rackovan's references to the allegedly withdrawn document on more than one occasion as if it had been reviewed and denied (see Doc. 60-6 at 29, 33).
Given the evidence of record reviewed above, Defendants' failure to address evidence pertinent to the issue of whether Plaintiff was thwarted from filing his chemical incident claim pursuant to DC-ADM 804 demonstrates they have not met their burden of showing that this remedy was available to Plaintiff to pursue this claim. Defendants' conjecture as to why Plaintiff's later filed allegations are "meaningless" (Doc. 96 at 15) and their argument that Plaintiff has shown a general lack of credibility which should be attributed to all of his allegations (id. at 16) do not address or outweigh the countervailing evidence discussed.
Considering Plaintiff's allegations under DC-ADM 001, the record clearly shows that he raised the chemical incident allegation as a DC-ADM 001 claim. However, the record does not show that a DC-ADM 001 investigation took place.
Plaintiff specifically raised the chemical incident in terms of DC-ADM 001 on more than one occasion. He first did so in the Inmate's Request to Staff Member form dated March 20, 2011, addressed to Shirley Moore, Secretary, D.O.C. Camp Hill, where he stated that the February 19, 2011, incident was in violation of DC-ADM 001. (Doc. 63-1 at 22.)
In Inmate's Request to Staff Member dated March 30, 2011, addressed to Defendant Lamas, Plaintiff stated that she had told him about two weeks earlier that she would look into his allegations including those concerning the chemical incident (which he asserted was "clearly in violation of DC-ADM 001 . . . excessive force"), that no one was getting back to him "as D.O.C. policy" and nothing was being done to the officers. (Doc. 63-1 at 26.) Defendant Lamas responded "[w]hat would be done is internal."
Grievance number 360139 dated March 30, 2011, included allegations regarding the February 19, 2011, chemical incident and referenced DC-ADM 001. (Doc. 60-6 at 32.)
The April 4, 2011, OSII Tracking System Summary entry indicated that "Inmate Moore claims staff is not feeding him, staff has poured chemicals under his door and that he fell out on the floor and no one helped him or called medical (grievance 355506 — denied, grievance 355976 — withdrawn). ~ Inmate advised his allegations are being investigated and he will be advised of the outcome. X-Ref: 11-A-134 (ROC)." (Doc. 63-1 at 51.) This entry indicates that a new case tracking number was assigned but it does not say who is investigating the claims. (Id.) The OSII Tracking System Summary contains no further entries for case tracking number X-Ref: 11-A-134 (ROC) nor does it otherwise reference the associated allegations or investigation. (See id.)
On this record, the Court concludes the DC-ADM 001 avenue of relief was also closed to Plaintiff because he raised the chemical incident claims in terms of DC-ADM 001, no evidence shows Mr. Rackovan, Defendant Lamas, or Ms. Moore reported the allegations to the Security Office or OSII as was their obligation under DC-ADM 011 (see DC-ADM 001 at 1-1, 1-2); no evidence shows that the investigation referenced by OSII in the April 4, 2011, Tracking Summary Entry (Doc. 63-1 at 51), or any other investigation ever took place; and finally, Plaintiff was never informed of the status of the case OSII opened regarding the February 19, 2011, chemical incident.
The concerns noted previously in the margin about the handling of claims of abuse at SCI-Rockview, see supra p. 22 n.11, are present for each claim of abuse lodged by Plaintiff. It appears that investigations were cursory or nonexistent and officials were not forthcoming in advising Plaintiff of the status of his claims despite numerous inquiries. While this Court concurs with Robinson's expressed hope "that the events that transpired in this case are not reflective of the way in which SCI Rockview responds to inmate" allegations of abuse generally, 831 F.3d at 155, the record here is not indicative of processes which "`afford an inmate a sense of respect'" or treatment of claims with "`seriousness and care'" by prison officials, id. (quoting Nyhius v. Reno, 204 F.3d 65, 76 (3d Cir. 2000)). Rather, this case is one where the prison appears to have "ignore[d] grievances [and complaints of abuse] or fail[ed] to fully investigate allegations of abuse," 831 F.3d at 155—practices which lead prisoners to "feel disrespected and come to believe that internal grievance procedures are ineffective," id. The Court recognizes the difficult task of managing prisons generally and addressing inmate complaints specifically. However, the perfunctory treatment of Plaintiff's claims and inquiries does not serve the expressed purposes of the PLRA. See Robinson, 831 F.3d at 155. Significant judicial resources have been expended in addressing the exhaustion issue which, on this record, seems to have been needlessly complicated as a result of the action or inaction of SCI-Rockview personnel.
In sum, Defendants have not met their burden of showing that Plaintiff's central claims are subject to dismissal on exhaustion grounds. As stated by Plaintiff, he alleged that he was sexually abused multiple times by Defendant Granlund, after he stopped the sexual abuse he was physically abused by Defendant Granlund, and he was held in the RHU for ten months where he suffered further abuse by staff members, including the February 2011 chemical incident. (Doc. 95 at 1.) For the abuse claims to be dismissed on exhaustion grounds, Defendants had to show by a preponderance of the evidence that remedies were available to Plaintiff regarding his claims of abuse or that he failed to exhaust claims of abuse through DC-ADM 001. They have not done so.
Therefore, the Magistrate Judge's Report and Recommendation (Doc. 93) is adopted in part. Plaintiff's claims of sexual abuse by Defendant Granlund in the fall of 2010, physical abuse by Defendant Granlund on December 6, 2010, and physical abuse by Defendants Hall, Perks, and Fisher on February 19, 2011, go forward. All other claims are dismissed with prejudice. Therefore, remaining Defendants are Defendants Granlund, Hall, Perks, and Fisher. An appropriate Order is filed simultaneously with this Memorandum.
DC-ADM 804 contains the following policy statement.
(Doc. 60-2 at 2.) An inmate is encouraged to resolve concerns informally by use of a DC-135A Inmate Request to Staff Member or direct conversation with the Unit Manager or Officer in charge before submitting an Official Inmate Grievance Form. (Doc. 60-2 at 9.) An Official Inmate Grievance Form must be submitted to the Facility Grievance Coordinator using the DC-ADM 804, Part 1. (Id.) The grievance must be filed within fifteen working days after the event upon which the claim is based. (Doc. 60-2 at 10.) "If the inmate desires compensation or other legal relief normally available from a court, the inmate shall request the specific relief sought." (Id.) The policy indicates that an inmate could withdraw a grievance at any point in the grievance process. (Doc. 60-2 at 10.) "To withdraw a grievance, an inmate must use and sign the Inmate Grievance Withdrawal Form (Attachment 1-B), identify the grievance to be withdrawn by number, the reason why the grievance was withdrawn and forward the form to the Grievance Coordinator. Once a grievance is withdrawn, the inmate cannot then proceed to appeal to either the Facility Coordinator or Final Review." (Doc. 60-2 at 10-11.)
The Facility Grievance Coordinator/designee is to assign the grievance a tracking number, enter the grievance into the Automated Grievance Inmate Tracking System, entering a summary or description of the grievance subject matter, the category, and the facility's disposition of the grievance at initial review. (Doc. 60-2 at 11.) On initial review of the grievance, if the grievance coordinator concludes that the issue being grieved is not in accordance with DC-ADM 804 it is returned to the inmate unprocessed with a Grievance Rejection Form. (Doc. 60-2 at 12.) If the Facility Grievance Officer determines that the grievance is properly submitted, he will assign the grievance to a staff member who is designated as the Grievance Officer for that grievance. (Doc. 60-2 at 11.) The Grievance Officer is to submit his proposed response to the Facility Grievance Coordinator for review prior to distribution to the inmate. (Doc. 60-2 at 12.) "The response shall include a brief rationale, summarizing the conclusion and any action taken or recommended to resolve every issue as well as any relief raised in the grievance. One of the following dispositions must be in the initial response: Uphold Inmate, Grievance Denied, or Uphold in Part/Denied in part." (Id.) If the Facility Grievance Coordinator approves the proposed response, the Coordinator returns it to the Grievance Officer who must provide a written response to the inmate within fifteen working days from the date the grievance was entered into the Grievance Tracking System. (Id.)
The policy states that allegations of abuse "shall be" handled according to DC-ADM 001 and adds that
(Doc. 60-2 at 12.)
Appeal of the Initial Review Response to the Facility Manager had to be made within fifteen working days. (Doc. 60-2 at 15, 16.) The policy specified that Initial Review Response/Rejection must be received by the inmate before any appeal to the Facility Manager can be sought. (Doc. 60-2 at 15.) Final review was to be made to the Secretary's Office and had to be filed within fifteen working days from the date of the decision of the Facility Manager. (Doc. 60-2 at 17.) The appeal of the Facility Manager's decision was to be responded to within thirty working days of receipt of the appeal. (Doc. 60-1 at 11; Doc. 60-2 at 19.) A section titled "Rights Under This Policy" states that the
(Doc. 60-1 at 15; Doc. 60-2 at 2.)
For reasons explained in the Memorandum, the Court uses the current version of DC-ADM 001 to analyze relevant allegations in this case and does so in part because the parties do not assert that procedures have substantively changed since the relevant time. (See www.cor.pa.gov/.../Documents/DOC%20Policies/001%20Inmate%20Abuse. pdf. Hereafter, the current policy will be cited as "DC-ADM 001" with reference to the identified PDF page numbers. The DC-ADM 001 "Procedures" section includes the following:
(DC-ADM 001 at 1-2.) The section titled "Rights Under This Policy" contains the same language as that contained in DC-ADM 804. (DC-ADM 001 at 2.) The manner of reporting in the policy quoted above is basically the same as that referenced by Plaintiff in the policy in effect during the relevant time period. (Doc. 95 at 10.) Plaintiff notes the relevant policy defined "Abuse" as "a. the use of excessive force upon an inmate; b. an occurrence of an unwarranted life-threatening act against an inmate; c. sexual contact with an inmate." (Id.) This is consistent with Mr. Kertes' testimony (Doc. 83 at 7), and the procedures outlined here are considered applicable to such conduct.
The DC-ADM 001 Procedures Manual effective the same date as the Policy Statement (November 24, 2014) does not specify a time requirement for the reporting of abuse.
(Id. at 1-1.)
Regarding investigation of allegations of abuse, DC-ADM 001 provides that when an allegation of abuse is received by the facility Security Office, the Security Office is to report the allegation to OSII and OSII responds with a tracking number within five business days.
(Id.) OSII is to complete a review of the investigation within fifteen business days of receipt of the report. (Id. at 1-4.) If OSII determines that the investigation was satisfactory, OSII is to send a letter acknowledging so to the Facility Manager and the facility Intelligence Gathering Captain. (Id. at 1-4.) Upon notification from the OSII of a satisfactory investigation, the suspect(s) and complainant are to be advised of the findings by the Facility Manager/designee. (Id.)
The procedure is much the same when a complaint is referred to the facility Security Office for investigation by the OSII. (Id. at 1-4, 1-5.) However, when a complaint is investigated by OSII, OSII is to complete the investigation within thirty business days of receipt of the investigation order. (Id. at 1-5.) A letter is then prepared by OSII to the complainant advising him of the results of the investigation and to the Facility Manager. (Id.)
Plaintiff alleges that Defendant Granlund engaged in improper sexual contact with him on several occasions in the fall of 2010.
The record contains an "Official Inmate Grievance" addressed to "Ms. Lamas Warden's Office" on October 19, 2010. (Doc. 63-1 at 3.) In the grievance, Plaintiff expressed appreciation for Defendant Lamas's help and that of Defendant Granlund regarding a misconduct hearing and stated that he wanted to make Defendant Lamas "aware of what has been going on for some time now . . . it's now necessary . . . under Policy (DC-ADM 008)
Plaintiff testified that he again complained to Defendant Lamas about Defendant Granlund's sexual misconduct with another Official Inmate Grievance dated October 26, 2010, and he specifically told her that Defendant Granlund, who was his unit manager, was sexually touching him and he "had to do stuff for him in the office" and had "urges to watch him masturbate and stuff like that." (Doc. 83 at 18 (citing Doc. 63-1 at 4)
Plaintiff alleges that he sent another Official Inmate Grievance to Mr. Walonen at OPR on November 8, 2010, regarding Defendant Granlund's sexual misconduct. (Doc. 83 at 19 (citing Doc. 63-1 at 5)
(Doc. 83 at 20.)
In Official Inmate Grievance number 345827 dated December 3, 2010, addressed to Mr. Rackovan, Plaintiff described an incident where another inmate called Plaintiff out of his cell to get some coffee that the other inmate had put on the table at the cell door for him. (Doc. 60-6 at 10.) His grievance provides the following information: many other inmates were out walking on the unit at the time but Plaintiff was the only one called to go to the back room to see Defendant Granlund who asked Plaintiff whether he thought he was at a Holiday Inn; Plaintiff said he was only getting his coffee and questioned why Defendant Granlund only called him; and Defendant Granlund's response included the statement that "the Italians are just like the niggars." (Id.) Plaintiff added that he was "now writing my attorney and Camp Hill" and "I also feel this man somehow has it out for me and I don't know why." (Id.)
An Inmate's Request to Staff Member to "Mr. Marsh Deputy Superintendent" dated December 3, 2010, and date stamped "Program Review Committee" indicates that Plaintiff repeated what Defendant Granlund allegedly said earlier in the day, and he asked Mr. Marsh to take immediate action concerning Defendant Granlund's "racist committs" [sic]. (Doc. 63-1 at 8.) In the Request, Plaintiff also referred to a letter he mailed out to his attorney and Mr. Michael P. Wolanin at OPR "with copys [sic] of my grievance to Mr. Rackovan and to Ms. Lamas." (Id.)
In Official Inmate Grievance number 346858 dated December 10, 2010, addressed to Mr. Rackovan, Plaintiff alleged that Defendant Granlund hit him in the mouth on December 6, 2010, and he was taken to medical as a result and given something for pain in his back and falling on the floor. (Doc. 60-6 at 12.) In this grievance Plaintiff also said he had told the PD on A/C unit that his jaw hurt, he could not eat because of the pain, and he needed better pain medication for his back and the PD said Plaintiff would get help. (Id.) He added that he had not gotten the help promised and he was "in the box in a cold cell with no heat and in pain."
In Plaintiff's Official Inmate Grievance dated December 15, 2010, and numbered 347374, Plaintiff again complained of Defendant Granlunds's December 6, 2010, conduct. (Doc. 60-6 at 14.) The grievance file-stamped receipt date is December 18, 2010. (Id.) In this grievance, Plaintiff adds background information to the December 6, 2010, event:
(Id.) Plaintiff added "my jaw hurts back hurts from the fall I took on the floor and sick call has not called me down and I put in (3) time." (Id.) Handwritten notations at the bottom say "Excessive Force" and "Capt Eaton 1/4." (Id.)
Plaintiff addressed "Inmate's Request to Staff Member" to Captain Eaton on January 7, 2011.
(Id.)
In a two-page letter dated January 7, 2010, (with a later-corrected date of January 7, 2011)
(R. 39-40.)
Records from the Office of Special Investigation and Intelligence ("OSII") Tracking System Summary indicate that on January 10, 2011, "the Centre County DA's Office referred correspondence from Inmate Thomas Moore . . . alleging abuse by staff. ~ Letter was sent to Stacy Parks Miller, DA, advising that Inmate Moore's allegations are currently being investigated and Inmate Moore will be advised of the outcome. x-Ref. 10-A-520 (ROC)."
The OSII Summary also indicates that on January 10, 2011, "Inmate Moore alleges he received a misconduct report from UM Granlund for not having sex acts with him in his office. ~ Complaint faxed to Capt. Eaton to include with their pending abuse investigation. x-Ref. 10-A-520 (ROC)." (Doc. 63-1 at 51.)
In an undated document, Rockview Lieutenant R.L. Greene completed a Predication Report concerning case number 2010-A-520. (Doc. 68 at 3; see also 83 at 129.) He stated that the investigation was predicated on grievance number 346858 and subsequently a letter sent to the Office of Professional Responsibility by Plaintiff.
A Memorandum of Interview on case number 2010-A-520 dated January 10, 2011, indicates that CO III Greene and CO III Vance interviewed Plaintiff at 12:30 hours. (Doc. 68 at 4.) The Memorandum states that Plaintiff had a good recollection of the December 6, 2010, events and he provided a detailed verbal statement. (Id.)
(Id.)
In an undated "Investigation Insert[,] Review of . . . Thomas Moore's Complaint written on 1-7-2011 and received by OSII on 1-10-2011" on case number 2010-A-520, Lt. Greene stated that the
(Doc. 68 at 5.)
Regarding the January 10, 2011, investigation interview, Plaintiff testified at the April 16, 2016, evidentiary hearing that he was not asked about the sexual assault at the interview, he was only asked about the physical assault. (Doc. 83 at 43.) In the course of questioning about the investigation at the evidentiary hearing, Plaintiff stated that he was never asked about the sexual assault and added that he "wasn't allowed to talk about the sexual assault." (Id.) When asked by his attorney who had told him he was not allowed to talk about it, he responded "Captain Eaton at the hearing." (Id.) At his March 5 2015, deposition, Plaintiff testified that he recalled the January 10, 2011, meeting with investigators including Lt. Vance and he briefly said something to Lt. Vance about the sexual incidents and Lt. Vance said "I don't want to hear about that." (Doc. 60-7 at 18.) In answer to the question at the evidentiary hearing of whether OPR (OSII) ever followed up on the sexual allegations, Plaintiff testified that nothing had been done and "they didn't get back to me," indicating that he never got any notification of what OPR (OSII) did with the investigation. (Doc. 83 at 44.)
In an Official Inmate Grievance number 349821 addressed to Mr. Rackovan dated January 10, 2011, and date-stamped January 11, 2011, Plaintiff requested help keeping Defendant Granlund away from him when he was out of the RHU. (Doc. 60-6 at 16.) He also stated "for the record" that
(Id.)
In Official Inmate Grievance number 354666 dated February 14, 2011, date-stamped February 16, 2011, and addressed to Mr. Rackovan, Plaintiff stated that he was "in need of one on one help with a psy that can help me." (Doc. 60-6 at 16.) Plaintiff further explained
(Id.)
In Official Inmate Grievance number 355506 dated February 18, 2011, date-stamped February 23, 2011, and addressed to Mr. Rackovan, Plaintiff requested that either Mr. Rackovan or Ms. Lamas "tell C/O's Pekrs and C/O Hagg to let me have my food. At 12 pm today on 2/18/2011 C/O Hagg and Fisher would not give me my food." (Doc. 60-6 at 22.) He added that CO Pekrs had done the same thing on January 2, 2011, and another CO had told him "all this coming from Mr. Granlund." (Doc. 60-6 at 22.)
In Official Inmate Grievance number 355976 dated February 23, 2011, date-stamped February 23, 2011, and addressed to Mr. Rackovan, Plaintiff complained about not getting food from COs Hall, Fisher, and Perks at noon on February 19, 2011. (Doc. 60-6 at 24.) He said he hit his cell for help to eat after which COs Hall, Fisher, and Perks poured chemical cleaner at his cell door, moved it back into his cell, CO Hall said "now try that out," and the three covered the door. (Id.) Plaintiff added that he became sick and threw up by 1:30 p.m., he fell on the floor, and at 2 p.m. CO Hook came in, saw him on the floor and called Lt. Nixson who sent him to medical. (Id.) At the beginning of his statement, Plaintiff asks to see the cameras for proof of his allegations. (Id.) Mr. Rackovan received the form, signed it on March 1, 2011, and made two notations: "Problem w/staff" and "Lt. Dyke 3/22." (Id.)
A March 2, 2011, OSII Tracking System Summary indicates the following: "Centre County DA's office referred correspondence from Inmate Moore alleging abuse by staff. ~ Complaint filed without action as his allegations are currently being investigated and the DA has been notified of this. X-Ref: 10-A-520 (ROC)." (Doc. 63-1 at 51.)
In Official Inmate Grievance number 356701 dated March 3, 2011, date-stamped March 7, 2011, and addressed to Mr. Rackovan, Plaintiff stated that he had been seeking medical help from Dr. Symons for over two months and his statement referenced the alleged actions of COs Hall, Fisher, and Perks of February 19, 2011. (Doc. 60-6 at 26.)
In Official Inmate Grievance number 359874 dated March 9, 2011, date-stamped March 10, 2011, and addressed to Mr. Rackovan, Plaintiff stated that he was seeking to review the video camera on B-1-18 cell in the RHU for February 19, 2011, and February 20, 2011, at 12 p.m. to show proof that the COs Hall, Perks, and Fisher did not give him his food. (Doc. 60-6 at 30.) Plaintiff added that he "needed action in this matter. I'm far from delusional or crazy overall the camera don't lie." (Id.)
On the Inmate's Request to Staff Member dated March 20, 2011, and addressed to Ms. Shirley Moore, Secretary, D.O.C. Camp Hill, the date-stamp is illegible except for the year 2011. (Doc. 63-1 at 22.) Plaintiff states he had not been able to get help at SCI-Rockview and specifically complains of COs Hall, Perks, and Fisher taking his food trays, mopping chemicals into his cell "in violation of DC-ADM 001 and DC-Adm 008 for the sexual acts I was forced to do for Unit Manager Granlund that then also hit me in my mouth." (Id.)
In Official Inmate Grievance number 359868 dated March 25, 2011, date-stamped March 28, 2011, and addressed to Mr. Rackovan, Plaintiff stated that (1) he had filed a grievance on or about February 25, 2011 regarding the February 19, 2011, allegations concerning COs Hall, Perks, and Fisher and (2) Mr. Horton never got back to him concerning his DC-135A form request concerning the February 19th matter and nothing was done to the officers involved. (Doc. 60-6 at 28.) Plaintiff added that he was filing a lawsuit and wanted all of his copies sent back to him. (Id.)
In the Inmate's Request to Staff Member dated March 30, 2011, date-stamped March 31, 2011, and addressed to Defendant Lamas, Plaintiff stated that Defendant Lamas had told him about two weeks earlier that she would look into his allegations about the food trays and chemical incident, that he had asked Deputy Horton to see it all on the video camera as proof, that he sent Deputy Horton a request and filed a grievance about "not doing nothing to the officers" and not getting back to him about his request as per DOC policy. (Doc. 63-1 at 26.) Plaintiff stated that what the officers did was "clearly in violation of DC-ADM 001." (Id.)
In Official Inmate Grievance number 360139 dated March 30, 2011, date-stamped April 4, 2011, and addressed to Mr. Rackovan, Plaintiff stated that he was gay and was seeking equal protection rights under the Fourteenth Amendment. (Doc. 60-6 at 32.) Plaintiff's statement reiterated complaints about not getting food trays on February 18
In Inmate's Request to Staff Member dated April 1, 2011, date-stamped March 31, 2011, and addressed to Defendant Eaton, Plaintiff stated that he was requesting her, as he had requested Defendant Lamas, to move him back to the AC unit because he feared CO Hall who would not give him grievance forms or covers in the cold cell. (Doc. 63-1 at 28.) He also asked Defendant Eaton to please get back to him regarding his request "under D.O.C. rules of this DC — 135A form because you or Lt. Vanes has not got back to me before."
An April 4, 2011, OSII Tracking System Summary entry indicates that "Inmate Moore claims staff is not feeding him, staff has poured chemicals under his door and that he fell out on the floor and no one helped him or called medical (grievance 355506 — denied, grievance 355976 — withdrawn). ~ Inmate advised his allegations are being investigated and he will be advised of the outcome. X-Ref: 11-A-134 (ROC)." (Doc. 63-1 at 51.)
In Official Inmate Grievance number 362304 dated April 18, 2011, date-stamped April 20, 2011, and addressed to Mr. Rackovan, Plaintiff stated that he was seeking medical care pursuant to DC-ADM 001 and wanted to see an outside doctor due to injuries which he apparently related to the February 19
On the unnumbered Official Inmate Grievance form dated April 28, 2011, date-stamped as received on May 3, 2011, and addressed to Defendant Lamas, Plaintiff reviewed and/or referred to several previous allegations and stated that he needed help "not to run out of time" to file his 1983 and to get out of his cell for one hour a day. (Doc. 63-1 at 32.)
No response to this request is found in the record.
On Official Inmate Grievance number 365677 dated May 17, 2011, date-stamped May 19, 2011, and addressed to Mr. Rackovan, Plaintiff again stated that he was in need of medical care because of the February 19
In Inmate's Request to Staff Member dated June 30, 2011, and addressed to Defendant Eaton, Plaintiff stated that she had come to see him at the hospital on June 9, 2011, explaining
(Doc. 63-1 at 33.)
In Official Inmate Grievance number 371781 dated June 30, 2011, date-stamped July 1, 2011, and addressed to Mr. Rackovan, Plaintiff stated that he was asking Rockview for an investigation against UM Granlund for sexual abuse. (Doc. 60-6 at 38.) Plaintiff noted that he filed a grievance on October 26, 2010, to Ms. Lamas regarding masturbation incidents and she never got back to him. (Id.) Plaintiff also stated that some of the grievances related to the December 6, 2010, incident "never got back to me as Rockview's response on the matter." (Id.) He then asked to be sent "copies of responses on the matters above." (Id.) Plaintiff added that he was contacting OPR on the matter. (Id.)
In a letter dated July 4, 2011, and received by OSII on July 7, 2011, Plaintiff repeated his allegations about the December 6, 2010, physical assault by Defendant Granlund and the October 2010 sexual assault. (Doc. 63-1 at 42-43.) He said he had filed a grievance about the sexual assault to Defendant Lamas but she did not get back to him and neither Defendant Lamas nor Defendant Eaton called the state police about the physical assault when he asked them to do so. (Doc. 63-1 at 43.) Plaintiff also said
(Doc. 63-1 at 43.)
In Official Inmate Grievance number 372264 dated July 6, 2011, date-stamped July 8, 2011, and addressed to Mr. Rackovan, Plaintiff stated Defendant Eaton had come to the hospital on June 9, 2011, and told him to stop talking to the doctors about Defendant Granlund's sexual abuse and she would investigate the matter when Plaintiff got back to Rockview.
(Doc. 60-6 at 40.)
The OSII Tracking System contains an entry dated July 7, 2011. (Doc. 63-1 at 51.) "Inmate Moore alleges he was assaulted by UM Granlund. ~ Letter sent to inmate advising him his allegations were investigated and unsubstantiated. X-ref: 2010-A-520 (ROC)." (Id.)
The OSII Tracking System contains an entry dated August 17, 2011. (Doc. 63-1 at 51.) "Inmate Moore alleges abuse by UM Granlund. ~ Complaint filed without action; his allegations were previously investigated and he was advised of the outcome. X-Ref: 2010-A-520 (ROC)." (Id.)
In Official Inmate Grievance number 391365 dated November 30, 2011, date-stamped December 1, 2011, and addressed to Mr. Rackovan, Plaintiff stated that he was in fear for his life because he was seeing CO Perks, one of the officers who allegedly assaulted him in the RHU on February 19, 2011, on the A/C Unit and he wanted the three officers involved in that incident to be kept away from him until he left Rockview. (Doc. 60-6 at 44.)
The OSII Tracking System Summary contains an entry dated December 5, 2011. (Doc. 63-1 at 51.) "Inmate Moore requests that OSII inform Supt. Lamas to keep certain officers away from him. He also requests a transfer. ~ Complaint filed without action as the inmate has since been transferred to SCI Albion. (ROC)." (Id.)
The OSII Tracking System Summary contains a final entry of record dated December 28, 2011. (Doc. 63-1 at 51.) "Inmate Moore alleges SCI Rockview failed to assist him with retrieving his legal work from another inmate prior to his transfer. In addition, he alleges he "fed Rule 60(b)" was cut up and an officer told him that is what happens for filing paperwork. ~ Complaint forwarded to Supt. Lamas & Supt. Harlow for review. (ALB)." (Id.)
Jeffrey Rackovan, the Rockview Grievance Coordinator at the relevant time, was asked whether he had "seen any evidence whatsoever that the Security Office did an investigation of the sexual allegations in the case" and he answered that he had not. (Doc. 81 at 31.) He later confirmed that he had not seen any evidence that OSII did an investigation of the sexual allegations. (Doc. 81 at 32.)
Mr. Kertes testified that OSII was aware that Plaintiff was alleging sexual abuse at Rockview. (Doc. 83 at 98.) He also confirmed that Plaintiff had written OSII about physical abuse with Granlund and the alleged dumping of chemicals. (Doc. 83 at 109.)
At her deposition held on November 21, 2014, Defendant Eaton, SCI-Rockview's intelligence captain, testified that she did not know when or under what circumstances she learned that Plaintiff alleged that Defendant Granlund had sexual contact with him. (See, e.g., Doc. 63-1 at 78.) She also indicated that she did not remember whether she ever heard about or knew of a sexual assault of Plaintiff and did not remember if she had ever received "a report, a written report of any kind that alleged that Moore had had sexual contact with Granlund." (Id. at 79.) Defendant Eaton clarified that if an inmate made an allegation about improper sexual conduct on the part of a staff member, the inmate would be interviewed but she had no recollection of interviewing Plaintiff or Defendant Granlund. (Id. at 81.)
Plaintiff's counsel asked about a June 30, 2011, response to Inmate's Request to Staff Member dated June 30, 2011, in which Plaintiff reiterated allegations of sexual misconduct by Defendant Granlund, referenced Defendant Eaton's statement that she would look into the matter, and asked Defendant Eaton to do so, and Defendant Eaton responded: "All of your allegations either were or are being addressed" (Doc. 63-1 at 33). (Doc. 63-1 at 83.) Defendant Eaton said she would have referenced the security office log for her response but she did not remember what was done to address the allegations of sexual abuse. (Id.) She also confirmed that at the time she wrote her response "it looks like" she would have been familiar with Plaintiff's allegations of being sexually abused and she believed at the time that the allegations were being or had been addressed but she had no idea at the time of her deposition how they had been addressed. (Id. at 84-86.)
At her January 16, 2015, deposition, Defendant Lamas said that the mechanism in place in 2010 was that receipt of an allegation of sexual assault "would involve the security office with oversight by OSII." (Doc. 63-1 at 55.) She testified that her office would have received something concerning Plaintiff's allegations of sexual misconduct by Defendant Granlund "at some point" based on the documents she had reviewed. (Id.) Defendant Lamas agreed that Plaintiff's January 2011 letter received by OSII included allegations of Defendant Granlund's sexual misconduct and, when asked whether anyone at DOC investigated the sexual allegations, she responded that "they investigated the letter, which is inclusive of that." (Doc. 63-1 at 57.) When again asked specifically whether she could point to "any document in DOC's possession that indicate . . . that anyone at DOC ivestigated the sexual allegations that Moore raised against Granlund, Defendant Lamas stated "I can point to the close of the investigation report." (Id.) Defendant Lamas then confirmed that she could not point to any interviews, contacts, notes of contacts, or any other records that indicated that DOC investigated the sexual allegations. (Doc. 63-1 at 58.)
Defendant Lamas indicated DOC "closed out the investigation of the incident date of December 6, 2010" in March, about two months after OSII received Plaintiff's letter on January 10, 2011. (Doc. 63-1 at 56, 58.) She also said the "case was closed according to the tracking system on January 31
The DC-ADM 001 Policy Statement regarding Inmate Abuse effective November 24, 2014, which is presumably the policy referenced at the evidentiary hearing in the judicial notice discussion (Doc. 81 at 62-63), is the document currently available on the website which the Court reviews here as relevant to claims of physical and sexual abuse. See www.cor.pa.gov/.../Documents/DOC%20Policies/001%20Inmate%20Abuse.pd f. The Court does so because the parties do not assert that procedures have substantively changed since the relevant time. Hereafter, the current policy will be cited as "DC-ADM 001" with reference to the identified PDF page numbers.
Plaintiff's expressed confusion at his deposition as to how and when he learned of the results of the investigation and what he did after he learned of the results (see Doc. 60-7 at 26) may be relevant and worthy of further exploration when considering Plaintiff's general credibility or the merits of his claims in the future. However, confusion regarding learning the results of the investigation does not establish receipt of the letter referenced in the OSII summary. As will be discussed in the text, even if Plaintiff received the OSII letter, Defendants must show that the letter contained specific information about the investigation, what steps Plaintiff could take if he disagreed with the results of the investigation, and that the letter should be considered a denial of the grievances filed in December 2010 regarding the December 6, 2010, physical assault.
Although the Supreme Court rejected the Fourth Circuit's excusal of exhaustion based on a "special circumstances" exception, the Court concluded that remand was warranted for further consideration of whether Blake's suit was viable on the basis that the prison's grievance process was not in fact available to him. Id. at 1856. The discussion of the interaction of policies in Ross is instructive. The Court concluded that, given the facts of the case, availability was questionable in part because the interaction between the IIU and the ARP presented "some bewildering features." Id. at 1861. The Court questioned why the systemic confusion had not been addressed by appropriate officials and/or why the Inmate Handbook did not spell out the process works and how to navigate it. Id. at 1861-62.
