Moore v. Lamas et al

Filing 114

MEMORANDUM (Order to follow as separate docket entry)Given that Plaintiff has previously given testimony in this matter asserting that a prison official engaged in a fraudulent attempt to withdraw the inmates grievance against Defendants Hall, Perks, and Fisher; this Courts previously expressed concerns about the adequacy of the investigative procedures undertaken at SCI-Rockview with respect to Moore; and the failure of Remaining Defendants to submit supporting affidavits or declarations under penalty of perjury, this Court is not satisfied that Remaining Defendants have met their burden of demonstrating by properly supported evidentiary facts that there is the absence of a genuine issue of material fact. Remaining Defendants Hall, Perks, and Fishers request for entry of partial summary judgment will be denied. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 9/26/18. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

THOMAS MOORE,

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Plaintiff
v.
MARIROSA LAMAS, ET AL.,
Defendants

CIVIL NO. 3:CV-12-223
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
Thomas Moore, an inmate presently confined at the State
Correctional Institution, Albion, Pennsylvania (SCI-Albion), filed
this civil rights action pursuant to 42 U.S.C. § 1983. Following
service of the Original Complaint, counsel entered an appearance on
behalf of the Plaintiff.

An Amended Complaint was subsequently

filed.
Remaining Defendants are the following officials at
Plaintiff’s prior place of confinement the Rockview State
Correctional Institution, Bellefonte, Pennsylvania (SCI-Rockview):
Unit Manager Kenny Granlund and Correctional Officers Brock Perks,
Edward Hall, and Chad Fisher.
A Memorandum and Order dated February 7, 2014, partially
granted Defendants’ motion seeking entry of partial dismissal.1

1. Plaintiff’s damage claims against Defendants in their official
capacities were dismissed as being are barred by the Eleventh
Amendment. Second, dismissal was granted in favor of Defendant
Pennsylvania Department of Corrections. In addition, the claims of
conspiracy, retaliation (with the exception of the claims against
Granlund), placement in the Restricted Housing Unit (RHU),
(continued...)
1

See Doc. 39.

By Memorandum and Order dated September 21, 2017,

Plaintiff’s remaining claims were dismissed for failure to exhaust
administrative remedies with exception of the following
allegations: (1) sexual abuse by Defendant Unit Manager Granlund in
the Fall, 2010; (2) physical abuse by Granlund on December 6, 2010;
and (3) physical abuse by Defendant Correctional Officers Hall,
Perks, and Fisher on February 19, 2011.

See Doc. 104.

Remaining Defendants have filed a motion for partial summary
judgment.

See Doc. 106.

Plaintiff has opposed the motion and has

also submitted a cross motion seeking entry of summary judgment on
all remaining claims. See Doc. 105. The cross motions are ripe for
consideration
Discussion
Standard of Review
Summary judgment is proper if “the pleadings, the discovery
and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.”

Fed. R. Civ.

P. 56©; See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
Cir. 2001).

A factual dispute is “material” if it might affect the

outcome of the suit under the applicable law.
Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty

A factual dispute is

“genuine” only if there is a sufficient evidentiary basis that
would allow a reasonable fact-finder to return a verdict for the

1. (...continued)
violation of the Fourth Amendment, as well as the contentions
against Superintendent Lamas solely based upon either her
supervisory status or failure to respond to Moore’s grievances were
dismissed.
2

non-moving party.

Id. at 248.

The court must resolve all doubts

as to the existence of a genuine issue of material fact in favor of
the non-moving party.

Saldana, 260 F.3d at 232; see also Reeder v.

Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered
evidence of asserted facts.

Versarge v. Township of Clinton, 984

F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the nonmoving party may not simply sit back and rest on the allegations in
its complaint.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 324

Instead, it must “go beyond the pleadings and by [its] own

affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial.”

Id. (internal quotations omitted); see

also Saldana, 260 F.3d at 232 (citations omitted).

Summary

judgment should be granted where a party “fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden at
trial.”

Celotex, 477 U.S. at 322-23.

“‘Such affirmative evidence

– regardless of whether it is direct or circumstantial – must
amount to more than a scintilla, but may amount to less (in the
evaluation of the court) than a preponderance.’”

Saldana, 260 F.3d

at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,
460-61 (3d Cir. 1989)).
Plaintiff’s Cross Summary Judgment Motion
Moore alleges that after he repeatedly reported his
allegations of sexual assault by Defendant Unit Manager Granlund
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both orally and in writing to prison officials, they wilfully
failed to initiate a required investigation.

As a result of that

prolonged failure, Plaintiff contends that he “was deprived of
vital evidence that would allow him to prove his case effectively
in the instant matter.”

Doc. 63, p. 17.

The alleged potential

evidence is identified as: (1) a handkerchief containing a semen
sample from Granlund which was given to another inmate who was
being released from prison;2 (2)testimony by unidentified
eyewitnesses; (3) an interview of Granlund; and (4) Plaintiff’s
papers and possessions were allegedly destroyed by prison
officials.

They also claim that prison officials failed to

investigate his claim that the Hall, Perks, and Fisher
intentionally poured chemicals into his cell.
Moore argues that the failure to investigate is analogous to
intentional spoliation warranting the entry of summary judgment.
Sexual contact between a prison employee and a prisoner is a third
degree felony under Pennsylvania state law.
3124.2.

See 18 Pa. C.S.A. §

Plaintiff contends that two prison officials

Superintendent Lamas and Captain Eaton have acknowledged that they
were aware of Plaintiff’s allegations of sexual abuse by Granlund
since January, 2011.

Moreover, although those officials were

required to do so, they failed to conduct an internal investigation
or report the allegation to the Pennsylvania State Police.
Remaining Defendants oppose the motion on the grounds that
they should not be sanctioned for the alleged failure of the
Department of Corrections to conduct an investigation.

They add

2. The released inmate apparently died from a drug overdose in
late 2011 or 2012 and the alleged sample was never recovered.
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that pursuant to decisions such as Paluch v. Secretary Pennsylvania
Department of Corrections, 442 Fed. Appx. 690 (3d Cir. 2011)

there

is no obligation for prison officials to investigate prisoner
grievances.
Spoliation is the “destruction or significant alteration of
evidence, or the failure to preserve properly evidence for
another’s

use as evidence in pending or reasonably foreseeable

litigation.”
150241 *2

See Edelson v. Cheung, Civ. No. 2:13-CV-5870, 2017 WL

(D. N.J.

Jan. 12, 2017).

It is well settled that a

party has a duty to preserve information that is reasonably known
to be relevant to pending or future litigation.
If information has not been preserved and cannot be restored
or replaced through additional discovery, a court may order
corrective measures.

See Federal Rule of Civil Procedure 37(e).

However, prior to so doing, the court must establish that the other
party has been prejudiced and that the offending party acted with
intent to prevent the use of the missing information in litigation
by the other party.

Since a party’s intentional loss or

destruction of evidence to preclude its use in litigation gives
rise to a reasonable inference that the evidence was unfavorable to
the party responsible for the loss or destruction, a court has the
authority to provide the jury with an adverse inference
instruction.
Although prison officials do not have a duty to investigate
all prisoner claims, they do have an obligation of reporting
alleged criminal activity to the appropriate law enforcement
officials.

Nonetheless, this Court agrees that the Remaining

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Defendants cannot be sanctioned for conduct attributed to other
prison officials.
Remaining Defendants acknowledge that the allegation of
sexual abuse was not properly investigated in a timely and thorough
manner.

See Doc 111, p. 5.

However, none of the individual

Remaining Defendants were involved in that purported failure to
investigate. It is also noted that there is no contention that
evidence was destroyed and mere negligent conduct is not an
appropriate basis to impose the severe measure of the granting of
summary judgment.

See Bull v. United Parcel Service, 665 F.3d 68,

79 (3d Cir. 2012)(a finding of bad faith is pivotal in making a
spoliation determination).
Based upon the information presently before this Court, it
is unable to make a determination that the undisputed facts
establish that the admitted failure of prison officials to
undertake a proper internal investigation was an intentional effort
to prevent the use of evidence in reasonably foreseeable
litigation.

It is also noted that Plaintiff does not provide

specifics as to what potential eyewitness testimony or other
evidence could have been discovered.

This conclusion is bolstered

by the fact that Plaintiff clearly states that the underlying
sexual activity occurred in the privacy of Granlund’s office.
eyewitnesses are identified by the Plaintiff.

Moreover, the

No

Plaintiff himself can clearly testify as to the alleged acts of
sexual misconduct by Granlund.
It is also unclear as to whether any prison officials,
including those who had responsibility for conducting internal
investigations were informed in a timely fashion as to the
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existence of handkerchief containing a semen sample.

The Remaining

Defendants cannot be held responsible for the now apparent ill
advised decision by Moore to place that piece of potentially
crucial evidence in the care of another prisoner.

Unlike Bull,

this is simply not a case where there was intentional withholding
of evidence by a defendant.
Finally, the failure to conduct an investigation into the
alleged sexual misconduct by Defendant Granlund should not warrant
the severe sanction of the granting of summary judgment with
respect to the alleged constitutional misconduct attributed to
three other correctional officers.

With respect to the claim that

there was also a failure to internally investigate Defendants Hall,
Perks, and Fisher’s alleged intentional mopping of a cleaning fluid
into Plaintiff’s cell causing him to suffer injury, undisputed
supporting evidence presented by the Remaining Defendants shows
that this incident was the subject of a proper internal
investigation.

See Doc. 109-1.

Specifically, in response to a

letter sent by the Plaintiff, the Centre County, Pennsylvania
District Attorney’s Office referred the matter to the DOC’s Office
of Professional Responsibility, now known as the Office of Special
Investigations and Intelligence (OSII).

See Doc. 109-2.

OSSI

assigned the claim to SCI-Rockview Security Lieutenant Foster who
investigated the incident. Since this claim was the subject of an
internal investigation, the request for entry of summary judgment
against Remaining Defendants Hall, Perks, and Fisher will be
denied.
Pursuant to the above discussion, the request that summary
judgment be granted in favor of the Plaintiff as a sanction for the
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DOC’s failure to conduct investigations in the alleged, remaining
acts of constitutional misconduct will be denied.

This decision

does not prevent Remaining Defendants from seeking the issuance of
an adverse jury instruction.
Defendants’ Partial Summary Judgment Motion
Remaining Defendants seek entry of summary judgment with
respect to the claim of intentional abuse by Correctional Officers
Hall, Perks, and Fisher.

See Doc. 106.

It is initially noted that

since Remaining Defendants are not pursuing a summary judgment
request with respect to the allegations of sexual and physical
abuse by Unit Manager Grandlund, those allegations will proceed to
trial.
Plaintiff counters that there are material facts in dispute
which preclude entry of summary judgment with respect to the claims
against Hall, Perks, and Fisher.

See Doc. 110, p. 3. It is also

suggested that the investigative summary is not credible evidence
because the two officers who prepared the report purportedly
engaged in a effort to dissuade Plaintiff into dropping his claims
against Defendant Granlund.

Moore adds that he never alleged that

a “toxic” chemical was employed against him but rather contends
only that he the victim of a retaliatory, excessive use of a
powerful cleaning agent.3

In addition, Plaintiff notes that the

credibility of the report is undermined by the existence of a
correctional official’s forged written withdrawal of an
institutional grievance filed by Plaintiff regarding the incident.

3. Plaintiff’s claim of retaliation was previously dismissed for
failure to exhaust administrative remedies. See Doc. 103, p. 31.
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It is alleged that on February 19, 2011, several guards
including Perks, Fisher, and Hall deliberately mopped cleaning
fluid into Plaintiff’s cell after he complained of not getting any
food.

The resulting fumes purportedly caused Moore to pass out and

fall to the concrete cell floor injuring his head.

Plaintiff

states that following the incident he was taken to the prison’s
medical unit for treatment.
According to the Remaining Defendants, Plaintiff was denied
his lunch tray on February 19, 2011 after he refused an order to
uncover the light in his cell and became loud and disrespectful.
They assert that no chemicals were poured into his cell.

The

Remaining Defendants add that while Plaintiff was medically treated
by a prison nurse that day for complaints of chest pain, there is
no indication in the inmate’s institutional medical records that he
raised claims of passing out, hitting the floor, or injuring his
head on the date in question.

Remaining Defendants also assert

that none of the cleaning chemicals regularly used in the
Plaintiff’s housing unit posed an inhalation hazard.
A July 6, 2011 investigative summary prepared by SCIRockview Captain Eaton (Doc. 109-2) shows that when interviewed
regarding the February 19, 2011 incident, Registered Nurse Dunlap
stated that she was called to Moore’s cell in response to the
inmate’s complaints of chest pain.

During her evaluation of the

Plaintiff, he stated correctional officers had thrown bleach under
his cell which made him nauseous. See id.
It is the function of this Court to determine whether the
Remaining Defendants have satisfied their burden of showing that
there is no genuine issue as to any material fact.
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Remaining

Defendants’ pending request for summary judgment is wholly based
upon an investigative report and a contention that toxic cleaning
materials were not employed in Plaintiff’s housing unit.
Defendants Perks, Hall or Fisher have not submitted individual
supporting affidavits or declarations under penalty of perjury.
Nurse Dunlap or the officials who conducted the internal
investigation have also not submitted declarations under penalty of
perjury or affidavits.
Given that Plaintiff has previously given testimony in this
matter asserting that a prison official engaged in a fraudulent
attempt to withdraw the inmate’s grievance against Defendants Hall,
Perks, and Fisher; this Court’s previously expressed concerns about
the adequacy of the investigative procedures undertaken at SCIRockview with respect to Moore; and the failure of Remaining
Defendants to submit supporting affidavits or declarations under
penalty of perjury, this Court is not satisfied that Remaining
Defendants have met their burden of demonstrating by properly
supported evidentiary facts that there is the absence of a genuine
issue of material fact.

Remaining Defendants Hall, Perks, and

Fisher’s request for entry of partial summary judgment will be
denied.

An appropriate Order will enter.

S/Richard P. Conaboy
Richard P. Conaboy
United States District Judge

DATED: SEPTEMBER 26, 2018

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