JACKSON v. GANDY et al

Filing 266

ORDER DENYING Defendants request to dismiss this action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act. Signed by Magistrate Judge Ann Marie Donio on 8/1/17. (dd, )

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.

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 the requirements of New Jersey’s inmate remedy system,
N.J.A.C. § 10A:1-4.1 to -4.9 (hereinafter, the “inmate remedy
system”)

as

required

by

the

Prison

Litigation

Reform

Act

(hereinafter, the “PLRA”), 42 U.S.C. § 1997e(a). For the reasons
set forth herein, the Court finds that the remedy in this case was
not “available,” and, therefore, Plaintiff was not required to
exhaust the administrative remedy.
The

exhaustion

issue

in

this

case

has

a

lengthy

procedural history. Defendants raised the issue previously by way
of motion for summary judgment asserting that Plaintiff’s failure
to exhaust administrative remedies precluded his claim. (Motion
for Summary Judgment [D.I. 58].) By Opinion dated June 29, 2012

1

the Court held that Defendants had failed to meet their burden on
the issue of exhaustion, and denied Defendants’ motion for summary
judgment without prejudice with respect to Defendants’ exhaustion
defense. See Jackson v. Gandy, 877 F. Supp. 2d 159, 178-179 (D.N.J.
2012). On January 6, 2014, Defendants moved to conduct a bifurcated
trial concerning the exhaustion issue. (See Motion to Bifurcate
[D.I. 156], 1-3.) By Order dated January 15, 2014, the Court
granted Defendants’ motion for a bifurcated trial on this issue.
(Order [D.I. 164], Jan. 15, 2014, 4.) The Court conducted a twoday 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. On September 29, 2014, the
Court issued an Opinion making factual findings and holding that
Plaintiff satisfied the exhaustion requirement by substantially
complying with the requirements of the state inmate remedy system.
(Memorandum Opinion and Order [D.I. 183], Sept. 29, 2014, 5-12,
19-20.) Following the Court’s Opinion, a trial was set for January
25, 2016. On December 23, 2015, however, Defendants submitted a
motion to stay the trial in light of the United State Supreme
Court’s grant of certiorari to consider whether the Fourth Circuit
in Blake v. Ross, 787 F.3d 693 (4th Cir. 2015) misapplied a
“special

circumstances”

exception

to

the

PLRA

exhaustion

requirement. (Motion to Stay [D.I. 236], 1-2). The Court adjourned
the January 25, 2016 trial pending resolution of the motion and on
2

January 28, 2016 granted Defendants’ motion to stay the trial
pending the Supreme Court’s decision in Blake.
On June 6, 2016, the United States Supreme Court in Ross
v. Blake rejected the Fourth Circuit’s “‘special circumstances’”
exception to the exhaustion requirement of the PLRA. Ross v. Blake,
136 S. Ct. 1850, 1856 (2016) (quoting Blake v. Ross, 787 F.3d 693,
698 (4th Cir. 2015)). The Supreme Court in Blake held that the
only exception to the exhaustion requirement of the PLRA is the
one “baked into its text:” that an inmate need only exhaust such
remedies as are “available.” Id. at 1862. Thereafter, the Court
requested

position

papers

from

the

parties

concerning

the

decision’s effect on the exhaustion issue in the instant matter.
(See Text Order [D.I. 252], June 8, 2016.) In their submissions,
all parties agreed that, after Blake, substantial compliance is
insufficient to satisfy the PLRA’s exhaustion requirement, and
that

the

relevant

issue

is

whether

the

inmate

remedy

system

constituted an “available” remedy in this case. (See generally
Defendants’ Position Paper [D.I. 255]; Plaintiff’s Position Paper
[D.I.

256].)

Defendants

assert,

however,

that

the

textual

exception that only “available” remedies must be exhausted does
not apply in this case because none of the circumstances where an
administrative remedy is deemed unavailable are present in the
facts of this case. (Defendants’ Position Paper [D.I. 255], 2-3.)
Plaintiff, by contrast, argues that by failing to respond to
3

Plaintiff’s

inmate

remedy

form,

prison

officials

prevented

Plaintiff from exhausting the administrative remedy and that,
therefore,

the

remedy

was

not

“available.”

(See

generally

Plaintiff’s Position Paper [D.I. 256], 1-4.) On August 26, 2016,
the Court dissolved the stay of this matter. (Order [D.I. 258].)
On June 27, 2017, the Court held a telephone conference with all
parties and granted leave to file additional submissions by July
10, 2017. On July 10, 2017, Plaintiff submitted an additional
letter

brief

for

the

Court’s

consideration.

(See

Plaintiff’s

Letter Brief [D.I. 263].) Accordingly, the Court now considers
whether the inmate remedy system in this case was “available” to
Plaintiff.
The Prison Litigation Reform Act generally addresses
litigation involving prison conditions and specifically governs
Plaintiff’s grievances. See generally 42 U.S.C. § 1997e(a). The
PLRA 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 any jail, prison, or
other

correctional

facility

until”

the

inmate

litigant

has

“exhausted” all available “administrative remedies[.]” 42 U.S.C.
§ 1997e(a). The PLRA's exhaustion requirement “‘applies to all
inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.’”
4

Jackson v. Gandy, 877 F.

Supp. 2d 159, 174 (D.N.J. 2012) (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

adjudicative

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

administration

of

federal-court

prisons,

and

interference

thus

seek[]

to

with

the

‘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

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), recons. granted in part on other grounds, 2013 WL 5161144
(D.N.J. Sept. 12, 2013) (quoting Atum–Ra v. Ortiz, No. 04–2711,
2006

WL

1675091,

at

*2

(D.N.J.
5

June

14,

2006)).

Exhaustion

therefore constitutes “a precondition for bringing suit under §
1983”

and

a

“‘threshold

issue’”

the

Court

must

address

in

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 Cir. 2010)). However, failure to exhaust
remains an “affirmative defense[.]”

Jones v. Bock, 549 U.S. 199,

216 (2007). 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 Court previously had occasion to set forth the state
administrative procedure for the inmate remedy system at issue in
this case:
The New Jersey Administrative Code sets forth
the exhaustion procedure relevant to this
action. See N.J.A.C. § 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 interview with “correctional facility
staff”
concerning
the
inmate’s
issues.
N.J.A.C.
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
6

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).
(Opinion [D.I. 183], Sept. 29, 2014, 14-15) (footnote omitted). 1
The PLRA only requires prisoners to exhaust “available”
administrative

remedies.

Blake,

136

S.

Ct.

at

1858.

An

administrative remedy is available in the exhaustion context if it
is “‘capable of use for the accomplishment of a purpose’” and “‘is
accessible

or

Administrative

may

be

remedies

obtained’”.

Id.

however

unavailable

are

(citation

omitted).

“when

prison

administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.”
Id. at 1860. In this regard, the Third Circuit has held that where
prison officials have failed to respond to a prisoner’s complaint,
and the “procedures did not contemplate an appeal from a nondecision,” the administrative remedy is no longer available to

1

These regulations are not identical to the current regulations
which were amended in 2015. These are, however, the regulations
that the Court previously found relevant to the exhaustion issue
in its prior opinion. See id. at 14 n.14.
7

him. Small, 728 F.3d at 273. 2 See also Robinson v. Superintendent
Rockview SCI, 831 F.3d 148, 154 (3d. Cir. 2016) (holding that,
consistent

with

Small,

prison

officials

rendered

plaintiff’s

administrative remedies unavailable when they failed to timely
respond to his grievance and then ignored his follow-up requests
for a decision on the complaint); Bond v. Horne, 553 F. App’x 219,
222 (3d Cir. 2014) (applying Small and concluding that, because
plaintiff never received a decision on his second level of appeal,
the remedy was not available). Cf. Basemore v. Vihildal, 605 F.
App’x 105, 109 n.6 (3d. Cir. 2015) (holding that, unlike in Small,
plaintiff did receive a response to his grievances and therefore
the administrative remedies were available) (citing Small, 728
F.3d at 273). Most recently, the District Court in Romero v. Ahsan,
relying upon the Third Circuit’s decision in Small, concluded that
the New Jersey’s inmate remedy system similarly “does not provide
for

the

appeal

of

non-decisions,

[but]

only

of

adverse

determinations.” Romero v. Ahsan, No. 13-7695, 2016 WL 7424486, at

2

An opposite result might be reached if the administrative
procedures provide a process for appeal upon a non-decision. See,
Gambino v. Fed. Corr. Inst.-McKean, No. 14-CV-236, 2017 WL 1190498,
at *6 (W.D. Pa. Mar. 31, 2017)(finding that a non-response did not
excuse the obligation to exhaust remedies in light of regulations
providing procedures for exhausting claims when a complaint is
“not timely responded to by the government”)(citing 28 C.F.R. §
542.14(d)(1)). Defendants have offered no evidence to support a
finding that the inmate remedy system has a parallel procedure, in
the event of a governmental failure to timely respond.
8

*8 (D.N.J Dec. 22, 2016) (citing N.J.A.C. § 10A:1-4.6(a)). 3 In
Romero, the District Court concluded that it did not have a
sufficient record to make the determination, and further found
that “if this [c]ourt were to find that [p]laintiff [filed the
grievances]

...

[and]

did

not

receive

responses

to

those

complaints, the [c]ourt could find that the [inmate remedy system]
grievance process was not legally ‘available’ to [p]laintiff,
excusing his failure to exhaust administrative remedies.” Id.
Failure of the prison to respond to an inmate’s request
makes the remedy unavailable when the complaint was filed properly
according to the relevant administrative procedures. See Small,
728 F.3d at 273, 273 n.8. In Small, as noted supra, the Third
Circuit held that the District Court had improperly dismissed
grievances for failure to file an appeal when prison officials did
not respond to the complaint; however, the Small court also noted
that dismissal of other grievances was proper, notwithstanding the
failure of prison officials to respond, because the grievances

3

The Court notes that, despite the amendments to the regulations
in 2015, the language which the Court in Romero highlighted to
support this finding is identical to the language of the prior
regulations. Compare id. (“An inmate may appeal a response or
finding received after exhausting the second step of the Inmate
Remedy System as indicated in N.J.A.C. 10A:1-4.5 above”)(quoting
N.J.A.C. § 10A:1-4.6(a)) (emphasis in original), with (Opinion
[D.I. 183], Sept. 29, 2014, 15)(“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.)
(quoting N.J.A.C. 10A:1-4.6(a)) (emphasis added).
9

“did

not,

for

other

reasons,

comply

with

[the

Camden

County

Correctional Facility’s] grievance procedures.” Id. at 273, 273
n.8. Likewise, the lack of a response from prison officials has
not resulted in administrative remedies being deemed unavailable
when the grievances “were addressed and filed to the wrong official
or filed nine months past the deadline, in direct contravention of
the grievance procedure in place at [the prison.]” Boynes v. Cty.
of Lawrence, No. 15-139, 2017 WL 746807, at *4 (W.D. Pa. Feb. 27,
2017) (citing Small, 728 F.3d at 273) (emphasis in original).
The Court now addresses whether the inmate remedy system
was available to Plaintiff in this case. In so considering, the
Court first incorporates the findings of fact from our Opinion
dated September 29, 2014. These findings are as follows:
a.

Inmate Remedy System, generally
1.

2.

3.

At all times relevant to this litigation, the New Jersey
Department of Corrections maintained a generally
standardized
inmate
remedy
system
and
grievance
procedure. 4 (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. 5 (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

4

Defendants’ exhibit two sets forth the operative sections of the
New Jersey Administrative Code, which govern the inmate remedy
system.
5 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.
10

4.

5.

6.

7.

8.

9.

10.

11.

12.

a single, one-page document, and the inmate handbook, to
the extent available to individual inmates, advises
inmates of the relevant process and procedures. 6 (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 36:1-13,
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, 97:45.)
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.)
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, 99:1216.)
The coordinator processing depends upon whether the
coordinator deems the request compliant with the inmate
remedy system. (See id. at 100:6-19, 123:10-129:10.)
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

6

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.
11

13.

14.
15.

16.

17.

18.

19.

20.

21.

22.

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
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 request. 7 (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.)

7

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.)
12

23.

24.

b.

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.

27.

28.

29.

30.

31.

Plaintiff signed an inmate remedy form dated August 15,
2007, and produced by Defendants in the course of
discovery in this action. 8 (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.)
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. 9 (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

8

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[.]”
9
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.
13

32.
33.

c.

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
Plaintiff’s August 20, 2007 disciplinary proceeding. 10
South Woods utilized the inmate remedy form in
connection
with
the
adjudication
of
Plaintiff’s
disciplinary charges. 11

Plaintiff’s disciplinary hearing
34.
35.

36.

37.

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”).)

10

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).)
11 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.
14

38.

39.

40.

41.
42.

Plaintiff’s disciplinary hearing was postponed a number
of times as a result of the need for witness statements, 12
preparation of the SID report, and/or Plaintiff’s
requests for a polygraph examination. 13 (See D6 at 1
(setting forth the various grounds for postponement of
Plaintiff’s disciplinary hearing date).)
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. 14 (D6 at 2.)

12

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.
13 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.
14 Plaintiff specifically provided the following statement in
connection with his disciplinary hearing:
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
15

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.

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 156:1-159:18.)
Mr. Crotty also facilitated Plaintiff’s request for a
polygraph examination. 15 (Id.)

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.)
15

Plaintiff’s exhibit six sets forth Plaintiff’s request for a
polygraph examination dated July 12, 2007 concerning “allegations
of being assaulted[.]”
16

48.

49.

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 Court further makes the following findings of fact:
e.

Additional Findings on Plaintiff’s Inmate Remedy Form

50.

At the time Plaintiff submitted his inmate remedy form,
Plaintiff was confined to his cell, and would be moved only
by escort and with video recording. (See id. at 268:1620.)

51.

Plaintiff did not receive an inmate remedy system response
to his allegations of assault and/or his request for a
polygraph. (See id. at 268:2-16.)

In light of the record before the Court, the Court concludes that
the

actions

of

prison

officials

rendered

Plaintiff’s

administrative remedies unavailable. The PLRA requires an inmate
to

exhaust

(emphasis

“available”
added).

remedies.

Administrative

Blake,
remedies

136
are

S.

Ct.

not

at

1859

available,

however, where prison officials “thwart” an inmate’s efforts to
utilize the grievance procedure. Id. at 1860. Specifically, where
prison officials have failed to respond to a prisoner’s complaint,
and the “procedures did not contemplate an appeal from a nondecision” the administrative remedy is no longer available. Small,
728 F.3d at 273. 16 Here, the testimony clearly reflected that a

16

As discussed above, failure of prison officials to respond to a
grievance does not make a remedy unavailable if the inmate did not
comply with the relevant grievance procedures. Here, however,
Defendants have made no showing that Plaintiff’s original
17

prison official may return an inmate remedy form without action or
may entirely 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. Karen Balicki Phillips and James E. Dutch specifically
testified concerning the manner in which prison officials may
disregard an inmate’s remedy form and also the manner in which
prison administration likely processed Plaintiff’s inmate remedy
form. (See, e.g., Tr. Vol. 1 at 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, and
notwithstanding the substance of the inmate remedy form, Mr. Dutch
asserted that the administration would deem the process invalid
and reject the inmate remedy form, without notice to the inmate.
(Id. at 79:23-80:24.) 17 Karen Balicki Phillips (hereinafter, “Ms.

submission of his inmate remedy form failed to comply with the
inmate remedy system procedures.
17 Defendants have not demonstrated that Plaintiff’s remedy form
was placed in the wrong box and there is nothing in the record to
support such a finding. See Boynes, 2017 WL 746807, at *4 (W.D.
Pa. Feb. 27, 2017) (failure of prison officials to respond to
complaints did not result in unavailability where complaints “were
addressed and filed to the wrong official or filed nine months
past the deadline, in direct contravention of the grievance
procedure in place at [the prison.]”) (citing Small, 728 F.3d at
273).
18

Balicki”) similarly testified that certain inmate remedy forms may
be

“disregarded[.]”

(Id.

at

100:9-11.)

Ms.

Balicki

then

specifically 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 125:15-127:25.) In light of this testimony, the Court
cannot

conclude

remedies.

that

Rather,

Plaintiff

the

failed

testimony

to

exhaust

suggests

that

available

the

prison

administration’s own processing of Plaintiff’s inmate remedy form
precluded his exhaustion of the inmate remedy system. Indeed,
Defendants’ production of Plaintiff’s remedy form in connection
with

both

the

disciplinary

discovery

proceeding,

in

this

litigation

necessarily

leads

and

the

Plaintiff’s

Court

to

one

inescapable conclusion: prison administration received Plaintiff’s
inmate remedy form, but never responded, nor returned the form to
Plaintiff with a corresponding indication that Plaintiff must take
certain additional steps in order to address his allegations.
Inasmuch,

Defendants

administration

have

responded

not
to

demonstrated

Plaintiff’s

that

inmate

the
remedy

prison
form

pursuant to the inmate remedy system. Instead, at most prison
officials responded to the polygraph portion of the inmate remedy
form at issue by way of addressing the polygraph request during
the disciplinary hearing process. (Compare D1 (Plaintiff’s inmate
19

remedy form dated August 15, 2007, bates-stamped “V.Jackson88” and
identified as “A19”), with D6 at 2 (identifying “A19 POLYGRAPH
request” as the correctional facility’s confidential evidence in
connection with Plaintiff’s disciplinary proceeding).) The inmate
remedy system was not available to Plaintiff when prison officials’
own affirmative actions have precluded him from invoking the
relevant

administrative

remedies

and,

in

fact,

expressly

foreclosed the availability of those remedies. See Small, 728 F.3d
at 273 (“Because [the remedy process] did not contemplate an appeal
from a non-decision, when Small failed to receive even a response
... to those grievances, the appeals process was unavailable to
him.”); Robinson, 831 F.3d at 154 (3d. Cir. 2016) (“SCI Rockview
rendered
failed

its

to

administrative

timely

(by

its

remedies
own

unavailable

procedural

rules)

...

when

it

respond

to

[Plaintiff’s] grievance and then repeatedly ignored his follow-up
request for a decision[.]”); Romero, 2016 WL 7424486, at *8 (“[I]f
this Court were to find that Plaintiff [filed the grievances] ...
[and] did not receive responses to those complaints, the Court
could find that the [inmate remedy system] grievance process was
not legally ‘available’ to Plaintiff[.]”); Gadra-Lord v. Vuksta,
No. 15-540, 2017 WL 1652619, at *4 (M.D. Pa. Jan. 31, 2017), report
and recommendation adopted, No. 15-540, 2017 WL 1541705 (M.D. Pa.
Apr. 28, 2017) (“Likewise, ‘[w]here [the inmate] failed to receive
even a response to the grievances ... much less a decision as to
20

those

grievances,

the

[administrative

remedy]

process

was

unavailable to him.’”) (quoting Small, 728 F.3d at 273); LugoVazquez 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
found to be unavailable for PLRA purposes”) (citations omitted);
Lewis v. Wash., 300 F.3d 829, 833 (7th Cir. 2002) (joining other
circuits in concluding that prison officials’ failure to respond
to

a

prisoner’s

unavailable).

claim

Therefore,

can

render

Defendant’s

administrative
affirmative

remedies

defense

of

failure to exhaust is rejected.
Consequently, for the reasons set forth herein, and for
good cause shown:
IT IS on this 1st day of August 2017,
ORDERED that Defendants’ request to dismiss this action
for failure to exhaust administrative remedies pursuant to the
Prison Litigation Reform Act shall be, and hereby is, DENIED.

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

21