BUCANO v. AUSTIN et al

Filing 100

ORDER adopting in part Report and Recommendations 85 . Defendant Austin's Motion for Summary Judgment 57 is DENIED; the remaining Defendants' Motion for Summary Judgement 61 is DENIED as to Plaintiff's failure to exhaust her admin istrative remedies. The matter is hereby respectfully REMANDED, consistent with this Order, to Magistrate Judge Baxter for consideration of the remaining arguments contained in 57 and 67 . Without objection, Amy Boylan is terminated from this case.Signed by Judge Barbara Rothstein on 10/13/17. (sgg)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
Melissa Bucano,

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)
Plaintiff,
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v.
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Keith Austin, et al.,
)
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Defendants.
)
____________________________________)

C.A. No.

15-67 Erie

ORDER ADOPTING IN PART THE
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE BAXTER TO
DENY DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT

Plaintiff Melissa Bucano, a former prisoner at the State Correctional Institution at
Cambridge Springs (“SCI Cambridge Springs”) brings the present 42 U.S.C. § 1983 action against
Defendants in their personal capacity. Am. Compl., Doc. 13. Specifically, Plaintiff alleges that
Defendant Keith Austin, a correctional officer formerly employed at SCI Cambridge Springs,
violated Plaintiff’s Eighth Amendment right to be free from cruel and unusual punishment by
sexually harassing and abusing her (Count I); and that Austin intentionally inflicted emotional
distress upon her (Count VI). Plaintiff further alleges that other employees of SCI Cambridge
Springs (“the Cambridge Springs Defendants”) 1 violated her Eighth Amendment right by acting
with deliberate indifference to her safety and medical needs both before and after the abusive
events at issue (Counts II-V). Austin and the Cambridge Springs Defendants moved for summary
judgment, respectively, arguing, in relevant part, that Plaintiff failed to exhaust her administrative
remedies.
Before the Court is the Report and Recommendation (“R&R”) [85] of the Honorable Susan

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The individual defendants held the following titles at SCI Cambridge Springs: Wilkes was the Superintendent; Clark
was a Deputy Superintendent; Hall was a Deputy Superintendent; Sittig was a Unit Manager; Boylan was a Grievance
Counselor; Lt. Wilkes was partly in charge of security; Knaus was a Human Resources Coordinator; and Zakostelecky
was a correctional officer. Compl. ¶ ¶ 5-12. Plaintiff does not oppose the entry of summary judgment in favor of
Defendant Amy Boylan. Doc. 73 at 1 n.1. Accordingly, Boylan shall be terminated from the case.

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Paradise Baxter, United States Magistrate Judge, recommending that the Court deny the motion
for summary judgment filed by Austin [57] and grant the motion for summary judgment filed by
the Cambridge Springs Defendants [61]. Specifically, the R&R found that Plaintiff did not fail to
exhaust her administrative remedies as to her claims against Defendant Austin, but that Plaintiff
did fail to exhaust her administrative remedies as to her claims against the Cambridge Springs
Defendants. Doc. 85. Plaintiff and Austin each filed objections [Pl’s. Objs., Doc. 88; Austin’s
Objs., Docs. 86, 87]; Plaintiff filed a response to Austin’s objections [92]; and Austin filed a reply
in support of his objections [95]. Additionally, the Cambridge Springs Defendants filed a response
to Plaintiff’s objections [96]; and Plaintiff filed a reply in support of her objections [99]. Having
reviewed the Complaint, the briefs of the parties, the R&R, and the entirety of the record, the Court
adopts in part the decision of the Magistrate Judge, and respectfully remands the matter for the
Magistrate Judge’s consideration of the merits of Plaintiff’s claims against the Cambridge Springs
Defendants, and whether these Defendants are entitled to qualified immunity.
I.

LEGAL STANDARDS

When a party files objections to an R&R, the district court must review the Magistrate’s
findings de novo. United States v. Raddatz, 447 U.S. 667, 673 (1980); Fed. R. Civ. P. 72(b). To
obtain de novo review, a party must clearly and specifically identify those portions of the R&R to
which it objects. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). The district court may accept,
reject, or modify, in whole or in part, the findings and recommendations made by the Magistrate
Judge. Raddatz, 447 U.S. at 673-74; see also 28 U.S.C. § 636(b)(1).
Summary judgment is proper “if the movant shows there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of

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material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]he substantive law will
identify which facts are material. Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine . . . if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In
deciding a summary judgment motion, the court must view the evidence in the light most favorable
to the non-moving party and draw all justifiable inferences in its favor. Weldon v. Kraft, Inc., 896
F.2d 793, 797 (3d Cir. 1990) (citing Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 204 (3d
Cir.1987), cert. denied, 484 U.S. 1019 (1988)).
II.

PLAINTIFF’S CLAIMS AGAINST DEFENDANT AUSTIN

The facts of this case are presented fully in the R&R and in the Court’s previous orders.
See Doc. 85; see also Doc. 26; Doc. 33. Accordingly, the Court addresses here only those facts
and legal issues relevant to the parties’ objections and responses thereto. Docs. 86-87, 88, 92, 95,
96, 99. The gravamen of the parties’ objections and responses thereto concern whether Plaintiff
exhausted the DOC’s administrative remedies; and, if not, whether she should be excused from
not having exhausted because those remedies were unavailable to her.
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires that prisoners
exhaust their available administrative remedies before filing any suit involving prison life,
“whether they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002); see also Jones
v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the
PLRA and that unexhausted claims cannot be brought in court.”). Indeed, exhaustion is required
“even where the relief sought—monetary damages—cannot be granted by the administrative

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process.” Woodford v. Ngo, 548 U.S. 81, 85 (2006). In order to properly exhaust their claims,
prisoners must comply with the administrative review process set forth by the relevant prison’s
grievance process, including properly availing themselves of “all administrative remedies.” Spruill
v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004). “The level of detail necessary in a grievance to comply
with the grievance procedures will vary from system to system and claim to claim, but it is the
prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones,
549 U.S. at 218; accord Spruill, 372 F.3d at 231 (“Mandatory exhaustion (with a procedural default
component) ensures that inmate grievances will be addressed first within the prison’s own
system—in this respect, the PLRA is thus appropriately defederalizing”). Failure to exhaust is an
affirmative defense; prisoner-plaintiffs are not required to plead or demonstrate exhaustion. Jones,
549 U.S. at 216.
The following are Plaintiff’s allegations, which, in the context of Austin’s motion for
summary judgment, the court must view in the light most favorable to Plaintiff. Weldon, 896 F.2d
at 797. Plaintiff was initially incarcerated at SCI Muncy, but was transferred to SCI Cambridge
Springs in September 2012. Moves Report, Doc. 63-2 at 4.

Beginning in February 2013,

Defendant Austin subjected Plaintiff to a series of inappropriate sexual comments and directives,
and unwanted sexual contact. 2 Compl. ¶¶ 19-23; Pl’s. Dep., Doc. 75-1 at 10. Austin’s conduct
persisted until June 4, 2013, when Plaintiff reported some of Austin’s behavior to Defendant Sittig,

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For instance, in March 2013, Austin ordered Plaintiff to enter the correctional officers’ (“COs’”) private bathroom
with him, and, once inside, ordered Plaintiff to expose parts of her body. Pl’s. Decl., Doc. 78-1 at 2-3. During
“frequent,” random pat searches, Austin would “run his hands or fingers” under Plaintiff’s bra line and “up her legs”
while asking if she was wearing any underwear. Id. at 2. “At least once,” Plaintiff “felt that Austin’s fingers entered
[her] vagina.” Id. As the weeks passed, Plaintiff felt that Austin “engaged in stalking behavior” towards her. Id. For
example, Plaintiff would wake up to find Austin standing in her cubicle staring at her; and Plaintiff was told by another
inmate that Austin would watch her while she was in the shower, at times ordering other inmates in the bathroom “out
of the way so that he could have a clear view.” Id. at 4.

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Plaintiff’s Unit Manager. 3 6/4/13 Employee Report of Incident, Doc. 78-1 at 20.
Following this meeting, Plaintiff was immediately placed in the Restricted Housing Unit
(“RHU”), where inmates are housed in solitary confinement and kept in their cells for 23 hours
per day. 6/4/13 Employee Report of Incident, Doc. 78-1 at 20; Pl’s. Decl., Doc. 78-1 at 5. Plaintiff
remained in the RHU during the pendency of the Office of Special Investigations and Intelligence
(“OSII”) investigation into Austin. See Employee Reports, 6/4/13 DC-141, Doc. 78-1 at 23; 6/9/13
DC-141, Doc. 78-1 at 25; 7/3/13 DC-141, Doc. 78-1 at 27. Plaintiff spoke with an OSII
investigator at some point in June 2013. Pl’s. Dep., Doc. 75-1 at 19. After approximately six
weeks in the RHU, Plaintiff was transferred to SCI Muncy on July 11, 2013. DOC Cell History,
Doc. 78-2 at 17-18.
By a three-sentence letter dated August 6, 2013, OSII informed Plaintiff that its
investigation had been closed. Doc. 78-1 at 60.

Specifically, OSII stated that Plaintiff’s

“allegations of abuse against staff at [SCI] Cambridge Springs have been thoroughly investigated.
Abuse was not established; however, based on this investigation, further administrative action will
be taken. The investigation is now closed and no further action will be taken by this office
regarding this matter.” Id. 4 Plaintiff did not “appeal” or otherwise formally challenge OSII’s letter.

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On June 2, 2013, Plaintiff submitted a DC-135A “Inmate Request to Staff Member” form asking, inter alia, to whom
she should speak about her “having issues with a unit officer.” Doc. 78-1 at 18. On June 4, 2013, Defendant Wilkes
responded, in writing, that Plaintiff should speak with her Unit Manager, Defendant Sittig. Id. Having received an
email from Wilkes that Plaintiff was “having trouble with a [s]taff member,” Sittig called Plaintiff to her office for a
meeting that same day. 6/4/13 Employee Report of Incident, Doc. 78-1 at 20. Plaintiff told Sittig that “Austin had
been sexually harassing her for months.” Id. Plaintiff provided Sittig some examples of lewd and sexual comments
that Austin had made, and detailed for Sittig the March 2013 CO bathroom incident. Id.
4
The “administrative action” to which OSII referred included the formation of a Pre-Disciplinary Committee tasked
with investigating whether Austin had violated various DOC ethics provisions, including the prohibition against sexual
harassment and sexual contact with inmates. Knaus Dep., Doc. 65-8 at 57. After the Committee held two conferences,
during which Austin was afforded the opportunity to respond to Plaintiff’s allegations, Austin’s employment was
terminated effective November 8, 2013. 8/9/2013 PDC Notification Letter, Doc. 78-1 at 31-33; 9/30/2013 PDC
Notification Letter, Doc. 78-1 at 35-38; Termination Letter, Doc. 78-1 at 39.

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A. Plaintiff Exhausted Her Claims Against Austin
Austin, in his objections, argues that in order to properly initiate the DOC’s administrative
process, inmates must file DC-804 Official Grievances within 15 days of the event(s) at issue, as
set forth in the Department of Corrections Administrative Direct (“DC-ADM”) 804, “Inmate
Grievance System.” See Objs., Doc. 87 at 8-11; see also Br. in Support of Summ. J., Doc. 58 at 89. Here, Plaintiff only reported Austin’s conduct to Sittig; she did not file a corresponding DC804 grievance. Thus, Austin argues, Plaintiff did not exhaust her administrative remedies. See
Doc. 87 at 10; Doc. 58 at 3-9.
DC-ADM 804 sets forth the DOC’s “Inmate Grievance System.” DC-ADM 804 Policy
Statement, Doc. 66-3 at 6 (“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.”). DC-ADM 804 provides for
an initial review and two levels of appeal. At the initial stage, inmates must file a written DC-804
Official Grievance Form within 15 days of the event(s) giving rise to the grievance. Id. § I.A, Doc.
78-2 at 47. 5
However, “allegations of abuse shall be handled in accordance with Department Policy
DC-ADM 001, ‘Inmate Abuse Allegation Monitoring Process’ and/or DC-ADM 008, ‘Sexual
Harassment of or Sexual Contact with Inmates.’” DC-ADM 804 § I.B.10. 6 Here, Plaintiff

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The Facility Grievance Coordinator reviews the grievance and issues either an acceptance or a rejection. Id. at 46.
The Initial Review Response/ Rejection may be appealed to the Facility Manager within 15 days. Id. at § II.A, Doc.
78-2 at 59. The Facility Manager’s decision may be appealed to the Secretary’s Office of Inmate Grievances and
Appeals (“SOIGA”) within 15 days. Id. at § II.B. Inmate-plaintiffs who have properly appealed to SOIGA have
exhausted their DC-ADM 804 administrative remedies. See, e.g., Booth v. Churner, 206 F.3d 289, 303 n.2, aff’d, 532
U.S. 731 (2001) (citing DC-ADM 804).
6
Subsequent to the events at issue here, DC-ADM 001 and DC-ADM 804 were amended such that the DOC now
processes allegations of “sexual contact” exclusively pursuant to DC-ADM 008. See 6/30/14 DC-ADM 008, PREA
Policy Procedures Manual, Doc. 78-4; see also Moore v. Lamas, 2017 WL 4180378, at *40 n.4 (M.D. Pa. Sept. 21,
2017).

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maintains that she exhausted her administrative remedies pursuant to DC-ADM 008. Pl’s. Resp.,
Doc. 92 at 5-16.
DC-ADM 008 states that an inmate who is “sexually harassed” by a prison employee
“should report it to a staff member as soon as possible.” DC-ADM 008 § I.A.2, Doc. 64-7 at 10.
Though the Directive instructs prison employees as to their duties following an inmate’s report of
sexual harassment, id. § I.A.5-6, it provides no further information as to how inmates should—or
must—report sexual harassment. See generally id.; see also id. § I.A.4 (“An inmate who reports
sexual harassment, should provide details of the incident(s)[.]”).
The 2009 Inmate Handbook (“Handbook”), however, which Plaintiff received upon her
2012 orientation of the DOC, Doc. 63-2 at 5, instructs inmates as follows:
If you believe you have experienced sexual harassment by staff…you must report
it as soon as possible. You may report it to the Unit Manager and/ or submit a
grievance in accordance with DC-ADM 804. If you file a report, you must include
[certain demographic information]. The Unit Manager will initiate a review of the
allegation and respond as soon as possible[.]
Handbook § H, Doc. 64-5 at 6 (emphasis added).
Regarding sexual contact, the Handbook provides:
If you are the victim of sexual contact[,] you should report it to a staff member as
soon as possible…A toll-free Sexual Assault Reporting Line [] has been
established for the general public and inmates…to anonymously report a sexual
assault[.]
Id. (emphasis added). DC-ADM 008 itself provides that “an inmate who is the victim of sexual
contact by…an employee…should report it to a staff member as soon as possible.” § IV.A.3, Doc.
64-7 at 26 (emphasis added). Though the Directive extensively instructs prison employees as to
their duties following an inmate’s report of sexual contact, id. §§ IV.A-F, Doc. 64-7 at 26-31, it
provides no further information as to how inmates should—or must—report sexual contact. See
generally id.; see also DC-ADM 008 § II, “Sexual Abuse/ Assault Prevention and Intervention:
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Inmate Orientation and Training,” Doc. 64-7 at 18 (“How to report an incident of sexual assault—
It is important that you tell a staff member if you have been sexually assaulted as soon as
possible…Once the assault is reported, the Department and/or other appropriate law enforcement
agency will conduct an investigation.”).
Accordingly, inmate-plaintiffs alleging sexual harassment and/or sexual abuse properly
initiate the DOC’s administrative process by reporting the conduct to the Unit Manager and/ or by
submitting a DC-804 grievance. In other words, filing an Official Inmate Grievance pursuant to
DC-ADM 804 is not required for inmates alleging sexual harassment and/or sexual abuse. See,
e.g., Rosado v. Kissinger, 03-cv-535, Doc. 46 at 13, (M.D. Pa. Oct. 21, 2003) (“In employing the
disjunctive ‘or’ within the listing” of reporting options in DC-ADM 001, the “DOC has effectively
communicated to readers of its policies that they may rest assured that in using any of the
enumerated options they have effectively and correctly reported wrongful conduct”); see also
McCain v. Wetzel, 2012 WL 6623689, at *6 (M.D. Pa. Oct. 26, 2012); Knauss v. Shannon, 2010
WL 569829, at *7 (M.D. Pa. Feb. 12, 2010).
Here, Plaintiff alerted prison officials that she was having “an issue with a unit officer,”
and then reported Austin’s conduct to Sittig, Plaintiff’s Unit Manager. Thus, Plaintiff properly
initiated the DOC’s administrative process pursuant to DC-ADM 008 and as explained in the
Handbook. See Knauss, 2010 WL 569829, at *7 (comparing DC-ADM 804 with DC-ADM 001
and noting that “[t]he Pennsylvania DOC has established several methods by which Pennsylvania
inmates can grieve their claims of abuse before seeking redress in federal court”); Rosado, 03-cv535, Doc. 46 at 13 (comparing DC-ADM 804 with DC-AMD 001 and DC-ADM 008 and
“reject[ing] [the] contention that DC-ADM 804 is the only appropriate method by which inmates
may initiate complaints within the prison”); Cf. 28 C.F.R. § 115.52(b)(1) (pursuant to the Prison

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Rape Elimination Act (“PREA”), 42 U.S.C. 15601, the DOC “shall not impose a time limit on
when an inmate may submit a grievance regarding an allegation of sexual abuse.”) 7
In his objections, Austin alternatively maintains that even if Plaintiff properly initiated the
administrative process by reporting Austin’s behavior to Sittig, Plaintiff did not appeal the
resulting OSII letter informing her that “abuse was not established.” See Doc. 87 at 8-10. Thus,
Austin argues, Plaintiff failed to exhaust her administrative remedies. See id. (citing DC-ADM 804
§ I.B.10).
However, DC-ADM 008 does not mandate that inmates “appeal” the results of an OSII
investigation. See DC-ADM 008, Doc. 64-7. In fact, DC-ADM 008 does not provide any
information regarding how an inmate could “appeal” (or otherwise follow-up concerning) an OSII
investigation, or any other action taken by DOC officials in response to an inmate’s report. See id.
Thus, Austin’s reliance on DC-ADM 804 § I.B.10 is mistaken. DC-ADM 804§ I.B.10 states that
“[a] grievance dealing with allegations of abuse shall be handled in accordance with DC-ADM
001 [] and/or DC-ADM 008[.] 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.” Doc.
66-3 at 45 (emphasis added). This section pertains to inmates who, pursuant to DC-ADM 008,
have chosen to report sexual harassment and/or abuse by filing a DC-804 grievance as opposed to
reporting it to their Unit Manager. See DC-ADM 804 “Glossary of Terms,” Doc. 66-3 at 39
(“Grievance—A formal written complaint by an inmate related to a problem encountered during

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For the same reasons, Plaintiff properly initiated the administrative review process pursuant to DC-ADM 001. See
DC-ADM 001 § I.VI.D, Doc. 78-5 at 5 (“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 Professional Responsibility (OPR)”) (emphasis added).

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the course of his/ her confinement”). 8 Accordingly, having reported Austin’s conduct to her Unit
Manager, and having received a final decision from the resulting investigation by OSII, Plaintiff
properly exhausted her administrative remedies as to her claims against Austin. Cf. Victor v.
Lawler, 565 Fed. Appx. 126, 129 (3d Cir. 2014) (noting that “various District Court opinion[s]
[have held] that an inmate need only file a grievance with the [DOC’s investigating office] under
DC-ADM 001 in order to exhaust administrative remedies,” but declining to rule on “what steps
would be necessary under that procedure,” finding instead that a prisoner-plaintiff who files his
complaint before the relevant DOC investigation is complete has failed to exhaust his
administrative remedies) (citing McCain v. Wetzel, 2012 WL 6623689 (M.D. Pa. Oct. 26, 2012),
Victor v. SCI Smithfield, 2011 WL 3584781 (M.D. Pa. Aug. 12, 2011), and Knauss v. Shannon,
2010 WL 569829 (M.D. Pa. Feb. 12, 2010)); see also Jones v. Bock, 549 U.S. 199, 218 (2007);
Small v. Camden Cnty., 728 F.3d 265, 263 (3d Cir. 2013). Austin’s motion for summary judgment
is denied. 9

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Moreover, OSII’s letter was just that—a letter. Doc. 78-1 at 60. It was not an “Initial Review” as contemplated in §
I.B.10. See DC-ADM 804 “Glossary of Terms,” Doc. 66-3 at 39 (“Initial Review—The first step of the Initial
Grievance process during which a Grievance Officer reviews an inmate grievance.”).
9
Having found that, pursuant to DC-ADM 008, Plaintiff properly exhausted her administrative remedies as to her
claims against Austin, the Court need not address Austin’s objection that Plaintiff’s 2014 DC-804 Grievances are
substantively deficient. See Doc. 87 at 10 (noting that the Grievances “make no mention of any physical contact with
Austin[.]”). Further, the Court strongly admonishes Austin’s counsel for his continued assertion that even if Austin
inserted his fingers into Plaintiff’s vagina, the “penetration only occurred once and briefly;” and therefore, Austin’s
conduct, even if proven, is “de minimis” and not implicative of the Eighth Amendment. See Doc. 87 at 11-13. In his
earlier motion to dismiss, Austin made the identical argument, see Doc. 20, which the R&R rejected, Doc. 26 at 7-9.
In his objections to that R&R, Austin again asserted this argument. See Doc. 27. In adopting the relevant portion of
that R&R, the Court reiterated the obvious concept that “sexual assault serves ‘absolutely no penological purpose’”
and that the “‘Eighth Amendment prohibits all punishment’” that is “‘totally without penological justification.’” Doc.
33 at 6 (quoting Farmer v. Brennan, 511 U.S. 825 (1994)). Nevertheless, in his motion for summary judgment, Austin
again advanced this argument. See Doc. 58 at 9-11. In the instant R&R, the Magistrate Judge found “counsel’s
persistence in this argument deeply troubling, given his simultaneous duty to report and initiate prosecution against
any DOC personnel accused of the same conduct…[and because i]t is beyond peradventure that the commission of
institutional sexual assault is a violation of an inmate’s constitutional right to be free from cruel and unusual
punishment.” Doc. 85 at 17-18. The R&R went so far as to “remin[d]” counsel of “his professional responsibility.”
Id. at 18. Yet, Austin persists in this argument. Therefore, the Court finds that at best, Austin’s counsel simply does
not read the Court’s orders before filing his briefs; and at worst, he is in violation of Pa. Code of Professional
Responsibility § 3.1, which prohibits lawyers from bringing “frivolous” claims that are void of “good faith arguments.”

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III.

PLAINTIFF’S CLAIMS AGAINST THE CAMBRIDGE SPRINGS
DEFENDANTS

Plaintiff alleges that the Cambridge Springs Defendants were deliberately indifferent to her
safety when, prior to February 2013, they failed to investigate various inmate and staff complaints
against Austin (Counts II and III), and when they failed to implement and follow policies
pertaining to male COs in female housing units (Count IV). Compl., Doc. 13 ¶¶ 84-89; see also
Pl’s. Resp., Doc. 73 at 2-3. Plaintiff additionally alleges that by directing Plaintiff not to tell
anyone, including those in the medical department, about Austin’s conduct, the Cambridge Springs
Defendants were deliberately indifferent to her serious medical need (Count V). Doc. 13 ¶¶ 90-91.
The R&R found that Plaintiff failed to properly exhaust her administrative remedies as to these
claims. Doc. 85 at 16. Specifically, the R&R found that because Plaintiff did not file her DC 804
Grievance until December 2014, she failed to timely comply with the initial step of DC-ADM 804,
which requires that inmates file an initial grievance within 15 days of the event(s) at issue. See id.
Additionally, or in the alternative, the R&R found that by failing to appeal the Grievance’s Initial
Rejection, Plaintiff failed to properly exhaust DC-ADM 804’s remedies. See id.
Plaintiff does not contest that her December 2014 grievance was untimely pursuant to the
text of DC-ADM 804. See Pl’s. Objs., Doc. 88 at 15-21; Pl’s. Opp., Doc. 73 at 12-25. Instead,
Plaintiff, in her objections, argues that Defendants prevented her from timely filing. Doc. 88 at 19.
Specifically, Plaintiff maintains, Plaintiff was “repeatedly” and “explicitly instructed by those she
believed to be fully investigating her complaints, to not discuss anything relating to the sexual
abuse with anyone.” Doc. 88 at 10. Plaintiff “took this very literally” and understood the
instruction to “include communicating about the matters via a grievance.” Id. A grievance alleging
Defendants’ failure to protect her from Austin, and failure to subsequently provide her adequate
medical care, Plaintiff asserts, “would include communicating about” Austin’s conduct. Id. Thus,
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Plaintiff argues, she should be excused from not timely complying with DC-ADM 804’s initial
step because it was “unavailable” to her. Id. at 10-21 (citing Ross v. Blake, 136 S. Ct. 1850, 1860
(2016)). Moreover, Plaintiff asserts, “[a]s soon as [Plaintiff] was advised by [SCI Muncy] prison
staff that she could file grievances on the issues,” Plaintiff maintains, “she did.” Doc. 88 at 13.
The PLRA contains a “built-in exception to the exhaustion requirement: A prisoner need
not exhaust remedies if they are not ‘available.’” Ross, 136 S. Ct. at 1859 (quoting 42 U.S.C. §
1997e(a)). “[W]hen prison administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation,” an “inmate’s duty to exhaust
‘available’ remedies does not come into play.” Id. at 1860.
Here, according to Plaintiff, on June 4, 2013, when she reported Austin’s conduct to
Defendant Sittig, Sittig told Plaintiff “not to talk to anyone” about Austin’s conduct. See Pl’s.
Decl., Doc.78-1 at 5. According to Sittig, Sittig told Plaintiff that Plaintiff “probably shouldn’t
discuss the situation with other inmates.” Sitting Dep., Doc. 64-3 at 25. Sittig is “sure” she also
told Plaintiff that she would “call the Deputy immediately [s]o we can have this situation
handled[.]” Id. Sittig then immediately escorted Plaintiff to the RHU, where Plaintiff remained
for six weeks. See Doc. 78-1 at 23, 25, 27. While in the RHU, Plaintiff alleges, Defendants Sittig,
Knaus, and Lt. Wilkes, all told Plaintiff “not to tell anyone about the incident, including anyone in
the medical department.” Pl’s. Decl., Doc. 78-1 at 5. Thus, Plaintiff asserts, “as much as [she]
would’ve loved to talk to” the prison’s psychiatrists, Plaintiff “respected [Defendants’] wishes” to
remain silent. Pl’s. Dep., Doc. 75-1 at 37-38.
Plaintiff was transferred to SCI Muncy on July 11, 2013. Doc. 78-2 at 17-18. Despite
having made “frequent inquiries into the status of [OSII’s] investigation,” at the time of Plaintiff’s
transfer, she “still had received no information.” Pl’s. Decl., Doc. 78-1 at 6.

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Approximately six weeks later, by letter dated August 6, 2013, OSII informed Plaintiff that
while “[a]buse was not established…based on this investigation, further administrative action will
be taken.” Doc. 78-1 at 60. Thus, Plaintiff maintains, she believed that Defendants’ directive to
remain silent about Austin’s conduct was still in effect, pending this “further administrative
action.” See Pl’s. Objs., Doc. 88 at 10, 13.
The “administrative action” to which OSII referred included the formation of a PreDisciplinary Committee tasked with investigating whether Austin had violated various DOC ethics
provisions, including the prohibition against sexual harassment and sexual contact with inmates.
Knaus Dep., Doc. 65-8 at 57. After the Committee held two conferences, during which Austin
was afforded the opportunity to respond to Plaintiff’s allegations, Austin’s employment was
terminated effective November 8, 2013. 8/9/2013 PDC Notification Letter, Doc. 78-1 at 31-33;
9/30/2013 PDC Notification Letter, Doc. 78-1 at 35-38; Termination Letter, Doc. 78-1 at 39.
In late 2013, Austin applied for unemployment compensation. Austin’s Dep., Doc. 75-2 at
47. According to Plaintiff, in early 2014, she was “contacted” by “prison staff” about testifying at
an unemployment hearing related to Austin. See Pl’s. Decl., Doc. 78-1 at 5. In February 2014,
Pennsylvania’s Unemployment Compensation Board subpoenaed Plaintiff to testify at Austin’s
benefits hearing, which was scheduled for March 4, 2014. Doc. 78-1 at 62.
In anticipation of Plaintiff’s testimony, on February 27, 2014, Plaintiff was transferred back
to SCI Cambridge Springs. 2/27/14 DC-141, Doc. 78-1 at 29. When Plaintiff arrived at SCI
Cambridge Springs, Defendants Knaus and Lt. Wilkes escorted Plaintiff to the RHU, where they
housed her for the week of the hearing. Wilkes Dep., Doc. 76-2 at 26. Defendant Lt. Wilkes admits
that, as they were escorting Plaintiff to the RHU, Knaus “told [Plaintiff] not to talk to anybody

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about it,” after which Lt. Wilkes “reiterated…yeah, make sure you don’t talk to anybody about
what [you are] speaking about today.” Id.
At some point following the hearing, Austin was denied unemployment benefits. Austin
Dep., Doc. 75-2 at 47. Austin appealed, triggering an arbitration hearing. Id. Prior to the June
2014 arbitration hearing, Plaintiff was again “contacted” by “prison staff” and asked to testify.
Pl’s. Decl., Doc. 78-1 at 6. Plaintiff appeared and testified at the arbitration hearing by video
conference. Id.; 6/17/14 Arbitration Hearing Tr., Doc. 77-3. 10
In December 2014, Plaintiff alleges that a staff member at SCI Muncy informed her that
she could file a DC-804 grievance regarding Austin’s conduct and the DOC’s response thereto.
See Doc. 88 at 13. Thus, on December 15, 2014, Plaintiff filed Grievance 543147 alleging that
between February 2013 and June 2013 she was sexually harassed and abused; and that SCI
Cambridge Springs had failed to protect her and failed to provide her adequate medical care. Doc.
78-1 at 44. 11
Defendants, in either their response to Plaintiff’s Objections, or in their earlier reply brief,
do not address Plaintiff’s argument that Defendants’ machination, misrepresentation, or
intimidation should excuse Plaintiff’s failure to timely file her grievance. See Resp., Doc. 96 at 67 (addressing only Plaintiff’s alternative argument that had Plaintiff timely filed a DC-804

10

Defendant Superintendent Wilkes also testified, and reported that Austin “certainly” sexually harassed Plaintiff and
potentially other female inmates, and that the DOC considered Austin a “predator.” Doc. 77-3 at 53. Nevertheless, at
some point following the hearing, Austin’s employment was reinstated. Austin Dep., Doc. 75-2 at 48.
11
In full, Plaintiff grieved that: “From Feb[ruary] 2013 until June 2013, I was subjected to sexual harassment and
sexual abuse. When I had the courage to come forward, I was put in the RHU and was mistreated as if I did something
wrong. I was even told not to discuss this issue with medical/ psych [and] other certain staff. I was repeatedly told
this, even when I was transferred to Muncy. When I was transported back to [SCI Cambridge Springs] for court due
to this matter, I was told the same thing. I feel like [SCI Cambridge Springs] has not dealt with this issue properly
[and] SCI Muncy knew yet never followed through with anything. I will not have my rights violated anymore, and
want my rights preserved under the statute of limitations. [SCI Cambridge Springs] was negligent in protecting me
and their other inmates.” As relief, Plaintiff sought “care for [her] PTSD, etc., due to the above, and [to] seek pain and
suffering compensation for damages.” Doc. 78-1 at 44.

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grievance, it would have been rejected as duplicative of her DC-ADM 008 report); Reply, Doc. 83
at 2-4 (addressing only what Plaintiff did, or failed to do, with her grievance after it was rejected).
Nor do Defendants seriously dispute that they told Plaintiff that she should not discuss Austin’s
conduct. See Statement of Material Facts, Doc. 62 at 13 (“Plaintiff states that she took these
statements to mean that she should not discuss anything with staff at SCI Cambridge Springs;
however, that was only her understanding of what Sittig, Wilkes, Clark, Hall and Knaus meant
when they told her not to discuss the investigation. None of the staff directed Plaintiff not to seek
attention if she wanted or needed mental health treatment.”) 12 However, “[f]ailure to exhaust
administrative remedies is an affirmative defense that must be pled and proven by the defendant.”
Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002); see also Jones v. Bock, 549 U.S. 199, 216
(2007).
In any event, viewing the evidence in the light most favorable to Plaintiff, on June 4, 2013,
when Plaintiff reported Austin’s conduct, Sittig responded by telling her not to discuss the matter.
After Plaintiff’s meeting with Sittig, the record is clear that for at least the next year, Defendants
repeatedly told Plaintiff not to discuss the matter—even after Austin had been fired. There is no
evidence that Defendants informed Plaintiff that Austin’s employment had been terminated; or,
that prior to Plaintiff’s receiving the February 2014 subpoena from the unemployment
compensation board, she had any reason to believe that the administrative action to which OSII
referred had been concluded. In fact, the administrative action was not concluded until sometime
after sometime after Austin’s June 2014 arbitration hearing. Moreover, contrary to DOC policy,
12
Further, Defendants fail to provide the 15-day window within which Plaintiff’s grievance would be considered
timely. See Defs.’ Mot. For Summ. J., Doc. 67 at 9; Defs’. Resp., Doc. 96 at 3-7. Ostensibly, Defendants maintain
that Plaintiff should have grieved her failure to protect claims no later than June 19, 2013 (15 days after she reported
Austin’s conduct); and that Plaintiff should have grieved her denial to adequate medical care claims either no later
than July 26, 2013 (15 days after her transfer to SCI Muncy), or March 19, 2014 (15 days after she was returned to
SCI Cambridge Springs, where she was once again placed in the RHU, before testifying at Austin’s unemployment
hearing).

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immediately following Plaintiff’s initial report, Defendants housed her in the RHU, where inmates
are kept in solitary confinement and in their cells for 23 hours per day. See DC-ADM 008 § IV.B.5,
Doc. 78-3 at 76 (following an inmate’s report, an “inmate/ victim should be closely monitored in
general population and he/ she should only be placed in Administrative Custody…if he/ she cannot
be protected by any other means.”) (emphasis added). Further, despite Plaintiff’s having been
housed in the general population at SCI Muncy—and despite the fact that Austin no longer worked
at SCI Cambridge Springs—Defendants returned Plaintiff to SCI Cambridge Spring’s RHU when
they transferred her back to their prison to testify at Austin’s unemployment hearing. Thus, on the
record before the Court, and in the absence of any argument to the contrary, the Court finds that
Plaintiff’s failure to timely file her grievance pursuant to DC-ADM 804 is excused due to
Defendants’ conduct. See Ross, 136 S. Ct. at 1860 (collecting appellate court cases “in which
officials misled or threatened individual inmates so as to prevent their use of otherwise proper
procedures…[thereby] interfer[ing] with an inmate’s pursuit of relief [and] render[ing] the
administrative process unavailable. And then, once again § 1997e(a) poses no bar.”).
To the extent that Defendants maintain that even if Plaintiff’s failure to timely file her
grievance is excused, she nonetheless failed to exhaust DC-ADM 804’s remedies because she did
not appeal the grievance’s subsequent rejection, see Doc. 96 at 7, they are mistaken. Former
Defendant Boylan rejected Plaintiff’s Grievance because, inter alia, it “related to” “DC-ADM 008
PREA policy,” which “shall be handled according to the procedures specified” in DC-ADM 008,
“and shall not be reviewed by the Facility Grievance Coordinator[.]” Doc. 78-1 at 56. Plaintiff
should “[b]e advised,” Boylan wrote, that her claims “will not be addressed in this forum.” Id. It
is nonsensical for Defendants to argue that Plaintiff should have used an appellate procedure
provided for by DC-ADM 804 when they expressly told her that they would not address her claims

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pursuant to DC-ADM 804. See, e.g., Ross, 136 S. Ct. at 1860 (citing Booth v. Churner, 532 U.S.
731, 736, 738 (2001) (“[A]n administrative procedure is unavailable when (despite what
regulations or guidance materials may promise,) it operates as a simple dead end—with officers
unable or consistently unwilling to provide any relief to aggrieved inmates.”). Accordingly, to the
extent that Plaintiff failed to exhaust DC-ADM 804’s remedies, her failure is excused. Thus, the
Court respectfully declines to adopt the R&R as to the Cambridge Springs Defendants, and denies
Defendants’ motion as it relates to Plaintiff’s failure to exhaust her administrative remedies. See
id.; see also Small v. Camden County, 728 F.3d 265, 269-70 (3d Cir. 2013) (“[E]xhaustion is a
question of law to be determined by a judge, even if that determination requires the resolution of
disputed facts…[I]t is of no consequence that here, as is often the case, there are disputed facts
that must be resolved in order to determine whether the claims were exhausted.”). 13
In their motion for summary judgment, the Cambridge Springs Defendants additionally
argue that Plaintiff’s claims fail on the merits, and, in any event, that they are entitled to qualified
immunity. Doc. 67 at 10-18. The R&R did not address these arguments because it found that
Plaintiff failed to exhaust her claims. Doc. 85. Thus, the Court remands the matter to Magistrate
Judge for consideration of these issues. Accordingly, the Court HEREBY ORDERS:
(1) The Court ADOPTS the Report and Recommendation [Doc. 85] as to Defendant
Austin, and respectfully DECLINES TO ADOPT it as to the remaining Defendants;
(2) Defendant Austin’s Motion for Summary Judgment [Doc. 57] is DENIED;

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Accordingly, the Court need not address Plaintiff’s additional argument that she did, in fact, properly exhaust her
claims pursuant to DC-ADM 804 because the Superintendent’s January 2015 letter, which came three days after
Boylan’s rejection, constituted a decision on the merits of Plaintiff’s claims. See Doc. 88 at 11. Additionally, the
Court need not address Plaintiff’s alternative argument that whether she exhausted her claims against the Cambridge
Springs Defendants is governed by DC-ADM 008 and not DC-ADM 804; and that for the same reasons that she
exhausted her claims against Austin, Plaintiff exhausted her claims against the Cambridge Springs Defendants. Doc.
88 at 5-13.

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(3) The Cambridge Springs Defendants’ Motion for Summary Judgment [Doc. 61] is
DENIED as to Plaintiff’s failure to exhaust her administrative remedies;
(4) This case is REMANDED to Magistrate Judge Baxter for consideration of the
Cambridge Springs Defendants’ remaining arguments [Docs. 57 and 67];
(5) Defendant Boylan is terminated from this case;
(6) The clerk shall send copies of this Order to the parties.
IT IS SO ORDERED.
DATED this 13th day of October, 2017.

BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE

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