SARVEY v WETZEL et al

Filing 71

MEMORANDUM OPINION that 26 MOTION for Partial Summary Judgment filed by BRIAN SHANK, JOHN WETZEL, JOYCE WILKES, JOANNE TORMA will be denied. An appropriate Order follows. Signed by Magistrate Judge Susan Paradise Baxter on 3/28/18. (lrw)

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

MELISSA SARVEY,
Plaintiff

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vs.
JOHN WETZEL, et al,
Defendants.

C.A.No. 16-157ERIE

Magistrate Judge Baxter

MEMORANDUM OPINION1
United States Magistrate Judge Susan Paradise Baxter

Relevant Procedural History
Plaintiff, a state inmate incarcerated at SCI Cambridge Springs, initiated this civil rights
action through counsel on June 21, 2016. As Defendants to this action, Plaintiff named: John
Wetzel, Secretary of the Pennsylvania Department of Corrections; Joanne Torma, Superintendent
of SCI Cambridge Springs; Joyce Wilkes, the former Superintendent of SCI Cambridge Springs;
and Corrections Officers Keith Mayo and Brian Shank of SCI Cambridge Springs. This action
arises out of a sexual assault that Plaintiff suffered at the hands of Correctional Officer Mayo
during her incarceration at SCI-Cambridge Springs and the physical and emotional trauma that
she endured as a result of the failure of administration at the Department of Corrections and the
SCI-Cambridge Springs to protect her from the assault and during its aftermath. At Count I,

The parties have consented to having a United States Magistrate Judge exercise jurisdiction
over this matter. ECF No. 13; ECF No. 25.
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Plaintiff advances an Eighth Amendment claim against all five Defendants. Counts II and III are
state law claims for battery and intentional infliction of emotional distress against Defendant
Mayo. ECF No. 1.
Defendants Shank, Torma, Wetzel and Wilkes have filed a motion for partial summary
judgment [ECF No. 26] based solely upon Plaintiff’s failure to exhaust her administrative
remedies. Plaintiff has filed a brief in opposition [ECF No. 56] and Defendants have filed a reply
brief [ECF No. 58]. This motion is fully briefed and is ripe for disposition by this Court.2

The Allegations of the Complaint3
On September 19, 2014, Plaintiff was sexually assaulted by Defendant Mayo, a
corrections officer at SCI Cambridge Springs. ECF No. 1, ¶ ¶ 28-44. Shortly after the assault,
Plaintiff reported it to Officer Hamilton and in turn the assault was reported to the Office of
Special Investigation and Intelligence (“OSII”). Id. at ¶ ¶ 47-48. As of the date of the filing of
this civil action, Plaintiff had not been provided with any information regarding the result of the
investigation by the OSII. Id. at ¶ ¶ 49-50. Defendant Mayo continues to work at SCI Cambridge
Springs and has direct contact with female inmates including Plaintiff. Id. at ¶ ¶ 54-60.
Plaintiff alleges that on several occasions prior to the September 19th assault, Defendant

Additionally, Defendants Shank, Torma, Wetzel, and Wilkes filed a motion for partial summary
judgment on the merits of Plaintiff’s claims against them. ECF No. 59. Plaintiff has filed a brief
in opposition [ECF No. 66] and Defendants have filed a reply brief [ECF No. 70]. This motion
will be addressed separately by this Court in due course.
2

Because the Concise Statements do not address the factual underpinnings of the legal claims,
this Court herein restates the allegations of Plaintiff’s complaint in order to provide context.
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Mayo engaged in inappropriate sexual touching of Plaintiff’s breasts and buttocks. Id. at ¶ 21.
Defendant Mayo also inappropriately touched other inmates. Id. at ¶ 22. Defendant Shank
witnessed Defendant Mayo’s actions against Plaintiff and other inmates and failed to take any
actions to report or prevent such abuse. Id. at ¶ 25. At least one other Department of Corrections
employee witnessed and reported Defendant Mayo’s inappropriate conduct to SCI Cambridge
Springs officials. Id. at ¶ 26. Despite this report of sexual abuse, Defendant Wilkes, the
Superintendent at the time, took no action to terminate or reprimand Defendant Mayo or prevent
further contact between him and female inmates. Id. at ¶ 27. Plaintiff alleges that Wetzel, Torma,
Wilkes, and Shank “were aware from previous complaints and previous observations that
Defendant Mayo had committed acts of sexual abuse and harassment against Ms. Sarvey and
other inmates.” Id. at ¶ 104.

Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted
if the “movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” When applying this standard, the court must examine
the factual record and reasonable inferences therefrom in the light most favorable to the party
opposing summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
The moving party has the initial burden of proving to the district court the absence of
evidence supporting the non-moving party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330
(1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v.
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Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). The burden then shifts to the nonmovant to come forward with specific facts showing a genuine issue for trial. Fed. R. Civ. P.
56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989) (the nonmovant must present affirmative evidence - more than a scintilla but less than a preponderance which supports each element of his claim to defeat a properly presented motion for summary
judgment). The non-moving party must go beyond the pleadings and show specific facts by
affidavit or by information contained in the filed documents (i.e., depositions, answers to
interrogatories and admissions) to meet his burden of proving elements essential to his claim.
Celotex, 477 U.S. at 322. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
As to a motion for summary judgment on the Prison Litigation Reform Act’s failure to
exhaust defense, a sister court within the Middle District has concisely summarized the shifting
burdens of proof:
Failure to exhaust available administrative remedies is an affirmative defense that
must be pleaded and proven by the defendant. But once the defendant has carried
that burden, the prisoner has the burden of production. That is, the burden shifts to
the prisoner to come forward with evidence showing that there is something in his
particular case that made the existing and generally available administrative
remedies effectively unavailable to him. However, as required by the Supreme
Court, the ultimate burden of proof remains with the defendant.
Njos v. Argueta, 2017 WL 1304301, at *2 (M.D. Pa. Feb.23, 2017) (internal citation omitted).4

The “failure to exhaust is an affirmative defense under the PLRA, and that inmates are not
required to specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 549
U.S. 199, 217 (2007). Instead, the failure to exhaust must be asserted and proven by the
defendants. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).
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The Exhaustion Requirement of the Prison Litigation Reform Act
Defendants Shank, Torma, Wetzel and Wilkes argue that they are entitled to summary
judgment based on Plaintiff’s failure to exhaust her administrative remedies on the claims
against them.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) provides:
no action shall be brought with respect to prison conditions under section 1983 of
this title ... by a prisoner confined in any jail, prisons, or other correctional facility
until such administrative remedies as are available are exhausted.
Id. The requirement that an inmate exhaust administrative remedies applies to all inmate suits
regarding prison life, including those that involve general circumstances as well as particular
episodes. Porter v. Nussle, 534 U.S. 516 (2002). Administrative exhaustion must be completed
prior to the filing of an action. McCarthy v. Madigan, 503 U.S. 140, 144 (1992).
The PLRA also requires “proper exhaustion” meaning that a prisoner must complete the
administrative review process in accordance with the applicable procedural rules of that
grievance system. Woodford v. Ngo, 548 U.S. 81, 87-91 (2006). So then, no analysis of
exhaustion may be made absent an understanding of the administrative process available to state
inmates. “Compliance with prison grievance procedures, therefore, is all that is required by the
PLRA to ‘properly exhaust.’ … [I]t is the prison’s requirements, and not the PLRA, that define
the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).
In this case, it is on this point that this Court’s analysis must focus. In a remarkably
similar case, Magistrate Judge Carlson indicated: “This legal dispute is further complicated by
the fact that Pennsylvania Department of Corrections policies seem to prescribe several paths for
inmate grievances, describing one grievance procedure in DC-ADM 804, the Department of
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Corrections’ general grievance procedure, while prescribing another process in a separate policy,
DC0ADM 008, for allegations regarding sexual assault. Thus, we are presented with an
administrative and regulatory grievance structure that appears to potentially provide for parallel
sexual assault grievance procedures.” Frye v. Wilt, 2017 WL 6405623, at *1 (M.D.Pa. Dec. 15,
2017). Here, the inquiry is whether legal claims that are corollary to the sexual assault should be
exhausted through DC-ADM 804, the general grievance procedure, or through DC-ADM 008,
the more specific procedure implementing the PREA5? Based on the policies themselves and the
evidence provided, the answer to this question is unclear to this Court.
The DC-ADM 804 grievance system, the general grievance procedure, consists of three
separate stages. First, the prisoner is required to timely submit a written grievance for review by
the facility manager or the regional grievance coordinator within fifteen days of the incident,
who responds in writing within ten business days. Second, the inmate must timely submit a
written appeal to intermediate review within ten working days, and again the inmate receives a
written response within ten working days. Finally, the inmate must submit a timely appeal to the
Central Office Review Committee, also known as the Secretary’s Office of Inmate Grievances
and Appeals (“SOIGA”), within fifteen working days, and the inmate will receive a final
determination in writing within thirty days. ECF No. 56-1, pages 4-53. DC-ADM 804 explicitly
provides that a grievance regarding sexual abuse will not be addressed through the Inmate
Grievance System and must be addressed through Department policy DC-ADM 008. ECF No.
29-1, page 9, 13.

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Prison Rape Elimination Act (“PREA”) 42 U.S.C. § 15601, et seq.
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Meanwhile, DC-ADM 008, the more specific PREA Procedures Manual/Policy,
provides:
An inmate who is the victim of sexual abuse or sexual harassment by … [an]
employee … should report the abuse to a staff member as soon as possible. A
report may be made to any staff member in the facility.
ECF No. 56-1, page 113. The DC-ADM 008 applies to “an allegation of sexual abuse … and
staff neglect or violation of responsibilities that may have contributed to such incidents…” Id.
(emphasis added). There are no technical reporting requirements under DC-ADM 008: no time
limitations, no specific content limitations, and no specific identification requirements. There are
also no appeal procedures associated with DC-ADM 008. Furthermore, DC-ADM 008 provides:
Inmates shall not utilize the Grievance procedure to report sexual abuse. If an
inmate files a grievance related to sexual abuse, the Grievance Officer shall
immediately forward this grievance to the Security office for investigation. The
inmate will be notified of this action. This will be considered an exhaustion of
administrative remedies.
ECF No. 56-1, page 114.
In opposition to Defendants’ summary judgment, Plaintiff has presented the deposition
testimony from Defendants’ Rule 30(b)(6) designee indicating that DC-ADM 008 is the
appropriate avenue of reporting not only the specific act of a sexual assault, but also violations
related to the assault or to PREA more generally. ECF No. 56-1, Deposition of Amy Boylan.
Amy Boylan, the Superintendent’s Assistant at SCI-Cambridge Springs, is the grievance
coordinator at the institution. Id. at page 168. In that capacity, Boylan collects grievances,
reviews them, enters them into the grievance database with a number, and assigns them to a
grievance officer accordingly. Id. at page 170. Boylan testified that if a general grievance filed
under DC-ADM 804 “sort of touches on the boundaries of a PREA investigation,” the general
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grievance will be rejected. ECF No. 56-1, Boylan Deposition, at page 55. In further support of
her opposition, Plaintiff has produced several examples of rejection of an 804 grievance because
it touched on the boundaries of PREA. See ECF No. 56-1, page 219 (Grievance 614367
complaining that a guard opened the door while the complainant was using the toilet and
grieving that she “felt harassed sexually and I feel like everyone is trying to sweep this under the
rug.”); Id. at page 223 (Grievance 629154 complaining that grievant was fired from her dietary
job after making a previous PREA claim); Id. at page 239 (Grievance 546216 complaining about
the lack of follow-up medical treatment following a PREA-related matter at another prison). See
also id. at pages 226-237. Additionally, when presented with a question about an inmate who
wanted to grieve a sexual assault against a guard as well superior officers who failed to protect
her from sexual assault, Boylan admitted that she was unclear of the proper way to grieve the
issues. Id. at pages 186-189.
Although the exhaustion of administrative remedies is mandatory under the PLRA, the
Supreme Court has recognized a narrow exception to the exhaustion requirement “built into the
statutory language of the PLRA; a prisoner need not exhaust administrative remedies prior to
filing a claim if the remedies are not available to the inmate.” Ross v. Blake, ___ U.S. ___, 136
S.Ct.1850, 1853 (2016). The Ross Court recognized three kinds of circumstances in which an
administrative remedy is not available:
First, … an 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. … Next, an administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use. … And finally, the same is true when
prison administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.
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Ross, 136 S.Ct. at 1859-60.
With regard to the second circumstance, the Supreme Court explained that an
administrative scheme is opaque when “some mechanism exists to provide relief, but no ordinary
prisoner can discern or navigate it … When rules are so confusing that no reasonable prisoner
can use them, then they’re no longer available.” Id. at 1859. Moreover, Ross indicated that
“when a remedy is … essentially ‘unknowable’ – so that no ordinary prisoner can make sense of
what it demands – then it is also unavailable.” Id.
Here, the DC-ADM 804 and DC-ADM 008, together with the evidence before this Court,
demonstrate that as to corollary claims “regard[ing]” sexual abuse, the administrative remedy
scheme is unavailable due to its opaqueness/opacity. See Frey v. Wilt, 2017 WL 6405623, at *6
(M.D. Pa. Dec.15, 2017) (“[W]e nonetheless find the wording of DC-ADM 008 to be so opaque
– particularly as to which types of claims ‘regard’ sexual abuse and therefore do not need to be
grieved under DC-ADM 804 – that the administrative remedy scheme with regard to these types
of claims is, ‘practically speaking, incapable of use.”); Ricciardi v. Shumencky, 2018 WL
1251834, at *5 (M.D. Pa. Mar.12, 2018); Bucano v. Austin, 2017 WL 4563948 (W.D.Pa. Oct.13,
2017). The two policies taken together, along with Boylan’s description of her implementation of
the policies, demonstrates that “no ordinary prisoner could make sense of what” is demanded for
purposes of proper exhaustion of these claims. Accordingly, the administrative remedies were
unavailable to Plaintiff. The motion for summary judgment will be denied.
An appropriate order follows.
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
Dated: March 28, 2018
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