KWANZAA v. BROWN et al

Filing 167

OPINION re 144 MOTION to Seal, 9 Letter, 162 MOTION to Seal Document 156 MOTION for Temporary Restraining Order, 161 Brief in Opposition to Motion, MOTION to Seal Document 156 MOTION for Temporary Restraining Order, 150 MOTION for Summary Judgment, 135 MOTION to Seal Document 134 Third MOTION for Summary Judgment, 146 MOTION for Summary Judgment. Signed by Judge Renee Marie Bumb on 11/17/2009. (nf, )

NOT FOR PUBLICATION

[Dkt. Nos. 9, 134, 135, 144, 146, 150, 156, 162]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE

CHAKA KWANZAA, Plaintiff, v. DEVON BROWN, et al., Defendants. Appearances: Chaka Kwanzaa # 96993-B / 238671 C.R.A.F.­E-2-W P.O. Box 7450 West Trenton, NJ 08628 Plaintiff, pro se Thomas Edward Kemble Office of the N.J. Attorney General 25 Market St. P.O. Box 112 Trenton, NJ 08625-0112 Attorney for Defendants J. Knowles, L. Sherrer, L. Crenny, J. Caldwell, K. MacFarland, A. Jallott, G. Eisinger, J. Dice, C. McDowell, and J. Wehrwein James R. Birchmeier Powell, Birchmeier & Powell 1891 State Highway 50 P.O. Box 582 Tuckahoe, NJ 08250-0582 Attorney for Defendants J. Knowles, L. Sherrer, K. MacFarland, and G. Eisinger (as to medical claims) Timothy M. Crammer Crammer, Bishop, Marczyk & O'Brien, PC 508 New Jersey Ave., Suite B3 1 Civil No. 05-5976 (RMB) OPINION

Abescon, NJ 08201 Attorney for Defendants S. Kudla, F. Green, T. Pipitione, N. Shah, D. Hollenbeck

BUMB, United States District Judge: I. Introduction This matter comes before the Court upon three motions: Plaintiff's Motion for Reconsideration [Docket No. 9]; Defendants' Motion for Summary Judgment [Docket No. 134, 146, 150]1, and Plaintiff's Motion for a Temporary Restraining Order [Docket No. 156]. For the reasons set forth below, Plaintiff's

requests for reconsideration of this Court's August 17, 2006 Order and a Temporary Restraining Order are denied and summary judgment as to all claims is granted in Defendants' favor.
II.

Procedural History A. Complaint

Plaintiff Chaka Kwanzaa, an inmate of the New Jersey Department of Corrections ("NJDOC") currently incarcerated at East Jersey State Prison in Rahway, New Jersey, is serving a
1

Three Motions for Summary Judgment were filed by separate groups of Defendants: (1) Defendants J. Knowles, L. Sherrer, L. Crenny, J. Caldwell, K. MacFarland, A. Jallott, G. Eisinger, J. Dice, C. McDowell, and J. Wehrwian (the "State Defendants") [Docket No. 134]; (2) Defendants S. Kudla, F. Green, T. Pipitione, N. Shah, D. Hollenbeck (the "CMS Defendants")[Docket No. 146]; and (3) the State Defendants' Motion for Summary Judgment with respect to any and all claims relating to inadequate medical care [Docket No. 150]. Because the issues in these motions overlap, the Court addresses all three summary judgment motions in this Opinion. 2

sentence of 20-23 years, 7 years minimum for robbery.

(State

Defendants' Statement of Facts ("State Def. SOF") at ¶1.) Plaintiff submitted a Complaint on or about December 28, 2005 stating several constitutional claims against various corrections officers, prison administrators and medical providers [Docket No. 7]. Plaintiff noted in this Complaint that he had filed an

earlier action stating some of the same claims but that his Complaint had been dismissed pursuant to Fed.R.Civ.P. 8(a)(2). Compl. at ¶4. See Doe v. Knowles, et al., Civil No. 03-3956 Plaintiff

(D.N.J. Feb. 8, 2005) (order dismissing complaint).

timely appealed this dismissal but failed to prosecute the appeal. See Kwanzaa v. Knowles, et al., Civil No. 05-1928 (3d

Cir. June 6, 2005) (order dismissing appeal). The Court reviewed the Complaint Plaintiff filed in 2005 pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A and permitted Plaintiff's cognizable claims to proceed [Docket No. 6]. Because

it appeared that Plaintiff could allege facts necessary to support an excessive force claim against one of the State Defendants, the Court permitted Plaintiff the opportunity to amend his Complaint within thirty days, subject to Fed.R.Civ.P. 15, to properly state this claim [Docket No. 5 and 6].2 B. Amended Complaint On September 1, 2006, Plaintiff sent a letter3 to the Clerk
2 3

See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Because Plaintiff's letter was docketed as a letter, and not as a motion seeking reconsideration, no action was taken on the 3

requesting reconsideration of the Court's August 17, 2006 Order and Opinion and attached an Amended Complaint [Docket No. 9].4 Plaintiff's Amended Complaint restated several claims that the Court had previously dismissed, as well as several new parties. These parties are not properly before the Court.5 letter. Almost three years later, on March 16, 2009, Plaintiff filed a second letter in which he questioned why the Court did not address his request for reconsideration. [Docket No. 127.] The Court will now consider whether the Court's Opinion and Order dismissing several of Plaintiff's claims was justified. 4 The Amended Complaint was not docketed as such until November 27, 2006. 5 Despite being granted only limited leave to amend his Complaint, see August 17, 2006 Order at 3[Docket Item 6], Plaintiff's Amended Complaint named new Defendants: Capt. Dawson, S.C.O. Reiley, Sgt. Augustine, S.C.O. Regbee, Nurse Feldman and Nurse Mayo. However, these parties were never served with process or otherwise mentioned in any of Plaintiff's numerous pleadings. "As proper service is a prerequisite to personal jurisdiction," these parties are not properly before this Court. Travillion v. Coffee, 248 Fed.Appx. 335, 337 (3d Cir. 2007), cert. denied, 128 S.Ct. 1478 (2008). Nonetheless, even assuming these parties were properly before this Court, dismissal of Plaintiff's claims against these Defendants would be warranted. Ordinarily, "an incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint, and, having provided the necessary information to help effectuate service, plaintiff should not be penalized by having his or her action dismissed for failure to effect service." Muhammad v. Dep't of Corrections, Civ. No. 05-4999, 2008 WL 4911876, at *14 n.16 (D.N.J. Nov. 12, 2008) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)). However, the facts here do not relieve Plaintiff from his obligation to prosecute diligently his suit against these added Defendants. Plaintiff never addressed these parties in any other pleading. Plaintiff filed no less than four requests for default without ever asking that default be entered against the parties he added in the Amended Complaint [Docket Items 13, 24, 30, 80]. Plaintiff also submitted a Pretrial Memorandum and Statement of Material Facts that did not address these parties [Docket Items 37 and 98]. Given Plaintiff's failure to address the parties added in his Amended Complaint in over four years, dismissal 4

would be warranted. See VanDiver v. Martin, 304 F.Supp.2d 934, 942 (E.D. Mich. 2004)(pro se prisoner's silence after being notified that defendants had not been served, and in absence of evidence that plaintiff took any steps to ensure that defendants were served, warranted dismissal of claims against unserved defendants); see also Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987) ("While [plaintiff] and other incarcerated plaintiffs proceeding in forma pauperis may rely on service by the U.S. Marshals, a plaintiff may not remain silent and do nothing to effectuate such service. At a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent service defects of which a plaintiff has knowledge."). Moreover, even if this Court were to permit a curative amendment to properly add these parties at this late date, such amendment would be futile. See Alston, 363 F.3d at 235-36. Federal Rule of Civil Procedure 15(c) governs the circumstances under which an amendment will relate back to the original pleading. Three conditions must be met: (1) the claim against the newly named defendants must have arisen out of the same conduct, transaction, or occurrence set forth in the original complaint, (2) the newly named party must have received notice of the action within the 120-day period for service of the summons and complaint, such that the party would not be prejudiced in maintaining a defense on the merits, and (3) the newly named party must have known, or should have known, that he or she would have been named as a defendant but for plaintiff's mistake. Singletary v. Penn. Dep't of Corrections, 266 F.3d 186, 194 (3d Cir. 2001). These conditions are not met here. Plaintiff's claims against Capt. Dawson, S.C.O. Reiley, Sgt. Augustine and S.C.O. Regbee do not arise out of any conduct, transaction or occurrence that was set forth in the original complaint, thus failing the first condition for relation back. Rather, Plaintiff's claims against these Defendants originate from separate incidents not previously pled. Plaintiff's claim against Capt. Dawson arises out of a January 2006 incident where Plaintiff alleges that he was prevented from attending a religious service because Capt. Dawson ordered that Plaintiff be locked in the medical department waiting room. See Am. Compl. at ¶20. Plaintiff alleges that on August 20, 2006, Sgt. Augustine searched Plaintiff's cell and confiscated Plaintiff's medication in retaliation for grievances that Plaintiff filed against Sgt. Augustine. See Am. Compl. at ¶23. Finally, Plaintiff alleges that on August 28, 2006, S.C.O. Regbee harassed Plaintiff and put items in Plaintiff's food in retaliation for grievances Plaintiff filed. See Am. Compl. at ¶24. Plaintiff makes no specific, factual allegations as to Nurse Feldman or Nurse Mayo; Plaintiff simply adds these parties to his list of CMS Defendants. See Am. Compl. ¶¶26 and 27. But even if 5

the Court were to consider Plaintiff's claims against these Defendants to arise out of the same conduct, there is no reason to believe that Nurse Mayo or Nurse Feldman had notice, actual or constructive, of Plaintiff's suit within the required 120-day time period, which began to run on August 17, 2006 upon this Court's Order directing service of Plaintiff's original Complaint. See Urrutia v. Harrisburg County Police Dep't, 91 F.3d 451, 453-54 (3d Cir. 1996). Knowledge cannot be imputed to Nurse Mayo or Nurse Feldman via a "shared attorney" because, even if the Court assumes that these new parties would have been represented by counsel for the other CMS Defendants, CMS's counsel did not enter his appearance until February 19, 2007, after the 120 day-period had run. See Singletary, 266 F.3d at 197 (concluding that notice was not provided via "shared attorney" method for imputing notice where attorney's representation of original defendants commenced after the 120-day period). Similarly, the facts here do not suggest that there was sufficient identity of interest between the CMS Defendants named in the original Complaint and the two CMS nurses added in Plaintiff's Amended Complaint to infer notice. Plaintiff alleges no facts regarding his contact with Nurse Mayo or Nurse Feldman to suggest any reason to believe that these parties would be on notice that Plaintiff had initiated suit against the other CMS Defendants and that suit would likely be initiated against them as well. See id. at 197-99 (citing Ayala Serrano v. Lebron Gonzalez, 909 F.2d 8, 13 (1st Cir. 1990) (imputing notice of initiation of suit to previously unnamed prison guard was reasonable where plaintiff had named the guard's superiors, guard was present at alleged attack and guard continued to have regular contact with plaintiff in Intensive Treatment Unit); Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998) (imputing notice of initiation of suit to previously unnamed officers was reasonable where city attorney would necessarily have investigated and interviewed unnamed officers to answer Complaint)). Said simply, there is no allegation that either Nurse Mayo or Nurse Feldman was present during any particular incident that is alleged to have caused Plaintiff injury. Nor is their any allegation that these Nurses had regular contact with Plaintiff, which would otherwise make their awareness of Plaintiff's suit more likely. For these same reasons, there was also no cause for Nurse Mayo or Nurse Feldman to believe that, but for Plaintiff's mistake, either Nurse would have been named in this litigation. See Fed.R.Civ.P. 15(c)(1)(C)(ii). And even though Plaintiff identifies "John Does" as Defendants, which could indicate that Plaintiff was mistaken regarding a defendant's identity, see Singletary, 266 F.3d at 201, Plaintiff here had every opportunity to conduct discovery to confirm that all proper defendants were 6

C. Claims At Issue 1. State Defendants Plaintiff states cognizable claims against two separate groups of Defendants. The State Defendants are administrators J. Knowles

and corrections officers who work for the NJDOC:

("Knowles"), the former Assistant Superintendent of New Jersey State Prison ("NJSP") (Knowles Decl. at ¶1); L. Sherrer

("Sherrer"), Deputy Commissioner of the NJDOC Division of Operations and former Administrator of Northern State Prison ("NSP") (Sherrer Decl. at ¶1); L. Crenny ("Crenny"), Corrections Sergeant at Bayside State Prison ("BSP") (Crenny Decl. at ¶1); J. Caldwell ("Caldwell"), Senior Corrections Officer at BSP (Caldwell Decl. at ¶1); K. MacFarland ("MacFarland"), former Administrator of South Woods State Prison ("SWSP") (MacFarland Decl. at ¶1); A. Jalloh
6

("Jalloh"), Associate Administrator of

SWSP (Jalloh Decl. at ¶1); G. Eisinger ("Eisinger"), former Corrections Sergeant at SWSP (Eisinger Decl. at ¶1); J. Dice identified. See Garvin v. City of Philadelphia, 354 F.3d 215, 227-28 (3d Cir. 2003) (refusal to allow amendment of civil rights complaint warranted where plaintiff did not diligently seek to determine identity of defendants within limitations period). The Court also finds that, at this late date, the parties added in the Amended Complaint would be unfairly prejudiced if they were forced to prepare a defense regarding events that occurred well over four years ago. See Singletary, 266 F.3d at 194 n.3. (agreeing that a defendant, who received no notice of an action within requisite 120-day period and where events occurred more than four years ago, would suffer unfair prejudice). 6 The Court notes the discrepancy between the name "A. Jallot," as listed on the Court's Docket and the "A. Jalloh" as stated in Mr. Jalloh's Declaration. The Court adopts the spelling "Jalloh" hereafter. 7

("Dice"), former Corrections Sergeant at SWSP (Dice Decl. at ¶1); C. McDowell ("McDowell"), Corrections Sergeant at SWSP (McDowell Decl. at ¶1), and J. Wehrwein7 ("Wehrwein"), Senior Corrections Officer at SWSP (Wehrwein Decl. at ¶1). 2. CMS Defendants

The CMS Defendants are nurses and doctors who work for Correctional Medical Services, Inc., a private corporation that provides and manages the medical care system for the NJDOC. CMS Defendants include: Registered Nurse S. Kudla ("Kudla"), Nurse Practitioner F. Green ("Green"), Registered Nurse T. Pipitione ("Pipitone"), Doctor N. Shah ("Shah"), and Registered Nurse D. Hollenbeck ("Hollenbeck").8 Both groups of Defendants filed prior Motions for Summary Judgment, [Docket Items 33, 93, 94], which the Court denied as premature [Docket Items 53, 110].
7

The

Discovery has now concluded,

The Court also notes the discrepancy between the name "Wehrwian" as listed on the Court's Docket and the name "Wehrwein" as stated in Mr. Wehrwein's Declaration. The Court adopts the spelling "Wehrwein" hereafter. 8 The Court also notes that the Summons for Defendants Doctor Hellander and Nurse S. Kuhn were returned unexecuted because Doctor Hellander and Nurse Kuhn were "no longer employed" by CMS [Docket Item 27]. As previously noted, "proper service is a prerequisite to personal jurisdiction." Travillion, 248 Fed.Appx. at 337. The Court further notes that Plaintiff was permitted to conduct discovery to ensure that all proper Defendants were identified. Here, Plaintiff had an obligation to request information regarding Hellander's and Kuhn's whereabouts so as to effect proper service. Plaintiff's failure to do so after several years of litigation would warrant dismissal of his claims as to these Defendants. See Rochon, 828 F.2d at 1110 ("plaintiff may not remain silent and do nothing to effectuate such service . . . a plaintiff should . . . attempt to remedy any apparent service defects of which a plaintiff has knowledge."). 8

and Defendants' Motions for Summary Judgment are ripe for review. D. Motion for Temporary Restraining Order

On or about September 11, 2009, Plaintiff filed a Motion for Temporary Restraining Order and Motion for a Court Appointed Federal Investigator [Docket No. 156]. stated several new claims. In this motion, Plaintiff

Plaintiff sought emergency relief

from a) the impairment of his religious freedom, b) discrimination based on disability and c) denial of access to medical devices. Plaintiff also complained that he was exposed

to second-hand smoke and has been denied "necessities" such as clean sheets, showers, yard, proper ventilation, heat, and clean drinking water. Plaintiff also complains that he has been denied (See Pl.'s Br. in Support

the right to purchase postage stamps. of TRO Motion 1-3.)
III.

Statement of Facts In his Complaint and Amended Complaint, Plaintiff alleged

numerous constitutional violations against both the State Defendants and the CMS Defendants. Plaintiff's claims arise The facts regarding

predominantly from three separate events.

these events, as derived from the parties' Rule 56.1 Statements, are set forth below. A. See L. Civ. R. 56.1(a).

Transfer from NSP to BSP

On July 9, 2004, Defendant Sherrer, then Administrator of Northern State Prison ("NSP"), authored a memo to the inmate 9

population advising that "full minimum" inmates in the general population would be transferred to Bayside State Prison ("BSP"). (Pl. SOF at ¶39; State Def. SOF at ¶4.) Plaintiff was (Pl.

reclassified to full minimum status on November 16, 2004. SOF at ¶5; State Def. SOF at ¶6.)

Plaintiff informed Defendant

Sherrer that he did not want to be placed in full minimum camp. (Pl. SOF at ¶5.) On January 14, 2005, Plaintiff submitted a

grievance to Defendant Sherrer requesting not to be transferred. (Pl. SOF at ¶4.) However, on January 19, 2005, Plaintiff was (Pl. SOF at ¶6; State Def. SOF at ¶7.)

transferred to BSP.

Plaintiff alleges that the transfer was retaliation for a grievance Plaintiff had filed against Defendant Sherrer. Dep. 14:25 - 15:1, Nov. 7, 2007.) B. February 3, 2005 Incident (Pl.

Plaintiff also alleges that on January 27, 2005, Defendant Officer J. Caldwell subjected him to an arbitrary cell search. (Pl. SOF at ¶7.) Plaintiff filed a grievance and verbal

complaint regarding the search and claims that in retaliation for this complaint, Caldwell arbitrarily searched Plaintiff's cell again on February 3, 2005. (Id.)

Defendants contend that when Caldwell conducted a routine cell search on February 3, 2005, he was unable to unlock
9

Plaintiff filed his Statement of Material Facts as an attachment to a Motion to Compel Discovery,[Docket Item No. 98], presumably in response to Defendants' first Motion for Summary Judgment. [Docket Item No. 93.] 10

Plaintiff's footlocker because there was something jammed inside the lock's keyhole. (State Def. SOF at ¶8.) According to

Defendants, Plaintiff became loud and disruptive, shook his cane at Caldwell and directed that Caldwell could not search Plaintiff's property without a camera, a sergeant, and Plaintiff present. (State Def. SOF at ¶10.) Defendants contend that the

footlocker lock had to be cut off because Plaintiff refused to cooperate. (State Def. SOF at ¶11.) As a result of this

incident, Caldwell confiscated Plaintiff's lock and cane, prepared confiscation paperwork, and issued three disciplinary charges to Plaintiff. (State Def. SOF at ¶¶14, 16.)

After the altercation over the lock, Officers escorted Plaintiff to the infirmary so that Plaintiff could be examined prior to being placed in detention. Motion to Seal Ex. A. at 3.) (Kemble Decl. in Support of

Plaintiff claims that while he was

being carried to the infirmary in handcuffs, Defendant Crenny assaulted him and used excessive force by bending his fingers back. (Pl. SOF at ¶9; Am. Compl. ¶13.) (Crenny Decl. at ¶5.) Defendant Crenny denies Defendants claim that

this allegation.

during the escort, Plaintiff was loud and aggressive and threatened to hurt Defendant Crenny "with or without a cane." (State Def. SOF at ¶19.) Plaintiff was evaluated in the infirmary and then placed in detention. (Pl. SOF at ¶10.) Defendants contend that Plaintiff

suffered no physical injury, as supported by the medical records 11

from February 3, 2005.

(State Def. SOF at ¶25.)

Those records

state that there were "no visible injuries noted on [Plaintiff's] back or hands." A. at 3) (Kemble Decl. in Support of Motion to Seal Ex.

Following the escort, Defendant Crenny prepared a

special report and issued Plaintiff disciplinary charges for his threatening behavior. (State Def. SOF at ¶¶20-21.) Plaintiff (Pl. SOF

contends that he was found not guilty of these charges. at ¶11.) C. March 17, 2005 Incident

On March 17, 2005, Plaintiff was transferred to South Woods State Prison ("SWSP"). (Pl. SOF at ¶12; Def SOF at ¶26.) When

Plaintiff arrived at SWSP, Defendant Sergeant Eisinger ordered Plaintiff to stand against the wall while his housing assignment was made. (State Def. SOF at ¶28.) Plaintiff alleges that

Defendant Eisinger's orders were against his medical restrictions. (Pl. SOF at ¶12.) Plaintiff also claims that he

held up his medical records and informed Defendant Eisinger that he could not stand for prolonged periods of time. ¶13.) (Pl. SOF at

Eisinger allegedly verbally harassed him and called

Defendant Dice to take Plaintiff to the detention holding cell. (Pl. SOF at ¶¶13-14.) Defendants contend that Plaintiff became

loud and disruptive, which caused delays in religious services and inmate movements and resulted in closure of Facility Compound 3. (State Def. SOF at ¶¶ 29-30.) Defendant J. Dice supervised Plaintiff's escort to the 12

holding cell.

(State Def. SOF at ¶32.)

While Plaintiff was in

the holding cell, he complained of chest pain and shortness of breath and requested his asthma pump, which had been taken from him. (Pl. SOF at ¶15.) Plaintiff claims that after making

several pleas for medical attention, he suffered an asthma attack and fell to the floor. (Pl. SOF at ¶16.) Plaintiff alleges that Dice denies this

Dice then kicked Plaintiff. allegation.

(Pl. SOF at ¶16.)

(Dice Decl. at ¶3.)

The medical staff was called to examine Plaintiff, who was taken to the emergency room and was found to have suffered an acute asthma attack. (Pl. SOF at ¶17; Def. SOF at ¶44.)

Plaintiff's medical records indicate that when the medical staff responded to the call, Plaintiff complained of chest pain, was hostile and uncooperative. at p. EMR - 000211.) (Def. SOF at ¶42; CMS Def. Br. Ex. A.

Defendants contend that there are no

medical records that support Plaintiff's allegation that Defendant Dice assaulted him. (Def. SOF at ¶43.)

After the incident, Defendant Eisinger wrote a preliminary incident report and issued Plaintiff two disciplinary charges for "refusing to accept a housing assignment" and "conduct which disrupts." (Def. SOF at ¶¶34-35; Pl. SOF at ¶19.) Defendant

Dice wrote a special report detailing the escort and noted that Plaintiff stated that "his lawyer was the Attorney General and would sue all of [them]." (Def. SOF at ¶33.) 13

A hearing was held to adjudicate the charges issued by Defendant Eisinger. (Def. SOF ¶36.) Plaintiff alleges that

during this hearing, video tapes and medical restrictions were ignored and unconstitutional procedures were used to arbitrarily find Plaintiff guilty. (Pl. SOF at ¶20.) The hearing officer

found Plaintiff guilty of refusing to accept a housing assignment and imposed sanctions of 60 days loss of commutation time, 90 days administrative segregation and 15 days detention, but suspended the administrative segregation time for 60 days. SOF at ¶21; Def. SOF at ¶37.) Plaintiff appealed this ruling to the SWSP Administration, arguing that the procedures used were unconstitutional. SOF at ¶38-39.) (Def. (Pl.

On or about April 2005, Defendant Jalloh, an

Assistant Superintendent at SWSP, considered Plaintiff's appeal and upheld the guilty findings. ¶38-40.) (Pl. SOF at ¶22, Def. SOF at

Plaintiff then appealed Defendant Jalloh's

administrative ruling to the Superior Court of New Jersey, Appellate Division, which ultimately upheld the decision. SOF at ¶23.) Plaintiff contends that on July 12, 2005, Defendant Jalloh retaliated against him for appealing to the Appellate Division by threatening to have him placed in detention if he filed another appeal. D. (Am. Compl. at ¶18.) Other Retaliation Claims 14 (Pl.

In addition to the retaliation claims in connection with the incidents discussed above, Plaintiff alleges separate instances of retaliation by Defendants: 1) In April 2005 and again on June 9, 2005, after he filed a grievance against Defendant J. Wehrwein for searching his cell, Wehrwein retaliated by searching his cell a second time. SOF at ¶24.) 2) In or about July 2005, Defendant Dice authored a charge in retaliation for Plaintiff's appeal of the charges brought by Defendant Dice regarding the March 17, 2005 incident. at ¶26.) 3) Defendant McDowell refused to allow Plaintiff access to religious prayer services on or about September 16, 2005 and hindered Plaintiff's legal mail from being sent out on or about October 27, 2005 in retaliation for a grievance and civil action that Plaintiff filed against McDowell in 1999. ¶20; Pl. SOF at ¶32.) (Am. Compl. at (Pl. SOF (Pl.

Defendants contend that McDowell never

denied Plaintiff access to religious services or interfered with his mail. (Def. SOF at ¶55.)

4) Defendant Eisinger retaliated against him for filing grievances by filing a charge against Plaintiff on or about November 2005 that was later dismissed. (Pl. SOF at ¶27.)

5) After Plaintiff complained about the violations of his privacy rights regarding his medical information, his medical restrictions were deleted from the computer and changed from "no 15

prolonged standing" to "15 minute standing". ¶27.)

(Am. Compl. at

This allegation was not directed at any particular

defendant. E. Violations of Privacy Rights

Plaintiff also makes a variety of claims that Defendants violated his medical privacy. Plaintiff alleges that the State

Defendants violated his medical privacy rights as follows: Defendant Sherrer allowed open door medical exams (Am. Compl. at ¶10); Defendant MacFarland permitted a policy of open door medical examinations (Am. Compl. at ¶17(a)); Defendant McDowell intentionally read Plaintiff's medical records on October 7, 2005 (Am. Compl. at ¶20); Defendant Wehrwein read Plaintiff's medical records and legal papers while conducting a search of Plaintiff's cell (Am. Compl. ¶21). Plaintiff also alleges that the CMS Defendants have repeatedly violated his privacy rights since March 17, 2005 by talking about his medical information in open examination rooms with corrections officers working in the area. ¶26). (Am. Compl. at

Specifically, Plaintiff alleges that on March 17, 2005,

Defendant Nurse Kudla spoke out loud about Plaintiff's medical information in front of non-medical staff. (Pl. SOF at ¶29).

Plaintiff also alleges that Nurse Hollenbeck put a medical slip requesting a throat specialist for Plaintiff on a corrections officer's desk (Am. Compl. at ¶ 27) and that Dr. Shah called an 16

officer to the door and spoke loudly about Plaintiff's medical condition. (Pl. Dep. 127:7 - 128:8.)

F.

Wrongful Termination in Violation of the ADA

On April 14, 2005, Plaintiff filed a grievance which alleged that he was wrongfully terminated from his job in the dining hall because he uses a cane. ¶31). (MacFarland Decl. Ex. B; Pl. SOF at

On April 19, 2005, Associate Administrator Balicki

responded and stated that Plaintiff would be given a new job assignment. (MacFarland Decl. Ex. B; Def. SOF at ¶53.)

Plaintiff claims that this grievance placed the prison administrator, MacFarland, on notice of violations that occurred in the prison.
IV.

(Pl. SOF at ¶31.)

Plaintiff's Motion for Reconsideration As noted, Plaintiff's request for reconsideration of this

Court's August 17, 2006 Order was incorrectly docketed as a letter [Docket Item No. 9]. The error was discovered when

Plaintiff questioned why his Motion for Reconsideration was never addressed in a Motion to Appoint Counsel [Docket Item No. 127]. Accordingly, this Court now considers the merits of Plaintiff's request for reconsideration. A. Standard

Motions for reconsideration are not expressly recognized in the Federal Rules of Civil Procedure. 17 United States v.

Compaction Systems Corp., 88 F.Supp.2d 339, 345 (D.N.J. 1999). Generally, a motion for reconsideration is treated as a motion to alter or amend judgment under Fed.R.Civ.P. 59(e), or as a motion for relief from judgment or order under Fed.R.Civ.P. 60(b). Id.

In the District of New Jersey, Local Civil Rule 7.1(I) governs motions for reconsideration. Bowers v. Nat'l Collegiate

Athletics Ass'n, 130 F.Supp.2d 610, 612 (D.N.J. 2001). Local Civil Rule 7.1(I) permits a party to seek reconsideration by the Court of matters "which [it] believes the Court has overlooked" when it ruled on the motion. L.Civ.R.

7.1(I); see NL Industries, Inc. v. Commercial Union Ins., 935 F.Supp. 513, 515 (D.N.J. 1996). The standard for re-argument is See

high and reconsideration is to be granted only sparingly. United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994).

The movant has the burden of demonstrating either: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [issued its order]; or (3) the need to correct a clear error of law or fact to prevent manifest injustice." Max's Seafood Café v. Quinteros

ex rel. Lou-Ann, Inc., 176 F.3d 669, 677 (3d Cir. 1999) (citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). The Court will grant a motion for

reconsideration only where its prior decision has overlooked a factual or legal issue that may alter the disposition of the matter. Compaction Systems Corp., 88 F.Supp.2d at 345; see also 18

L.Civ.R. 7.1(I). the Rule."

"The word `overlooked' is the operative term in

Bowers, 130 F.Supp.2d at 612 (citation omitted); see

also Compaction Systems Corp., 88 F. Supp. 2d at 345. Ordinarily, a motion for reconsideration may address only those matters of fact or issues of law which were presented to, but not considered by, the court in the course of making the decision at issue. See SPRIG v. Monsanto Co., 727 F.Supp. 876, Thus,

878 (D.N.J.), aff'd, 891 F.2d 283 (3d Cir. 1989).

reconsideration is not to be used as a means of expanding the record to include matters not originally before the court. Bowers, 130 F.Supp.2d at 613; Resorts Int'l v. Greate Bay Hotel & Casino, Inc., 830 F.Supp. 826, 831 & n.3 (D.N.J. 1992); Egloff v. N.J. Air Nat'l Guard, 684 F.Supp. 1275, 1279 (D.N.J. 1988). Absent unusual circumstances, a court should reject new evidence which was not presented when the court made the contested decision. See Resorts Int'l, 830 F.Supp. at 831 n.3.

A party seeking to introduce new evidence on reconsideration bears the burden of first demonstrating that evidence was unavailable or unknown at the time of the original hearing. See

Levinson v. Regal Ware, Inc., Civ. No. 89-1298, 1989 WL 205724 at *3 (D.N.J. Dec. 1, 1989). Moreover, L.Civ.R. 7.1(I) does not allow parties to restate arguments which the court has already considered. Degnan, 748 F.Supp. 274, 275 (D.N.J. 1990). See G-69 v.

Thus, a difference

of opinion with the court's decision should be dealt with through 19

the normal appellate process.

Bowers, 130 F.Supp.2d at 612

(citations omitted); Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F.Supp. 159, 162 (D.N.J. 1988); see also Chicosky v. Presbyterian Medical Ctr., 979 F.Supp. 316, 318 (D.N.J. 1997); NL Industries, Inc., 935 F.Supp. at 516 ("Reconsideration motions . . . may not be used to re-litigate old matters, or raise arguments or present evidence that could have been raised prior to the entry of judgment."). In other

words, "[a] motion for reconsideration should not provide the parties with an opportunity for a second bite at the apple." Tischio v. Bontex, Inc., 16 F.Supp.2d 511, 533 (D.N.J. 1998) (citation omitted). B. Analysis Plaintiff filed a Motion for Reconsideration seeking review of the Court's August 17, 2006 Order and in such Motion attached an Amended Complaint. The Amended Complaint re-stated several However, Plaintiff's Motion is

claims that the Court dismissed.

premised solely on an equitable tolling argument, which of course is applicable only to claims previously dismissed as time-barred. Because Plaintiff states no other basis for reconsideration, the Court will not re-visit claims previously dismissed on their merits. Plaintiff's claims against Defendants Brown, Blakesee,

Sheppard, Meehan and Ireland remain dismissed with prejudice for the reasons set forth in the Court's August 17, 2006 Opinion. 20

Nor will the Court reconsider Plaintiff's claims against Defendants D'Amico, Dowlin and Oskay regarding restoration of commutation credits and denial of parole. The Court dismissed

these claims without prejudice and instructed that Plaintiff's sole federal remedy for these claims was a writ of habeas corpus filed upon the exhaustion of all available state remedies. August 17, 2006 Opinion at 56. Plaintiff's original Complaint

clearly indicated that an appeal regarding these claims was still pending. (Compl. ¶54.) Plaintiff's Amended Complaint stated

that the Appellate Division did not receive this appeal and instructed Plaintiff to re-file the appeal nunc pro tunc. Compl. ¶25.) (Am.

Because it remains unclear whether Plaintiff re-

filed his appeal, or that he has otherwise exhausted all available state remedies, Plaintiff's claims concerning commutation credit and parole denial remain dismissed without prejudice. Finally, the Court turns to Plaintiff's equitable tolling argument. Plaintiff contends that the limitations period for his

time-barred claims should be equitably tolled because he first stated these claims in a Complaint filed on or about August 15, 2003. See Doe v. Knowles, et al., Civ. No. 03-3956 (D.N.J. Aug. This 2003 Complaint was dismissed without prejudice Plaintiff argues that he "believed [that]

15, 2003).

on February 8, 2005.

by noting in the [December 28, 2005] Complaint (Kwanzaa v. Brown, 05-5976) the same claims and defendants [sic] that this case 21

would be viewed as a continuation" of the first Complaint. (Pl.'s Motion for Reconsideration Br. at 2, emphasis in original.) Plaintiff argument raises no new issues. The Court took

note of Plaintiff's August 2003 action before Judge Thompson in its August 17, 2006 Opinion, see Opinion at 3, and rejected application of the equitable tolling doctrine to Plaintiff's time-barred claims. See Opinion at 25-27. Nonetheless, in light

of Plaintiff's pro se status and novel "continuation" argument regarding his earlier filed Complaint, the Court will address the merits of Plaintiff's equitable tolling argument. As noted in the Court's August 17, 2006 Opinion, Plaintiff must have commenced his civil rights action within two years of any alleged wrongful acts to avoid the statue of limitations applicable to § 1983 claims. See Cito v. Bridgewater Township

Police Dep't, 892 F.2d 23, 25 (3d Cir. 1989); Brown v. Foley, 810 F.2d 55, 56 (3d Cir. 1987). Plaintiff submitted the Complaint Based on this

before this Court on or about December 28, 2005.

date, the Court dismissed several of Plaintiff's claims as untimely: (1) Plaintiff's complaint that he was denied access to the courts when his state court appeal was dismissed as untimely, alleged to have occurred between May 2002 and December 9, 2002; (2) Plaintiff's denial of medical care, retaliation and right to privacy claims asserted against Defendants employed at East Jersey State Prison ("EJSP"), which must have occurred prior to 22

Plaintiff's transfer from EJSP in April 2002; (3) Plaintiff's claim against Defendant Knowles arising from a December 2002 transfer; and (4) Plaintiff's claims against Defendants Sheppard and Meehan arising from proceedings that took place in August 1999, March 2001 and April 2002. Plaintiff's August 13, 2003 Complaint also stated the above listed claims. This 2003 Complaint was dismissed without

prejudice on February 8, 2005 for failure to comply with Fed.R.Civ.P. 8(a)(2). Docket Item 11.] [See Doe v. Knowles, Civ. No. 03-3956,

Rather than file an amended complaint that

complied with the Rules of Federal Procedure, Plaintiff chose to timely appeal the 2003 Complaint's dismissal. [Doe v. Knowles, Civ. No. 03-3956, Docket Items 16 and 17.] However, the Appeal

was dismissed on June 6, 2005 due to Plaintiff's failure to prosecute. [Doe v. Knowles, Civ. No. 03-3956, Docket Item 21.]

After the dismissal of his appeal, Plaintiff waited another six months before filing a brand new Complaint. New Jersey law permits equitable tolling where "the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Freeman v.

State, 347 N.J. Super. 11, 31 (App. Div.) (quoting Dunn v. Borough of Mountainside, 301 N.J. Super. 262, 301 (App. Div. 1997)), certif. denied, 172 N.J. 178 (2002). Alternatively, courts may

apply equitable tolling "where a plaintiff has `in some extraordinary way' been prevented from asserting his rights." 23 Id.

(quoting United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). "[E]quitable tolling may also be appropriate where a plaintiff has timely asserted his rights mistakenly by either defective pleading or in the wrong forum." 142 F.3d at 179)). However, to benefit from the doctrine of equitable tolling, Plaintiff needed to exercise "reasonable diligence" to pursue his rights and protect his claims. Merritt v. Blaine, 326 F.3d 157, Even excusable Miller v. Id. (citing Midgley,

168 (3d Cir.), cert. denied, 540 U.S. 921 (2003).

neglect does not warrant application of the doctrine.

N.J. Dep't of Corrections, 145 F.3d 616, 619 (3d Cir. 1998)(citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997)). Waiting several months to re-file claims that were

otherwise time-barred was not reasonable diligence on Plaintiff's part. Plaintiff appears to argue either that an "extraordinary" event has prevented him from timely asserting his rights or that he mistakenly believed he had asserted his rights. The Court

recognizes that Plaintiff could be heard to argue that he was "extraordinarily" prevented from timely asserting his claims because the limitations period for several claims had expired by the time his 2003 Complaint was screened and dismissed on February 8, 2005. However, the Third Circuit instructs that where an in

forma pauperis plaintiff submits a complaint within the 24

limitations period, the time period for relation back is suspended until the court screens the complaint and orders the complaint filed. Therefore, an amendment of the original pleading would not

be barred where the limitations period expired after the pleading was filed but before the complaint was permitted to proceed. Urrutia, 91 F.3d at 453-54. Plaintiff here essentially had 120 days from the dismissal of his 2003 Complaint to file an amended complaint and preserve his claims. See Fed.R.Civ.P. 15(c). However, Plaintiff never filed

an Amended Complaint; he filed a new Complaint ten months later on December 2005. Even if this Court were to construe the December

Complaint as an Amended Complaint, Plaintiff simply waited too long for the second pleading to relate back to the first. Similarly, Plaintiff cannot be heard to argue that he mistakenly believed that his claims were preserved. Although

Plaintiff appears to contend that he was "induced and tricked" into believing that this Complaint was filed and proceeding, in the very same sentence he states that he believed he could "refile the same claims and defendants [sic] because the case was dismissed without prejudice." Br. At 2.) (Pl.'s Motion for Reconsideration

Plaintiff clearly understood that he could have filed But Plaintiff could not wait indefinitely Ten

an amended complaint.

to re-file in light of an expiring statute of limitations.

months after these claims were originally dismissed was simply too 25

long to wait, and the doctrine of equitable tolling does not offer Plaintiff relief. For the foregoing reasons, Plaintiff's Motion for Reconsideration is denied. V. Defendants' Summary Judgment Motions10 Three Motions for Summary Judgment were filed, two by the State Defendants and one by the CMS Defendants. A. Standard

Summary judgment shall be granted if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Hersh v. Allen Products Co., 789 F.2d 230, 232 (3d Cir. 1986). A dispute is

"genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. "[A]t the summary

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

judgment stage the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249.

10

Defendants' Motions to Seal Plaintiff's medical records, unopposed by Plaintiff, are hereby granted [Docket Items 135, 144 and 162]. The Court finds that, in light of the sensitive nature of Plaintiff's medical records, Plaintiff's legitimate privacy interest, the serious harm to such interest which would result if Defendants' Motion were not granted, and in the absence of a less restrictive alternative, good cause has been established for sealing these documents. See L. Civ. R. 5.3(c). 26

"In making this determination, a court must make all reasonable inferences in favor of the non-movant." Oscar Mayer

Corp. v. Mincing Trading Corp., 744 F.Supp. 79, 81 (D.N.J. 1990) (citing Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983)). However, "the party opposing summary judgment `may

not rest upon the mere allegations or denials of the...pleading'; its response, `by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.'" Saldana v. Kmart Corp., 260 F.3d 228,

232 (3d Cir. 2001) (quoting Fed.R.Civ.P. 56(e)); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B.

Analysis

Plaintiff states claims for violations of his civil rights pursuant to 42 U.S.C. § 1983. two-prong test: Therefore, Plaintiff must satisfy a

1) he must show that the conduct complained of

was committed by a person acting under color of state law, and 2) he must establish that the conduct deprived him of rights guaranteed by federal law. (1988). West v. Atkins, 487 U.S. 42, 48

The parties do not dispute that the Defendants were Thus, the question presented is

acting under color of law.

whether Plaintiff was deprived of any federal rights. 1. Plaintiff's Claims Against NJ DOC Administrators

Plaintiff states several claims against Defendants Sherrer,

27

Knowles and MacFarland (collectively the "Supervisor Defendants"), each of whom served as administrators or supervisors in the New Jersey prison system. Plaintiff makes the following claims

against Sherrer: (1) Sherrer allowed a policy of open door medical exams in violation of Plaintiff's privacy rights, (2) Sherrer refused Plaintiff access to medical devices (3) Sherrer had Plaintiff arbitrarily transferred to a different prison in retaliation for Plaintiff having named Sherrer in a civil action; (4) Sherrer refused to address numerous grievances filed by Plaintiff. (Am. Compl. at ¶10.)

Plaintiff makes the following claims against Defendant Knowles: (1) Knowles had Plaintiff arbitrarily transferred to a different prison in retaliation for Plaintiff having named Knowles in a civil action; (2) Knowles threatened Plaintiff and had Plaintiff placed in detention because Plaintiff threatened to file an action against Knowles; (3) Knowles allowed a policy of open door medical exams in violation of Plaintiff's privacy rights; (4) Knowles refused Plaintiff access to medical devices; (5) Knowles denied Plaintiff access to the courts by denying Plaintiff's requests for a trained paralegal. (Am. Compl. at ¶11.)

Plaintiff makes the following claims against Defendant MacFarland: (1) MacFarland ignored various grievances filed by Plaintiff; (2) MacFarland allowed a policy of open door medical exams in violation of Plaintiff's privacy rights; (3) MacFarland refused Plaintiff access to medical devices; (4) MacFarland 28

permitted unconstitutional procedures in prison disciplinary hearings; (5) MacFarland violated Plaintiff's medical restrictions by permitting Defendant Eisinger to require Plaintiff to stand by a wall beyond his physical capability; (6) MacFarland violated the Americans with Disabilities Act ("ADA") by reassigning Plaintiff's prison jobs based on Plaintiff's disability; (7) MacFarland wrongfully maintained a prison policy prohibiting "keep on person" medications while prisoners are in detention; and (8) MacFarland wrongfully refused to install prison video cameras. ¶17). Defendants contend that these claims must be dismissed because liability under § 1983 cannot be premised upon a theory of respondeat superior. Plaintiff counters that he placed these (Am. Compl.

Defendants on notice of various violations by filing grievances and, therefore, they had actual knowledge of and acquiesced to the alleged wrongful conduct of which Plaintiff complains. Defendants, however, cannot be held liable under § 1983 for merely failing to respond to Plaintiff's grievances. Lavan, 157 Fed.Appx. 516, 518 (3d Cir. 2005). Bobko v.

And "knowledge" of

a subordinate's alleged wrongful conduct does not establish § 1983 liability for a supervisor absent some personal involvement in the alleged wrong by the supervisor. A plaintiff must establish "that

each Government-official defendant, through the official's own individual actions, has violated the Constitution." 29 Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1948-49 (2009).

In other words,

"Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Id. At 1948.

Plaintiff points to no personal conduct on the part of Sherrer, Knowles or MacFarland that deprived Plaintiff of any constitutional right. To the extent Plaintiff alleges that

Defendant MacFarland was personally involved in wrongfully terminating him from a prison job because he ambulates with a cane, MacFarland certified that Plaintiff's work assignments "were made by the Institutional Placement Committee using the criteria found at N.J.A.C. 10A:9-3.8." MacFarland Decl. ¶10.

The closest Plaintiff comes to alleging personal involvement in an alleged wrong by one of the supervisor Defendants is his charge that Knowles threatened Plaintiff and placed him in detention because Plaintiff threatened to name Knowles in a civil action. (Am. Compl. ¶11.) However, any claim arising out of

Plaintiff's placement in detention on or about May 7, 2003 is time-barred since Plaintiff did not commence suit until December 28, 2005. See Cito, 892 F.2d at 25. Plaintiff's claim also fails

on its merits.

"A prisoner alleging retaliation must show (1)

constitutionally protected conduct, (2) an adverse action by prison officials sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link 30

between the exercise of his constitutional rights and the adverse action taken against him." Mitchell v. Horn, 318 F.3d 523, 530 Prison officials may refute a

(3d Cir. 2003) (citation omitted).

retaliation claim "by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to legitimate penological interests." Powell v. Beard,

288 Fed.Appx. 7, 8 (3d Cir. 2008)(quoting Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001)). Plaintiff's right to file grievances is guaranteed by the First Amendment. Bill Johnson's Restaurants, Inc. v. NLRB, 461 Plaintiff's placement in administrative

U.S. 731, 741 (1983).

detention, together with the threat of such placement, could qualify as adverse actions. Cf. Gay v. City of Philadelphia,

2005 WL 1844407, at *5 (E.D.Pa. Aug. 2, 2005) (allegation that a defendant threatened plaintiff, without accompanying allegation that defendant carried through on the threat, does not qualify as adverse action), aff'd, 205 Fed.Appx. 931 (3d Cir. 2006). Here, however, Plaintiff fails to offer any evidence from which a jury could infer a causal link between his placement in detention on May 7, 2003 and Plaintiff's filing of a Complaint against Knowles in 1998. See Krouse v. American Sterilizer Co.,

126 F.3d 494, 503 (3d Cir. 1997) ("timing of the alleged retaliatory action must be `unusually suggestive' of retaliatory motive before a causal link will be inferred"). Plaintiff

testified at his deposition that Knowles sentenced Plaintiff to 15 31

days in detention based on disciplinary charges filed against Plaintiff. (Pl. Dep. 57:8 - 58:5.) No reasonable jury could

conclude that Plaintiff received this sentence in retaliation for filing a Complaint against Knowles five years earlier. As for Plaintiff's retaliation claims against Defendants Sherrer and Knowles based on prison transfers, these claims were previously dismissed. 52]. See June 15, 2007 Opinion at 19 [Docket No.

Prison officials have broad discretion to transfer an inmate

from one institution to another, even where the degree of confinement in one prison may differ. 215, 224-25 (1976). To the extent Plaintiff attempts to state a claim that the Supervisor Defendants "acquiesced" to unconstitutional policies, Plaintiff needed to establish that these Defendants were deliberately indifferent to the risk that Plaintiff would suffer constitutional injury. Cir. 1989). Sample v. Diecks, 885 F.2d 1099, 1118 (3d Meachum v. Fano, 427 U.S.

Plaintiff was required to show that "(1) existing

policy or practice create[d] an unreasonable risk of Eighth Amendment injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor was indifferent to that risk; and (4) the injury resulted from the policy or practice." Heggenmiller v. Edna Mahan Correctional Inst. for

Women, 128 Fed.Appx. 240, 246-47 (3d Cir. 2005) (citing Sample, 885 F.2d at 1118). 32

To prove the existence of an "unreasonable risk," of constitutional injury, Plaintiff needed to present "evidence that such harm has in fact occurred on numerous occasions" and "the supervisory official failed to respond appropriately in the face of such injuries." Sample, 885 F.2d at 1118. Of course there are

also egregious cases where "the risk of constitutionally cognizable harm is so great and so obvious that the risk and the failure of supervisory officials to respond will alone support findings of the existence of unreasonable risk, of knowledge of that unreasonable risk, and of indifference to it." not such a case. Here, Plaintiff suffered no constitutionally cognizable harm. Prisoners surrender many liberties and privileges otherwise afforded to citizens. (2003). Overton v. Bazzetta, 539 U.S. 126, 131 Id. This is

The State may maintain prison regulations that impinge on

an inmate's constitutional rights where such regulations reasonably relate to a legitimate, penological purpose. Safley, 482 U.S. 78, 89-90 (1987). Turner v.

When considering whether a

regulation reasonably relates to a legitimate goal, the Court considers (1) whether there is rational connection between the regulation and a "legitimate governmental interest" such that "the asserted goal is so remote as to render the policy arbitrary or irrational;" (2) whether alternative means of exercising the right exist that remain open to inmates (3) the impact accommodation of 33

the right will have on guards, other inmates, and prison resources and (4) "the absence of ready alternatives." Id.

The State Defendants certify that prison policy limiting access to medical devices and "keep on person" medication in administrative detention or segregation, assigning guards to monitor medical areas and requiring guards to escort medical personnel are necessary security measures. ¶¶3-7. See MacFarland Decl.

Recognizing that the State has an important and

substantial interest in the security and order of its prison facilities, see Procunier v. Martinez, 416 U.S. 396, 412-14 (1974), the Court finds that the policies in question rationally relate to a legitimate, government interest. Moreover, there is simply no record evidence to suggest any pattern or history of constitutional injury or Defendants' failure to respond to same. Plaintiff has not shown, and no reasonable

jury could conclude, that Defendants acquiesced to any existing policy or practice that created an unreasonable risk of constitutional injury. Plaintiff's claims against Defendants Sherrer, Knowles and MacFarland fail as a matter law. Defendants' favor. 2. Plaintiff's Retaliation Claims Summary judgment is granted in

Plaintiff makes numerous, cognizable claims that he suffered retaliation for filing grievances and lawsuits. Specifically,

Plaintiff alleges the following: (1) Defendant Caldwell subjected 34

Plaintiff to cell searches, disciplinary charges and confiscated Plaintiff's cane because Plaintiff filed grievances (Am. Compl. ¶12); (2) Defendant Crenny filed disciplinary charges against Plaintiff because Plaintiff threatened to bring suit against Crenny (Am. Compl. ¶13); (3) Defendant Jalloh threatened to place Plaintiff in detention because Plaintiff appealed Jalloh's holdings (Am. Compl. ¶18); (4) Defendant Dice filed a false charge against Plaintiff because Plaintiff named Dice in litigation (Am. Compl. ¶18); (5) Defendant Eisinger filed false disciplinary charges against Plaintiff in retaliation for Plaintiff's refusal to comply with Eisinger's orders (Am. Compl. ¶19); (6) Defendant McDowell refused Plaintiff access to religious services in retaliation for Plaintiff having filed a grievance and lawsuit against McDowell (Am. Compl. ¶20); and (7) Defendant Wehrwein subjected Plaintiff to arbitrary cell searches and filed an intimidating charge against Plaintiff because Plaintiff filed grievances and a lawsuit against Wehrian.11 (Am. Compl. ¶21).
11

Plaintiff's Complaint and Amended Complaint also allege instances of retaliation by Defendant D. Ayers, specifically that Ayers filed false disciplinary charges against Plaintiff and confiscated Plaintiff's cane because Plaintiff complained that Ayers was trying to listen to conversations between Plaintiff and medical staff. (Am. Compl. ¶14.) The Court reviewed and permitted Plaintiff's claims against Defendant Ayers in its August 17, 2006 screening opinion and directed the Clerk of the Court to serve Plaintiff's Complaint on all Defendants whose claims had not been dismissed. However, it appears that Defendant Ayers was never served. Because Ayers was never served, he never became a proper party to this case. See Travillion, 248 Fed.Appx. at 337. Plaintiff never raised this issue in any of his numerous pleadings and, as previously noted, moved for default no less 35

Defendants contend that all of these claims must fail because Plaintiff cannot state a prima facie case for retaliation. As was stated in the previous section, "[a] prisoner alleging retaliation must show (1) constitutionally protected conduct, (2) an adverse action by prison officials sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the exercise of his constitutional rights and the adverse action taken against him." F.3d at 530. Mitchell, 318

The Court also notes that "retaliation may be

actionable, however, even when the retaliatory action does not involve a liberty interest." Allah v. Seiverling, 229 F.3d 220,

224 (3d Cir. 2000). "Government actions, which standing alone do not violate the Constitution, may nonetheless be constitutional than four times without asking that default be entered against Defendant Ayers. [Docket Items 13, 24, 30, 80.] The Court finds that Plaintiff had a responsibility to pursue his claims against Defendant Ayers. The Court further notes that to the extent Plaintiff states a claim against Ayers based on the filing of false disciplinary charges, such actions would not constitute a constitutional violation so long as procedural due process protections were in place. See Richardson v. Sherrer, Civ. No. 09-1966, 2009 WL 2903657, at *2 (3d Cir. Sept. 11, 2009). Plaintiff does not allege that he was denied a hearing or was otherwise prevented from challenging the alleged false charges. Therefore, even if the Court were to entertain Plaintiff's false charges claim, the claim would be dismissed. As for Plaintiff's allegation that Defendant Ayers refused to return Plaintiff's cane, Plaintiff points to no record fact to support this allegation. Plaintiff's failure to pursue his claim against Ayers after three years of litigation would severely prejudice his claim even were the claim properly before this Court.

36

torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right." Id. (quoting

Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999)). Once a plaintiff establishes the three, necessary elements for a retaliation claim, "[t]he burden then shift[s] to the defendant to prove by a preponderance of the evidence that it would have taken the same disciplinary action even if the absence of the protected activity." Rauser, 241 F.3d at 333-34. Prison

officials may refute a retaliation claim "by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to legitimate penological interests." Powell, 288 Fed.Appx. at 8(citing Rauser, 241 F.3d at 334). Plaintiff's right to file grievances is constitutionally protected activity. 741. Bill Johnson's Restaurants, Inc., 461 U.S. at

The record here also indicates that Plaintiff suffered what

could be construed as adverse actions by certain Defendants, specifically cell searches and confiscation of his cane. e.g., Hudson v. Palmer, 468 U.S. 517, 529 (1984)(searches conducted as "calculated harassment unrelated to prison needs" may violate the Eighth Amendment); Atkinson v. Taylor, 316 F.3d 257, 266 (needless suffering resulting from denial of simple medical care violates the Eighth Amendment). However, to prevail, See,

Plaintiff must demonstrate that the grievances or lawsuits he filed were "a substantial or motivating factor" that brought about the alleged adverse actions. Rauser, 241 F.3d at 333. 37 Plaintiff

simply fails to proffer any record fact, beyond his own allegations, from which a reasonable jury could infer a causal link between the exercise of his right to file grievances and the alleged adverse actions taken against him. a. Retaliation Claims Based on Threats

As previously noted, claims based on threats of disciplinary action, absent an accompanying allegation that the threats were carried out by Defendants, do not qualify as "adverse actions" for purposes of a retaliation claim. See Gay, 2005 WL 1844407, at *5.

(allegation that a defendant threatened plaintiff, without accompanying allegation that defendant carried through on the threat, does not qualify as adverse action). For this reason,

Plaintiff's retaliation claims, based on threats alone, fail as a matter of law. The Court also notes that Plaintiff has continued to pursue grievances and litigation against prison officials, suggesting that the alleged threats were not sufficient to deter a person of ordinary firmness from exercising his constitutional rights. b. Retaliation Claims Based on Cell Searches

Plaintiff's retaliation claims based on cell searches also fail.
12

Plaintiff alleges that Defendant Caldwell12 searched his

Plaintiff identifies the offending officer as Defendant Crenny at his deposition, but his Amended Complaint and Statement of Material Facts identify Defendant Caldwell as having conducted the retaliatory search. Compare Pl.'s Dep. 65:8-68:9 with Am. Compl. ¶12; Pl.'s SOF ¶7. Similarly, Plaintiff identifies Defendant Caldwell as the officer who assaulted Plaintiff on February 3, 2005 at his deposition, although Plaintiff identified 38

cell on January 27, 2005 and February 3, 2005 in retaliation for grievances filed by Plaintiff. (Am. Compl. ¶12.) Plaintiff

claims that the January search was conducted in retaliation for an earlier filed grievance. However, Plaintiff failed to

specifically identify the grievance which he claims led to the search. Plaintiff simply alleges that Caldwell "subjected me to

an arbitrary cell search after I had submitted a grievance prior to that." Pl.'s Dep. at 65:8-11. Moreover, Plaintiff admits that Pl.'s Dep. at I just

he did not identify Caldwell in this grievance. 65:12-66:1.

("However, I did not make a note of his name.

put the administration on notice of possible retaliation.") Defendant Caldwell responds that his regular duties require him to search the cells of inmates assigned to his unit and that all searches are conducted in accordance with New Jersey law. Caldwell Decl. at ¶2. Plaintiff, who has had over three years to conduct discovery, offers nothing to refute this contention. Plaintiff cannot rely

solely on his allegation that the search was conducted in response to an earlier filed grievance to establish the causation element for a retaliation claim. See Fed.R.Civ.P. 56(e)(2). In the

absence of any evidence from which a reasonable jury could conclude that the cell searches were retaliatory, summary judgment the officer as Defendant Crenny in his Amended Complaint and Statement of Facts. Compare Pl.'s Dep. 68:10-69:14 with Am. Compl. ¶13; Pl.'s SOF ¶¶ 9-11. Given the similarity between the Defendants' names, the Court concludes that Plaintiff misidentified these Defendants at his deposition. 39

must be granted in favor of Defendant Caldwell.

Compare Kounelis

v. Sherrer, 529 F.Supp.2d 503, 531-32 (D.N.J. 2008) (inmate's demonstration that cell searches corresponded with significant events in inmate's litigation against prison staff demonstrated genuine issue of fact precluding summary judgment). As for the February search, Plaintiff again fails to establish the necessary link between his filing a grievance and the offending search. In his Amended Complaint, Plaintiff

explains that he filed a grievance on February 2, 2005 and that a retaliatory search was conducted the very next day. ¶12.) (Am. Compl.

Caldwell refutes Plaintiff's account and states that he was Caldwell

conducting a "routine cell search" on February 3, 2005. Decl. ¶3.

Although Plaintiff alleges that he suffered a retaliatory search by Caldwell the day after filing his grievance, which could be considered "suggestive" timing, Plaintiff does not specifically allege or testify that he identified Caldwell in this grievance. Again, Plaintiff's failure to identify any record fact to support his allegations, and refute Defendant's assertion that the search conducted was routine, is fatal to his claim. 56(e)(2). See Fed.R.Civ.P.

The Court cannot conclude that Plaintiff has

established the causation element of a retaliation claim. Plaintiff also argues that Defendant Wehrwein conducted two retaliatory cell searches on April 21, 2005 and June 9, 2005. (Am. Compl. ¶21.) However, Plaintiff fails to identify why the 40

first search should be considered retaliatory.

(Id.)

Plaintiff

alleges that the second search was conducted in response to a grievance filed against Wehrwein. (Id.) Defendant Wehrwein

responds that he is required to conduct cell searches of inmates assigned to his unit and that all searches were conducted in accordance with New Jersey law. Wehrwein Decl. ¶3. Plaintiff

points to no record fact to suggest that the search was conducted for any other reason. Again, Plaintiff cannot rely on allegations

alone to establish the necessary link between an alleged adverse action and his constitutionally protected right to file grievances. See Fed.R.Civ.P. 56(e)(2).

The Court further notes that Plaintiff's claims fail because Defendants have proffered a legitimate, penological reason for the searches. As noted, Caldwell and Wehrwein state that they were

"required to conduct cell searches of inmates assigned to [their] unit[s]" and that all searches were "conducted in accordance with N.J.A.C. 10A:3." Caldwell Decl. ¶2; Wehrwein Decl. ¶3. N.J.A.C.

10A:3-5.3 directs that "[n]o inmate shall be searched as punishment or discipline except as provided by N.J.A.C. 10A:35.10," which allows testing for prohibited substances. Again,

Plaintiff offers nothing b