Moore v. Lamas et al
Filing
103
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)
APPENDIX 1
PENNSYLVANIA DEPARTMENT OF CORRECTIONS POLICIES
A. DC-ADM 804
DC-ADM 804 contains the following policy statement.
It is the Policy of the Department that every
individual committed to its custody shall
have access to a formal procedure through
which to seek resolution of problems or other
issues of concern arising during the course
of confinement. For every such issue, there
shall be a forum for review and two avenues
of appeal. The formal procedure shall be
known as the Grievance Inmate System.
(Doc. 60-2 at 2.)
An inmate is encouraged to resolve concerns
informally by use of a DC-135A Inmate Request to Staff Member or
direct conversation with the Unit Manager or Officer in charge
before submitting an Official Inmate Grievance Form.
at 9.)
(Doc. 60-2
An Official Inmate Grievance Form must be submitted to
the Facility Grievance Coordinator using the DC-ADM 804, Part 1.
(Id.)
The grievance must be filed within fifteen working days
after the event upon which the claim is based.
10.)
(Doc. 60-2 at
“If the inmate desires compensation or other legal relief
normally available from a court, the inmate shall request the
specific relief sought.”
(Id.)
The policy indicates that an
inmate could withdraw a grievance at any point in the grievance
process.
(Doc. 60-2 at 10.)
“To withdraw a grievance, an inmate
must use and sign the Inmate Grievance Withdrawal Form
(Attachment 1-B), identify the grievance to be withdrawn by
number, the reason why the grievance was withdrawn and forward
the form to the Grievance Coordinator.
Once a grievance is
withdrawn, the inmate cannot then proceed to appeal to either the
Facility Coordinator or Final Review.”
(Doc. 60-2 at 10-11.)
The Facility Grievance Coordinator/designee is to assign the
grievance a tracking number, enter the grievance into the
Automated Grievance Inmate Tracking System, entering a summary or
description of the grievance subject matter, the category, and
the facility’s disposition of the grievance at initial review.
(Doc. 60-2 at 11.) On initial review of the grievance, if the
grievance coordinator concludes that the issue being grieved is
not in accordance with DC-ADM 804 it is returned to the inmate
unprocessed with a Grievance Rejection Form.
(Doc. 60-2 at 12.)
If the Facility Grievance Officer determines that the grievance
is properly submitted, he will assign the grievance to a staff
member who is designated as the Grievance Officer for that
grievance.
(Doc. 60-2 at 11.)
The Grievance Officer is to
submit his proposed response to the Facility Grievance
Coordinator for review prior to distribution to the inmate.
(Doc. 60-2 at 12.)
“The response shall include a brief
rationale, summarizing the conclusion and any action taken or
recommended to resolve every issue as well as any relief raised
in the grievance. One of the following dispositions must be in
the initial response: Uphold Inmate, Grievance Denied, or Uphold
in Part/Denied in part.”
(Id.)
If the Facility Grievance
2
Coordinator approves the proposed response, the Coordinator
returns it to the Grievance Officer who must provide a written
response to the inmate within fifteen working days from the date
the grievance was entered into the Grievance Tracking System.
(Id.)
The policy states that allegations of abuse “shall be”
handled according to DC-ADM 001 and adds that
[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.)1
Appeal of the Initial Review Response to the Facility
Manager had to be made within fifteen working days.
at 15, 16.)
(Doc. 60-2
The policy specified that Initial Review
Response/Rejection must be received by the inmate before any
appeal to the Facility Manager can be sought. (Doc. 60-2 at 15.)
Final review was to be made to the Secretary’s Office and had to
be filed within fifteen working days from the date of the
1
The earlier version of DC-ADM 804 simply stated that “[a]
grievance dealing with allegations of abuse shall be handled in
accordance with Department policy DC-ADM 001, “Inmate Abuse
Allegations Monitoring Process.” (Doc. 60-1 at 8.) It did not
address appeal or timing issues.
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decision of the Facility Manager.
(Doc. 60-2 at 17.)
The appeal
of the Facility Manager’s decision was to be responded to within
thirty working days of receipt of the appeal.
Doc. 60-2 at 19.)
(Doc. 60-1 at 11;
A section titled “Rights Under This Policy”
states that the
policy does not create rights in any person
nor should it be interpreted or applied in
such a manner as to abridge the rights of any
individual. This policy should be
interpreted to have sufficient flexibility to
be consistent with law and to permit the
accomplishment of the purpose(s) of the
policies of the Department of Corrections.
(Doc. 60-1 at 15; Doc. 60-2 at 2.)
B. DC-ADM 001
For reasons explained in the Memorandum, the Court uses the
current version of DC-ADM 001 to analyze relevant allegations in
this case and does so in part because the parties do not assert
that procedures have substantively changed since the relevant
time. (See
www.cor.pa.gov/.../Documents/DOC%20Policies/001%20Inmate%20Abuse.
pdf.
Hereafter, the current policy will be cited as “DC-ADM 001"
with reference to the identified PDF page numbers.
The DC-ADM
001 “Procedures” section includes the following:
B.
Allegations of inmate abuse may be
reported by:
1.
an inmate
2.
an employee, contractor, visitor,
volunteer, or any individual who
4
has business with or uses the
resources of the Department; and
3.
all persons and entities
attempting, establishing, or
maintaining contact with persons
committed to the custody of the
Department.
C.
Any employees who receives written or
verbal notification from an inmate or a
third party alleging an incident of
abuse, or who is a witness to abuse, is
required to complete a DC-121, Part 3,
Employee Report of Incident for
distribution to his/her supervisor and
the facility’s Security Office. All
reports shall be completed prior to
completion of the employee’s duty shift.
D.
Any inmate who is the victim of abuse
should report the abuse in the following
manner:
1.
report it verbally or in writing to
any staff member;
2.
file a grievance in accordance with
Department policy DC-ADM 804,
“Inmate Grievance System;” or
3.
report it in writing to the
Department’s Office of Special
Investigations and Intelligence
(OSII).
E.
Any person who has knowledge concerning
an alleged abuse should notify a staff
member at the facility or the
Department’s Central Office.
F.
An allegation of abuse that is received
by any Central Office employee shall be
referred to the OSII.
(DC-ADM 001 at 1-2.)
The section titled “Rights Under This
Policy” contains the same language as that contained in DC-ADM
5
804.
(DC-ADM 001 at 2.)
The manner of reporting in the policy
quoted above is basically the same as that referenced by
Plaintiff in the policy in effect during the relevant time
period.
(Doc. 95 at 10.)
Plaintiff notes the relevant policy
defined “Abuse” as “a. the use of excessive force upon an inmate;
b. an occurrence of an unwarranted life-threatening act against
an inmate; c. sexual contact with an inmate.”
(Id.)
This is
consistent with Mr. Kertes’ testimony (Doc. 83 at 7), and the
procedures outlined here are considered applicable to such
conduct.
The DC-ADM 001 Procedures Manual effective the same date as
the Policy Statement (November 24, 2014) does not specify a time
requirement for the reporting of abuse.2
However, it 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
2
As noted in the Memorandum, 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.”
www.cor.pa.gov/.../Documents/DOC%20Policies/008%20Prison%20Rape20%E
limination20%Act.pdf Aug. 22, 2016 at 3-2. Other methods of
reporting do not specify a time component. (Id.)
6
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
initiated.
. . . .
Inmate grievances alleging abuse that
are sent directly to the Central Office shall
be forwarded to the OSII.
(Id. at 1-1.)
Regarding investigation of allegations of abuse, DC-ADM 001
provides that when an allegation of abuse is received by the
facility Security Office, the Security Office is to report the
allegation to OSII and OSII responds with a tracking number
within five business days.3
(Id. at 1-2.)
Based on the injuries
received, OSII determines whether the allegations of abuse will
be investigated by OSII or the facility Security Office.
(Id.)
If the Security Office conducts the investigation, it is to
include an interview of the inmate and a written statement from
the inmate following the interview, interviews of all subject
3
Though defense counsel argued at the evidentiary hearing on
April 6, 2016, that failure to investigate was a separate issue
(Doc. 81 at 36), insofar as the completion of an investigation may
trigger further action toward exhaustion, the issue is relevant in
the context considered here.
7
staff members and written statements from them, and review of
available video footage.
(Id.)
A copy of the investigative
report is to be forwarded to OSII within thirty business days of
receipt of the OSII tracking number.
(Id. at 1-3.)
However,
[i]f the investigation cannot be completed
within thirty business days, the Facility
Manager/designee, shall notify the OSII, in
writing or via e-mail, of the need for
additional time. This notification shall
contain the rationale for the delay and the
anticipated date of completion. The Director
of the OSII/designee shall approve/disapprove
additional time for completion of
investigations.
(Id.) OSII is to complete a review of the investigation within
fifteen business days of receipt of the report.
(Id. at 1-4.)
If OSII determines that the investigation was satisfactory, OSII
is to send a letter acknowledging so to the Facility Manager and
the facility Intelligence Gathering Captain.
(Id. at 1-4.)
Upon
notification from the OSII of a satisfactory investigation, the
suspect(s) and complainant are to be advised of the findings by
the Facility Manager/designee.
(Id.)
The procedure is much the same when a complaint is referred
to the facility Security Office for investigation by the OSII.
(Id. at 1-4, 1-5.)
However, when a complaint is investigated by
OSII, OSII is to complete the investigation within thirty
business days of receipt of the investigation order.
5.)
(Id. at 1-
A letter is then prepared by OSII to the complainant
advising him of the results of the investigation and to the
Facility Manager.
(Id.)
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