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 2
FACTUAL BACKGROUND DETAIL1
A. Documentary Evidence
Plaintiff alleges that Defendant Granlund engaged in
improper sexual contact with him on several occasions in the fall
of 2010.2 (Doc. 28 ¶ 12.)

In his August 20, 2015, Declaration,

Defendant Granlund denies all allegations against him.

(Doc. 68

at 10-11.)
The record contains an “Official Inmate Grievance”
addressed to “Ms. Lamas Warden’s Office” on October 19, 2010.
(Doc. 63-1 at 3.)

In the grievance, Plaintiff expressed

appreciation for Defendant Lamas’s help and that of Defendant
Granlund regarding a misconduct hearing and stated that he wanted
to make Defendant Lamas “aware of what has been going on for some
time now . . . it’s now necessary . . . under Policy (DC-ADM
008)3 to let you . . . know that Mr. Granlund is to much

1

To attempt a coherent presentation of the multiple
internal DOC filings, responses to inmate requests/grievances and
other relevant information is indented and italicized immediately
following the summary of the request/grievance rather than being
presented in chronological order. Where relevant, information
from the Automated Inmate Grieving Tracking System summary chart
(“Grievance Chart”) (Doc. 60-5 at 2) is presented in the same
way.
2

Plaintiff testified that he created all documents at or
about the time they are dated. (Doc. 83 at 12.)
3

Although DC-ADM 008 later addressed grievances dealing
with allegations of sexual abuse and harassment (see
www.cor.pa.gov/About%20Us/.../008%20Prison%20Rape%20Elimiation%20
Act.pdf.), the record does not show what impact the policy had at
the relevant time or if, in fact, it existed.

thuchy[sic]/feely with me at the coper [sic] and in his office
when his secretary goes out to smoke.”

(Doc. 63-1 at 3.)

Plaintiff goes into greater detail and also asserts that “C/O
Pice” saw sexual misconduct and told Plaintiff it was best just
to request a move to a different unit and not tell about the
conduct.

(Id.)

Although the document contains a signature

attributed to the Facility Grievance Coordinator, Jeffrey
Rackovan (who held that position at the relevant time) testified
that he never received or signed the grievance and there is no
other indicia that the grievance was received or reviewed by any
official.

(Doc. 81 at 15, 20.)

Plaintiff testified that he

addressed the grievance to Defendant Lamas because “I took her
more than a supervisor, you know, because I would see her and her
mother in the church.

And I talked to her.

to me . . . at the times where I needed her.”

She was very helpful
(Doc. 83 at 13.)

When asked whether he knew he was supposed to address a grievance
to Defendant Lamas or the general grievance system, he responded
“just the general grievance system” and added that he wanted it
to go to her.

(Id. at 14.)

No October 19, 2010, Grievance appears on the
Grievance Chart. (Doc. 60-5 at 223.)
Plaintiff testified that he again complained to Defendant
Lamas about Defendant Granlund’s sexual misconduct with another
Official Inmate Grievance dated October 26, 2010, and he
specifically told her that Defendant Granlund, who was his unit
2

manager, was sexually touching him and he “had to do stuff for
him in the office” and had “urges to watch him masturbate and
stuff like that.” (Doc. 83 at 18 (citing Doc. 63-1 at 4)4.)
Plaintiff said he never got a response to this.
Doc. 63-1 at 19).)

(Id. (citing

He said he asked Defendant Lamas about this

while he was in the RHU and she responded that she could not
respond to every grievance.

(Id.)

No October 26, 2010, grievance appears on the
Grievance Chart submitted by Defendants. (Doc.
60-5 at 2.)
Plaintiff alleges that he sent another Official Inmate
Grievance to Mr. Walonen at OPR on November 8, 2010, regarding
Defendant Granlund’s sexual misconduct.
Doc. 63-1 at 5)5.)

(Doc. 83 at 19 (citing

The document contains no legible verification

of receipt and no evidence of record indicates Mr. Walonen
received the document. Plaintiff testified that he sent this
document to Mr. Walonen pursuant to DC-ADM 001.

(Doc. 83 at 20.)

When asked by his attorney why he addressed it to Mr. Walonen,
Plaintiff responded:
They give you a book . . . in the jail. It’s
a handbook. If you read the book, . . . it
gives you the status number of the policies
and what you have to do to follow this to
make everything right with the grievance

4

The reproduction of this document is largely illegible.
(See Doc. 63-1 at 4.)
5

This document is only slightly more legible than the
October 26, 2010, grievance. (See Doc. 63-1 at 5.)
3

process. I wasn’t getting any responses back
in Rockview.
So I had to take it a step further –
people say you got to wait. I said, I can’t
wait anymore because if I wait anymore, the
15 days are going to be up and I have to
start doing stuff on my own. So I would make
my own paperwork and grievance on top, put
appeal and send it straight to the head
office.
(Doc. 83 at 20.)
No November 8, 2010, grievance appears on the
Grievance Chart submitted by Defendants. (Doc.
60-5 at 2.)
In Official Inmate Grievance number 345827 dated December 3,
2010, addressed to Mr. Rackovan, Plaintiff described an incident
where another inmate called Plaintiff out of his cell to get some
coffee that the other inmate had put on the table at the cell
door for him.

(Doc. 60-6 at 10.)

His grievance provides the

following information: many other inmates were out walking on the
unit at the time but Plaintiff was the only one called to go to
the back room to see Defendant Granlund who asked Plaintiff
whether he thought he was at a Holiday Inn; Plaintiff said he was
only getting his coffee and questioned why Defendant Granlund
only called him; and Defendant Granlund’s response included the
statement that “the Italians are just like the niggars.”

(Id.)

Plaintiff added that he was “now writing my attorney and Camp
Hill” and “I also feel this man somehow has it out for me and I
don’t know why.”

(Id.)

4

In the Official Inmate Grievance Initial
Review Response to Grievance 345827 dated December
15, 2010, Mr. Rackovan said he reviewed the
statement Plaintiff alleged Defendant Granlund had
made and concluded “Mr. Granlund made no
unprofessional or derogatory statement.” (Doc.
60-6 at 11.) Explaining that loitering on the
housing unit was not allowed and a violation of a
rule in the DOC Inmate Handbook, Mr. Rackovan
found no violation of policy occurred and the
grievance was denied. (Id.) The Grievance
Officer for this grievance was Major James D.
Morris who signed the response on December 15,
2010. (Id.)
An Inmate’s Request to Staff Member to “Mr. Marsh Deputy
Superintendent” dated December 3, 2010, and date stamped “Program
Review Committee” indicates that Plaintiff repeated what
Defendant Granlund allegedly said earlier in the day, and he
asked Mr. Marsh to take immediate action concerning Defendant
Granlund’s “racist committs” [sic].

(Doc. 63-1 at 8.)

In the

Request, Plaintiff also referred to a letter he mailed out to his
attorney and Mr. Michael P. Wolanin at OPR “with copys [sic] of
my grievance to Mr. Rackovan and to Ms. Lamas.”

(Id.)

The undated response states “You had a
misconduct on this issue and filed a grievance.
As we told you its [sic] being investigated.”
(Id.)
In Official Inmate Grievance number 346858 dated December
10, 2010, addressed to Mr. Rackovan, Plaintiff alleged that
Defendant Granlund hit him in the mouth on December 6, 2010, and
he was taken to medical as a result and given something for pain
in his back and falling on the floor.
5

(Doc. 60-6 at 12.)

In

this grievance Plaintiff also said he had told the PD on A/C unit
that his jaw hurt, he could not eat because of the pain, and he
needed better pain medication for his back and the PD said
Plaintiff would get help.

(Id.)

He added that he had not gotten

the help promised and he was “in the box in a cold cell with no
heat and in pain.”6

(Id.)

date is December 13, 2010.

The grievance file-stamped receipt
(Id.)

Handwritten notations at the

bottom say “Excessive Force” and “Capt Eaton 12/30.”

(Id.)

The Initial Review Response to Official
Inmate Grievance number 346858 is dated January 3,
2011. (Doc. 60-6 at 13.) The response stated
“[i]n accordance with DC-ADM 001, your allegation
will be investigated by the Security Office and
the results forwarded to the DOC Office of
Professional Responsibility.” (Id.) Defendant
Eaton signed as the Grievance Officer. (Id.) Mr.
Rackovan’s initials appear just after the
statement and the response indicates copies were
sent to him and Defendant Eaton. (Id.)
The Grievance Chart provided by Defendants
indicates the following: grievance number 346858
for excessive force was received on December 15,
2010; Disposition was “Grievance Denied”; and the
Complete Date was January 3, 2015. (Doc. 60-5 at
2.)
In Plaintiff’s Official Inmate Grievance dated December 15,
2010, and numbered 347374, Plaintiff again complained of
Defendant Granlunds’s December 6, 2010, conduct.

6

(Doc. 60-6 at

Following his December 9, 2010, misconduct hearing,
Plaintiff was confined to the RHU for a period of ten months as a
result of the December 6, 2010, altercation with Defendant
Granlund. (Doc. 28 ¶ 24.)
6

14.)

The grievance file-stamped receipt date is December 18,

2010.

(Id.)

In this grievance, Plaintiff adds background

information to the December 6, 2010, event:
I asked Mr. Granlund why did he lie in his
write up he gave me on 12-3-2010. Granlund
got mad and loud at me. I then told Granlund
this is why he lost (2) good jobs. He then
got more mad and got up and hit me in my
mouth.
(Id.)

Plaintiff added “my jaw hurts back hurts from the fall I

took on the floor and sick call has not called me down and I put
in (3) time.”

(Id.)

Handwritten notations at the bottom say

“Excessive Force” and “Capt Eaton 1/4.”

(Id.)

The Initial Review Response to Official
Inmate Grievance number 347374 is dated January 6,
2011. (Doc. 60-6 at 15.) It stated “[i]n
accordance with DC-ADM 001, your allegation will
be investigated by the Security Office and the
results forwarded to the DOC Office of
Professional Responsibility” and Defendant Eaton
again signed as the Grievance Officer. (Id.) Mr.
Rackovan’s initials appear just after the
statement and the response indicates copies were
sent to him and Defendant Eaton.
The Grievance Chart provided by Defendants
indicates the following: grievance number 347374
for excessive force was received on December 20,
2010; Disposition was “Grievance Denied”; and the
Complete Date was January 5, 2015. (Doc. 60-5 at
2.)
Plaintiff addressed “Inmate’s Request to Staff Member” to
Captain Eaton on January 7, 2011.7

7

(Doc. 63-1 at 13.)

In this

The document is dated January 7, 2010, but Plaintiff
testified that the date is incorrect and should read January 7,
7

request, Plaintiff reviewed a visit to his cell made by
Defendants Eaton and Lamas on December 8, 2010, and stated that
he specifically asked them to call the state police so he could
file charges against Defendant Granlund for the December 6, 2010,
assault but they indicated they would not do as he asked but
Defendant Eaton gave him “a paper with Rule 113(b) to mail the DA
on the matter the day I saw you at my hearing on 12/9/2010 and I
did so but no one got back to me.”

(Id.)

Plaintiff further

stated that he was
now also requesting you to please call the
state police so I can file my charges
lawfully because Granlund is gay and at times
I had to go up to his office and masterbait
[sic] for him to let him watch. It was that
or to the hole and being I’m in the hole I
want everyone to know this for the record.
Now please call the state police.
(Id.)
In her undated response, Defendant Eaton told
Plaintiff “you need to fill out Rule 113(b)
paperwork and mail it to the DA @ Bellafonte PA
16823. The DA will decide which direction to
take. I told you this on 1/10/11 in the R.H.U.”
(Id.)
In a two-page letter dated January 7, 2010, (with a latercorrected date of January 7, 2011)8 addressed to James Barnacle,
“Director, Officer” at “S-I-A-I, D.O.C.,” in Camp Hill, Plaintiff

2011. (Doc. 83 at 152 (citing Doc. 63-1 at 13).) The Inmate
Request does not indicate a receipt date but the Court notes that
receipt is verified with Defendant Eaton’s response.
8

See supra n.7.
8

indicates that the correspondence is “Re: relief all is
exhausted.”

(Doc. 63-1 at 39-40.)

The letter is date-stamped

indicating that it was received by the Office of Special
Investigations and Intelligence on January 10, 2011.
As you can review in my paper work with
this letter my appeal was denied by Ms. Lamas
and its ok because that comes with coverup at
Rockview.9 Hoping it will help out with the
lawsuit I’m filing on Mr. K. Granlund, Unit
Manager/pscyh for assaulting me in his office
on 12/6/2010.
In over (3) years I never got one
writeup at Rockview or any prison I been at
but the day I told Granlund to back off from
coming on to me at my cell he told me he will
make it hell for me. I’m now in a cold cell
with no heat . . . . Granlund told nothing
but lies in the writeup he gave me and now
I’m in the hole with (1) year time for
opening up my cell door to get my coffee. . .
. All I ask of you is to look at my record
because I don’t do things like that and
please help me out of the hell that Granlund
put me in for not doing sex acts in his
office as to beting off to let him see me do
it. . . . My appeals are all exhausted.
Please help me with some relief.
(R. 39-40.)
Records from the Office of Special Investigation and
Intelligence (“OSII”) Tracking System Summary indicate that on
January 10, 2011, “the Centre County DA’s Office referred
correspondence from Inmate Thomas Moore . . . alleging abuse by
staff. ~ Letter was sent to Stacy Parks Miller, DA, advising that

9

The record does not contain the referenced paperwork.
(See Docs. 60, 63-1, 65, 68, 82, 89-1, 91-1, 95-1.)
9

Inmate Moore’s allegations are currently being investigated and
Inmate Moore will be advised of the outcome. x-Ref. 10-A-520
(ROC).”10

(Doc. 63-1 at 51.)

The OSII Summary also indicates that on January 10, 2011,
“Inmate Moore alleges he received a misconduct report from UM
Granlund for not having sex acts with him in his office. ~
Complaint faxed to Capt. Eaton to include with their pending
abuse investigation. x-Ref. 10-A-520 (ROC).”

(Doc. 63-1 at 51.)

In an undated document, Rockview Lieutenant R.L. Greene
completed a Predication Report concerning case number 2010-A-520.
(Doc. 68 at 3; see also 83 at 129.)

He stated that the

investigation was predicated on grievance number 346858 and
subsequently a letter sent to the Office of Professional
Responsibility by Plaintiff.11 (Id.)

He also stated that “[t]his

grievance/complaint was written on December 10, 2010 alleging
that staff member Kurt Granlund (U/M CB Unit) assaulted him in

10

Documents referenced in the OSII Tracking System Summary
are not included in the record currently before the Court. (See
Docs. 60, 63-1, 65, 68, 82, 89-1, 91-1, 95-1.)
11

The only letter in the record to OPR from December 10,
2010, through January 10, 2011, is the January 7th letter datestamped January 10, 2011. (Doc. 63-1 at 39-40.) This is
presumably the source of the allegation noted in the OSII
Tracking System Summary relating to “a misconduct report from UM
Granlund for not having sex acts” which was faxed to Captain
Eaton to include in the pending investigation. (Doc. 63-1 at
51.) However, because Lt. Greene does not mention the sexual
conduct allegations set out in the letter in the Predication
report(Doc. 68 at 3), the Court notes it is uncertain what letter
Lt. Greene references.
10

the face with his right fist during an incident in the Unit
Manager’s office in Building CB on December 6, 2010–-thus
beginning said event.”

(Id.)

A Memorandum of Interview on case number 2010-A-520 dated
January 10, 2011, indicates that CO III Greene and CO III Vance
interviewed Plaintiff at 12:30 hours.

(Doc. 68 at 4.)

The

Memorandum states that Plaintiff had a good recollection of the
December 6, 2010, events and he provided a detailed verbal
statement.

(Id.)
Moore stated that on December 6, 2010 he
patiently waited for Mr. Granlund (CB Unit
Manager) to come on the unit for the day. He
stated that at approx. 1045 hours, Mr.
Granlund did report to the unit for the day
and that he immediately followed Mr. Granlund
to his office wishing to engage in
conversation about a misconduct report that
he received a few days prior. Mr. Granlund
stated to . . . Moore “Not now . . . I’ll
talk to you later about this”!! . . . Moore
further stated that at approx. 1530 hours, he
finally met with Mr. Granlund in regards to
the misconduct issue previously mentioned.
He went on to state that the conversation
began to heat up and that he got upset and
began to verbally attack Mr. Granlund about
his former position as Deputy at SCI Forest
and telling him that he was a “has been”!! .
. . Moore alleged that it was at that point
that Mr. Granlund assaulted him while he was
seated on a chair in his office by striking
him in the face with his right fist. . . .
Moore continued on by stating at this point
he was on the floor and the following staff
responded to the commotion in the U/M’s
office: COI’s Anthony and Cecil, Counselor
Jackson and the secretary Ms. McGarvey.
Shortly thereafter, he stated that the SCIR
Medical Dept responded and transported him to
11

medical via the medical car. At this point,
Lt. Vance questioned . . . Moore as to
whether there were any witnesses to this
assault? . . . Moore stated that he and Mr.
Granlund were the only ones present in the
office at the time of the alleged assault.
There were no further questions asked and the
interview concluded at 1255 hours.
(Id.)
In an undated “Investigation Insert[,] Review of . . .
Thomas Moore’s Complaint written on 1-7-2011 and received by OSII
on 1-10-2011" on case number 2010-A-520, Lt. Greene stated that
the
investigation was originally predicated on a
grievance (#346858) submitted to the Security
Office at SCI Rockview and subsequently a
letter sent to the Office of Professional
Responsibility by Inmate Thomas Moore . . . .
This grievance/complaint was written on
December 10, 2010 alleging that staff member
Kurt Granlund . . . assaulted him by striking
him in the face with his right fist during an
incident in the Unit Manager’s office in
Building CB on December 6, 2010–-thus
beginning said event.
While closing this investigation, Capt.
Eaton (SCI Rockview Intelligence Captain)
received a subsequent letter of complaint
from GY 5490 Thomas Moore to OSII written on
January 7, 2011 and received by the OSII on
January 10th, 2011. This complaint was
reviewed by Lt. Greene (Investigating
Lieutenant). In this letter, . . . Moore
complains about the misconduct hearing appeal
process and further complains about Mr. K.
Granlund (U/M CB Unit) in regards to the
alleged CB unit on December 6th, 2010.
Pursuant to ADM 001 and all reports as set
forth during the investigation, these
complaints are not warranted and this

12

investigation shall stand as written.12
(Doc. 68 at 5.)
Regarding the January 10, 2011, investigation interview,
Plaintiff testified at the April 16, 2016, evidentiary hearing
that he was not asked about the sexual assault at the interview,
he was only asked about the physical assault.

(Doc. 83 at 43.)

In the course of questioning about the investigation at the
evidentiary hearing, Plaintiff stated that he was never asked
about the sexual assault and added that he “wasn’t allowed to
talk about the sexual assault.”

(Id.)

When asked by his

attorney who had told him he was not allowed to talk about it, he
responded “Captain Eaton at the hearing.”

(Id.)

At his March 5

2015, deposition, Plaintiff testified that he recalled the
January 10, 2011, meeting with investigators including Lt. Vance
and he briefly said something to Lt. Vance about the sexual
incidents and Lt. Vance said “I don’t want to hear about that.”
(Doc. 60-7 at 18.)

In answer to the question at the evidentiary

hearing of whether OPR (OSII) ever followed up on the sexual
allegations, Plaintiff testified that nothing had been done and
“they didn’t get back to me,” indicating that he never got any
notification of what OPR (OSII) did with the investigation.
(Doc. 83 at 44.)

12

The record does not contain the document(s) to which
this Memorandum refers.
13

In an Official Inmate Grievance number 349821 addressed to
Mr. Rackovan dated January 10, 2011, and date-stamped January 11,
2011, Plaintiff requested help keeping Defendant Granlund away
from him when he was out of the RHU.

(Doc. 60-6 at 16.)

He also

stated “for the record” that
Mr. Granlund is gay and at times I had to go
up to his office so he can watch me maserbait
[sic]. I was told by Granlund if I tell
anyone or don’t do what he wants he will see
to it that my life is hell at Rockview and
put me in the hole and tell my family when
they call Mr. Summers that I was having sex
in the cell with a man and it’s why I’m in
the hole. I can not put everything on
grievances because the C/O’s don’t give them
out. How I’m now in the hole and I’m not
that much in fear no more to let Rockview
know all about Mr. Granlund/sickoh.
(Id.)
On January 11, 2011, Mr. Rackovan responded
to the January 10, 2011, grievance number 349821
with a Grievance Rejection Form which stated that
the grievance was being returned to Plaintiff
because Plaintiff did not comply with DC-ADM 804
for three reasons: (1) “Grievances related to the
following issues shall be handled according to
procedures specified in the policies listed and
shall not be reviewed by the Facility Grievance
Coordinator: (a) DC-ADM 801 - Inmate Disciplinary
and Restricted Housing Unit Procedures”; (2)
“Grievances based upon different events shall be
presented separately”; and (3) “The grievance was
not submitted within fifteen (15) working days
after the events upon which claims are based.”
(Doc. 60-6 at 17.
In Official Inmate Grievance number 354666 dated February
14, 2011, date-stamped February 16, 2011, and addressed to Mr.
Rackovan, Plaintiff stated that he was “in need of one on one
14

help with a psy that can help me.”

(Doc. 60-6 at 16.)

Plaintiff

further explained
I filed my grievance and a letter to Ms.
Lamas on 10/26/2010 telling her how I was
being sexually abused by Mr. Granlund on C/B
unit in his office as I was forced by threats
to let him masterbait me and then myself. I
never got nothing back from Lamas asking her
to put a stop to Granlund. I now ask you to
help me with a PSY that I can see as one on
one and not at cell door.
(Id.)
Plaintiff received a response to Grievance
number 354666 on March 1, 2011. (Doc. 60-6 at
21.) The Initial Inmate Grievance Initial Review
Response was signed by Grievance Officer Robert
Marsh and stated that the allegations regarding UM
Granlund were addressed in grievance number
349821, the psychology/psychiatry department
visits the RHY five times a week, absent a special
need Plaintiff would be interviewed in his cell,
and there was no need to change his PSS
assignment. (Id.)
In Official Inmate Grievance number 355506 dated February
18, 2011, date-stamped February 23, 2011, and addressed to Mr.
Rackovan, Plaintiff requested that either Mr. Rackovan or Ms.
Lamas “tell C/O’s Pekrs and C/O Hagg to let me have my food.

At

12 pm today on 2/18/2011 C/O Hagg and Fisher would not give me my
food.” (Doc. 60-6 at 22.)

He added that CO Pekrs had done the

same thing on January 2, 2011, and another CO had told him “all
this coming from Mr. Granlund.”

(Doc. 60-6 at 22.)

Grievance number 355506 was denied with the
Official Inmate Grievance Initial Review Response
signed by CO3 G. Dyke on March 8, 2011. (Doc. 606 at 23.) The summary of findings indicated that
15

when Officers Hagg, Fisher, and Perks were
interviewed, all stated Plaintiff was given his
meals and review of all records reflected the
same. (Id.) The response noted that Plaintiff
failed to name the CO who told him about Mr.
Granlund’s alleged directive. (Id.) The response
contained the statement:
delusional and should
be referred to the Psychology staff. (Id.)
In Official Inmate Grievance number 355976 dated February
23, 2011, date-stamped February 23, 2011, and addressed to Mr.
Rackovan, Plaintiff complained about not getting food from COs
Hall, Fisher, and Perks at noon on February 19, 2011.
at 24.)

(Doc. 60-6

He said he hit his cell for help to eat after which COs

Hall, Fisher, and Perks poured chemical cleaner at his cell door,
moved it back into his cell, CO Hall said “now try that out,” and
the three covered the door.

(Id.)

Plaintiff added that he

became sick and threw up by 1:30 p.m., he fell on the floor, and
at 2 p.m. CO Hook came in, saw him on the floor and called Lt.
Nixson who sent him to medical.

(Id.)

At the beginning of his

statement, Plaintiff asks to see the cameras for proof of his
allegations.

(Id.)

Mr. Rackovan received the form, signed it on

March 1, 2011, and made two notations: “Problem w/staff” and “Lt.
Dyke 3/22.”

(Id.)

A Grievance Withdrawn document related to
grievance number 355976 dated March 21, 2011,
contains the following typewritten statement:
. (Doc. 60-6 at 25.) The form was signed by Lt.
Dyke and Plaintiff. (Id.) It indicates copies
were sent to
.
The Grievance Chart provided by Defendants
16

indicates the following: grievance number 355976
for problems with staff was received on March 1,
2011; the “Disposition” and “Complete” columns are
blank as are all others except the “Initial”
column containing the word “yes.” (Doc. 60-5 at
2.)
Plaintiff testified at the April 29, 2016,
evidentiary hearing that he did not sign the form
though Lt. Dyke requested that he do so.13 (Doc.
83 at 60-62.) Plaintiff said that Lt. Dyke became
upset with Plaintiff, said he did not need
Plaintiff’s signature, he would take care of it
himself, he took Plaintiff’s blanket, and then he
walked out. (Id.) When asked about Lt. Dyke’s
testimony that Plaintiff had voluntarily withdrawn
the grievance, he said he “absolutely” did not
sign the grievance. (Id. at 61.)
Lt. Dyke testified that in general if he was
assigned a grievance by Mr. Rackovan, he would ask
an inmate, after discussion and in the course of
the investigation report, if he would be willing
to withdraw the grievance and, if so, that’s what
would generate the withdrawal form. (Doc. 81 at
53.) Lt. Dyke had no recollection of why
Plaintiff withdrew his grievance but said he did
not pressure Plaintiff to do so. (Id. at 53-55.)
A March 2, 2011, OSII Tracking System Summary indicates the
following: “Centre County DA’s office referred correspondence
from Inmate Moore alleging abuse by staff. ~ Complaint filed
without action as his allegations are currently being
investigated and the DA has been notified of this.
520 (ROC).”

X-Ref: 10-A-

(Doc. 63-1 at 51.)

13

Plaintiff’s testimony on the matter was somewhat
convoluted but he consistently maintained he had no intention of
withdrawing the grievance concerning the February 19, 2011,
chemical incident. (See, e.g., Doc. 83 at 60-63.)
17

In Official Inmate Grievance number 356701 dated March 3,
2011, date-stamped March 7, 2011, and addressed to Mr. Rackovan,
Plaintiff stated that he had been seeking medical help from Dr.
Symons for over two months and his statement referenced the
alleged actions of COs Hall, Fisher, and Perks of February 19,
2011.

(Doc. 60-6 at 26.)
Grievance number 356701 was denied with the
Official Inmate Grievance Initial Review Response
signed by W. Williams, RN, CHCA, on March 28,
2011, which stated that Plaintiff was seen and
appropriately treated for multiple complaints
between January 4, 2011, and March 3, 2011, and he
had an appointment scheduled with Dr. Symons in
the near future. (Doc. 60-6 at 27.)

In Official Inmate Grievance number 359874 dated March 9,
2011, date-stamped March 10, 2011, and addressed to Mr. Rackovan,
Plaintiff stated that he was seeking to review the video camera
on B-1-18 cell in the RHU for February 19, 2011, and February 20,
2011, at 12 p.m. to show proof that the COs Hall, Perks, and
Fisher did not give him his food.

(Doc. 60-6 at 30.)

added that he “needed action in this matter.

Plaintiff

I’m far from

delusional or crazy overall the camera don’t lie.”

(Id.)

In a Grievance Rejection Form dated April 1,
2011, Mr. Rackovan rejected grievance number
359874 in which he sought to review the video
camera because “[t]he grievance does not indicate
that you were personally affected by a Department
or facility action or policy,” and “[t]he
grievance was not submitted within fifteen (15)
working days after the events upon which claims
are based.” (Doc. 60-6 at 31.) The response
added “this is not a grievance. If anything, it
18

appears to be a request for you or staff to review
camera footage. What is this in regards to?”
(Id.)
On the Inmate’s Request to Staff Member dated March 20, 2011,
and addressed to Ms. Shirley Moore, Secretary, D.O.C. Camp Hill, the
date-stamp is illegible except for the year 2011.

(Doc. 63-1 at 22.)

Plaintiff states he had not been able to get help at SCI-Rockview and
specifically complains of COs Hall, Perks, and Fisher taking his food
trays, mopping chemicals into his cell “in violation of DC-ADM 001
and DC-Adm 008 for the sexual acts I was forced to do for Unit
Manager Granlund that then also hit me in my mouth.”

(Id.)

Although this document was apparently
received based on the date stamp, the Court could
not find a correlated response.
In Official Inmate Grievance number 359868 dated March 25, 2011,
date-stamped March 28, 2011, and addressed to Mr. Rackovan, Plaintiff
stated that (1) he had filed a grievance on or about February 25,
2011 regarding the February 19, 2011, allegations concerning COs
Hall, Perks, and Fisher and (2) Mr. Horton never got back to him
concerning his DC-135A form request concerning the February 19th
matter and nothing was done to the officers involved.
28.)

(Doc. 60-6 at

Plaintiff added that he was filing a lawsuit and wanted all of

his copies sent back to him.

(Id.)

In the Grievance Rejection Form dated April
1, 2011, Mr. Rackovan rejected grievance number
359868, because “[t]he grievance does not indicate
that you were personally affected by a Department
or facility action or policy,” and the issues
presented were reviewed and addressed previously
19

in grievance numbers 355506 and 355976.14 (Doc.
60-6 at 29.) Mr. Rackovan added that these two
identified previously filed grievances were
answered, Plaintiff was sent a copy of the
responses, and Plaintiff had the opportunity to
appeal if he was dissatisfied. (Id.) Plaintiff
notes on the bottom of the rejection form that he
appealed to Ms. Lamas but she never got back to
him and he mailed letters and appeals to Camp Hill
on April 1, 2011. (Id.)
In the Inmate’s Request to Staff Member dated March 30, 2011,
date-stamped March 31, 2011, and addressed to Defendant Lamas,
Plaintiff stated that Defendant Lamas had told him about two weeks
earlier that she would look into his allegations about the food trays
and chemical incident, that he had asked Deputy Horton to see it all
on the video camera as proof, that he sent Deputy Horton a request
and filed a grievance about “not doing nothing to the officers” and
not getting back to him about his request as per DOC policy.
63-1 at 26.)

(Doc.

Plaintiff stated that what the officers did was

“clearly in violation of DC-ADM 001.”

(Id.)

“What would be done is internal” was the
apparent response at the bottom of the page.
(Id.)
In Official Inmate Grievance number 360139 dated March 30, 2011,
date-stamped April 4, 2011, and addressed to Mr. Rackovan, Plaintiff
stated that he was gay and was seeking equal protection rights under
the Fourteenth Amendment.

(Doc. 60-6 at 32.)

14

Plaintiff’s statement

The grievances referenced are the original grievances
complaining of food and chemical matters of February 18th and 19th
(Doc. 60-6 at 22, 24.)
20

reiterated complaints about not getting food trays on February 18th
and 19th, the chemical incident of February 19th, and nothing being
done by Defendant Lamas or anyone else.

(Id.)

Plaintiff added that

“the state, Ms. Lamas and the officers and Mr. Granlund needs to pay
me $2-million-dollars.

See DC-ADM 001.”

(Id.)

At the top of the

page is the notation “Violation of (DC-ADM 001).”

(Id.)

In a Grievance Rejection Form dated April 4,
2011, Mr. Rackovan rejected grievance number
360139 in which Plaintiff sought monetary relief
for alleged wrongdoing, Mr. Rackovan indicated
that the issues presented in the grievance were
reviewed and addressed previously in grievance
number 355976 dated March 1, 2011.15 (Doc. 60-6 at
33.)
In Inmate’s Request to Staff Member dated April 1, 2011, datestamped March 31, 2011, and addressed to Defendant Eaton, Plaintiff
stated that he was requesting her, as he had requested Defendant
Lamas, to move him back to the AC unit because he feared CO Hall who
would not give him grievance forms or covers in the cold cell.
63-1 at 28.)

(Doc.

He also asked Defendant Eaton to please get back to him

regarding his request “under D.O.C. rules of this DC - 135A form
because you or Lt. Vanes has not got back to me before.”16

15

(Id.)

Grievance number 355976 was dated February 23, 2011, and
complained of the February 19, 2011, chemical incident following
food tray deprivation (Doc. 60-6 at 24) for which a Grievance
Withdrawn form dated March 21, 2011, indicated that Plaintiff
elected to withdraw the grievance (Doc. 60-6 at 25).
16

Form DC-135A is the Inmate’s Request to Staff Member

form.
21

The response stated the following: “I notified
the RHU of your concerns. I am still looking into
your claims against COI Hall but see no reason to
move you at this time.” (Id.)
An April 4, 2011, OSII Tracking System Summary entry indicates
that “Inmate Moore claims staff is not feeding him, staff has poured
chemicals under his door and that he fell out on the floor and no one
helped him or called medical (grievance 355506 - denied, grievance
355976 - withdrawn). ~ Inmate advised his allegations are being
investigated and he will be advised of the outcome.
(ROC).”

X-Ref: 11-A-134

(Doc. 63-1 at 51.)

In Official Inmate Grievance number 362304 dated April 18, 2011,
date-stamped April 20, 2011, and addressed to Mr. Rackovan, Plaintiff
stated that he was seeking medical care pursuant to DC-ADM 001 and
wanted to see an outside doctor due to injuries which he apparently
related to the February 19th incident.

(Doc. 60-6 at 34.)

The April 26, 2011, Initial Review Response
to grievance 362304 signed by W. Williams, RN
CHCA, indicates that there was no reason to
believe Plaintiff was treated inappropriately, and
the grievance was without merit and denied.
(Doc. 60-6 at 35.)
On the unnumbered Official Inmate Grievance form dated April 28,
2011, date-stamped as received on May 3, 2011, and addressed to
Defendant Lamas, Plaintiff reviewed and/or referred to several
previous allegations and stated that he needed help “not to run out
of time” to file his 1983 and to get out of his cell for one hour a
day.

(Doc. 63-1 at 32.)

22

No response to this request is found in the record.
On Official Inmate Grievance number 365677 dated May 17, 2011,
date-stamped May 19, 2011, and addressed to Mr. Rackovan, Plaintiff
again stated that he was in need of medical care because of the
February 19th assault by COs Hall, Fisher, and Perks.
36.)

(Doc. 60-6 at

Plaintiff also said when he was taken to medical, he was told

he had suffered a concussion, and he was denied an outside MRI in
violation of DC-ADM 804 and the assault was in violation of DC-ADM
001.

(Id.)
The Initial Review Response dated May 17,
2011, denied grievance number 365677. (Doc. 60-6
at 37.) Signed by W. Ted Williams, CHCA, the
response stated that Plaintiff’s medical records
reveal a different version of events related to
the claimed injury related to the alleged February
19th chemical incident. (Id.)
You were seen on 2/19/11 by a nurse and
complained of chest pain from officers
throwing bleach under your door. No mention
was made at that time of passing out and
hitting your head. . . . You have had very
conflicting versions of events in regards to
this issue. You have been seen many times
for these complaints and have rarely
complained of headaches. An MRI has not been
indicated
. . . . If there was an
indication for it, you would be ordered one.
I have no reason to believe you have been
treated inappropriately in regards to this
matter.
(Id.)
In Inmate’s Request to Staff Member dated June 30, 2011, and

addressed to Defendant Eaton, Plaintiff stated that she had come to

23

see him at the hospital on June 9, 2011, explaining
you told me not to talk to the Dr. and anyone
at the hospital about how I was also sexually
abused by UM Granlund. You see on 10/26/10 I
even filed a grievance to Ms. Warden Lamas
about how Granlund would force me to come up
to his office at times so he can masterbait
me. I did it only in fear because Granlund
told me he has a good friend at the State
Parole Board that will stop me from going
home on parole so in fear I did what Granlund
wanted. Ms. Lamas never got back to me on my
grievance back then and no one likes to get
in to the matter much at Rockview when I
write them. You said you will take care of
the matter as soon as I get back to Rockview
and I now request you do so because I will
also soon write the newspaper of the matter.
(Doc. 63-1 at 33.)
Defendant Eaton responded: “All of your allegations
either were or are being addressed.” (Id.)
In Official Inmate Grievance number 371781 dated June 30, 2011,
date-stamped July 1, 2011, and addressed to Mr. Rackovan, Plaintiff
stated that he was asking Rockview for an investigation against UM
Granlund for sexual abuse.

(Doc. 60-6 at 38.)

Plaintiff noted that

he filed a grievance on October 26, 2010, to Ms. Lamas regarding
masturbation incidents and she never got back to him.

(Id.)

Plaintiff also stated that some of the grievances related to the
December 6, 2010, incident “never got back to me as Rockview’s
response on the matter.”

(Id.)

responses on the matters above.”
contacting OPR on the matter.

He then asked to be sent “copies of
(Id.)

Plaintiff added that he was

(Id.)

On July 6, 2011, Mr. Rackovan completed a
24

Grievance Rejection Form indicating that grievance
number 371781 was being returned because “[t]he
grievance does not indicate that you were
personally affected by a Department or facility
action or policy,” and “[t]he grievance was not
submitted within fifteen (15) working days after
the events upon which claims are based.” (Doc.
60-6 at 39.) In a note at the bottom of the page,
Mr. Rackovan stated “[i]f you want an
investigation, contact the Security Office.”
(Id.)
In a letter dated July 4, 2011, and received by OSII on July 7,
2011, Plaintiff repeated his allegations about the December 6, 2010,
physical assault by Defendant Granlund and the October 2010 sexual
assault.

(Doc. 63-1 at 42-43.)

He said he had filed a grievance

about the sexual assault to Defendant Lamas but she did not get back
to him and neither Defendant Lamas nor Defendant Eaton called the
state police about the physical assault when he asked them to do so.
(Doc. 63-1 at 43.)

Plaintiff also said

[s]ome time pass by and someone told me about
OPR so I mailed you but got nothing back
because now I feel that the mailroom is not
giving me all my mail I don’t know. . . . I
now ask of you at OPR what will you now do in
this matter? Because all Rockview did is
overlook it at best.
I will await your response on this
matter and I hope you will please take some
action on my behalf this time.
(Doc. 63-1 at 43.)
In Official Inmate Grievance number 372264 dated July 6, 2011,
date-stamped July 8, 2011, and addressed to Mr. Rackovan, Plaintiff
stated Defendant Eaton had come to the hospital on June 9, 2011, and

25

told him to stop talking to the doctors about Defendant Granlund’s
sexual abuse and she would investigate the matter when Plaintiff got
back to Rockview.17

(Doc. 60-6 at 40.) Plaintiff further explained

when I get back to Rockview, I mailed Ms.
Cap. L. Eaton a request form on the matter
but she has not got back to me. Moreover
when I was assaulted by Granlund on 12/6/10
about 30 days pass by and Mr. Lt. Vanes saw
me and took a statement for me I also stated
to Lt. Vanes how UM Granlund would force me
to let him masterbait [sic] me and so on. I
have asked Lt. Vanes for a copy of the
statement but I never got one. Will Granlund
get away with this?
(Doc. 60-6 at 40.)
Mr. Rackovan provided an Initial Review
Response to grievance number 372264 on July 11,
2011, indicating that the grievance was denied.
(Doc. 60-6 at 41.) He stated that
Captain Eaton did go to the outside
hospital to tell you to stop telling nonRockview staff your allegations regarding Mr.
Granlund. Those allegations have been
addressed through appropriate DC-ADM 001 and
804 procedures. The request you sent to
Captain Eaton regarding your second
allegation was answered by her and sent to
you on June 30, 2011. Both of your
allegations have now been investigated by the
Security Office and reviewed by OSII.
(Id.)
17

Nittany Valley Hospital records show that Plaintiff was
admitted on June 5, 2011, where he had a cardiac evaluation,
thyroid testing, and treatment for chronic back pain. (Doc. 63-1
at 69.) Records show that Plaintiff complained to nursing staff
about some past sexual abuses and a psychiatry consult was
placed. (Id.) The provider noted, however, that Plaintiff
clinically improved and psychiatry care was available at Rockview
so care could be continued there. (Id.)
26

The OSII Tracking System contains an entry dated July 7, 2011.
(Doc. 63-1 at 51.)

“Inmate Moore alleges he was assaulted by UM

Granlund. ~ Letter sent to inmate advising him his allegations were
investigated and unsubstantiated.

X-ref: 2010-A-520 (ROC).”

(Id.)

The OSII Tracking System contains an entry dated August 17,
2011.

(Doc. 63-1 at 51.)

“Inmate Moore alleges abuse by UM

Granlund. ~ Complaint filed without action; his allegations were
previously investigated and he was advised of the outcome.
2010-A-520 (ROC).”

X-Ref:

(Id.)

In Official Inmate Grievance number 391365 dated November 30,
2011, date-stamped December 1, 2011, and addressed to Mr. Rackovan,
Plaintiff stated that he was in fear for his life because he was
seeing CO Perks, one of the officers who allegedly assaulted him in
the RHU on February 19, 2011, on the A/C Unit and he wanted the three
officers involved in that incident to be kept away from him until he
left Rockview.

(Doc. 60-6 at 44.)

The Initial Grievance Response to grievance
number 391365, signed by the Unit Manager and
dated December 23, 2011, stated “Mr. Moore you
were transferred to SCI-Albion on December 6,
2011. Therefore, your concerns about staff have
been resolved and this grievance is denied.”
(Doc. 60-6 at 45.)
The OSII Tracking System Summary contains an entry dated
December 5, 2011.

(Doc. 63-1 at 51.)

“Inmate Moore requests that

OSII inform Supt. Lamas to keep certain officers away from him.
also requests a transfer. ~ Complaint filed without action as the

He

27

inmate has since been transferred to SCI Albion.

(ROC).”

(Id.)

The OSII Tracking System Summary contains a final entry of
record dated December 28, 2011.

(Doc. 63-1 at 51.)

“Inmate Moore

alleges SCI Rockview failed to assist him with retrieving his legal
work from another inmate prior to his transfer.

In addition, he

alleges he “fed Rule 60(b)” was cut up and an officer told him that
is what happens for filing paperwork. ~ Complaint forwarded to Supt.
Lamas & Supt. Harlow for review.
B.

(ALB).”

(Id.)

Hearing and Deposition Testimony
Jeffrey Rackovan, the Rockview Grievance Coordinator at the

relevant time, was asked whether he had “seen any evidence whatsoever
that the Security Office did an investigation of the sexual
allegations in the case” and he answered that he had not.
at 31.)

(Doc. 81

He later confirmed that he had not seen any evidence that

OSII did an investigation of the sexual allegations.

(Doc. 81 at

32.)
Mr. Kertes testified that OSII was aware that Plaintiff was
alleging sexual abuse at Rockview.

(Doc. 83 at 98.)

He also

confirmed that Plaintiff had written OSII about physical abuse with
Granlund and the alleged dumping of chemicals.

(Doc. 83 at 109.)

At her deposition held on November 21, 2014, Defendant Eaton,
SCI-Rockview’s intelligence captain, testified that she did not know
when or under what circumstances she learned that Plaintiff alleged
that Defendant Granlund had sexual contact with him.

28

(See, e.g.,

Doc. 63-1 at 78.)

She also indicated that she did not remember

whether she ever heard about or knew of a sexual assault of Plaintiff
and did not remember if she had ever received “a report, a written
report of any kind that alleged that Moore had had sexual contact
with Granlund.”

(Id. at 79.)

Defendant Eaton clarified that if an

inmate made an allegation about improper sexual conduct on the part
of a staff member, the inmate would be interviewed but she had no
recollection of interviewing Plaintiff or Defendant Granlund.

(Id.

at 81.)
Plaintiff’s counsel asked about a June 30, 2011, response to
Inmate’s Request to Staff Member dated June 30, 2011, in which
Plaintiff reiterated allegations of sexual misconduct by Defendant
Granlund, referenced Defendant Eaton’s statement that she would look
into the matter, and asked Defendant Eaton to do so, and Defendant
Eaton responded: “All of your allegations either were or are being
addressed” (Doc. 63-1 at 33).

(Doc. 63-1 at 83.)

Defendant Eaton

said she would have referenced the security office log for her
response but she did not remember what was done to address the
allegations of sexual abuse.

(Id.)

She also confirmed that at the

time she wrote her response “it looks like” she would have been
familiar with Plaintiff’s allegations of being sexually abused and
she believed at the time that the allegations were being or had been
addressed but she had no idea at the time of her deposition how they
had been addressed.

(Id. at 84-86.)

29

At her January 16, 2015, deposition, Defendant Lamas said that
the mechanism in place in 2010 was that receipt of an allegation of
sexual assault “would involve the security office with oversight by
OSII.”

(Doc. 63-1 at 55.)

She testified that her office would have

received something concerning Plaintiff’s allegations of sexual
misconduct by Defendant Granlund “at some point” based on the
documents she had reviewed.

(Id.)

Defendant Lamas agreed that

Plaintiff’s January 2011 letter received by OSII included allegations
of Defendant Granlund’s sexual misconduct and, when asked whether
anyone at DOC investigated the sexual allegations, she responded that
“they investigated the letter, which is inclusive of that.”
63-1 at 57.)

(Doc.

When again asked specifically whether she could point

to “any document in DOC’s possession that indicate . . . that anyone
at DOC ivestigated the sexual allegations that Moore raised against
Granlund, Defendant Lamas stated “I can point to the close of the
investigation report.”

(Id.)

Defendant Lamas then confirmed that

she could not point to any interviews, contacts, notes of contacts,
or any other records that indicated that DOC investigated the sexual
allegations.

(Doc. 63-1 at 58.)

Defendant Lamas indicated DOC “closed out the investigation of
the incident date of December 6, 2010” in March, about two months
after OSII received Plaintiff’s letter on January 10, 2011.
63-1 at 56, 58.)

(Doc.

She also said the “case was closed according to the

tracking system on January 31st, 2011.”

30

(Id. at 59.)

Defendant Lamas

was asked to take some time to review an OSII file to see if anything
indicated OSII investigated sexual abuse.

(Doc. 63-1 at 63.)

After

further review of documents, Defendant Lamas referenced “a letter of
January 31st from Director Barnacle to DA Miller . . . [which] states
that it had yet to be completed. . . . And then, again, it goes on
the full letter.
on . . . 3/15.

And it states that then the documents were closed
So in my interpretation, it means they investigated .

. . the entire letter.”

(Id. at 65.)

31