Landau v. Lamas

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRIAN LANDAU, :

Plaintiff, :

V. 3:15-CV-1327

: (JUDGE MARIANI)

MARIROSA LAMAS, et al., :

Defendants.

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Brian Landau, an inmate in Pennsylvania state prison, originally filed this

action in July 2015 against twenty-one current and former Pennsylvania Department of

Corrections (“DOC”) employees and officials.1 Landau asserts thirteen federal constitutional

and state tort claims arising out of alleged incidents of sexual harassment and assault

committed against Landau by Defendant Rebecca Zong, a former DOC corrections officer.2

‘As stated in Landau's Amended Complaint filed on May 6, 2017 (Doc. 88), the twenty-one defendants

are: Marirosa Lamas, Steven Glunt, Tammy Ferguson, Mark Garman, Bobbi Jo Salamon, Eric Tice,

Lieutenant Hoover, Lieutenant Vance, Jack O. Evans, Michael Dooley, Joanne Gallo, Lieutenant Drew

Young, Rebecca Amber Zong, Sergeant Mark Harpster, Sergeant Tommy Rogers, Corrections Officer

Stacie Bumbarger, Corrections Officer Matthew Foster, Corrections Officer Lucas Nicholas, Corrections

Officer Cienfuegos, Corrections Officer Brandon Snyder, and Corrections Officer Trainee Miller. Defendant

Zong is represented by private counsel, while the remaining defendants (‘DOC Defendants’) are

represented by DOC counsel.

2 The surviving claims in this lawsuit are: Count | - Eighth Amendment claim (sexual assault) against

Defendant Zong; Count II - Eighth Amendment claim (deliberate indifference) against all Defendants:

Count Ill - Fourteenth Amendment claim (invasion of privacy) against Defendants Zong, Rogers,

Bumbarger, Foster, Nicholas, Cienfuegos, and Miller; Count IV — Fourth Amendment claim (unreasonable

search and seizure) against Defendant Zong; Count V - Fourth and Eighth Amendment claims (failure to

intervene) against Defendants Harpster, Rogers, Bumbarger, Foster, Nicholas, Cienfuegos, Snyder, and

Miller; Count VI - Fourth and Eighth Amendment claims (failure to supervise) against Defendants Lamas,

Glunt, Ferguson, Harpster, Rogers, Garman, and Salamon; Count Vil — Fourth and Eighth Amendment

{

(Doc. 88). Collectively, Defendants have filed three separate motions for summary

judgment against Plaintiff, with each motion raising various arguments against the

numerous claims in Plaintiffs Amended Complaint.3 (Doc. 170, Doc. 174, Doc. 178). The

second motion for summary judgment, joined in by all Defendants, urges the Court to grant

summary judgment to Defendants with respect to all of Plaintiffs federal constitutional

claims (Counts |, Il, Ill, IV, V, VI, Vil, and IX) on the grounds of consent and qualified

immunity. (Doc. 174, Doc. 175). In his Report and Recommendation (R&R) addressing the

second motion for summary judgment, Magistrate Judge Carlson recommends denying the

second motion for summary judgment because there are disputed issues of fact relating to

consent and whether nonconsensual sexual contact between prison staff and inmates

Violates clearly established constitutional rights under the Eighth Amendment. (Doc. 203).

DOC Defendants have raised Objections to the R&R (Doc. 207) that have been briefed

claims (failure to train) against Defendants Garman, Salamon, Evans, Dooley, Gallo, and Young; Count IX

Fourteenth Amendment claim (equal protection) against Defendants Lamas, Glunt, Ferguson, Tice,

Hoover, Vance, Evans, Dooley, Gallo, Young, Salamon, Garman, Harpster, and Rogers; Count Xli - sexual

assault claim against Defendant Zong; Count XIII — sexual battery claim against Defendant Zong; Count

XIV — intentional infliction of emotional distress (“IIED”) claim against Defendants Zong, Glunt, Ferguson,

Tice, Hoover, Vance, Harpster, Rogers, Salamon, Bumbarger, Foster, Nicholas, Cienfuegos, and Miller;

Count XV ~ defamation claim against Defendants Rogers, Bumbarger, Foster, Nicholas, Cienfuegos, and

Miller; and Count XVI — state law invasion of privacy claim against Defendants Zong, Rogers, Bumbarger,

Foster, Nicholas, Cienfuegos, and Miller.

3 The Court finds that permitting separate motions for summary judgment and accompanying briefs to be

submitted piecemeal, as well as the ensuing separate objections and accompanying briefs regarding the

R&Rs that were filed with respect to the separate motions for summary judgment, has presented an

extraordinarily cumbersome, confusing, and laboriously segmented approach to this case that has resulted

in an unnecessary and wasteful use of judicial resources. This is particularly true in light of the voluminous

record in this case to which neither party made sufficient reference, which made resolution of the issues in

this case that much more onerous. The Court places counsel on notice that this type of approach will not

be allowed again in this case or any other case.

(Doc. 208, Doc. 215, Doc. 217). Zong did not file Objections to the R&R. Upon de novo

review of the R&R’s finding with respect to consent and clear error review of the R&R’s

finding with respect to qualified immunity, the Court will overrule DOC Defendants’

Objections and adopt the R&R in its entirety for the reasons set forth below. The Court will

address factual disputes between the parties and between the parties and the R&R’s

Statement of the Facts and of the Case (Doc. 203 at 1-8) where relevant throughout this

Memorandum Opinion.

ll. STANDARD OF REVIEW

A District Court may “designate a magistrate judge to conduct hearings, including

evidentiary hearings, and to submit to a judge of the court proposed findings of fact and

recommendations for the disposition” of certain matters pending before the Court. 28

U.S.C. § 636(b)(1)(B). Ifa party timely and properly files a written objection to a Magistrate

Judge's Report and Recommendation, the District Court “shall make a de novo

determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” /d. at § 636(b)(1)(C); see also Fed. R. Civ.

P. 72(b)(3); M.D. Pa. Local Rule 72.3; Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).

‘If a party does not object timely to a magistrate judge's report and recommendation, the

party may lose its right to de novo review by the district court.” EEOC v. City of Long

Branch, 866 F.3d 93, 99-100 (3d Cir. 2017). However, “because a district court must take

some action for a report and recommendation to become a final order and because the

authority and the responsibility to make an informed, final determination remains with the

judge, even absent objections to the report and recommendation, a district court should

afford some level of review to dispositive legal issues raised by the report.” /d. at 100

(internal citations and quotation marks omitted).

Through summary adjudication, the court may dispose of those claims that do not

present a “genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “As to materiality,

[o}nly 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, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The party moving for summary judgment bears the burden of showing the absence

of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106

S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once such a showing has been made, the non-

moving party must offer specific facts contradicting those averred by the movant to establish

a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct.

3177, 111 L. Ed. 2d 695 (1990). Therefore, the non-moving party may not oppose summary

judgment simply on the basis of the pleadings, or on conclusory statements that a factual

issue exists. Anderson, 477 U.S. at 248. “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by citing to particular parts of materials in the

record . . . or showing that the materials cited do not establish the absence or presence of a

genuine dispute, or that an adverse party cannot produce admissible evidence to support

the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should

be granted, “[t]he court need consider only the cited materials, but it may consider other

materials in the record.” Fed. R. Civ. P. 56(c)(3). “Inferences should be drawn in the light

most favorable to the non-moving party, and where the non-moving party's evidence

contradicts the movant’s, then the non-movant's must be taken as true.” Big Apple BMW,

Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912,

113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993).

However, “facts must be viewed in the light most favorable to the nonmoving party

only if there is a ‘genuine’ dispute as to those facts.” Scoft v. Harris, 550 U.S. 372, 380, 127

S. Ct. 1769, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the summary

judgment rule,

its opponent must do more than simply show that there is some metaphysical

doubt as to the material facts. Where the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party, there is no genuine

issue for trial. The mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.

When opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of ruling on a motion for

summary judgment.

Id. (internal quotations, citations, and alterations omitted).

Ill. ANALYSIS

Defendants’ second motion for summary judgment raises the affirmative defenses of

consent and qualified immunity. Although the defenses are somewhat intertwined, the

Court will first address the defense of consent before turning to qualified immunity.

A. CONSENT

In their second motion for summary judgment, Defendants point to what they claim

are genuinely undisputed facts to argue that “Zong engaged in a mutual relationship with

Plaintiff that culminated in sexual contact.” (Doc. 175 at 9-10). As a result, they contend,

Landau was not subjected to “cruel and unusual punishment.” (/d, at 10-12). In making this

argument, they reference items from the factual record, such as Landau’s personal journal,

a letter sent by Landau to his friend and fellow inmate, and written records from DOC staff

containing statements from Landau that Defendants maintain indicate that Landau

welcomed a sexual relationship with Zong. (/d.) However, they do not make specific

citations to the factual record in their brief in support of their motion, instead relying on their

separate statement of material facts.

Landau responds that he has set forth “credible evidence that he did not want to

have a sexual relationship with Zong.” (Doc. 191 at 6-7). He states that the written remarks

of DOC staff are “not Landau’s words” and that at his deposition he testified that “several of

his terse written statements in 2014 were coerced or even dictated by the security officers

who interrogated him.” (/d.) He also references the report of his expert witness, Professor

Lara Stemple, to argue that a “jury could easily find Landau to have been an unwilling

victim.” (/d. at 7). Landau also contends that consent is unavailable as an affirmative

defense as a matter of law because it is not permitted as an affirmative defense under DOC

policy and because “unwillingness on the part of the prisoner is not an element of the crime”

of institutional sexual assault under Pennsylvania law. (Id. at 8-10). Defendants reply that

the factual disputes between the parties regarding consent are not genuine, Landau’s

expert report is irrelevant and inadmissible opinion on an ultimate issue of law, and that

prior case law indicates that consent is available as an affirmative defense as a matter of

law. (Doc. 198 at 3-5, 7-10).

In the R&R, Magistrate Judge Carlson notes the conflicted state of the law on the

availability of “consent as a defense to constitutional tort claims based upon sexual contact

between correctional staff and inmates,” but finds that “the majority view expressed by the

appellate courts can best be characterized as a cautious and halting acceptance of consent

as a defense.” (Doc. 203 at 14). However, quoting the Third Circuit’s recent decision in

Ricks v. Shover, 891 F.3d 468 (3d Cir. 2018), with respect to whether sexual contact is

sufficiently objectively serious enough to constitute a constitutional violation, the R&R notes

that the inquiry into claims of sexual abuse in prisons “is necessarily contextual [and] fact-

specific.” (Doc. 203 at 15 (quoting Ricks, 891 F.3d at 478)). Therefore, the R&R concludes

that the issue of consent in cases like this one is not a matter of law and instead requires a

trial. (Doc. 203 at 16 (quoting Chao v. Ballista, 772 F. Supp. 2d 337, 350 (D. Mass. 2011)).

The R&R further states that in this case, “the question of whether Landau and Zong

engaged in a consensual relationship is one which is riddled with factual disputes, and

entails an assessment of the often conflicting and completely contradictory statements

which both Zong and Landau have made over time.” (Doc. 203 at 17). In particular, the

R&R notes that the factual record could lead a jury to believe that Zong coerced Landau,

Landau coerced Zong, or that Landau and Zong were involved in a consensual sexual

relationship. (/d. at 17-18).

The Court agrees with Magistrate Judge Carlson's assessment of the law governing

consent and the disputed factual record present in this matter such that Defendants’ second

motion for summary judgment should be denied. Landau, perhaps cognizant of the R&R’s

overall recommendation to deny Defendants’ second motion for summary judgment, does

not object to the finding of the R&R that consent may be a defense to his constitutional

claims. Reviewing this finding for clear error, the Court agrees that the R&R is correct that

the Third Circuit has not definitively ruled that consent is per se unavailable as a defense to

constitutional claims alleging sexual harassment or abuse brought by an inmate against a

prison employee. It is unnecessary to revisit the R&R’s summary of the relevant case law in

detail, except to emphasize that Landau cites no binding case law to the contrary in his

opposition to Defendants’ second motion for summary judgment. (Doc. 191 at 7-10).

Instead, Landau cites Pennsylvania state law which “criminalizes sexual acts with a prisoner

. .. fegardless of consent’ (/d. at 8 (citing 18 Pa. Stat. and Cons. Stat. Ann. § 3124.2)) and

an unpublished decision from the Western District of Pennsylvania, Keehn v. Lucas, No.09-

cv-16, 2012 WL 269632 (W.D. Pa. Jan. 30, 2012). Keehn, however, involved a factually

and procedurally inapposite situation: a ruling on a motion in limine considering the

relevance of consent in the context of an Eighth Amendment use of force claim of an inmate

under Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981), for the “unnecessary and wanton

infliction of pain” serving “no legitimate penological interest” where the defendants were

alleged to have used a taser on the inmate. Keehn, 2012 WL 269632, at *4-6. Because the

court found that the defendants effectively conceded that the use of the taser served no

legitimate penological interest, the court determined that the “good faith” of the prison

Officials was irrelevant. /d. The Keehn court's decision to apply a standard of conduct from

Pennsylvania criminal law, i.e., the unavailability of consent, to the plaintiff's common law

tort claims for assault and battery, id. at *11-12, does not support Landau’s argument that

Pennsylvania criminal law on institutional sexual assault should necessarily guide this

Court's consideration of his federal constitutional claims. See Stubbs v. DeRose, No. 03-cv-

2362, 2007 WL 776789, at *6 (M.D. Pa. Mar. 12, 2007) (“Elevating legal rights to the level of

constitutional rights is an exercise fraught with the peril of unintended consequences.”

(quoting Phillips v. Bird, No. 03-cv-247, 2003 WL 22953175, at *5 (D. Del. Dec. 1, 2003));

cf. Ricks, 891 F.3d at 478 (noting that 18 Pa. Stat. and Cons. Stat. Ann. § 3124.2 does not

‘Constitutionalize ‘every malevolent touch”).

Turning to the specific facts in this matter regarding consent, DOC Defendants argue

in their Objections to the R&R that the factual record is so in favor of DOC Defendants’

position that the relationship between Zong and Landau was consensual as to preclude a

reasonable jury from finding any other way. (Doc. 208 at 2-8). They complain that the R&R

failed to “meaningfully discussf] the evidence of record” and that “[t]here was no analysis of

the following evidence [subsequently set forth] and no discussion of Plaintiff's story being

blatantly contradicted by the record.” (Id. at 3-4).

While DOC Defendants raise some valid concerns with the R&R, their objections are

ultimately unpersuasive. The Court agrees that the R&R should have more directly

grappled with the evidence set forth by both sides rather than making the conclusory

Statement that the factual record supported three possible interpretations of the events that

occurred between Zong and Landau. However, the Court also finds that Defendants did not

make Magistrate Judge Carlson’s task of sorting through the factual record an enviable or

easy one. Defendants’ brief in support of their second motion for summary judgment

contains no citations to the factual record whatsoever. (Doc. 175 at 2-6). DOC Defendants’

brief in support of their Objections to the R&R likewise does not contain any citations to the

factual record. (Doc. 208 at 4-7). Defendants appear to be relying solely on their Joint

Statement of Material Facts (Doc. 176), but many of the paragraphs in the Joint Statement

of Material either do not contain or have deficient pin citations to the voluminous set of

10

exhibits filed with the Court. Defendants should be aware of the requirements in the plain

text of Rule 56 of the Federal Rules of Civil Procedure:

(c) Procedures.

(1) Supporting Factual Positions. A party asserting that a fact

cannot be or is genuinely disputed must support the assertion

by:

(A) citing to particular materials in the record . . .

(3) Materials Not Cited. The court need only consider the cited

materials, but it may consider other materials in the record.

Fed. R. Civ. P. 56(c)(1)(A), (3) (emphasis in bold added). And Defendants should be

mindful that “[jJudges are not like pigs, hunting for truffles buried in briefs.” United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).

After tracking down some of the most relevant evidence referenced by Defendants

and comparing this evidence to that cited by Landau in his opposition, the Court agrees with

Magistrate Judge Carlson that ruling in favor of Defendants on the issue of consent would

require the Court to improperly “weigh the evidence submitted [or] judge the credibility of the

witnesses.” Waskovich v. Morgano, 2 F.3d 1292, 1296 (3d Cir. 1993). It is axiomatic that a

Court may not assess credibility in determining whether to grant or deny summary

4 This should also go without saying, but Defendants are also admonished to include pin citations when

appropriate when they cite legal authority. They mostly fail to do so in each of the three motions for

summary judgment, supporting briefing, and objections to the R&Rs.

11

judgment. To start, as Landau notes, the factual record indicates that Zong herself has

stated that she was “coerced” into a sexual relationship with Landau, contradicting

Defendants’ position in their second motion for summary judgment that the relationship was

consensual. (Doc. 201 at 2-8 (citing Doc. 192-6 at 2, Doc. 192-5 at 6-7, Doc. 187-1 at 72:5-

9), Doc. 215 at 6).

The other evidence set forth by Defendants in favor of their position that Zong and

Landau had a consensual sexual relationship is countered in some fashion by Landau to

demonstrate a genuine dispute of material fact. For example, DOC Defendants argue that a

“sworn statement” in Landau’s “own handwriting” made to DOC Agent Hobart (Doc. 208 at

4) when Hobart was interviewing him in June 2014 indicates that Landau admits “that

anything that happened between [him] and Officer Zong on 4/27/14 and 5/14/14 was 100%

» See Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764 (3d Cir. 2013):

Under Rule 56, .. . a “court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). The party asserting that there is a genuine dispute of

material fact must support that assertion by “citing to particular parts of . . . the record,

including depositions, documents, electronically stored information, affidavits or declarations,

Stipulations . .. , admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.

56(c)(1)(A). In evaluating the motion, “the court must draw all reasonable inferences in favor

of the nonmoving party, and it may not make credibility determinations or weigh the

evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097,

147 L. Ed. 2d 105 (2000).

716 F.3d at 772. See also Doebblers’ Penn. Hybrids, Inc. v. Doebbler, 442 F.3d 812, 820 (3d Cir. 2006)

(stating that credibility determinations “are inappropriate to the legal conclusions necessary to a ruling on

summary judgment. . . .A District Court should not weigh the evidence and determine the truth itself, but

should instead determine whether there is a genuine issue for trial.”); J. F. Feeser, Inc. v. Serv-A-Portion,

Inc., 909 F.2d. 1254, 1531 (3d Cir. 1990) (‘We are keenly aware that credibility determinations are not the

function of the Judge; instead the non-movant's evidence must be credited at this stage.”).

12

consensual on my behalf.” (Doc. 192-3 at 6).6 However, Landau argues that this these

Statements “were coerced or even dictated by the security officers who interrogated him”

(Doc. 191 at 7), pointing to his deposition testimony where he said he wrote out the

statement that Hobart asked him to write in order to “get out of the hole” (restrictive

housing):

She [Hobart] stood right over me with her pen and | said, what do you want

me to write? And she’s like well, write everything for me. She wanted me to

give her this long drawn out statement. | said I’m not doing it. That’s not

what | wanted to do. And | said well, what do | need to do? And she stated

the dates, put my name. And | said—because | wanted out of the hole. That

was the whole purpose of signing that statement. | was in the hole. | wanted

out. | begged her five times to let me out of the hole. She had said she

spoke to Vance. And she could do that for me. | said well, look her [sic],

what do you want? | sat there and she dictated that statement to me.

[In response to question about what would be inaccurate in the statement:]

That it was one hundred percent consensual on my behalf, yeah. That would

be inaccurate.

(Doc. 187-2 at 112:18-113:5, 113:15-16). The Court cannot say that no reasonable juror

would accept Landau’s explanation of his written statement to Hobart.

Defendants make a similar argument with respect to Landau’s July 14, 2014 letter to

his friend, inmate Mike Brown, that contains statements that one could interpret to mean

that Landau was attracted to Zong and appreciated her attentions (Doc. 208 at 4):

6 Though Defendants cite this statement, they did not include it as an attachment to their statement of

material facts. Instead, Landau included it as part of his statement of material facts in response. (See Doc.

190 | 19 (noting that Defendants’ Hobart Memo (Doc. 177-7) is incomplete)).

13

| don't know if | really did or do love her, | know | was in love with that ass!

. .. [don’t know if | will contact “it” when | go home . . . | love her! Where

has she been all my life. ... Tell him | used to beat off and hump that

bed every night thinking about Zong!

(Doc. 176 J 21, Doc. 177-9 at 2, 6-7). Landau counters that Defendants “mischaracterize[]”

this letter, and that Landau “testified at length [in his deposition] about the meaning of the

document, which included satirical references and jokes.” (Doc. 190 ] 21). For example,

Landau explains, the statement about “Zong’s ass” was an inside joke with Brown and his

statements in the letter were colored by his time “in the hole . . . [when] at the time | really

didn’t know how | felt. . . [and that after] [t]herapy and, you know, pulling myself away from

the situation, | was able to process things a little different.” (Doc. 187-2 164:5-20: see also

id. at 166:3-15 (Landau explaining that statement about “beatfing] off and humpfing] that

bed every night thinking about Zong” was “a joke to get a rise out of [other inmate Joe]

Falcon”)). Landau also points to the report of his proposed expert witness on prison sexual

abuse interpreting the letter to Brown and concluding that: ‘It is wholly unsurprising to me

that a young man sexually victimized by a woman in prison, which was widely talked about

by those around him, would attempt to recast the experience as something he relished.”

Although they could have done so, Defendants do not object to the Court's consideration of the expert

report because it was submitted by Landau without an accompanying affidavit or unsworn declaration made

under penalty of perjury in accordance with 28 U.S.C. § 1746. See Fed. R. Civ. P. 56(c)(4) advisory

committee's note to 2010 amendment; Burrell v. Minnesota Min. Mfg. Co., No. 08-cv-87293, 2011 WL

9458324, at *1 n.1 (refusing to consider unsworn expert report when opposing party objected and noting

“The United States Court of Appeals for the Third Circuit has found that an unsworn expert report ‘is not

competent to be considered on a motion for summary judgment.’ Fowle v. C&C Cola, 868 F.2d 59, 67 (3d

Cir. 1989).”). Their only objection to the Court's consideration of this report is that an expert cannot provide

14

(Doc. 190 § 21, Doc. 191 at 7, Doc. 192-4 at 5). As with Landau’s written statement to

Hobart, the Court cannot find, as a matter of law, that no reasonable juror would disagree

with Defendants’ argument that Landau consented to a sexual relationship with Zong.

Statements from Landau’s “journal,” a notebook containing brief commentary on

Landau’s exercise routine and emotional state, also do not prove that Landau consented to

a sexual relationship with Zong. (Doc. 177-19, Doc. 192-10, Doc. 192-11). These

statements cited by Defendants include “Hate myself for Caring[,]” “give up unhealthy

desires and thoughts[,]” “stop thinking about her!”, “Hate myself for having feelings 4 a

cop[,]’ and “Maybe | was in Love? Only FOOLS fall in Love! @)”. (Doc. 177-19 at 8-10,

15, 21). Some of these statements may not clearly apply to Zong, and having conflicted

feelings about Zong, as Landau argues in opposing summary judgment, does not establish

that he consented to a sexual relationship with Zong.

None of the above evidence, or other evidence proffered by Defendants, forecloses

the existence of genuine disputes of material fact regarding consent. This is not a case, as

Defendants suggest, where the evidence is so overwhelming that alternate interpretations of

the evidence are wholly implausible, or where the opposing party fails to dispute or explain

the evidence. The cases that Defendants cite as presenting analogous factual

circumstances are not on point, as they all involved the failure of the plaintiff inmates to

a legal opinion on an ultimate issue of law. (Doc. 198 at 9 (citing Berckeley Inv. Grp., Ltd. v. Colkitt, 455

F.3d 195, 217 (3d Cir. 2006)).

15

point to non-conclusory evidence in the record to counter the defendants’ showing that the

plaintiff failed to exhaust administrative remedies. Jackson v. Taylor, 467 F. App’x 98, 99-

100 (3d Cir. 2012); Wakeley v. Giroux, No. 12-cv-2610, 2014 WL 1515681, at *3, 17-19

(M.D. Pa. Apr. 15, 2014); Dunbar v. Barone, No. 09-cv-245, 2012 WL 259982, at *5-8 (W.D.

Pa. Jan. 27, 2012); see also Armstrong v. Wetzel, No. 13-cv-1300, 2015 WL 2455418, at

(W.D. Pa. May 22, 2015) (finding that plaintiff “nas come forward with no evidence to

raise a genuine issue of material fact’ or to “explain” evidence raised by defendants on

summary judgment that indicated he had staged an assault in prison for which he was suing

defendants).

Thus, for the reasons stated above, the Court will adopt the R&R’s findings regarding

consent and will deny the corresponding portion of Defendants’ motion for summary

judgment.

B. QUALIFIED IMMUNITY

Defendants also argue that they are entitled to qualified immunity on the federal

constitutional claims as Landau’s constitutional rights were not violated because he

consented to the sexual contact with Zong and because even if he did not consent, “the

Third Circuit only just decided that sexual abuse constitutes cruel and unusual punishment

under the Eighth Amendment,” citing Ricks, 891 F.3d at 471 (“Whether sexual abuse can

constitute ‘cruel and unusual punishment’ under the Eighth Amendment is a matter of first

impression in our Court.”) (Doc. 175 at 8). As previously noted, Landau responds that

16

consent is both unavailable as a defense as a matter of law and factual disputes here

regarding consent preclude entry of summary judgment. (Doc. 191 at 11). He also

counters that the right of Landau to be free from sexual abuse has been clearly established

for years, citing Pennsylvania state law criminalizing sexual contact between an inmate and

a DOC employee, 18 Pa. Stat. and Cons. Stat. Ann. § 3124.2, the federal Prison Rape

Elimination Act, 34 U.S.C. § 30301, et seq. (formerly cited as 42 U.S.C. § 15601, ef seq.),

and associated regulations 28 C.F.R. §§ 115.5-115.501, and the internal policies of the

DOC. (Doc. 191 at 11-12). He also cites district court decisions from the Third Circuit prior

to Ricks permitting Eighth Amendment claims regarding sexual abuse in prisons. (Doc. 191

at 13); Carrigan v. Davis, 70 F. Supp. 2d 448, 454, 461 (D. Del. 1999): Minton v. Guyer, No.

12-cv-6162, 2014 WL 1806844, at *7 n.5 (E.D. Pa. May 7, 2014). He also notes that

Defendants fail to cite any authority granting qualified immunity to prison officials for

constitutional claims related to sexual abuse of inmates. (Doc. 191 at 14).

Magistrate Judge Carlson, as discussed supra, determined in the R&R that consent

was a matter for the jury in this case, and this Court agrees with that determination. He also

finds that it is not dispositive that Ricks may have been the first Third Circuit case to

address “the question of whether sexual abuse of inmates by prison officials offends the

Eighth Amendment”: “Rather, Ricks represented the latest in an unbroken line of cases

which have long recognized that sexual abuse of prisoners by their jailers offends

constitutional sensibilities.” (Doc. 203 at 22). Citing Carrigan, numerous decisions from

17

other circuit courts of appeals, and “one of the most ancient proscriptions known in the law,

a prohibition against rape and non-consensual sex[,]” Magistrate Judge Carlson concludes

that it would have been clear to correctional officers in 2014 that “an inmate’s right to be free

from the threat of coerced sexual activity at the hands of correctional officers was clearly

established.” (Doc. 203 at 22-24). Thus, Defendants cannot claim qualified immunity. (Id.

at 24).

DOC Defendants do not object to this finding of the R&R. Upon review for clear

error, the Court will adopt the R&R’s determination that Defendants cannot claim qualified

immunity because Landau’s right to not be subjected to sexual abuse in prison was clearly

established. “The doctrine of qualified immunity protects government officials ‘from liability

for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). Qualified immunity serves the dual purpose of holding government officials

accountable when their power is exercised unreasonably and protecting those officials from

“harassment, distraction, and liability when they perform their duties

reasonably.” /d. “[Qlualified immunity applies regardless of whether the government

Official's error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions

of law and fact.” Id. (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J.,

dissenting)).

18

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court articulated a two-step

test to determine the appropriate application of qualified immunity. A Court must decide: (1)

whether the facts alleged or shown by the plaintiff demonstrate the violation of a

constitutional right; and (2) if so, whether that right was “clearly established” at the time of

the alleged violation. /d. at 201. Qualified immunity attaches unless the official's conduct

violated such a clearly established right. Anderson v. Creighton, 483 U.S. 635, 640 (1987).

“As a general matter, a right is clearly established for purposes of qualified immunity when

its contours are ‘sufficiently clear that a reasonable official would understand that what he is

doing violates that right.” Williams v. Bitner, 455 F.3d 186, 191 (3d Cir. 2006)

(quoting Saucier, 533 U.S. at 202). While Supreme Court “case law does not require a case

directly on point for a right to be clearly established, existing precedent must have placed

the statutory or constitutional question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551

(2017) (quotation marks and alterations omitted). This precedent may be in the form of

“applicable Supreme Court precedent [, but] ‘[e]ven if none exists, it may be possible that a

“robust consensus of cases of persuasive authority” in the Court[s] of Appeals could clearly

establish a right for purposes of qualified immunity.” L.R. v. Sch. Dist. of Phila., 836 F.3d

235, 247-48 (3d Cir. 2016) (quoting Mammaro v. N.J. Div. of Child Prot. & Permanency, 814

F.3d 164, 169 (3d Cir. 2016)). “[I]n some cases ‘a general constitutional rule already

identified in the decisional law may apply with obvious clarity to the specific conduct in

question, even though the very action in question has [not] previously been held

19

unlawful.” Williams, 455 F.3d at 191 (alteration in original) (quoting Hope v. Pelzer, 536

U.S. 730, 741 (2002)). Nevertheless, the Supreme “Court has ‘repeatedly told courts . . .

not to define clearly established law at a high level of generality.” Kisela v. Hughes, 138 S.

Ct. 1148, 1152 (2018) (quoting City & Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775-76,

(2015)).

In the R&R, Magistrate Judge Carlson cites the opinions of numerous circuit courts

of appeals, all issued before the Third Circuit's decision in Ricks, that establish “a robust

consensus of cases of persuasive authority,” L.R., 836 F.3d at 247-48, that indicate that

sexual abuse of inmates by prison staff can violate the Eighth Amendment. (Doc. 203 at 22

(citing decisions from the D.C., Second, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits)).

Further, the Third Circuit has, in other contexts involving government employees, found that

“freedom from invasion of [one’s] personal security through sexual abuse’ is a clearly

established fundamental right protected by the Constitution. Stoneking v. Bradford Area

Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989) (involving claims against school district officials

arising from a teacher's sexual assault of a student). Indeed, given the allegations

presented here by Landau—sexual harassment and abuse up to and including rape—‘the

right here is so ‘obvious’ that it could be deemed clearly established even without materially

similar cases.” Kane v. Barger, 902 F.3d 185, 195 (3d Cir. 2018) (involving police officer

inappropriately touching and taking indecent photographs of a possible sexual assault victim

for his own gratification and not in furtherance of an investigation of the sexual assault)

20

(citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Defendants were on notice that Landau

had a right to be free from sexual abuse, and thus, the Court denies their request for

summary judgment on the grounds of qualified immunity.

IV. CONCLUSION

For the reasons discussed above, the Court will overrule Defendants’ Objections to

the R&R (Doc. 207), adopt the R&R (Doc. 203) in its entirety, and deny Defendants’ second

motion for summary judgment (Doc. 174). The Court addresses the other motions for

summary judgment and respective R&Rs in separate Memorandum Opinions and issues a

single Order setting forth the Court’s resolution of all pending motions for summary

judgment and accompanying R&Rs and listing Landau’s remaining claims for trial.

KF

Robert D. Mariani

United States District Judge

21