Moore v. Lamas et al
MEMORANDUM (Order to follow as separate docket entry)Therefore, the Magistrate Judges Report and Recommendation (Doc. 93) is adopted in part. Plaintiffs claims of sexual abuse by Defendant Granlund in the fall of 2010, physical abuse by Defendant Gr anlund 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.Signed by Honorable Richard P. Conaboy on 9/21/17. (Attachments: # 1 Appendix 1, # 2 Appendix )(cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
:CIVIL ACTION NO. 3:12-CV-223
:(Magistrate Judge Mehalchick)
MORIROSA LAMAS, et al.,
Here the Court considers the Report and Recommendation
concerning the issue of exhaustion of administrative remedies in
the above-captioned action.
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
(Doc. 93 at 15.)
Plaintiff timely filed his objections to the Report and
Recommendation and supporting brief on June 6, 2017.
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.
importance of the exhaustion inquiry and the record created in this
matter counsels against truncated consideration of the evidence and
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
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
Plaintiff’s allegations of wrongdoing relate
to his incarceration at SCI-Rockview in 2010 and 2011.
He was transferred from SCI-Rockview to SCI-Albion on
December 19, 2011.
(Doc. 28 ¶ 62.)
Plaintiff filed a counseled Amended Complaint on February 13,
2013, in which he named the Commonwealth of Pennsylvania Department
Defendant Lamas is identified as “Morirosa” in this filing
but is subsequently referred to as “Marirosa.” (See, e.g., Doc. 1
at 1, Doc. 28 at 2; Doc. 63-1 at 53.)
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
(Doc. 28 at 2.)
The Amended Complaint contains four
counts: Count One, Civil Rights Violation/Retaliation against all
Defendants; Count Two, Civil Rights Violations against Defendant
Lamas for failure to establish appropriate policies, practices, or
customs, and for sanctioning an alleged “cover up”; Count Three,
Assault and Battery against Defendant Granlund; and Count Four,
False Imprisonment and Conspiracy, against all Defendants.
28 at 7-9.)
Defendants filed a Motion to Dismiss (Doc. 35) which was
granted in part (Doc. 40).
following claims remain:
With the disposition of the motion, the
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.)
Previously named Defendant Horton is not a named defendant
in the Amended Complaint.
(See Doc. 28.)
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.
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
(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.
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
(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.
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.)
Pennsylvania Department of Corrections and SCI-Rockview
Policies and Procedures
The Pennsylvania Department of Corrections (“DOC”) Inmate
Handbook provides inmates with information about how to raise and
resolve problems through various channels.3
(See, e.g., DOC Inmate
Handbook, 2017 Edition,
andbook at 6-10.)
Policies at issue in this case include DC-ADM
804 concerning the Inmate Grievance System and DC-ADM 001
concerning Inmate Abuse.
Here the Court summarizes the most
relevant aspects of the policies and compares/contrasts the
policies as pertinent to the matters at issue.
provisions of the policies are set out in greater detail in
Appendix 1 attached to this Memorandum.
Testimony regarding their
use and interaction is set out in the Discussion section of the
The subject of the Pennsylvania Department of Corrections
policy number DC-ADM 804 is “Inmate Grievance System.”
A new DC-ADM 804 Policy Statement became effective on
December 8, 2010, replacing the DC-ADM 804 Policy Statement which
Though referenced at the Evidentiary Hearing held on April
29, 2016, (see, e.g., Doc. 83 at 20, 105), the Court has reviewed
exhibits of record (Docs. 60, 63-1, 65, 68, 82, 89-1, 91-1, 95-1)
and does not find the Inmate Handbook provided to Plaintiff in the
record. Because relevant policies have changed since Plaintiff
raised the concerns at issue in this case, the Court cannot
definitivley do more than generally note that testimony indicates
the Inmate Handbook contained information which was intended to
explain to the inmate how to resolve problems and use the grievance
system. (Id. at 106.) Notwithstanding this caveat, current
handbook instructions may be referenced in the Discussion section
of the Memorandum if arguably illustrative of relevant issues.
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.”4
(DC-ADM 001 at 1.)
Policy number DC-ADM 001 in effect at the relevant time
period is not contained in the record now before the Court. (See
Docs. 60, 63-1, 65, 68, 82, 89-1, 91-1, 95-1.) Plaintiff avers
that the DC-ADM 001 in effect at the time of Plaintiff’s
allegations was effective September 29, 2005. (Doc. 95 at 10.)
The Report and Recommendation notes that the version of the DC-ADM
001 Procedures Manual effective September 29, 2005, was the
It contains the following policy statement: “It is the policy of
the Department to ensure than an inmate is not subjected to
corporal or unusual punishment, or personal abuse or injury.”5
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
operative policy in effect at the relevant time. (Doc. 93 at 6
At the April 6, 2016, evidentiary hearing, Defendants’
counsel requested that, for evidentiary purposes, the Court take
judicial notice of DC-ADM 001 on the public website as a basis for
consideration of Defendants’ argument and the Court agreed to do
so. (Doc. 81 at 62-63.) At the April 29, 2016, evidentiary
hearing, the OSII supervising criminal investigator, Harold Kertes,
testified that in 2010-2011, DC-ADM 001 covered “excessive force of
an inmate by staff, an articulated oral or written threat of
physical injury to an inmate by staff, an unwarranted life
threatening act or sexual contact with an inmate by staff. The
sexual contact has since been removed and covered under [DC-ADM
008].” (Doc. 83 at 97.) He also testified that the Office of
Professional Responsibility (“OPR”) changed to the Office of
Special Investigations and Intelligence (“OSII”) around 2010 or
2011. (Doc. 83 at 89-90.)
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
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.
The current Inmate Handbook contains a section outlining
DC-ADM 001 which begins with the statement that “[t]he Department
does not permit any inmate to be subjected to abuse. All
allegations of abuse are thoroughly investigated.”
andbook at 6.
reporting an allegation of abuse.6
The policy provides multiple
ways for an inmate to report abuse: he can report it verbally or in
writing to any staff member, file a DC-ADM 804 grievance, or report
it in writing to the Department’s Office of Special Investigations
and Intelligence (OSII).
(DC-ADM 001 at 1-1.)
A facility employee
who receives a written or verbal notification of an incident of
abuse must report it to the Security Office and an Central Office
employee who receivees such a notification must report it to OSII.
(DC-ADM 001 at 1-2.)
In all cases, an investigation ensues and is conducted either
by the Security Office or OSII.
DC-ADM 001 includes
detailed provisions as to the timing, content, and review of
(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.
In the later-adopted DC-ADM 008 which addressed sexual
abuse and sexual harassment of an inmate, the “Methods of Reporting
for Inmates” section of the Procedures Manual states that an inmate
who is an alleged victim of sexual abuse, sexual harassment, and/or
retaliation for reporting sexual abuse and harassment is to report
it “to a staff member as soon as possible.”
limination20%Act.pdf Aug. 22, 2016 at 3-2. Other methods of
reporting do not specify a time component. (Id.)
Interaction of DC-ADM 804 and DC-ADM 001
DC-ADM 804 states that allegations of abuse “shall be” handled
according to DC-ADM 001 and adds that
[t]his may extend the time for responding to
the grievance, but will not alter the
inmate’s ability to appeal upon his/her
receipt of the Initial Review Response. When
a grievance is related to an allegation of
abuse and the grievance is the first notice
made by the inmate to the Security Office,
the Security Office is afforded 30 working
days to respond to the initial grievance as
opposed to the normal 15 working days due to
the need for investigation.
(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:
A grievance dealing with allegations of abuse
shall be handled in accordance with this
procedures manual. This may extend the time
for responding to the grievance, but will not
alter the inmate’s ability to appeal upon
his/her receipt of the Initial Review
Response. When a grievance is related to an
allegation of abuse, the Grievance
Coordinator will issue an Extension Notice to
the inmate by checking the box “Notice of
Investigation.” The initial review response
will be completed by the assigned Grievance
Officer when the results from the OSII are
received. If the Grievance is not in
compliance with Department Policy DC-ADM 804,
“Inmate Grievance System,” the rejected
grievance will be forwarded to the facility
Security Office so an investigation can be
. . . .
Inmate grievances alleging abuse that
are sent directly to the Central Office shall
be forwarded to the OSII.
(DC-ADM 001 at 1-1.)
C. Factual Background
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.
Sexual Abuse Allegations
Plaintiff alleges that Defendant Granlund engaged in improper
sexual contact with him on several occasions in the fall of 2010.7
(Doc. 28 ¶ 12.)
He raised several verified sexual abuse
allegations–-through DC-ADM 804 grievances which were filed after
the prescribed time (see, e.g., Doc. 60-6 at 16), through multiple
Inmate’s Request To Staff (see, e.g., Doc. 63-1 at 33), and through
direct communication with DOC officials and OSII (see, e.g., Doc.
63-1 at 51).
DC-ADM 001 was specifically mentioned in some of
SCI-Rockview and OSII personnel confirmed that Plaintiff
raised claims of sexual abuse by Defendant Granlund.
31; Doc. 83 at 98.)
(Doc. 81 at
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
In his August 20, 2015, Declaration, Defendant Granlund
denied all allegations against him. (Doc. 68 at 10-11.)
was sent to Plaintiff informing him that his claims “were
investigated and unsubstantiated.”
(Doc. 63-1 at 51.)
December 2010 Physical Abuse Allegations
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.)
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.
at 13, 15.)
The Grievance Chart indicates the grievances were
denied in January 2011 with no further action noted.
(Doc. 60-5 at
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.8
(Doc. 63-1 at 51.)
February 2011 Abuse Allegations
Plaintiff timely filed a DC-ADM 804 grievance alleging that
The letter itself is not contained in the record.
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
(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,
Conditions of Confinement Claims
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.)
was denied. (Doc. 60-6 at 23.)
The first grievance
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
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.
990 F. Supp. 375, 378 (M.D. Pa. 1998).
See Cruz v. Chater,
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).
novo standard applies only to objections which are both timely and
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. §
Plaintiff’s objections require the Court to consider
exhaustion of administrative remedies generally and as applied
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
Whitley v. Albers, 475 U.S. 312, 319 (1986);
see also Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000).
Supreme Court has also recognized that sexual assaults on inmates
by prison personnel constitute Eighth Amendment violations.
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.”
The question here is whether Plaintiff exhausted such remedies
as were available to him regarding the allegations contained in his
With Plaintiff’s multiple claims and filings,
the answer to this exhaustion question is not a simple one.
Prison Litigation Reform Act
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.
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
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
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.”
v. Camden County, 728 F.3d 265, 271 (3d Cir. 2013).9
Small agreed with the reasoning of the Second, Fifth, Ninth
and Eleventh Circuits. 728 F.3d at 271.
Stating that “[m]atters
of judicial administration often require judges to decide factual
disputes and the Seventh Amendment is not implicated as long as the
facts are not bound up with the merits of the underlying dispute,”
id. (citing Messa v. Goord, 652 F.3d 305, 308-09 (2d Cir. 2011),
Small noted that the plaintiff did “not suggest that the facts
relating to his exhaustion of administrative remedies or his
failure to exhaust are at all intertwined with the merits of the
Regarding § 1997e(a)’s exhaustion language, the Supreme Court
observed in Ross v. Blake, 136 S. Ct. 1850 (2016), “that language
Id. at 1856 (citations omitted).
Ross goes on to explain, “that edict contains one significant
qualifier: the remedies must indeed be ‘available’ to the
“[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.”
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.”
U.S. at 736, 738).
Id. (citing Booth, 532
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.
situation, some mechanism exists to provide relief, but no ordinary
728 F.3d at 270.
prisoner can discern or navigate it. . . . When rules are so
confusing that no reasonable prisoner can use them, then they’re no
136 S. Ct. at 1859 (internal quotation
Ross went on to explain that
[t]he procedures need not be sufficiently
“plain” as to preclude any reasonable mistake
or debate with respect to their meaning. . .
. When an administrative process is
susceptible of multiple reasonable
interpretations, Congress has determined that
the inmate should err on the side of
exhaustion. But when a remedy is . . .
essentially “unknowable”–-so that no ordinary
prisoner can make sense of what it demands–then it is also unavailable. . . .
Accordingly, exhaustion is not required.
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
recognized that officials might devise
procedural systems (including blind alleys
and quagmires just discussed) in order to
“trip up all but the most skillful
prisoners.” 548 U.S. at 102, 126 S. Ct.
2378. And appellate courts have addressed a
variety of instances in which officials
misled or threatened individual inmates so as
to prevent their use of otherwise proper
procedures. All of those courts have
recognized, such interference with an
inmate’s pursuit of relief renders the
administrative process unavailable. And
then, once again, § 1997e(a) poses no bar.
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
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.”
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
an inmate submitted two grievances “in
compliance with [the prison’s] procedures,”
but “no decision” was rendered on either of
them and prison rules required inmates to
wait for a decision before filing an appeal.
728 F.3d at 273. We reasoned that “[b]ecause
[the prison’s] procedures did not contemplate
an appeal from a non-decision, when [the
inmate] failed to receive even a response to
the grievances . . . much less a decision as
to those grievances, the appeals process was
unavailable to him.” Id.
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
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.”
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.”10
Id. at 155.
Following this observation, Robinson noted the “hope that
the events that transpired in this case are not reflective of the
way in which SCI Rockview responds to inmate grievances generally.”
831 F.3d at 155.
Exhaustion of Adminstrative Remedies in Pennsylvania Prisons
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.
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
A panel of the Court of Appeals for the Third Circuit noted
that the Circuit Court
has not considered whether a Pennsylvania
prisoner can exhaust his administrative
remedies through DC-ADM 001, nor what steps
would be necessary under that procedure. But
even if we were to agree with the various
District Court opinions holding that an
inmate need only file a grievance with OPR
under DC-ADM 001 in order to exhaust
administrative remedies, we do not agree that
a prisoner can file a complaint before the
OPR’s investigation is complete, at least
absent special circumstances.
Victor v. Lawler, 565 F. App’x 126, 129 (3d Cir. 2014) (not
Many District Court opinions in Pennsylvania have
Robinson noted that, at the time the plaintiff suffered his
injury (October 2009), the DOC had two policies governing the
reporting of abuse by inmates, DC-ADM 001 and DC-ADM 804. 831 F.3d
at 150. After noting the three ways an inmate could report abuse
under DC-ADM 001, the Court stated that “Robinson could have
brought his complaint to the attention of prison authorities either
found that allegations of abuse do not have to be filed through all
levels of the DC-ADM 804 system if the inmate reports abuse through
In most instances, the opinions initially assumed DC-
ADM 001 to be an alternative to DC-ADM 804 when an inmate is
Pressley v. Huber, Civ. A. No. 3:08-CV-0449, 2017
WL 1062375, at *4, 6 (M.D. Pa. March 21, 2017)12 (citing McCain v.
Wetzel, Civ. A. No. 1:12-CV-0789, 2012 WL 6623689, at *6 (Oct. 26,
2012)); McKinney v. Zihner, Civ. A. No. 1:CV-01-2088, 2010 WL
1135722, at *6-7 (M.D. Pa. Mar. 23, 2010); Knauss v. Shannon, Civ.
A. No. 1:CV-08-1698, 2010 WL 5698929, at *7-8 (M.D. Pa. Feb. 12,
2010); Carter v. Klaus, Civ. A. No. 1:CV-05-1005, 2006 WL 3791342,
by reporting it to a staff member or the OPR (and remain under the
strictures of the Abuse Policy), or by filing a grievance in
accordance with the Grievance Policy.” Id. Although the plaintiff
had done both, the case analyzed exhaustion under DC-ADM 804. Id.
at 152-55. Because Robinson did not discuss exhaustion under DCADM 001, the Court concludes Victor is appropriately considered the
only Third Circuit guidance on the issue.
Because the defendants did not address exhaustion under DCADM 001, the District Court did not render an opinion on whether
summary judgment for the defendants was warranted on the
plaintiff’s excessive force claim where the defendants claimed only
that the plaintiff failed to exhaust under DC-ADM 804. Pressley,
2017 WL 1062375, at *6. As Defendants note (Doc. 96 at 6), the
Court in Pressley allowed Defendants to submit an additional motion
and brief on the issue of exhaustion through 001, but the Court did
so, not because it questioned whether DC-ADM 001 was an alternative
remedy, but because the defendants had not addressed exhaustion
under that procedure after the plaintiff had cited to DC-ADM 001.
2017 WL 1062375, at *6. At least twice in the opinion, District
Judge Malachy Mannion stated that alternate methods were available
for Pennsylvania inmates to grieve claims of abuse, i.e., DC-ADM
001. Id. at *4, 6.
at *1 (M.D. Pa. Dec. 22, 2006).13
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
(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
(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.
The cases cited do not present an exhaustive list.
(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
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.”14
(Doc. 81 at 9.)
He said “when
there’s an 001 –- an inmate can file a grievance on abuse, it’s
still probably handled under 804, but it’s kind of an offshoot
policy.” (Id. at 11.)
Mr. Rackovan further explained that the
Security Office then sends the investigation results to OSII and
OSII can choose to further investigate then “they approve the
Security Officer’s investigation, then it kind of slides back to
I know this is a little confusing, but it slides
back to the Grievance Policy, and the inmate ultimately gets his
response to that grievance that he filed.”
(Id. at 12.)
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.”
When asked whether someone informed
the inmate of the result of an investigation if the inmate does not
In his testimony, Mr. Rackovan stated that the purpose of
the DC-ADM 804 grievance system was “just to give the inmate an
avenue to have certain issues addressed that he feels need
addressed, depending on what the circumstances might be.” (Doc. 81
at 9.) He listed issues typically addressed and, and was asked
whether inmates “typically ask for relief, like, in terms of money
or return of property.” (Doc. 81 at 9-10.) Mr. Rackovan
responded: “I don’t want to say typically, but that has been known
to happen. The policy is written such that, if they ultimately
want to get relief, they are supposed to request it in the
grievance and then in any subsequent appeals.” (Id. at 10.)
report the abuse as a grievance under DC-ADM 804 (e.g., by mailing
a letter which generates an investigation), Mr. Rackovan said he
was not sure because he had “seen different scenarios.”
He also said that when a claim of abuse was not filed as a
DC-ADM 804, there was nothing in 001 where the result would come
back to him to process under 804 for some type of remedy.
When asked by Plaintiff’s counsel whether he had “any reason to
believe that 001 is not an alternative system that a prisoner can
use, in order to satisfy his administrative remedies,” he
ultimately answered that he could not dispute that.
(Id. at 30.)
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.
(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 DCADM 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
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
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.”
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
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
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.15
The Report and Recommendation found that an inmate may begin
the process of exhausting remedies by initiating an investigation
under 001. (Doc. 93 at 10.) However, the Report and
Recommendation concluded that “[o]nce notified of the
investigation’s results, the inmate remains responsible for
pursuing redress throughout the prison and Department of
Corrections channels.” (Id.) While there may be sound reasons to
adopt such a procedure, neither the DC-ADM 804 and DC-ADM 001
policies themselves set out this hybrid approach to exhaustion nor
does the testimony regarding the interaction of the policies allude
to any similar operative practice at SCI-Rockview or OSII. On the
contrary, Mr. Rackovan’s testimony that there was nothing in DC-ADM
001 that would direct the investigation result to come back to him
to process under DC-ADM 804 (Doc. 81 at 23) basically confirms that
there was no mechanism for allegations of abuse filed under DC-ADM
001 to be pursued post-investigation through prison and DOC
channels set up for seeking redress in the DC-ADM 804 context.
Further, in that the hybrid approach goes beyond what Victor
suggested and what District Court cases applied, for the reasons
discussed in the text, the Court concludes that, at this time, it
is the better course not to engraft anything more than Victor’s
notation that a prisoner cannot file a complaint pursuant to DC-ADM
001 exhaustion “before the OPR’s investigation is complete, at
App’x at 129; see Boyer v. Malet, Civ. A. No. 3:CV-16-0149, 2016 WL
4679013, at *3 (M.D. Pa. Sept. 7, 2016).
Exhaustion of Plaintiff’s Claims
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
least absent special circumstances.” Victor, 565 F. App’x at 129.
In short, if the Court added the requirement that an inmate filing
an abuse claim under DC-ADM 001 was obligated to appeal an adverse
investigative decision pursuant to the appeal process set out in
DC-ADM 804 with no authority or roadmap in place to advise and
guide the inmate through the process, the opacity prohibited in
Ross would render the process unavailable. See 136 S. Ct. at 185960.
(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
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.
December 2010 Physical Assault
Exhaustion Pursuant to DC-ADM 804
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,
(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,
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.
Plaintiff does not dispute that he did not complete the threestep grievance process outlined by DC-ADM 804.
Rather, he argues
that DC-ADM 804 was not an available administrative remedy.
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
(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
(See, e.g., Doc. 97 at 2 n.4.)
that Plaintiff testified at his deposition that he received a
response and that it was denied.
(Doc. 96 at 8 (citing Doc. 60-7
The Court concludes the testimony cited is far less clear than
With the conflation of response and denial in
Defendants’ counsel asked Plaintiff if he got a denial of
the grievance[s] filed in December 2010 after they were referred to
OSII for investigation under DC-ADM 001. (Doc. 60-7 at 32.) After
some confusion on what was being asked, Defendants’ counsel said
“In December 2010, you filed a grievance about the physical abuse.
What’s your position? Did you ever get a response after they
investigated that or no?” (Id. at 32.) Plaintiff questioned what
he meant by “response” and, before receiving an answer, he said
“Yeah, yeah, yeah. I understand what you mean now, sir. They
denied me. They deny everything, these people.” (Id.)
Defendants’ counsel then said “Okay. So they denied the physical
abuse grievance also?” (Id.) Plaintiff responded “Yes.” (Id.)
After a few questions about appeals, Defendants’ counsel said
“Physical abuse, it was denied, and you appealed to the
superintendent is what I’m hearing from you.” (Id.) Plaintiff
responded: “It was denied, sir. But you know, I remember people
getting back to me from Camp Hill, too, saying it was being
investigated. So I don’t remember what happened, but I know I kept
filing paperwork, doing everything I can to try to help myself out
of there and stop what was going on and bring it to the people’s
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.
the relevant portion of the deposition transcript, the failure to
elicit confirmation that Plaintiff received written denials of the
relevant grievances, and the failure to point to documentary
evidence that the grievances were denied, the cited testimony does
not show that Plaintiff received the denials required by DC-ADM
For similar reasons, the testimony alone does not support
Defendants’ assertion that Plaintiff did not properly appeal any
denial and, for the reasons discussed below, the Court concludes
Defendants have not come close to meeting their burden of showing
that Plaintiff should not be excused from failing to fully exhaust
his claims, i.e., they have not shown that DC-ADM 804 remedies were
“available” to exhaust his claims related to the alleged December
6, 2010, physical abuse by Defendant Granlund.
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
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.17
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.
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
In that prisoners have no constitutionally protected right
to a grievance procedure, the Court does not suggest that the
policies themselves created rights, the review is simply to
determine the establishment of facts related to the availability of
administrative remedies. See Jones v. North Carolina Prisoners’
Labor Union, Inc., 433 U.S. 119, 137-38 (1977)(Burger, C.J.,
concurring) (“I do not suggest that the [grievance] procedures are
constitutionally mandated.”); see also Pryor-El v. Kelly, 892 F.
Supp. 261, 275 (D.D.C. 1995) (because prison grievance procedure
does not confer any substantive constitutional rights upon prison
inmates, the prison officials' failure to comply with grievance
procedure is not actionable).
“checking the box ‘Notice of Investigation.’” (DC-ADM 001 at 1-1.)18
Here the grievances were entered into the Tracking System as
per the Grievance Chart on December 15th and December 20th (Doc. 60-5
at 2) and were the first notices of the December 6, 2010, alleged
abuse so responses were due approximately January 26th and 31st 2011.
Plaintiff did not receive Extension Notices, but he received
Initial Review Responses signed by Defendant Eaton in early January
2011 indicating investigations would be conducted pursuant to DCADM 001.
(Doc. 60-3 at 13, 15.)
The Security Office was to report
the allegation of abuse to OSII via e-mail within five business
days (DC-ADM 001 at 1-2), and it appears the Security Office did so
because OSII had assigned tracking number “X-Ref: 10-A-520(ROC)” no
later than January 10, 2011, in that the Tracking System Summary
entry of that date uses the number (Doc. 63-1 at 51).
At that point the SCI-Rockview Security Office was to
investigate the allegation of abuse and compile a report.
As noted previously and explained in the Background section
of the Memorandum, the DC-ADM 001 Policy Statement regarding Inmate
Abuse effective November 24, 2014, is presumably the policy
referenced at the evidentiary hearing in the judicial notice
discussion (Doc. 81 at 62-63) and is the document currently
available on the website which the Court reviews here. Therefore,
although it is not certain whether specific provisions were in
effect at the relevant time, to the extent the Court was asked to
take judicial notice of the current policy, absent notation by the
parties of specific differences, the Court will assume the relevant
policy contained similar provisions.
Investigation notes show that a timely investigation ensued.19 (Doc.
68 at 4.)
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.
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
DC-ADM 001 directs that the investigation was to include
interview of and written statement from Plaintiff, interview of
staff member witnesses and/or potential staff member witnesses
(those identified in Plaintiff’s interview--COs Anthony and Cecil,
Counselor Jackson, and secretary Ms. McGarvey (Doc. 68 at 4)) and
obtain written statements from them, interview of Defendant
Granlund and a written statement from him, review and preservation
of available video footage, and review of all pertinent
documentation, including housing log books and medical
documentation. (DC-ADM 001 at 1-2.) Investigation notes here
include the following: 1) an undated Predication Report stating
that the investigation was based on the December 6, 2010, incident;
2) a Memorandum of Interview dated January 10, 2011, which included
the information that Plaintiff and Defendant Granlund were the only
ones present in the office at the time of the alleged assault but
several staff members responded to the assault, and the SCIR
Medical Department responded and transported him to medical via the
medical cart; and 3) an undated Investigative Insert indicating
that, “while closing the investigation,” Defendant Eaton (“SCI
Rockview Intelligence Captain”) received Plaintiff’s letter dated
January 7th which he had sent to OSII in which Plaintiff “complains
about the misconduct hearing appeal process and further Mr. K.
Granlund . . . in regards to the alleged incident . . . on December
6, 2010.” (Doc. 68 at 3-5.) The Investigative Insert closes by
saying “[p]ursuant to the ADM 001 and all reports as set forth
during this investigation, these complaints are not warranted and
this investigation shall stand as written.” (Doc. 68 at 5.)
If the investigation could not be completed by that
date, the Facility Manager/designee was to notify OSII in writing
or via e-mail to seek additional time.
(DC-ADM 001 at 1-3.)
The record contains no request for extension.
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 001.21
(DC-ADM at 1-4.)
investigation was found satisfactory, OSII was to send a letter to
to the Facility Manager (Defendant Lamas) and the Intelligence
Gathering Captain (Defendant Eaton) and the “Facility
Manager/Designee” (Defendant Lamas or her designee) was to advise
Plaintiff of the findings.
(DC-ADM 001 at 1-4, 1-5.)
results from the OSII were received, “the assigned Grievance
Officer,” Defendant Eaton, was to complete the Initial Review
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,
Calculations account for holidays like Presidents’ Day
which fell on February 21, 2011.
This timing basically comports with the deposition
testimony of Defendant Lamas who, upon review of OSII documents,
stated that information in the file indicated that as of January
31, 2011, Director Barnacle stated in a letter that as of January
31, 2011, the matter “had yet to be completed” but “the documents
were closed on . . . 3/15.” (Doc. 63-1 at 64-65.)
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.)
referenced June 30th response, Defendant Eaton had informed
Plaintiff that all of his allegations “either were or are being
addressed” (id. at 33);
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
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.
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, SCIRockview’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.”
Ct. at 1859.
This is the situation where “some mechanism exists to
provide relief, but no ordinary prisoner can discern or navigate
Ross added that “When rules are so confusing that no
reasonable prisoner can use them, then they’re no longer
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 1859.22
the reasons discussed below, this conclusion presents an alternate
basis to find that administrative remedies were not available to
Plaintiff to exhaust his claims regarding the December 6, 2010,
The lack of clarity exhibited in the testimony of those
In Ross, inmate Shaidon Blake alleged that two guards
assaulted him and he reported the assault to a senior corrections
officer the same day. 136 S. Ct. at 1855. That officer referred
the incident to the state prison system’s Internal Investigation
Unit (IIU) which, under state law, had authority to investigate
allegations of employee misconduct, including the use of “excessive
force.” Id. After a year-long inquiry, the IIU issued a final
report condemning one of the guard’s actions but made no findings
with respect to the second guard, Michael Ross. Id. In response
to Blake’s 42 U.S.C. § 1983 action, Ross asserted the affirmative
defense that Blake had brought suit without first following the
prison’s prescribed procedure for obtaining an administrative
remedy, the Administrative Remedy Procedure (ARP). Id. Blake
acknowledged that he had not sought a remedy through the ARP
because he thought the IIU investigation served as a substitute for
the ARP process. Id.
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.
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.
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
(Doc. 60-2 at 12; DC-ADM 001 at 1-1.)
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 DCADM 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.”
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?
explanation is found in the policies at issue or in the testimony
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
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.
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.
Ross, 136 S. Ct. 1859.
Whether Plaintiff was thwarted from taking advantage of the
standard grievance process set out in DC-ADM 804
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 SCIRockview 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.
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.
the claim of physical abuse by Defendant Granlund goes forward.
Exhaustion Pursuant to DC-ADM 00123
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.
Detailed analysis of DC-ADM 001 in the context of all the
legal issues identified in Ross, 136 S. Ct. 1859-62, may yield
results similar to the Court’s DC-ADM 804 analysis.
Plaintiff argues the unavailability of DC-ADM 001 based on the
opaqueness described in Ross (see, e.g., Doc. 95 at 15-16) the
Court will not engage in such an analysis based on the availability
of more direct resolution of the DC-ADM 001 exhaustion issue for
all abuse claims in this case.
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.
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.
not address this issue, maintaining that DC-ADM 001 did not satisfy
the PLRA exhaustion requirement.
(See Docs. 96, 101.)
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.
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.)
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
complains about the misconduct hearing appeal
process and further complains about Mr. K.
Granlund (U/M CB Unit) in regards to the
alleged incident on CB unit on December 6,
2010. Pursuant to ADM 001 and all reports as
set forth during the investigation, these
complaints are not warranted and this
investigation shall stand as written.
(Doc. 68 at 5.)
This investigation note contains absolutely no
reference to allegations of sexual misconduct contained in
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
(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.
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
(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
(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
(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
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
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
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
February 2011 Abuse Allegations
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
with the filing of grievance number 355976 dated
February 23, 2011.
(Doc. 60-6 at 24.)
allegations in numerous other filings.
26, 60-6 at 32, 33.)
He also reasserted the
(See, e.g., Docs. 63-1 at
Thus Plaintiff’s February 19, 2011, abuse
allegations will be considered pursuant to DC-ADM 804 and DC-ADM
Exhaustion Pursuant to DC-ADM 804
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.
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.)
A copy of this form was sent to the
Grievance Coordinator, Mr. Rackovan.
Ordinarily this would end the DC-ADM 804 exhaustion question
because a withdrawn grievance cannot be appealed (Doc. 60-2 at 1011) 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).25
DC-ADM 804 provides that the form “must . . . identify . .
. why the grievance was withdrawn.” (See Doc. 60-2 at 10-11.)
Plaintiff testified that he did not sign the form though he
was asked to do so by Lieutenant Gregory Dyke, that Lt. Dyke took
his blanket when he wouldn’t sign, and Lt. Dyke told Plaintiff he
would take care of it himself. (Doc. 83 at 60-62.)
this claim is outrageous and further
demonstrates Plaintiff’s lack of credibility.
There is no reason for Dyke to risk
discipline with a forgery and risk
termination or prosecution by committing
Furthermore, he has no stake in the
outcome. He is not the subject of a
grievance or a named defendant. Plaintiff
simply withdrew the grievance.
Subsequent written inquiries by
Plaintiff are meaningless. It is not
uncommon for inmates like Plaintiff make
[sic] various written assertions, then argue
their writing is proof of the facts in the
assertion. Plaintiff is the one with an
incentive to lie on this issue. His
voluntary withdrawal is fatal to this
conditions claim. Therefore, Plaintiff was
not thwarted from exhausting the alleged
chemical conditions claim under 804.
(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
(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
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
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).26
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
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.27
Although Lt. Dyke and Plaintiff testified about the issue
at the evidentiary hearings (Doc. 81 at 53-55; Doc. 83 at 60-62),
the particular issue of the grievance being withdrawn was not
addressed in the Report and Recommendation. (See Doc. 93.)
Defendants’ reliance on the Plaintiff’s lack of credibility
(see, e.g., Doc. 96 at 16) and assertion that Plaintiff is crafting
disingenuous exhaustion arguments to be able to present
“demonstrably false claims” to a jury (Doc. 101 at 5) exemplify
their broad-brush approach to what must be a very specific inquiry
pursuant to Ross and Third Circuit caselaw dealing with exhaustion.
As noted previously, Plaintiff’s expressed confusion and
credibility may be relevant and worthy of further exploration when
considering Plaintiff’s general credibility or the merits of his
claims in the future, see supra p. 66 n.5, but the Court rejects
this basis, Plaintiff’s claim against Defendants Hall, Perks, and
Fisher regarding the February 19, 2011, chemical incident goes
b. Exhaustion Pursuant to DC-ADM 001
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 DCADM 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.)
the application of the maxim “falsus in uno, falsus in omnibus”
urged by Defendants (Doc. 96 at 16).
Defendant Lamas responded “[w]hat would be done is internal.”28
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
X-Ref: 11-A-134 (ROC).”
(Doc. 63-1 at 51.)
indicates that a new case tracking number was assigned but it does
not say who is investigating the claims.
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.
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
Defendant Lamas’s cryptic response may indicate that she
did not think the matter was appropriate for DC-ADM 001
consideration which would, pursuant to the policy procedures,
require reporting to OSII, and “what would be done” would not be
“internal.” See DC-ADM 001.
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
Notably, Defendants do not argue that the chemical
incident claims were not properly the subject of abuse allegations
under DC-ADM 001 or that the matter was investigated at any level.
Therefore, pursuant to Victor, Robinson, Small, and Ross, DC-ADM
001 was not an available administrative remedy and Plaintiff’s
claims regarding the February 19, 2011, chemical incident may
proceed against Defendants Hall, Perks, and Fisher.
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.
that investigations were cursory or nonexistent and officials were
not forthcoming in advising Plaintiff of the status of his claims
As with Plaintiff’s other claims of abuse, claims of abuse
regarding the February 19, 2011, incident were not reported to the
Security Office as per policy which provided that any report of
such abuse to a staff member should be reported and, even if a
grievance is rejected, the rejected grievance should be forwarded
to security so an investigation can be initiated. (DC-ADM 001 at
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.
the perfunctory treatment of Plaintiff’s claims and inquiries does
not serve the expressed purposes of the PLRA.
F.3d at 155.
See Robinson, 831
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
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
They have not done so.30
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
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.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: September 21, 2017
Put simply, Plaintiff raised claims of abuse over an
extended period alleging that sexual abuse occurring in the fall of
2010 was the root cause of subsequent wrongdoing. Sexual abuse
claims are nasty for the person accused but they are far worse for
an inmate who has been abused. Plaintiff attempted to bring claims
of abuse to the attention of SCI-Rockview and DOC personnel for
over six months and this record does not establish that he ever
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