JACKSON v. GANDY et al

Filing 183

MEMORANDUM OPINION AND ORDER: ORDERED and ADJUDGED that Defendants' request to dismiss this action for failure to exhaust shall be, and is hereby, DENIED; and it is further ORDERED that this action shall proceed to trial on all remaining issues on a date to be set by the Court. Signed by Magistrate Judge Ann Marie Donio on 9/29/2014. (tf, )

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

VINCE JACKSON,
Plaintiff,

Civil No. 09-1141 (AMD)

v.
E. GANDY, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
In this civil rights litigation, Defendant Officers E.
Gandy, A. Saduk, and Roman (hereinafter, “Defendants”) assert
that Plaintiff Vince Jackson (hereinafter, “Plaintiff”) failed
to

exhaust

system,

the

N.J.A.C.

requirements
§

10A:1-4.1,

of

New

4.9

Jersey’s

inmate

(hereinafter,

the

remedy
“inmate

remedy system”). The Court conducted a two-day trial without
jury on the issue of exhaustion on March 7, 2014 and March 10,
2014, at which time a number of individuals testified concerning
the issue of exhaustion and the general circumstances giving
rise

to

this

litigation.

Having

reviewed

the

testimony

and

exhibits entered into evidence, and for the reasons set forth
herein, the Court finds that Plaintiff sufficiently exhausted
available remedies.

In his complaint, 1 Plaintiff alleges that, on July 8,
2007,

Defendant

Officer

E.

Gandy

(hereinafter,

“SCO

Gandy”)

removed Plaintiff’s television from his cell in the F-Unit at
Bayside State Prison (hereinafter, “Bayside”) as a result of
Plaintiff’s

failure

to

timely

return

his

food

tray.

(See

Complaint [Doc. No. 1], 7 on the docket.) Plaintiff alleges that
Defendants

thereafter

ignored

his

protests

concerning

the

television’s removal and denied his request to speak with an
area supervisor. (Id.) Plaintiff further asserts that SCO Gandy
directed him to the dayroom staircase on July 9, 2007, at which
time SCO Gandy threw Plaintiff’s television down the stairs, and
SCO

Gandy

and

Defendant

Officer

A.

Saduk

(hereinafter,

“SCO

Saduk”) proceeded to assault him. (Id.) Plaintiff contends that
despite his alleged calls for a supervisor, Defendant Officer
Roman
left

(hereinafter,
the

scene

“SCO

without

Roman”)

witnessed

intervening.

the

(Id.)

incident,

The

New

but

Jersey

Department of Corrections (at the direction of the New Jersey
Internal

Affairs

–

Special

Investigation

Division)

then

transferred Plaintiff to South Woods State Prison (hereinafter,

1

Plaintiff filed his initial complaint on March 13, 2009 and a
supplemental and amended pleading on January 25, 2010. (See
generally Complaint [Doc. No. 1]; Amended Complaint [Doc. No.
17].) Plaintiff’s supplemental and amended pleading generally
alleges that the New Jersey Department of Corrections and
certain administrations of Bayside State Prison failed to
adequately train and supervise their employees and/or correction
officers. (See generally Amended Complaint [Doc. No. 17].)
2

“South Woods”) at or around 10:00 P.M. that evening. (Id. at 8
on

the

docket.)

The

morning

after

his

transfer,

Plaintiff

alleges that South Woods’ officials found Plaintiff unconscious
on the floor of his detention cell, and transported him to an
outside hospital for treatment related to his significant head
trauma.

(Id.)

Plaintiff

asserts

that

“[a]ll

remedies

and

grievances have been forward[ed] To The Administration And The
Department Of Correction[s],” but that he received no response
concerning his allegations of an assault.
On
in

judgment
exhaust

September
part

his

(Id.)

2011,

Defendants

the

on

6,

basis

that

administrative

remedies

moved

for

Plaintiff’s
barred

his

summary

failure

claims.

to

(See

generally Brief in Support of Defendants’ Motion for Summary
Judgment Pursuant to Fed. R. Civ. P. 56 [Doc. No. 58-1], 16-21.)
At that time, Defendants asserted that “a diligent search of the
records” revealed that Plaintiff did not file any inmate request
forms while assigned to South Woods “from July 9, 2007 through
August 29, 2007.” (Id. at 21.) By Memorandum Opinion and Order
dated June 29, 2012, the Court found the record insufficient to
resolve the issue of exhaustion. See generally Jackson v. Gandy,
877

F.

Supp.

concluded
August

2d

that

15,

examination

(D.N.J.

Plaintiff

2007
and

159

in

filed

which

asserted

2012).
a

grievance

Plaintiff
that

The

specifically

“remedy

requested

corrections
3

Court

“a

officers

form”

on

polygraph”
assaulted

him. Id. at 174. The Court further found that the mechanism by
which Plaintiff “forwarded his grievances to the Administration”
resulted

in

an

SID-initiated

administrative

investigation,

in

addition to a disciplinary hearing. Id. at 178. In addressing
whether

this

submission

satisfied

the

applicable

exhaustion

requirements, the Court noted that exhaustion of “alternative
[and parallel] grievance procedures” can suffice “to meet the
exhaustion requirements of the PLRA.” Id. The Court found issues
of disputed fact, however, concerning whether the investigation
performed by SID constituted “the same investigation that would
have

occurred

remedy

form”

[in
in

the

event]

accordance

Plaintiff
with

the

completed
express

a

[inmate]

inmate

remedy

system. Id. at 179. The Court further found a factual dispute
concerning

whether

the

Special

Investigations

Division’s

role

“overlaps with the established grievance procedures.” Id. The
Court

therefore

found

that

Defendants

failed

to

meet

their

burden on the issue of exhaustion, and denied Defendants’ motion
for summary judgment without prejudice. Id.
On
bifurcated

January
trial

6,

2014,

concerning

Defendants
Defendants’

moved

to

conduct

exhaustion

a

defense.

(See Motion to Bifurcate [Doc. No. 156], 1.) By Order dated
January

15,

2014,

the

Court

found

bifurcation

appropriate,

“because exhaustion constitutes a precondition to proceeding to
trial

with

respect

to

Plaintiff’s
4

excessive

form

claim,

and

because

the

Court,

rather

than

the

jury,

will

resolve

any

factual disputes concerning this issue through a bench trial.”
(Order [Doc. No. 164], Jan. 15, 2014, 4.) The Court accordingly
scheduled the bench trial to convene on March 7, 2014. (See
Amended Order Setting Bench Trial Date [Doc. No. 168] Feb. 18,
2014.)
During

the

bench

trial,

the

following

individuals

testified: James E. Dutch (Planning Associate at Bayside), Karen
Balicki Phillips (former Administrator of Southwoods), Kenneth
Crotty

(SID

(Plaintiff’s

Investigator),
mother).

The

Plaintiff,
testimony

and

Ruby

generally

L.

Jackson

concerned

the

inmate remedy system, the procedure by which New Jersey state
prisons process inmate remedy forms, and the nature and scope of
an SID investigation, including the investigation that arose out
of Plaintiff’s allegations.

Plaintiff also testified concerning

his submission of the August 15, 2007 inmate remedy form and the
relevant surrounding circumstances. The parties also introduced
a number of exhibits.
In light of the testimony presented and the parties’
exhibits, the Court makes the following factual findings:
a.

Inmate Remedy System, generally
1.

At all times relevant to this litigation, the New
Jersey
Department
of
Corrections
maintained
a
generally
standardized
inmate
remedy
system
and

5

2.

3.

4.

5.

6.

7.

grievance procedure. 2 (See, e.g., Transcript of
Proceedings Vol. 1 (hereinafter, “Tr. Vol. 1”), 47:
13-48:2.)
The inmate remedy system and grievance procedure
provides
the
manner
in
which
inmates
present
complaints to correctional facility staff. 3 (See Tr.
Vol. 1 at 47:13-20, 51:16-22.)
The
inmate
remedy
system
generally
proceeds
in
accordance with the five (5) part inmate remedy form
on a single, one-page document, and the inmate
handbook, to the extent available to individual
inmates, advises inmates of the relevant process and
procedures. 4 (See id. at 35:23-37:12, 101:6-102:14.)
Inmates may obtain the inmate remedy forms from
various locations throughout the New Jersey state
prisons and from a number of prison officials,
including social workers and the ombudsman. (See id.
at 95:18-22.)
The coordinator of the inmate remedy system reviews
and processes inmate remedy forms. (See id. at 36:113, 99:12-16.)
In part one, the inmate sets forth the particular
issue for which the inmate seeks redress and/or an
administrative response. (See id. at 35:22-36:13,
97:4-5.)
The inmate must thereafter put the form, with part one
completed, in the lockbox designated as a repository
for the inmate remedy forms. (See id. at 97:14-98:2.)

2

Defendants’ exhibit two sets forth the operative sections of
the New Jersey Administrative Code, which govern the inmate
remedy system.
3
Defendants’ exhibits one and twelve through nineteen—which set
forth identical inmate remedy forms for Bayside and East Jersey
State Prison—further reflect the uniformity of the inmate remedy
system across the New Jersey state prison system.
4
Defendants’ exhibits three and four set forth the inmate
handbooks for South Woods State Prison and East Jersey State
Prison. Plaintiff disputed the relevance of the introduced
handbooks and the weight to be afforded such exhibits. (Id. at
200:19-201:10.) The Court admitted the exhibits over Plaintiff’s
objections. (Id. at 201:1-13.) The Court further notes that the
testimony generally sets forth the salient portions of the
inmate handbook.
For the reasons set forth infra, the
disposition of the exhaustion issue does not turn on the nature
of the information set forth in the inmate handbook.
6

8.

9.

10.

11.

12.

13.

14.
15.

16.

17.

18.

19.

The coordinator of the inmate remedy system (or a
designee) retrieves the forms at regular intervals and
then processes the form in one of two manners (one
formal, the other informal). (See id. at 36:1-13,
99:12-16.)
The coordinator processing depends upon whether the
coordinator deems the request compliant with the
inmate remedy system. (See id. at 100:6-19, 123:10129:10.)
In accordance with formal processing, the coordinator
acknowledges receipt of the form in part two, and
electronically logs the form’s contents for tracking
purposes. (See id. at 36:1-13, 99:12-16.)
The
coordinator
then
designates
the
appropriate
department for an investigation and/or response and
routes the form accordingly. (Id. at 36:10-13.)
An inmate remedy form may also, in certain instances,
be
routed
directly
to
an
SID
investigator,
particularly in the event that the remedy form alleged
a correctional officer-initiated assault. (Id. at
163:1-16, 165:11-16, 169:16-170:6, 171:1-3.)
The receiving department reviews the request, conducts
the requisite investigation, and responds in part
three of the inmate remedy form. (Id. at 36:18-20,
111:8-14.)
The coordinator thereafter returns a copy of the form
to the inmate. (Id. at 37:1-8, 111:17-19.)
Upon receipt of the inmate remedy form, the inmate may
then appeal the department’s response by resubmitting
the
inmate’s
remedy
form
with
the
appropriate
indication in part four. (Id. at 37:1-8, 111:17-19.)
In
the
event
an
inmate
files
an
appeal,
the
administrator reviews the information and either
requires
a
supplemental
response
or
deems
the
department’s response adequate, at which time the
administrator provides the requisite notation in part
five. (Id. at 112:4-12.)
The administrator’s completion of part five of the
inmate remedy form constitutes the final agency
decision in connection with the formal inmate remedy
system. (See id. at 37:9-15, 115:8-24.)
Completion of part five of the inmate remedy form also
renders the grievance procedures fully exhausted.
(See id. at 37:9-15, 115:8-24.)
If the coordinator perceives a deficiency in the
information set forth by the inmate in part one (for
example, failing to articulate a question requiring a
7

20.

21.

22.

23.

24.

b.

response) and/or the inmate’s request exceeds the
scope of the inmate remedy system (for example,
setting forth information or requests with relevance
to
a
disciplinary
proceeding),
the
coordinator
informally processes the form. (See id. at 100:6-19,
123:10-129:10.)
In such an instance, an inmate remedy form may be
disregarded from the inmate remedy system. (See id. at
100:6-19, 123:10-129:10.)
In the alternative, a deficient form may be returned
to the inmate with a corrective action form indicating
the
proper
procedures
relevant
to
the
inmate’s
5
request. (See id. at 100:6-19, 123:10-129:10.)
A form will not necessarily be deemed deficient solely
because it requests a polygraph and/or refers to an
SID investigation or related SID report. (Compare id.
at 54:5-55:3, with id. at 125:15-127:25.)
An inmate may also circumvent the inmate remedy system
process by depositing the inmate remedy form in a box
other than the lockbox designated for inmate remedy
forms. (Id. at 77:5-81:2.)
In such an instance, and notwithstanding the absence
of the coordinator’s signature in part two, a
department or prison official may provide a response,
without the involvement and tracking of the inmate
remedy system coordinator. (Id. at 77:5-81:2.)

Plaintiff’s Inmate Remedy Form
25.

26.

Plaintiff signed an inmate remedy form dated August
15, 2007, and produced by Defendants in the course of
discovery in this action. 6 (See Defendants’ exhibit one
(hereinafter, “D1”) (bates-stamped “V.Jackson 88” by
Defendants).)
Plaintiff’s remedy form (handwritten in part and typed
in part) states that officers assaulted him and that
he sought a polygraph test in order to assess his
veracity. (See D1.)

5

The inmate remedy form specifically enables the inmate remedy
system coordinator to return a remedy form to an inmate prior to
completing part two by indicating that “[n]o action” had been
taken, and appending a “DOC Corrective Action form[.]” (See D1.)
6
As set forth supra, D1 sets forth Plaintiff’s inmate request
system and remedy form dated August 15, 2007. D1 further bears
the bates-stamp “V. Jackson 88[.]”
8

27.

28.

29.

30.

31.

32.
33.

Plaintiff’s inmate remedy form does not set forth any
indication that the coordinator received his request.
(See id.)
Plaintiff’s inmate remedy form does not have any
department response, Plaintiff-initiated appeal, or
administrator review pursuant to the remaining parts
of the inmate remedy system and remedy form. 7 (See id.)
On the date set forth on Plaintiff’s remedy form,
Plaintiff was confined in the detention unit at South
Woods.
(See
Transcript
of
Proceedings
Volume
2
(hereinafter, “Tr. Vol. 2”), 244:9-246:14.)
Plaintiff’s confinement to his cell precluded him from
depositing his inmate remedy form in the appropriate
box absent guard supervision. (See id. 267:8-269:2.)
Plaintiff asked his social worker to deposit the
inmate remedy form on his behalf, and thereafter
reminded his social worker to deposit his remedy form.
(See id. at 267:9-11, 267:23-268:1.)
South
Woods
received
Plaintiff’s
form
prior
to
8
Plaintiff’s August 20, 2007 disciplinary proceeding.
South Woods utilized the inmate remedy form in
connection
with
the
adjudication
of
Plaintiff’s
9
disciplinary charges.

7

Defendants’ exhibits twelve through nineteen set forth
Plaintiff’s inmate request system and remedy forms dated
September 25, 2007, February 13, 2008, February 26, 2008, August
18, 2008, September 12, 2008, November 4, 2008, February 2,
2009, and April 6, 2009.
These remedy forms originated during
Plaintiff’s detention in East Jersey State Prison and each form
contains a staff response in part three.
8
As set forth infra, Defendants’ exhibit one (hereinafter,
“D1”), Plaintiff’s exhibits one and two (hereinafter, “P1” and
“P2”) have all been marked for identification in connection with
Plaintiff’s
disciplinary
hearing
as
“A19[.]”
(Compare
D1
(Plaintiff’s inmate remedy form on which he requests, in part, a
polygraph examination); P1 (Plaintiff’s request for a polygraph
examination for the purposes of his disciplinary hearing); P2
(same), with D6 (identifying “A19 POLYGRAPH request” as the
correctional facility’s confidential evidence in connection with
the adjudication of Plaintiff’s disciplinary charge).)
9
Defendants’ exhibit six (hereinafter, “D6”) sets forth the
nature of Plaintiff’s disciplinary charge, the disciplinary
hearing dates and/or postponements, the parties’ evidence,
witness lists, and a summary of the adjudication of Plaintiff’s
disciplinary charge.
9

c.

Plaintiff’s disciplinary hearing
34.

35.

36.

37.

38.

SCO
Gandy
filed
a
disciplinary
charge
against
Plaintiff on July 10, 2007. (See Defendants’ exhibit
six at 1.)
Plaintiff also requested a polygraph examination in
order to “prove” that Plaintiff did not assault the
Defendant Correctional Officers. (Tr. Vol. 2 at 256:811, 257: 18-19; see also P1 (a request from the
disciplinary hearing officer to Bayside State Prison
for the polygraph examination of Plaintiff).)
The disciplinary hearing officer thereafter forwarded
to the administration of Bayside Plaintiff’s request
for a polygraph examination dated August 15, 2007,
together with a copy of Plaintiff’s disciplinary
charge and “related evidence[.]” (P1 (request for
polygraph), P2 (request for polygraph).)
The
Associate
Administrator
of
Bayside
denied
Plaintiff’s request for a polygraph examination, and
directed that the disciplinary hearing process proceed
“based on the merits of the testimony and evidence
provided.” (Plaintiff’s exhibit four (hereinafter,
“P4”).)
Plaintiff’s disciplinary hearing was postponed a
number of times as a result of the need for witness
statements, 10 preparation of the SID report, and/or
Plaintiff’s requests for a polygraph examination. 11
(See D6 at 1 (setting forth the various grounds for
postponement
of
Plaintiff’s
disciplinary
hearing
date).)

10

Plaintiff’s exhibit three sets forth the disciplinary hearing
officer’s request for additional information and/or evidence in
anticipation of Plaintiff’s disciplinary hearing.
11
Plaintiff’s exhibit five sets forth Plaintiff’s July 12, 2007
request for a polygraph, a request witnessed by Kenneth Crotty.
(See Tr. Vol. 2 at 256:17-19.) Plaintiff’s exhibits one and two
(hereinafter, “P1” and “P2”) set forth Plaintiff’s August 15,
2007 polygraph request.
D1, P1, and P2—each dated August 15,
2007—have all been marked for identification in connection with
Plaintiff’s disciplinary hearing as “A19[.]” D6 identifies “A19”
in
the
context
of
Plaintiff’s
disciplinary
hearing
as
Plaintiff’s request for polygraph. (See D6 at 2.) D1, P1, and P2
all reference Plaintiff’s request for a polygraph examination.
Plaintiff’s exhibit four sets forth the Associate Administrator
of Bayside’s denial of Plaintiff’s polygraph request.
10

39.

40.

41.
42.

On August 20, 2007, following the hearing, the
disciplinary
hearing
officer
found
“substantial”
evidence to conclude that Plaintiff violated *.002
(assaulting
any
person)
by
assaulting
Defendant
Officer Gandy. (D6 at 1, 4.)
In connection with the adjudication of Plaintiff’s
disciplinary charge, the correctional facility’s file
against Plaintiff included “A19 POLYGRAPH request” and
“A21 POLYGRAPH denial[.]” (See id. at 2; see also D1
(Plaintiff’s inmate remedy form dated August 15, 2007,
bates-stamped “V.Jackson88” and identified as “A19”);
P1
(Plaintiff’s
request
for
polygraph);
P2
(Plaintiffs’ request for polygraph).)
The “A19 POLYGRAPH request” is Plaintiff’s inmate
remedy form dated August 15, 2007.
The
adjudication
form
concerning
Plaintiff’s
disciplinary
charge
reflects
that
Plaintiff
specifically
stated
that
the
Defendant
Officers
“punch[ed] and kick[ed]” him. 12 (D6 at 2.)

12

Plaintiff specifically provided the following
connection with his disciplinary hearing:

statement

Like I said in my report I was late taking my tray so
Gandy trashed my room and took my tv. Next day he came
in and while he was doing the count he got irate when
I asked for my tv, and said I [f***ed] up. He called
me out to the courtyard and said you want this tv and
threw it on the ground and broke it. There were
several witnesses, and I said I wanted a sergeant.
[They came] in and said I’m bad and they are going to
kick my ass and they will get away with it. I decided
to not go to my cell and he hollered he would “kill
you, n[...]”. All I said was I wanted to see a
sergeant. When he spit on me I slid in between the
stairs and he started punching and kicking me and
tried to drag me out and I kep[t] hollering I wanted a
sergeant. Two other officers saw this and came over,
and Gandy was trying to convince the other officers to
get me. Another office Saduk started kicking me on the
hand and the other one called in a code. They both
started punching and kicking me and that’s when the
other officers came in. I gave SID witnesses and I
think they were all moved here.
(Defendants’ exhibit six at 2.)
11

in

43.

d.

The adjudication form further reflects that Plaintiff
stated to his “counsel substitute” that “he didn’t
assault anybody” and that the Defendant Officers
instead “assaulted him.” (Id.)

SID Investigation
44.

45.

46.

47.
48.

49.

In
addition
to
the
administrative
disciplinary
hearing, SID’s central office in Trenton conducted a
contemporaneous
investigation
into
Plaintiff’s
allegations of assault. (See Tr. Vol. 1 at 156:13-20,
159:2-15, 185:3-11; see also D6 at 1 (indicating the
pendency of the SID investigation).)
A “specialized unit” in SID’s central office in
Trenton directly conducted the investigation.
(Tr.
Vol. 1 at 155:1-7, 161:22-162:25.)
In connection with the SID investigation, Kenneth
Crotty (hereinafter, “Mr. Crotty”), an SID Senior
Investigator, investigated Plaintiff’s allegations of
an assault by correction officers. (Id. at 156:1159:18.)
Mr. Crotty also facilitated Plaintiff’s request for a
polygraph examination. 13 (Id.)
Mr. Crotty also authored a formal SID report, which he
submitted to his “chief, Chuck Mueller.” (Id. at 156:
22-24.)
SID did not, however, provide the results of this
investigation to Plaintiff. (See id. at 185:11-25.)
The

“PLRA”)

generally

conditions,
See

Prison

and

generally

42

Litigation
addresses

Reform

specifically
U.S.C.

§

Act

litigation
governs

(hereinafter,
involving

Plaintiff’s

1997(e)(a).

The

PLRA

the

prison

grievances.
specifically

provides that, “[n]o action shall be brought with respect to
prison conditions under” 42 U.S.C. § 1983, “or any other Federal
law,

by

a

prisoner

confined

in

13

any

jail,

prison,

or

other

Plaintiff’s exhibit six sets forth Plaintiff’s request for a
polygraph
examination
dated
July
12,
2007
concerning
“allegations of being assaulted[.]”
12

correctional

facility

until”

the

inmate

litigation

has

“exhausted” all available “administrative remedies[.]” 42 U.S.C.
§

1997e(a).

In

addition,

the

PLRA's

exhaustion

requirement

“‘applies to all inmate suits about prison life, whether they
involve

general

whether

they

circumstances

allege

or

excessive

particular

force

or

some

episodes,
other

and

wrong.’”

Jackson, 877 F. Supp. 2d at 174 (quoting Porter v. Nussle, 534
U.S. 516, 532 (2002)).
Under the PLRA, a prisoner must sufficiently exhaust
all available administrative remedies prior to filing suit.

42

U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 83–84 (2006);
Nyhuis

v.

Reno,

204

F.3d

65,

66

(3d

Cir.

2000).

Exhaustion

consequently “demands compliance with an agency's deadlines and
other critical procedural rules because no adjunctive system can
function effectively without imposing some orderly structure on
the course of its proceedings.” Woodford, 548 U.S. at 90-91.
Such

requirements

“eliminate

unwarranted

federal-court

interference with the administration of prisons, and thus seek[]
to

‘affor[d]

corrections

officials

time

and

opportunity

to

address complaints internally before allowing the initiation of
a

federal

case.’”

Id.

at

93

(citation

omitted).

Exhaustion

accordingly aims “‘(1) to return control of the inmate grievance
process to prison administrators; (2) to encourage development
of an administrative record, and perhaps settlements, within the
13

inmate grievance process; and (3) to reduce the burden on the
federal

courts

by

erecting

barriers

to

frivolous

prisoner

lawsuits.’” Paladino v. Newsome, No. 12-2021, 2013 WL 3270987,
at *5 (D.N.J. June 27, 2013) (quoting Atum–Ra v. Ortiz, No. 04–
2711, 2006 WL 1675091, at *2 (D.N.J. June 14, 2006) (citing
Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004))), recons.
granted in part on other grounds, 2013 WL 5161144 (D.N.J. Sept.
12,

2013).

issue’”

Exhaustion

the

Court

therefore

must

constitutes

address

in

a

“‘threshold

determining

whether

Plaintiff’s litigation “‘is being conducted in the right forum
[and] at the right time.’” Small v. Camden Cnty., 728 F.3d 265,
269-70 (3d Cir. 2013) (quoting Dillon v. Rogers, 596 F.3d 260,
271-72

(5th

“affirmative
(2007).

Cir.

2010)).

defense[.]”

However,

Jones

v.

exhaustion

Bock,

549

remains

U.S.

199,

an
216

Consequently, inmates “are not required to specially

plead or demonstrate exhaustion.” Id. Rather, defendants bear
the burden to demonstrate plaintiff’s failure to exhaust. Ray v.
Kertes, 285 F.3d 287, 295 (3d Cir. 2002) (joining “the many
other circuits that have held that failure to exhaust is an
affirmative defense to be pleaded by the defendant”).
The
exhaustion

New

Jersey

procedure

Administrative

relevant

to

14

this

Code

action.

sets
14

forth

See

the

N.J.A.C.

Notwithstanding the parties’ dispute concerning the weight to
be afforded the inmate handbooks introduced as exhibits by
14

10A:1-2.2,

10A:1-4.5,

10A:1-4.6,

10A:1-4.7.

Specifically,

the

New Jersey Administrative Code requires that an inmate first
file

a

“‘Routine

Inmate

Request’”

setting

forth,

with

specificity, the inmate’s concerns, and/or the inmate must first
request

an

concerning

interview
the

inmate’s

with

“correctional

issues.

N.J.A.C.

facility

staff”

10A:1-4.5(a)(1)-(2).

Correctional officers must within thirty (30) days thereafter
“review

and

respond[.]”

N.J.A.C.

10A:1-4.5(e).

An

inmate

may

then file an “Administrative Appeal” of the “response or finding
received” in accordance with “th[is] initial step of the Inmate
Remedy System.

N.J.A.C. 10A:1-4.6(a). Ten business days after

receipt of the “‘Administrative Appeal[,]’” the “Administrator
or designee” must review the appeal and render “a decision or
finding[.]”

N.J.A.C. 10A:1-4.6(c). The resultant “decision or

finding” constitutes the “final level of review and decision or
finding

of

the

New

Jersey

Department

of

Corrections[,]”

and

derivatively, the final step in the formal exhaustion process.
N.J.A.C. 10A:1-4.6(d).
Notwithstanding the requirements set forth in the New
Jersey

Administrative

Code,

courts

have

Defendants, the applicable provisions of the
Code, as presently enacted, correspond with
presented on March 7, 2014. Moreover, there
concerning
the
nature
of
the
information
Plaintiff’s August 15, 2007 inmate remedy form.
in the inmate remedy form therefore bear little
the resolution of the exhaustion issue.
15

under

certain

Administrative
the testimony
is no dispute
set
forth on
Any differences
significance to

circumstances relaxed the requirement to strictly comply with
express exhaustion requirements.

Indeed, the PLRA only requires

prisoners to exhaust “‘available’” administrative remedies and
an inmate need not exhaust an unattainable process. Brown v.
Croak, 312 F.3d 109, 112-13 (3d Cir. 2002) (quoting Camp v.
Brennan, 219 F.3d 279, 281 (3d Cir. 2000)). The Third Circuit
has also addressed its “understanding that compliance with the
administrative

remedy

scheme

will

be

satisfactory

if

it

is

substantial.” Nyhuis v. Reno, 204 F.3d 65, 77-78 (3d Cir. 2000);
see also Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004)
(noting

that

the

formal

grievance

process

aims

“to

put

the

prison officials on notice of the persons claimed to be guilty
of wrongdoing”). Some courts have correspondingly relaxed the
strict compliance requirement, in favor of determining whether
the non-compliant procedure utilized by the plaintiff satiated
the

essential

purpose

of

the

exhaustion

process.

See,

e.g.,

Jenkins v. Hayman, No. 09-4989, 2013 WL 3201326, at *9 (D.N.J.
June 24, 2013) (finding the exhaustion requirement satisfied,
and denying defendants’ motion for summary judgment).
In

light

concludes

that

of

the

record

Plaintiff’s

before

the

presentment

Court,
of

his

the

Court

assault

allegations in the context of his disciplinary hearing satisfies
the exhaustion requirement. The requirement of full exhaustion
prior to proceeding with federal litigation aims to provide: (1)
16

prison officials with sufficient notice concerning the nature of
the inmate’s grievance; (2) the latitude to timely gather and
preserve

relevant

evidence;

consider

the

grievance.”

Spruill,

372

F.3d

at

and

(3)

Woodford,

234

“a

548

(noting

fair

U.S.

that

opportunity

at

the

95;

see

purpose

to

also

of

the

prison’s grievance process “is to put the prison officials on
notice

of

the

persons

claimed

to

be

guilty

of

wrongdoing”).

Moreover, in the absence of express compliance with applicable
administrative
purposes
Nyhuis,

remedies,

underpinning
204

F.3d

at

“substantial”

the
77-78.

exhaustion
In

that

compliance

with

requirement

regard,

the

the

suffices.

Court

finds

Jenkins v. Hayman, No. 09-4989, 2013 WL 3201326 (D.N.J. June 24,
2013) instructive.
In

Jenkins,

the

court

considered

whether

plaintiff

exhausted the inmate remedy system with respect to a July 9,
2008 incident giving rise to plaintiff’s claims of excessive
force,

failure

to

protect,

and

retaliation.

Id.

at

*8.

Plaintiff filed a number of inmate remedy forms from August 2008
through September 2009; none, however, involved the claims set
forth in plaintiff’s complaint. Id. (noting that plaintiff “did
not file a single inmate remedy form regarding his allegations
of excessive force, failure to protect and retaliation stemming
from the July 9, 2008 incident”). Notwithstanding plaintiff’s
failure

to

file

inmate

remedy
17

forms

concerning

the

specific

claims

giving

rise

to

the

litigation,

the

Jenkins

court

concluded that plaintiff had properly satisfied the exhaustion
requirement by bringing his grievances to defendants’ attention
through his “vigorous[] challenge[]” of the prison disciplinary
charges

filed

claims

of

against

“excessive

retaliation[.]”
concluded

him,

Id.

that

at

which

force,

at

*8.

plaintiff’s

time

plaintiff

failure

The

to

district

participation

in

asserted

protect

court
the

and

therefore

disciplinary

process (and related disciplinary appeal) collectively afforded
New Jersey state prison officials “the time and opportunity to
address

[p]laintiff’s

complaints

internally,”

prior

to

proceeding with plaintiff’s federal litigation. Id. at *9. The
Jenkins

court

accordingly

found

“the

purposes

underlying

the

exhaustion requirement” satisfied, and denied defendants’ motion
for summary judgment on the grounds of non-exhaustion. Id.
Here,

Plaintiff

amply

presented

the

specific

assault

allegations giving rise to this litigation in the context of the
Plaintiff’s
(setting
officers

disciplinary

forth,
assaulted

with

proceeding.
specificity,

him).)

Plaintiff

(See,

e.g.,

Plaintiff’s
not

only

D6

at

claim

set

forth

2

that
his

assault allegations in connection with his inmate remedy form,
he

also

provided

a

detailed

statement

to

the

disciplinary

hearing officer concerning the assault allegations set forth in
Plaintiff’s

complaint.

(Compare
18

D1

(noting

that

Plaintiff

“claims he was assaulted”); D6 at 2 (setting forth Plaintiff’s
detailed

allegations

concerning

Defendants’

alleged

assault),

with Complaint [Doc. No. 1], 7-8 on the docket (setting forth
nearly

identical

allegations).)

The

Bayside

administration

further received express notification of Plaintiff’s allegations
in

connection

examination

with

and

Plaintiff’s

the

adjudication

request
of

for

a

Plaintiff’s

polygraph

disciplinary

charge. (See P1 and P2 (referencing appended “related evidence”
concerning

Plaintiff’s

Administration
polygraph;

in

D6

furtherance

at

adjudication

disciplinary

to

of

to

Plaintiff’s

(referring

4

report

charge

Plaintiff’s

prison

Bayside

request

for

disciplinary

administration

concerning

sanctions). Consequently, prison administration remained clearly
apprised

of

Plaintiff’s

active

challenge

to

his

disciplinary

charges on the basis that Plaintiff asserted that he had been
assaulted.

The Court notes that the N.J. Administrative Code

specifically provides that, the “disciplinary hearing within a
correctional

facility

shall

be

conducted

by

either

a

Disciplinary Hearing Officer designated by the Commissioner or a
Committee

of

Administrator.”
Administrative

three

staff

N.J.A.C.
Code,

members

10A:4-8.1.

disciplinary

In

designated

by

the

accordance

with

the

hearings

primarily

occur

at

the behest and designation of prison administration. The Court
therefore

concludes

that

Plaintiff
19

“substantial[ly]”

complied

with

the

Nyhuis,

purposes

204

F.3d

at

underpinning
77-78;

the

Jenkins,

exhaustion
2013

WL

requirement.

3201326,

at

*9

(finding plaintiff’s participation in a disciplinary proceeding
satisfied the essential purposes of exhaustion). 15

15

The Court also notes that the PLRA only requires prisoners to
exhaust “‘available’” administrative remedies. Brown v. Croak,
312 F.3d 109, 112-13 (3d Cir. 2002) (quoting Camp v. Brennan,
219 F.3d 279, 281 (3d Cir. 2000)). Here, the testimony clearly
reflected that a prison official may return an inmate remedy
form without action or may disregard an inmate remedy form where
the prison administration deems the substance of the inmate
remedy form inappropriate for review in the context of the
inmate remedy system. (See, e.g., Tr. Vol. v.1 79:23-80:24,
100:6-19, 123:10-129:10.) Mr. Dutch, for example, testified that
certain inmates “circumvent[] the system” by improperly
depositing their inmate remedy forms in a location other than
the repository designated for receipt of inmate remedy forms.
(Id. at 78:1-81:3.) In such a scenario, Mr. Dutch stated that
the administration would deem the process invalid and reject the
inmate remedy form, without notice to the inmate. (Id. at 79:2380:24.) Ms. Phillips similarly testified that certain inmate
remedy forms may be “disregarded[.]” (Id. at 100:9-11.) Ms.
Phillips then concluded that Plaintiff’s request for a polygraph
examination constituted sufficient “justification” to “bounce[]”
or to entirely disregard Plaintiff’s inmate remedy form, and
that Plaintiff’s inmate remedy form facially reflected such
treatment. (Id. at 125:15-129:7.) In light of Court’s conclusion
with respect to Plaintiff’s presentment of his allegations in
the context of the disciplinary hearing, the Court need not rule
on whether the inmate remedy system was unavailable to Plaintiff
to a degree sufficient to excuse exhaustion. See Brown, 312 F.3d
at 113 (citation omitted) (noting that availability in the
exhaustion context accordingly requires that the administrative
remedies be “‘capable of use’” and “‘at hand’”); Oliver v.
Moore, 145 Fed. Appx 731, 735 (3d Cir. 2005) (“An administrative
remedy may be found to be unavailable where a prisoner is
prevented by prison authorities from pursuing the prison
grievance process.”) (citations omitted); Lugo-Vazquez v.
Grondolsky, No. 08-986, 2009 WL 2004392, at *3 (D.N.J. July 1,
2009) (noting that, “courts within and outside this Circuit have
recognized that where the prison fails meaningfully to address
the merits of an inmate's grievance, the remedy process may be
20

Consequently, for the reasons set forth herein, and
for good cause shown:
IT IS on this 29th day of September 2014,
ORDERED

and

ADJUDGED

that

Defendants’

request

to

dismiss this action for failure to exhaust shall be, and is
hereby, DENIED; and it is further
ORDERED that this action shall proceed to trial on all
remaining issues on a date to be set by the Court.

s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE

found to be unavailable for PLRA purposes[]”) (citations
omitted).
21