Landau v. Lamas

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRIAN LANDAU,

‘CIVIL ACTION NO. 3:15-CV-1327

Plaintiff, :

:(JUDGE MARIANI)

V.

FILED

MARIROSA LAMAS, et al., SCRANTON

MAR 16 2022

Defendants. :

“REE AE

MEMORANDUM OPINION DEPUTY CLERK

|, INTRODUCTION

Here the Court considers Plaintiff Brian Landau’s Motion in Limine to Exclude the

Defense of Consent (Doc. 242). Plaintiff, an inmate in a Pennsylvania state prison at the

relevant time, originally filed this action in July 2015 against twenty-one current and former

Pennsylvania Department of Corrections ("DOC”) employees and officials. Plaintiff asserted

thirteen federal constitutional and state tort claims arising out of alleged incidents of sexual

harassment and assault committed by Defendant Rebecca Zong, a former DOC corrections

officer. Following extensive motion practice, the following claims set out in Plaintiffs

Amended Complaint (Doc. 88) remain for trial: Count | — Violation of Eighth Amendment

(sexual assault) against Defendant Zong; Count II - Violation of Eighth Amendment

(deliberate indifference) against Defendants Zong, Rogers, Bumbarger, Nicholas,

Cienfuegos, Foster, and Miller; Count Ill - Violation of Fourteenth Amendment (invasion of

privacy) against Defendants Zong, Rogers, Bumbarger, Nicholas, Cienfuegos, Foster, and

Miller; Count IV — Violation of Fourth Amendment (unreasonable search and seizure)

against Defendant Zong; Count V — Violation of Fourth and Eighth Amendments (failure to

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

Miller; Count VI — Violation of Fourth and Eighth Amendments (allure to supervise) against

Defendant Rogers; Count XII - Sexual Assault claim against Defendant Zong; Count XIll -

Sexual Battery claim against Defendant Zong; and Count XVI — Invasion of Privacy claim

against Defendant Zong. (See Doc. 230 § 4.)

With the pending motion, Plaintiff asks the Court to “prohibit introduction of any

testimony or evidence at trial that would tend to suggest consent to sexual activity on the

part of the plaintiff in support of an affirmative defense of consent.” (Doc. 242 at 1.) For the

reasons that follow, the Court concludes that Plaintiff's motion is properly denied.

Il. ANALYSIS

With this Motion, Plaintiff seeks to preclude the use of consent as a defense to

Plaintiffs sexual assault allegations. In support of his position, Plaintiff cites E.D. v.

Sharkey, 928 F.3d 299, 308 (3d Cir. 2019). Plaintiff asserts that, in Sharkey, “the Third

Circuit recently affirmed a district court’s finding that a detainee cannot consent to sexual

activity with a guard.” (Doc. 243 at 2.) Based on the affirmance, Plaintiff maintains that □□□□□

is now clear . . . that the Third Circuit has ruled out the affirmative defense of consent in the

prison context. In the wake of that precedential ruling, it would be reversible error to

entertain an affirmative defense of consent here.” (/d. at5.) Defendants counter that “the

availability of a consent defense was not squarely before the [Sharkey] Court nor

specifically decided. However, the Court did note the issue is for the jury or fact finder.”

(Doc. 253 at 3-4.)

“The purpose of a motion in limine is to allow the trial court to rule in advance of trial

on the admissibility and relevance of certain forecasted evidence.” United States v.

Tartaglione, 228 F. Supp. 3d 402, 406 (E.D. Pa. 2017). A court may exercise its discretion

to rule in limine on evidentiary issues “in appropriate cases.” /n re Japanese Elec. Prods.

Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev'd on other grounds sub nom.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed.

2d 538 (1986). Nevertheless, 4 “trial court should exclude evidence on a motion in limine

only when the evidence is clearly inadmissible on all potential grounds.” Tartaglione, 228 F.

Supp. 3d at 406.

The Court concludes that a close reading of the Third Circuit opinion and the District

Court's relevant findings shows that, contrary to Plaintiffs argument, Sharkey did not rule

out the affirmative defense of consent in the prison context. In the context of an

interlocutory appeal of the District Court's denial of summary judgment in which the

defendants asserted entitlement to qualified immunity on a female immigration detainee’s

claims related to sexual relations she had with a detention center employee, the Circuit

Court agreed with the lower court that E.D.’s claims against the individual defendants

alleged the violation of a known constitutional right. 928 F.3d at 303-07. The right

identified is “[t]he right to ‘not be sexually assaulted by a state employee while in

confinement.” /d. at 307 (citing Beers-Capitol v. Whetzel, 256 F.3d 120, 143 n.15 (3d Cir.

2001) (citing Farmer v. Brennan, 511 U.S. 825, 833-34 (1994), and Stoneking v. Bradford

Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989))). The Circuit Court also noted that

the District Court fittingly recognized that Sharkey's conduct was illegal in the

state in which it occurred. He committed institutional sexual assault in violation

of Pennsylvania Statute 18 Pa.C.S. § 3124.2, which forbids an employee of a

“residential facility serving children and youth” from having sexual intercourse

with a “detainee,” regardless of whether the detainee gave consent. See 18

Pa.C.S. § 3124.2 (a).

928 F.3d at 308.

After concluding that the detention center defendants had notice that the individual

employee's “conduct was violative and their purported failure to intervene and protect [the

detainee] could be found to have violated the plaintiffs right to be free of sexual assault,” id.,

the Circuit Court noted the following:

On appeal, the individual Defendants argue E.D. failed to allege a constitutional

right violation because the sexual intercourse between Sharkey and E.D. was

consensual... . We agree with the District Court that the evidence regarding

whether the sexual intercourse was consensual “presents a_ sufficient

disagreement to require submission to a jury,” and therefore constitutes a

genuine dispute of material fact. Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct.

2505.

However, given the findings of the District Court, which we adopt when

reviewing the denial of summary judgment, we question whether the issue of

consent will be deemed relevant at trial. Schieber v. City of Phila., 320 F.3d

(409, 415 (3d Cir. 2003). The Court found that E.D. was “detained” and that,

under ICE policies and standards, as well as Pennsylvania law, any sexual

contact between a staff member and a detainee constitutes sexual

abuse regardless of consent. We find, therefore, the Court's factual findings

support its ruling that E.D. sufficiently pled a due process rights violation by

alleging she and Sharkey had sexual contact, notwithstanding its finding that

whether she consented to the contact is in dispute. .

928 F.3d at 308.

The quoted material indicates that Sharkey did not, as argued by Plaintiff, affirm the

District Court’s “finding that a detainee cannot consent to sexual activity with a guard” (Doc.

243 at 2) or “rule out the affirmative defense of consent in the prison context” (id. at 5). To

the contrary, the quoted material shows that the Circuit Court agreed with the District Court

that “evidence regarding whether the sexual intercourse was consensual presents a

sufficient disagreement to require submission to a jury, and therefore constitutes a genuine

dispute of material fact.” 928 F.3d at 308 (internal quotation and citation omitted). Thus,

' The District Court disposed of the summary judgment motion by Order of March 27, 2017. See

E.D. v. Sharkey, Civ. A. No. 16-2750, 2018 WL 11227442 (E.D. Pa. Mar. 27, 2018). A review of the

Eastern District docket indicates that the memorandum opinion referenced in the March 27, 2018, Order,

2018 WL 11227442, at *3 n.7 (citing “Mem. Op. at 17, Doc. No. 56), is the May 16, 2017, Memorandum

Opinion which decided the defendants’ motions to dismiss. (See E.D. Pa. Civ. A. No. 16-2750 Doc. 56.)

The May 16, 2017, Order concluded that “there are genuine issues of material fact concerning . . . whether

the plaintiff and Danial Sharkey had a consensual sexual relationship,” 2018 WL 11227442, at *2n.3, and

“the issue of whether the plaintiff's relationship with Danial Sharkey was consensual raises a genuine issue

of material fact,” id. at*3.n.7. Though, as set out in the text, the Circuit Court agreed with these findings, it

also noted that “given the findings of the District Court, which we adopt when reviewing the denial of

summary judgment, we question whether the issue of consent will be deemed relevant at trial. Schieber v.

City of Phila., 320 F.3d at 415.” The Circuit Court’s reason for questioning relevancy of the consent issue

at trial cannot be gleaned from the Circuit Court's opinion or from the District Court’s Order, Civ. A. No. 16-

2750, 2018 WL 11227442 (E.D. Pa. Mar. 27, 2018). A review of Scheiber provides no insight on the matter

in that Schieber did not address the issue of consent, but rather explained the Circuit Court's jurisdiction

over a District Court order denying qualified immunity at the summary judgment stage:

This Court has jurisdiction to review a District Court order denying qualified immunity at the

summary judgment stage under the collateral order doctrine to the extent that the denial

turns on questions of law. Mitchell v. Forsyth, 472 U.S. 511, 527-28, 105 S.Ct. 2806, 86

L.Ed.2d 411 (1985). We exercise plenary review over the questions of law. See Eddy v. V.1.

Water & Power Auth., 256 F.3d 204, 208 (3d Cir.2001). We have no jurisdiction, however,

5 :

the Court concludes that the availability of a consent defense was not squarely before the

Circuit Court and dicta contained in the opinion does not suggest that the Circuit Court

would foreclose the consent defense in an institutional sexual assault case as a matter of

law.

Because Plaintiff has not shown that the Court of Appeals for the Third Circuit has

ruled out consent as a defense to an Eighth Amendment claim involving an alleged sexual

assault by a prison employee, the Court concludes that Plaintiff has presented no basis to

alter the analysis and conclusion set out in the Court's August 1, 2019, Memorandum

Opinion that the disputed factual record on the issue of consent presents matters properly

. considered by a jury (see Doc. 228 at 8-16).

Recent decisions from other circuit courts and a Third Circuit District Court further

support this determination. In his Report and Recommendation, Magistrate Judge Martin C.

Carlson listed cases indicating an acceptance of consent as a defense to constitutional tort

claims to include decisions from the Sixth, Eighth, Ninth, and Tenth Circuits. (Doc. 203 at

14 (citing Graham v. Sheriff of Logan Cty., 741 F.3d1118, 1124 (10th Cir. 2013); Wood v.

in an interlocutory appeal to review a District Court's determination that there is sufficient

record evidence to support a set of facts under which there would be no

immunity. See Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238

(1995). Thus, where the District Court has adopted a set of facts for the purpose of ruling on

the qualified immunity issue, we must accept those facts when reviewing a denial of

immunity. /d. at 319, 115 S.Ct. 2151.

Schieber, 320 F.3d at 415.

Beauclair, 692 F.3d 1041, 1049 (9th Cir. 2012); Hall v. Beavin, 202 F.3d 268 (6thCir. 1999):

and Freitas v. Ault, 109 F.3d 1335,1338 (8th Cir. 1997)).) Since then, the Sixth Circuit has

confirmed that the consent defense is available and joined the Ninth Circuit in adopting a

rebuttable presumption that sexual conduct between prison officials and persons behind

bars was nonconsensual. Hale v. Boyle County, 14 F.4%" 845, 854 (6t Cir. 2021) (citing

Rafferty v. Trumbull County, 915 F.3d 1087, 1096 (6t Cir. 2019): Wood, 692 F.3d at 1047-

49). Wood explains its approach as follows:

While we understand the reasons behind a per se rule that would make

prisoners incapable of legally consenting to sexual relationships with prison

officials, we are concerned about the implications of removing consent as a

defense for Eighth Amendment claims. On the other hand, allowing consent as

a defense may permit courts to ignore the power dynamics between a prisoner

and a guard and to characterize the relationship as consensual when coercion

is clearly involved. We believe the better approach is a rule that explicitly

recognizes the coercive nature of sexual relations in the prison environment.

Therefore, when a prisoner alleges sexual abuse by a prison guard, we believe

the prisoner is entitled to a presumption that the conduct was not consensual.

The state then may rebut this presumption by showing that the conduct

involved no coercive factors. We need not attempt to exhaustively describe

every factor which could be fairly characterized as coercive. Of course, explicit

assertions or manifestations of non-consent indicate coercion, but so too may

favors, privileges, or any type of exchange for sex. Unless the state carries its

burden, the prisoner is deemed to have established the fact of non-consent.

692 F.3d at 1048-49.

In Walker v. County of Gloucester, ---F. Supp. 3d---, 2022 WL 221164 (D.N.J. Jan.

25, 2022), the District Court analyzed the “middle-ground that recognizes the severe power

imbalance between a corrections officer and an inmate, but also respects the autonomy of

the inmate.” 2022 WL 221164, at *2 (citing Wood, 692 F.3d at 1047-49: Hale, 18 F.4 at

/

854). Finding “no recent circuit court opinions that readily conflict with this view,” the District

Court denied the plaintiff's motion in limine to exclude evidence of consent and allowed the

defendants to “produce evidence at trial of non-coerciveness which rebuts the presumption

that the sexual contact was non-consensual or coercive.” /d. at *3.

This Court agrees with this position which recognizes the power imbalance inherent

in the guard/inmate context yet recognizes that “inmates are adults and not incompetents or

children,” id. Therefore, Plaintiffs Motion in Limine to Exclude the Defense of Consent

(Doc. 242) will be denied and Defendants will be allowed to present evidence of non-

coerciveness consistent with this opinion.

Ili. CONCLUSION

For the reasons discussed above, the Court will deny Plaintiffs Motion in Limine to

Exclude the Defense of Consent (Doc. 242). A separate Order will be entered.

FN saa LN

4‘ UM redbicr

Robert D. Mariani

United States District Judge