JACKSON v. GANDY et al
Filing
84
ORDER granting in part and denying in part and denying without prejudice in part Deft's 58 Motion for Summary Judgment; Granted w/respect to all claims against the defts in their official capacities, Granted w/respect to all claims against Ba licki, Sullivan and Hayman in their individual capacities, Denied w/respect to Pltf's excessive force claims against Officers Gandy, Saduk and Roman, Denied w/respect to Defts' arguments based on the qualified immunity of Officers Gandy, S aduk and Roman, Denied w/o prejudice w/respect to Defts' argument that Pltf is not entitled to punitive damages, Denied w/o prejudice w/respect to Defts' argument that Pltf failed to exhaust his administrative remedies.. Signed by Magistrate Judge Ann Marie Donio on 6/29/12. (th, )
[Doc. No. 58]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
VINCE JACKSON,
Plaintiff,
Civil No. 09-1141 (RMB/AMD)
v.
ERIC GANDY, et al.,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court by way of motion [Doc.
No. 58] for summary judgment filed by Defendants Gandy, Saduk, and
Roman,
(hereinafter
referred
to
collectively
as
“Defendant
Officers”), and Defendants George W. Hayman, Commissioner, N.J.
Department of Corrections, Thomas Sullivan, Administrator Bayside
State
Prison,
and
Karen
Balicki,
Administrator.
Plaintiff’s
complaint arises out of an alleged July 9, 2007 incident at Bayside
State Prison (hereinafter referred to as “BSP”) (Pl.’s Compl. [Doc.
No. 1] ¶ ¶ 4, 5).
Plaintiff alleges that Defendant Officers Gandy
and Saduk assaulted Plaintiff while Plaintiff was in custody at
BSP.
Plaintiff alleges that Defendant Officer Roman and SCO John
Doe conspired to assault Plaintiff and that Defendant Nurse Jane
Doe failed to provide Plaintiff proper medical treatment.
1
(Id. ¶
5.)
Plaintiff also alleges that Defendants Balicki, Sullivan, and
Hayman failed to adequately train and supervise the officers and
prison staff under their control, that this failure to train and
supervise resulted in the assault, and that these Defendants were
deliberately indifferent to his medical needs following the alleged
assault. (Pl.’s Am. Compl. [Doc. No. 17] ¶ ¶ 2, 5.)
Plaintiff
brings claims under 42 U.S.C. § 1983 for violations of his Eighth
Amendment right against cruel and unusual punishment. Plaintiff
additionally alleges violations of the New Jersey constitutional
provision against cruel and unusual punishment.
(Id. ¶ 2.)
Defendants have moved for summary judgment [Doc. No. 58]
pursuant to Federal Rule of Civil Procedure 56 on a number of
grounds.
Defendants
assert
that:
(1)
Plaintiff's
amended
complaint against Defendants Balicki, Sullivan, and Hayman is
barred by the statute of limitations; (2) Plaintiff's claims are
barred because of Plaintiff's failure to exhaust his administrative
remedies;
(3)
Plaintiff's
claims
against
Defendants
Balicki,
Sullivan, and Hayman must be dismissed because they are solely
based on an impermissible theory of respondeat superior; (4)
Defendants
are
entitled
to
dismissal
of
Plaintiff's
official
capacity claims because such claims are barred by the Eleventh
Amendment, and because Defendants in their official capacities are
not persons amenable to suit under 42 U.S.C. § 1983; (5) Defendants
are entitled to summary judgment as to Plaintiff's Eighth Amendment
2
claim that he was assaulted on July 9, 2007 because he was found
guilty of assault through prison disciplinary proceedings; (6)
Defendants are entitled to qualified immunity; and (7) Defendants
are entitled to summary judgment with regard to Plaintiff's claims
for punitive damages.
This Court has subject matter jurisdiction over the
federal law claims under 28 U.S.C. §§ 1331 and 1343.
The claims
arising under the New Jersey constitutional provisions against
cruel and unusual punishment are related to the federal claims and
form part of the same case or controversy; therefore, the Court has
supplemental jurisdiction over those claims.
28 U.S.C. § 1367.
The parties consented to this Court’s jurisdiction pursuant to 28
U.S.C. § 636(c)(1), FED. R. CIV . P. 73(b), and Rule 73.1 of the Local
Civil Rules for the United States District Court, District of New
Jersey.
Plaintiff named the Defendant Officers Gandy, Saduk, and
Roman, as well as Defendant SCO John Doe and Defendant Nurse Jane
Doe, in his initial complaint, and alleged that Defendant Officers
Gandy and Saduk assaulted him while in the custody of BSP, that
Defendant Officer Roman and SCO John Doe conspired to assault
Plaintiff, and that Defendant Nurse Jane Doe failed to provide
proper medical treatment.
(Pl.’s Compl. 5, 7-8.)
Specifically,
Plaintiff asserts that on July 8, 2007, Defendant Officer Gandy
took a
television
away
from
Plaintiff as
3
punishment
for
not
returning his food tray in a timely fashion. (Id. at 7.) Plaintiff
further
asserts
that
on
July
9,
2007,
Plaintiff
questioned
Defendant Officer Gandy about the return of his television, and
Defendant
Officer
Gandy
dismissed
Plaintiff’s
inquiry.
(Id.)
Plaintiff alleges that on or about 7:30 p.m. that night, Plaintiff
was called out of his cell to the courtyard stairs of the F Unit at
BSP by Defendant Officer Gandy. (Id.) Plaintiff asserts that he
witnessed Defendant Officer Gandy throw the television down the
stairs,
and
supervising
that
when
sergeant,
Plaintiff
he
Officers Gandy and Saduk.
was
requested
denied
(Id.)
to
speak
permission
by
to
the
Defendant
Plaintiff alleges that, at the
time Plaintiff made this request, Defendant Officers Gandy and
Saduk
put
on
gloves,
made
racial
comments,
and
threatened
Plaintiff. (Id.) At this point, Plaintiff alleges he fled the area
and
attempted
to
hide
under
the
day
room
staircase.
(Id.)
Plaintiff further alleges that he was then attacked by Defendant
Officers Gandy and Saduk, who struck him in the head, face, and
body, while Plaintiff screamed for help. (Id.) Plaintiff asserts
that the alleged assault was witnessed by Defendant Officer Roman
and another John Doe officer, and that those witnessing officers
did not attempt to intervene. (Id. at 7-8). Plaintiff asserts that
he was then transported to the medical unit where Defendant Nurse
Jane Doe allegedly refused to treat his medical injuries.
8.)
(Id. at
Plaintiff then claims that at or around 10:00 p.m. on July 9,
4
2007,
Plaintiff
was
transported
to
South
Woods
State
Prison
(hereinafter, “SWSP”), where a nurse observed his injuries but
allegedly denied him medical treatment. (Id.) Plaintiff was then
placed in lockup at SWSP. (Id.) Plaintiff asserts that on the
morning of July 10, 2007, Plaintiff was found unconscious on the
floor
of
his
cell,
an
ambulance
was
summoned,
and
he
was
transferred to South Jersey Regional Medical Center. (Id.) There,
Plaintiff asserts he was examined by Dr. Curt W. Cackovic, and was
diagnosed with trauma of the head, vision change, and bruises to
the face. (Id.)
Plaintiff asserts that Defendant Officers Gandy and Saduk
subsequently filed disciplinary charges against Plaintiff, which
resulted in a sentence of 830 days in solitary confinement. (Id.)
Plaintiff avers that “[a]ll remedies and grievances have been
forward[ed]
to
the
Administration
and
the
Correction[s],” and that no response was received.
Department
of
(Id.)
Plaintiff filed his amended complaint on January 25, 2010
and added claims against Defendants George W. Hayman, Commissioner,
N.J. Department of Corrections, Thomas Sullivan, Administrator at
BSP, and Karen Balicki, Administrator for failure to adequately
train and supervise those under their control.
The following facts are not in dispute:1
1.
Pursuant to Local Civil Rule 56.1(a), a party moving for
summary judgment must provide a statement setting forth "material
facts as to which there does not exist a genuine issue[.]"
5
1. On July 9, 2007, Defendants Gandy and Saduk conducted
a count of the inmates on their assigned housing unit at
Bayside State Prison. [citation omitted]
2. Defendant Saduk called in an incorrect count for the
number of inmates on his housing unit. [citation omitted]
. . .
11. The struggle between Defendant Gandy and Plaintiff
continued under a stairwell. [citation omitted]
. . .
22. [Registered Nurse Gottwald] also noted that Plaintiff
had swelling to his right upper cheek and around the
outside corner of his right eye, an abrasion to his right
forehead, abrasions to all four knuckles of his right
hand, redness to his right and left shoulders, swelling
on his right eyelid and a scratch under his left eye.
[citation omitted]
. . .
25. On July 9, 2007, Plaintiff was issued a disciplinary
charge for *.002, assaulting any person, *.306, conduct
which disrupts or interferes with the security or orderly
running of the correctional facility, and .502,
interfering with the taking of count. [citation omitted]
L. CIV. R. 56.1(a). The opponent of summary judgment "shall
furnish, with its opposition papers, a responsive statement of
material facts, addressing each paragraph of the movant's
statement, indicating agreement or disagreement and, if not
agreed, stating each material fact in dispute and citing to the
affidavits and other documents submitted in connection with the
motion[.]" Id. "[A]ny material fact not disputed shall be
deemed undisputed for purposes of the summary judgment motion."
Id. The opponent "may also furnish a supplemental statement of
disputed material facts . . . if necessary to substantiate the
factual basis for opposition." Id. In this case, Plaintiff
admitted to paragraphs 1, 2, 11, 22, 25, 26, 27, 28, 29, 31, 32,
33, 39, 40, 41, 42, 44, 45, 46, 49, 53, 54, 55, 56, 57, 62, 63,
64, 65, 66, 67, and 68 of Defendants’ Statement of Material
Facts. Plaintiff asserted that he lacked sufficient knowledge to
admit or deny paragraphs 3, 4, 10, 14, 18, 20, 21, 23, 30, 34,
35, 47, 50, 52, 58, and 59. Plaintiff denied the remaining
paragraphs. (Doc. No. 66.)
6
26. After a disciplinary hearing, Plaintiff was found
guilty of all three charges. [citation omitted]
27.
The guilty finding was upheld on administrative
appeal. [citation omitted]
28. Plaintiff did not appeal that final administrative
decision to the court and those charges remain on
Plaintiff's
prison
disciplinary
record.
[citation
omitted]
29.
On July 9, 2007, Plaintiff reported to Special
Investigations Division (“SID”) Senior Investigator Carol
Steward that Defendants Gandy and Saduk assaulted him and
he attempted to hid[e] under the stairwell. [citation
omitted]
. . .
31. Plaintiff provided a written statement regarding the
alleged assault to Investigator Steward. [citation
omitted]
32. In his written statement, Plaintiff alleged he was
assaulted by Defendants Gandy and Saduk, and that Officer
McAllurenta was present during the assault. [citation
omitted]
33.
Plaintiff [ ] did not include in his written
statement that Defendant Roman was also involved in the
alleged July 9, 2007 assault. [citation omitted]
. . .
39. Defendants Gandy, Saduk and Roman all testified that
Defendant Roman had no involvement in the July 9, 2007
incident with Plaintiff. [citation omitted]
. . .
41. Plaintiff was unable to pick Defendant Roman out of
a photo array. [citation omitted]
42.
Plaintiff was moved to South Woods State Prison
(“SWSP”) on July 9, 2007. [citation omitted]
. . .
7
44. SWSP and EJSP both provided a grievance procedure to
inmates in their institutions and that grievance
procedure was set forth in the Inmate Handbooks of each
institution. [citation omitted]
45. In 2007, the SWSP procedure for filing grievances
was available to all inmates through the Inmate Handbook.
[citation omitted]
46. The grievance procedure is a mechanism designed to
provide a direct and confidential route for inmates to
make the Administration aware of any problems and
concerns and to allow the Administration to remedy any
problems in a timely and efficient manner. [citations
omitted]
. . .
49. If an inmate was unable to access the appropriate
Drop Box, an assigned Social Worker or unit housing
officer would deposit the Form in the appropriate box.
[citation omitted]
. . .
53.
Once an inmate received the response to his
administrative appeal his administrative remedies were
exhausted. [citation omitted]
(Defs.' Statement of Material Facts [Doc. No. 58-6] ("hereinafter
Defs.' Facts"); Pl.'s Response to Statement of Material Facts
[Doc. No. 66] (hereinafter Pl.'s Facts").)
On August 15, 2007, Plaintiff filed a remedy form while
at
SWSP requesting
a
polygraph
test
in
conjunction
with the
disciplinary hearing resulting from the July 9, 2007 incident.
(Declaration of Susan Scott [Doc. No. 58-2] Ex. B.)
The request
was denied and there is no evidence that Plaintiff appealed the
denial.
(Id.)
The following facts are also undisputed:
8
54. EJSP also had an Inmate Handbook in place in
accordance with N.J.A.C. 10A:8-1.1 to -3.6, which set
forth the rights and privileges of inmates. [citation
omitted]
55.
The
EJSP
Inmate
Handbook
sets
forth
an
administrative grievance procedure which is designed to
provide a direct and confidential route for inmates to
make the administration aware of any problems and
concerns and to allow the administration to remedy any
problems in a timely and efficient manner. [citation
omitted]
56. Pursuant to the EJSP Handbook, the inmate is to
complete an Inmate Request System and Remedy Form and
place it in the correctional facility box marked “INMATE
REQUEST SYSTEM AND REMEDY FORMS ONLY.” [citation
omitted]
57. The completed forms are then picked up from the box
daily, with the exception of weekends, holidays, and
during emergencies, and a response [is] provided.
[citation omitted]
. . .
62. Plaintiff submitted EJSP remedy forms with regard to
issues, such as: access to the law library, medical
treatment unrelated to the incident at issue in this
Complaint, classification inquiries, restoration of
commutation credit that he lost as a result of this
incident, a newspaper subscription, requesting an inmate
account statement, and his work pay. . . . None of the
grievance forms submitted by Plaintiff at EJSP pertain
to any of the allegations raised in his Complaint.
[citation omitted]
(Defs.' Statement of Material Facts [Doc. No. 58-6]("hereinafter
Defs.' Facts"); Pl.'s Response to Statement of Material Facts [Doc.
No. 66] (hereinafter “Pl.'s Facts").)
At some point prior to the filing of the complaint, Plaintiff was
transferred to East Jersey State Prison (hereinafter, “EJSP”).
(Defs.’ Facts ¶ 62.)
A court may grant summary judgment “‘if the pleadings,
9
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.’”
Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting FED . R. CIV . P. 56(c)).
A genuine
issue of material fact exists only if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fact
is "material" if it "might affect the outcome of the suit under the
governing law."
Id.
"Factual disputes that are irrelevant or
unnecessary will not be counted."
Id.
The moving party bears the initial burden of "identifying
those
portions
interrogatories,
of
and
'the
pleadings,
admissions
on
depositions,
file,
answers
together
with
to
the
affidavits, if any,' which it believes demonstrate the absence of
a genuine issue of material fact." Celotex Corp., 477 U.S. at 323.
Once a moving party satisfies its burden, the party opposing
summary judgment must then "set forth specific facts showing that
there is a genuine issue for trial."
(quoting FED. R. CIV . P. 56(e)).
Anderson, 477 U.S. at 248
A non-moving party must present
more than "'bare assertions, conclusory allegations or suspicions'
to show the existence of a genuine issue."
McCabe v. Ernst &
Young, LLP., 494 F.3d 418, 436-37 (3d Cir. 2007)(quoting Podobnik
v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)); see also
10
Anderson, 477 U.S. at 249-50.
The Court must view the evidence in
a light most favorable to the non-moving party and any "justifiable
inferences" shall be extended to the non-moving party.
Anderson,
477 U.S. at 255.
The Eleventh Amendment bars suits by individuals against
states or their agencies unless immunity has been waived.
See
Pennsylvania Fed’n of Sportsmen’s Club, Inc. v. Hess, 297 F.3d 310,
323-24 (3d Cir. 2002).
Sovereign immunity “also bars a suit
against a state official in his or her official capacity because it
‘is not a suit against the official but rather is a suit against
the official's office.’”
Garden State Elec. Inspection Servs.,
Inc. v. Levin, 144 F. App'x 247, 251 (3d Cir. 2005) (quoting Will
v.
Mich.
Dep't
of
State
Police,
491
U.S.
58,
71
(1989)).
Therefore, “[a]s a matter of law, suits against individuals acting
in their official capacities are barred by the Eleventh Amendment.”
Smith v. Hayman, No. 09-2602, 2012 WL 1079634, at *22 (D.N.J. Mar.
20, 2012)(quoting Holland v. Taylor, 604 F. Supp. 2d 692, 699 (D.
Del. 2009)).
The Eleventh Amendment does not, however, bar a suit
against a state official acting in his or her individual capacity,
even if the actions which are the subject of the suit were part of
their official duties.
See Hafer v. Melo, 502 U.S. 21, 31 (1991).
Plaintiff has brought suit against Defendants in both
their
individual
and
official
capacities.
(Am.
Compl.
2.)
Defendants argue that Plaintiff’s claims against Defendants in
11
their official capacities are barred by the Eleventh Amendment.
(Br. in Supp. of Defs.’ Mot. for Summ. J. Pursuant to FED . R. CIV .
P. 56 [Doc. No. 58-1] (hereinafter, “Defs.’ Br.”), 25.)
Plaintiff
makes no argument for why Defendants are amenable to suit in their
official capacity, and instead argues that the Eleventh Amendment
does not bar Plaintiff from suing the officials in their individual
capacities.
[Doc.
No.
(Pl.’s Letter Br. in Opp’n to Defs.’ Mot. for Summ. J.
64]
Plaintiff’s
(hereinafter,
claims
against
capacities, are dismissed.
“Pl.’s
Br.”),
Defendants,
in
6.)
Therefore,
their
official
See Smith, 2012 WL 1079634, at *22
(dismissing claims against a prison administrator in her official
capacity based on the fact that such suits are barred under the
Eleventh Amendment); Lopez v. Corr. Med. Servs., No. 04-2155, 2009
WL 1883915, at *4 (D.N.J. June 30, 2009) (dismissing claims against
defendants in their official capacity based on immunity under the
Eleventh Amendment while addressing claims against defendants in
their individual capacities on their merits).
Defendants
additionally
argue
that
Plaintiff
added
Defendants Balicki, Sullivan, and Hayman to the amended complaint
in their individual capacity based on an impermissible theory of
respondeat
superior.
Specifically,
Defendants
assert
that
"[s]upervisory liability under § 1983 cannot be predicated solely
upon a theory of respondeat superior." (Defs.' Br. 22.) Defendants
argue
that
supervisory
liability
12
can
be
found
only
if
the
supervisor
"participated
in violating
the
plaintiff's
rights,
directed others to violate them, or, as the person in charge, had
knowledge of and acquiesced in his subordinates' violations" or the
supervisor
"with
deliberate
indifference
to
the
consequences,
established and maintained a policy, practice or custom which
directly caused the constitutional harm." (Id. at 23.) Defendants
further argue that "a single incident of unconstitutional activity
is not sufficient to constitute a policy or custom to impose
liability." (Id.) Defendants then assert that Plaintiff has failed
to allege that Balicki, Sullivan, or Hayman either participated in
the alleged assault of Plaintiff or directed the alleged assault.
(Id.)
Defendants further assert that an alleged isolated incident
is insufficient to establish the existence of a policy or custom
established by the new defendants.
Based on these assertions,
Defendants argue that the claims against Balicki, Sullivan, and
Hayman should be dismissed.
In Argueta v. U.S. Immigration and Customs Enforcement
("ICE"), 643 F.3d 60 (3d Cir. 2011), the Third Circuit addressed
the situations in which a court can find sufficient personal
involvement of a supervisory defendant for liability under § 1983.
First, "'personal involvement can be shown through allegations of
personal direction or of actual knowledge and acquiescence.'"
Id.
at 72 (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988)). Moreover, "[i]t is also possible to establish section 1983
13
supervisory liability by showing a supervisor tolerated past or
ongoing misbehavior."
Id. (quoting Baker v. Monroe Twp., 50 F.3d
1186, 1191 n.3 (3d Cir. 1995)).
In addition, "a supervisor may be
liable under § 1983 if he or she implements a policy or practice
that creates an unreasonable risk of a constitutional violation on
the part of the subordinate and the supervisor's failure to change
the policy or employ corrective practices is a cause of this
unconstitutional conduct." Id. (citing Brown v. Muhlenberg Twp.,
269 F.3d 205, 216 (3d Cir. 2001)).
Here, Plaintiff has failed to present any factual basis
upon which Plaintiff can support the allegation that Defendants
Balicki, Sullivan, and Hayman, were personally involved in the
alleged incident.
judgment
to
While the Defendants bear the burden on summary
identify
"those
portions
of
'the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together
with
the
affidavits,
if
any,'
which
it
believes
demonstrate the absence of a genuine issue of material fact,"
Celotex Corp., 477 U.S. at 323, the party opposing summary judgment
must respond and "set forth specific facts showing that there is a
genuine issue for trial."
party
must
present
more
Anderson, 477 U.S. at 248.
than
"'bare
assertions,
A non-moving
conclusory
allegations or suspicions' to show the existence of a genuine
issue."
McCabe, 494 F.3d at 436-37 (quoting Podobnik v. U.S.
Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)); see also Anderson,
14
477 U.S. at 249-50. In opposition to Defendants' arguments that no
facts exist to support a finding of personal involvement with
respect to Balicki, Sullivan and Hayman, Plaintiff cites the
amended complaint as support for a genuine issue of material fact.
However, the portions of the amended complaint to which Plaintiff
cites provide no more than legal conclusions and unsupported
assertions of responsibility. (Pl.’s Letter Br. 4-5.)
Specifically, Plaintiff's counsel states that Defendant
Hayman failed to protect Plaintiff from "correction officers that
he knew or should have known had 'a propensity toward assaulting
inmates' and had 'an assaultive history.'" (Id. at 4 (citing Am.
Compl. ¶ 2).)
Plaintiff's counsel further asserts that these
Defendants "all acted with 'deliberate indifference' to the serious
medical needs of Plaintiff following the beating on July 9, 2007."
(Id. (citing Am. Compl. ¶¶ 2-5).) Plaintiff's counsel additionally
asserts "[t]hat these Defendants allowed a human being to be beaten
so badly, then quickly transferred to another facility without
immediate and appropriate medical care, is sufficient for them to
be named personally." (Id. at 4, 5.) Despite counsel's assertions
of
deliberate
indifference
and
notice
of
assaultive
history,
Plaintiff's counsel provides no factual basis to support any
personal involvement on behalf of these Defendants.
In order to
prevail against Defendants' motion for summary judgment on the
claims against these Defendants, Plaintiff must present more than
15
bare assertions, conclusory allegations, or suspicions to overcome
a motion for summary judgment. McCabe, 494 F.3d at 436-37 (quoting
Podobnik, 409 F.3d at 594); see also Anderson, 477 U.S. at 249-50.
In the context of supervisor liability, a plaintiff may
overcome a motion for summary judgment by setting forth “specific
facts showing that a defendant expressly directed the deprivation
of a plaintiff's constitutional rights or created such policies
where the subordinates had no discretion in applying the policies
in a fashion other than the one which actually produced the alleged
deprivation;
e.g.,
supervisory
liability
may
attach
if
the
plaintiff asserts facts showing that the supervisor's actions were
‘the moving force’ behind the harm suffered by the plaintiff.”
Prall v. Bocchini, No. 10-1228, 2011 WL 4457831, at *21 (D.N.J.
Sept. 23, 2011).
In Prall, the court dismissed the plaintiff’s
claims for supervisor liability finding that the plaintiff “alleged
no
facts
to
support
personal
involvement
by
the
supervisory
defendants, and simply relies on recitations of legal conclusions
such that they failed to supervise or failed to protect plaintiff
in violation of his constitutional rights.”
Id.
The Prall court
found that those “bare allegations, ‘because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id.
(citing Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009)).
Here, like
in Prall, Plaintiff has presented only legal conclusions while
failing to present specific facts from which the Court can find a
16
genuine issue of material fact necessary to overcome Defendants'
motion for summary judgment on the claims against these Defendants
in their individual capacity.
Therefore, summary judgment is
granted with respect to the claims against Defendants Balicki,
Sullivan, and Hayman in their individual capacities.
Having
dismissed the claims against Defendants Balicki, Sullivan, and
Hayman in both their individual and official capacities,2 and the
claims against the Defendants Gandy, Saduk, and Roman in their
official capacities, the Court shall now address the remaining
claims for excessive force against the Defendants Gandy, Saduk, and
Roman in their individual capacities.
In
addressing
Plaintiff’s
excessive
force
claim,
Defendants argue that the Court may only consider facts consistent
with Plaintiff’s prison disciplinary hearing and that the limited
facts which the Court may consider are insufficient to establish a
claim of excessive force under the Eighth Amendment.
A prisoner
who brings an excessive force action against correctional officers
at the prison must satisfy a two-pronged test as articulated by the
Supreme Court in Hudson v. McMillian, 503 U.S. 1 (1992).
In
Cipolla v. Hayman, No. 10-0889, 2011 WL 6132252, at *7 (D.N.J. Dec.
2
Defendants make the additional argument that the claims
against Defendants Balicki, Sullivan, and Hayman should be
dismissed because Plaintiff's amended complaint against
Defendants Balicki, Sullivan, and Hayman is barred by the statute
of limitations. As all claims against these Defendants have been
dismissed on other grounds, the Court need not address
Defendants’ statute of limitations argument.
17
8, 2011) the court articulated the proper inquiries for addressing
the two-prong test set forth in Hudson:
An Eighth Amendment claim includes both an objective
component, whether the deprivation of a basic human need
is sufficiently serious, and a subjective component,
whether the officials acted with a sufficiently culpable
state of mind. Wilson v. Seiter, 501 U.S. 294, 298, 111
S.Ct. 2321, 115 L.Ed.2d 271 (1991). The objective
component is contextual and responsive to “‘contemporary
standards of decency.’” Hudson v. McMillian, 503 U.S. 1,
8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).
The
subjective component follows from the principle that
“‘only the unnecessary and wanton infliction of pain
implicates the Eighth Amendment.’”
See Farmer v.
Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d
811 (1994) (quoting Wilson, 501 U.S. at 297 (internal
quotation marks, emphasis, and citations omitted));
Rhodes v. Chapman, 452 U.S. 337, 345, 101 S.Ct. 2392, 69
L.Ed.2d 59 (1981). What is necessary to establish an
unnecessary and wanton infliction of pain varies also
according to the nature of the alleged constitutional
violation. Hudson v. McMillian, 503 U.S. at 5.
Where the claim is one of excessive use of force, the
core inquiry as to the subjective component is that set
out in Whitley v. Albers, 475 U.S. 312, 320–21, 106
S.Ct. 1078, 89 L.Ed.2d 251 (1986) (citation omitted):
“‘whether force was applied in a good faith effort to
maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.’”
Quoted in Hudson, 503 U.S. at 6. “When prison officials
maliciously and sadistically use force to cause harm,
contemporary standards of decency always are violated.”
Id. at 9. In such cases, a prisoner may prevail on an
Eighth Amendment claim even in the absence of a serious
injury, the objective component, so long as there is
some pain or injury and something more than de minimis
force is used. Id. at 9–10 (finding that blows which
caused bruises, swelling, loosened teeth, and a cracked
dental plate were not de minimis for Eighth Amendment
purposes).
To determine whether force was used in “good faith” or
“maliciously and sadistically,” courts have identified
several factors, including:
18
(1) “the need of the application of force”; (2)
“the relationship between the need and the amount
of force that was used”; (3) “the extent of injury
inflicted”; (4) “the extent of the threat to the
safety of staff and inmates, as reasonably
perceived by responsible officials on the basis of
the facts known to them”; and (5) “any efforts made
to temper the severity of a forceful response.”
Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000)
(quoting Whitley v. Albers, 475 U.S. at 321). Thus, not
all use of force is “excessive,” the level of a
constitutional violation.
Id. at 7-8.
In considering whether Plaintiff has met his burden of
setting forth sufficient facts to establish a genuine issue of
material fact on Plaintiff’s excessive force claim, Defendants
argue that the Court may only consider those facts which do not
contradict the prison’s disciplinary hearing regarding the incident
in question.
When addressing a similar scenario, the Court in
Giudice v. County of Atl., No. 07-1143, 2008 U.S. Dist. LEXIS 92930
(D.N.J. Nov. 13, 2008) stated:
In determining whether the evidence supports Defendants'
argument, the Court may not consider any evidence
presented by Plaintiff that would be inconsistent with
the disciplinary decision against him finding him guilty
of attempt to assault. See Heck v. Humphrey, 512 U.S.
477, 486-87, 114 S. Ct. 2364, 129 L.Ed.2d 383 (1994)
(holding that plaintiff may not bring § 1983 claim based
on ‘actions whose unlawfulness would render a conviction
or sentence invalid’ unless the conviction had been
invalidated); see also Edwards v. Balisok, 520 U.S. 641,
643-48, 117 S. Ct. 1584, 137 L.Ed.2d 906 (1997)
(applying Heck where § 1983 plaintiff had been found
guilty in prison disciplinary proceeding). In some
cases, a § 1983 plaintiff's claim will not be completely
barred because of his conviction, but the plaintiff will
not be permitted to present evidence inconsistent with
19
his conviction.
See, e.g., Lora-Pena v. F.B.I., 529
F.3d 503, 506 (3d Cir. 2008) (finding that plaintiff's
conviction for resisting arrest did not bar his
excessive force claim because officer could have acted
with excessive force in response to plaintiff's illegal
conduct); Gilbert v. Cook, 512 F.3d 899, 901-02 (7th
Cir. 2008) (finding that § 1983 plaintiff was bound by
disciplinary hearing finding that he struck a guard, but
could still raise claims based on allegations that
guards used unreasonable force after this blow).
Id. at *10-11.
In Giudice, the court found that while the court
could not consider “[p]laintiff's claim that the attack on him was
completely unprovoked because this claim is inconsistent with the
disciplinary finding that [p]laintiff was guilty of attempt to
assault[,]” the Court could allow Plaintiff’s claims to go forward
on “the genuine issue of material fact regarding the relationship
between the amount of force used and the need for force.”
Id. at
*12.
Here,
in
Plaintiff’s
prison
disciplinary
hearing,
Plaintiff was found guilty of (1) assaulting any person, (2)
conduct which disrupts or interferes with the security or orderly
running of the correctional facility, and (3) interfering with the
taking of count. (Scott Decl. Ex. B, V.Jackson35-38, 42-45, and 4851.)
Therefore, to the extent that Plaintiff alleges the force
used against
him
was entirely
unprovoked,
the
Court
may
not
consider such an allegation as it would contradict the disciplinary
record.
However, as the court did in Giudice, this Court shall
consider whether Plaintiff has set forth sufficient facts to
establish that Defendant Officers Gandy, Saduk, and Roman used
20
excessive force in responding to Plaintiff’s conduct.
Plaintiff
certifies
Plaintiff
that
Defendants
Gandy
and
Saduk
beat
unconscious and that Defendant Roman assaulted Plaintiff. (Jackson
Certification
[Doc.
No.
64-1]
¶¶
9,
10.)
At
Plaintiff’s
deposition, Plaintiff further testified as to the alleged excessive
force.
(Jackson Dep. Tr. [Doc. No. 58-3], Ex. G, 22:19 - 25:17.)
Plaintiff additionally points to the fact that Plaintiff was found
on his cell floor on the morning following the incident.
medical
records
indicate
that
when
the
medical
staff
The
found
Plaintiff on the floor of his cell, Plaintiff’s right eye area and
right side of his face were swollen, that there was bruising noted
over his right eye area, that his pupils were sluggish to react to
light, and that his eyelids were twitching.
(Id. at Ex. C.)
The
Court further notes that the nurse’s exam conducted immediately
following the incident found “[s]welling to right upper cheek and
around outside corner of right eye; abrasion to right forehead;
abrasions to all four knuckles of right hand; redness to both right
and left shoulders; approximately ½ inch area of swelling on right
eyelid; approximately 1/4 inch scratch under left eye.”
Decl. Ex. B, V.Jackson67.)
(Scott
The Court additionally notes that the
SID administrative investigation report concludes “once Inmate
Jackson assaulted Custody Staff and then retreated under the
stairwell he could have been secured behind the stairwell gate,
which would have negated Custody Staff’s need to pursue him and
21
risk further Staff injury.”
(Scott Decl. Ex. C, V.Jackson132.)
Based on Plaintiff’s certification and testimony at his deposition,
the Court finds there to be a genuine issue of material fact as to
whether the force used to subdue Plaintiff was excessive and in
violation of Plaintiff’s Eighth Amendment rights.
In
addition
to
Defendants’
general
arguments
that
Plaintiff cannot establish sufficient facts to proceed on his
excessive force claim, Defendants make the additional argument with
respect to Defendant Officer Roman that Plaintiff has failed to
present facts sufficient to establish that Defendant Officer Roman
participated in the incident in question. Specifically, Defendants
assert
that
Defendant
Officers
Roman,
Saduk,
and
Gandy
all
testified that Defendant Officer Roman had no involvement in the
incident.
Defendants further assert that Plaintiff did not report
to SID that Defendant Officer Roman was involved in the alleged
altercation.
Defendants additionally assert that Plaintiff was
unable to pick Defendant Officer Roman out of a photo array.
Plaintiff however asserts that the photo array was a “photocopy of
a photocopy of some very small, grainy and unclear black and white
copies of pictures,” and that “[w]hen Mr. Jackson saw Officer Roman
appear
at
[the]
recognized him.”
deposition
this
past
(Pl.’s Br. 9, ¶ 5.)
July,
he
immediately
At Plaintiff’s deposition
Plaintiff testified that Roman “beat me and assaulted me along with
Gandy and Saduk.”
(Jackson Dep. Tr. [Doc. No. 58-3] Ex. G, 18:8-
22
12.)
Plaintiff further asserts that “[h]e specifically recalled
seeing [Defendant’s] last name ‘ROMAN’ on [the] tag on his shirt
during the incident.”
(Id.)
When addressing a summary judgment
motion, the Court must view the evidence in a light most favorable
to the non-moving party and any "justifiable inferences" shall be
extended to the non-moving party.
Anderson, 477 U.S. at 255.
Additionally, “[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge, whether he is ruling on
a motion for summary judgment or for a directed verdict.”
Therefore,
based
on
Plaintiff’s
certification
and
Id.
deposition
testimony that Defendant Officer Roman participated in the alleged
incident, that Plaintiff saw the last name “ROMAN” on the tag of a
shirt, and based on Plaintiff’s assertion that he recognized
Defendant Officer Roman at Defendant Officer Roman’s deposition,
the
Court
finds
that
the
evidence
viewed
in
the
light
most
favorable to Plaintiff could support a finding that Defendant
Officer Roman participated in the alleged incident.
Therefore,
Defendants’ argument for summary judgment is denied as to this
specific argument regarding Defendant Officer Roman.
Defendants
further
argue
that
Plaintiff’s
amended
complaint should be dismissed because Defendants are entitled to
qualified immunity.
Qualified immunity "balances two important
interests — the need to hold public officials accountable when they
23
exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their
duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009).
The Supreme Court has articulated a two-part inquiry in order to
determine whether a defendant is entitled to qualified immunity.
See Pearson, 555 U.S. at 232.
The Court must evaluate, taken in
the light
the party
most
favorable
to
asserting
the
injury,
"whether the facts that a plaintiff has alleged (see Fed. Rules of
Civ. Proc. 12(b)(6), (c)) or shown (see Rule 50, 56) make out a
violation of a constitutional right." Id. (citing Saucier v. Katz,
533 U.S. 194, 201 (2001)).
The Court must also determine "whether
the right at issue was 'clearly established' at the time of
defendant's alleged misconduct." Id. (quoting Saucier, 533 U.S. at
201).
Here, the Court has already found that there exists a
genuine issue of material fact as to whether Defendants used
excessive
force
in
violation
of
rights.
Thus, the Court finds that Plaintiff has alleged a
violation of a constitutional right.
Plaintiff’s
Eighth
Amendment
Furthermore, the right to be
free from “‘unnecessary and wanton infliction of pain’” was clearly
established
at
the
time
of
Defendants’
alleged
misconduct.
Giudice, 2008 U.S. Dist. Lexis 92930, at *13 (quoting Whitley, 475
U.S. at 320-21).
Therefore, the Court denies Defendants’ motion
for summary judgment based on qualified immunity.
24
Defendants
further
argue
that
they
are
entitled
summary judgment on Plaintiffs’ request for punitive damages.
to
“An
award of punitive damages in an action under § 1983 is proper only
when a plaintiff shows that defendant's conduct is ‘motivated by
evil motive or intent, or when it involves reckless or callous
indifference to the federally protect rights of others.’” Brewer v.
Hayman, No. 06-6294, 2009 WL 2139429, at *8 (D.N.J. July 10, 2009)
(quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).
In order to
recover punitive damages, defendants’ actions need not “meet the
higher
standard
of
an
intentional
or
evil
motive,”
rather
“‘defendant's conduct must be, at a minimum, reckless or callous.’”
Kleinberg v. Clements, No. 09-4924, 2012 WL 1019290, at *8 (D.N.J.
Mar. 23, 2012) (quoting Savarese v. Agriss, 883 F.2d 1194, 1204 (3d
Cir. 1989)).
Plaintiff certifies that he “was beaten unconscious by
Defendants Gandy, Saduk, and others” (Jackson Certification [Doc.
No. 64-1] ¶ 9.)
Plaintiff further certifies that “Roman saw me
under stairwell calling for help.
Sergeant or supervisor.
Officer Roman assaulted me by stepping on
my hands and kicking them.”
evidence
presented
as
He ignored my pleas for a
to
(Id. ¶ 10.)3
Defendants’
3
intent
There has been no
or
motivation.
Plaintiff has additionally presented witness statements in
which witnesses claim to have heard the Defendants threatening
Plaintiff and claim to have heard Plaintiff screaming for help.
However, the witness statements presented by Plaintiff have not
been presented by way of affidavit or certification.
25
However, an award of punitive damages may be appropriate if the
jury finds for the plaintiff. See Kleinberg, 2012 WL 1019290 at *9.
(finding that despite a lack of evidence as to malice or evil
intent, officers are presumed to know the law and that if the jury
were to believe the plaintiff’s version of the events, punitive
damages could be appropriate) (citing Savarese, 883 F.2d at 1204
n.14).
As the court did in Kleinberg, this Court finds “it best to
resolve this issue after the conclusion of all the evidence rather
than pre-trial. If the evidence is lacking as to recklessness and
malice, defendants may renew their motion to strike a demand for
punitive damages at that time.”
Id. at *9.
Therefore, the Court
shall deny without prejudice Defendants’ motion on the issue of
punitive damages.
Defendants
further
argue
that
because
Plaintiff was
incarcerated at the time the complaint was filed, Plaintiff was
required to exhaust the available administrative remedies under the
Prisoner Litigation Reform Act ("PLRA") 42 U.S.C. § 1997e(a).
Defendants further assert that Plaintiff’s failure to exhaust his
administrative remedies as to the claims asserted in this case bars
Plaintiff’s action.
(Defs.’ Br. 16.)
In response, Plaintiff
contends that even though he was a prisoner at the time he filed
his initial complaint, he was not in prison at the time he filed
his amended complaint, and thus the PLRA is inapplicable. (Pl’s.
Br. 3.) Plaintiff additionally argues that had Defendants moved to
26
have Plaintiff’s complaint dismissed on exhaustion grounds, the
case would have been dismissed without prejudice to Plaintiff refiling his case following his release. (Id.) Plaintiff’s counsel
raised
additional
arguments
at
oral
argument
asserting
that
Plaintiff’s transfer and administrative segregation led to his
inability to exhaust his administrative remedies, and therefore
Plaintiff’s failure to meet the exhaustion requirements of the PLRA
should be excused.
(Oral Argument, Dec. 19, 2011.)
The PLRA provides in relevant part that "[n]o action
shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted."
42
U.S.C. § 1997e(a). “[T]he 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.”
Porter v. Nussle, 534 U.S.
516, 532 (2002). “[A]n inmate must exhaust irrespective of the
forms of relief sought and offered through administrative avenues.”
Booth v. C.O. Churner, 532 U.S. 731, 741 n.6 (2001).
Furthermore,
“‘[i]t is beyond the power of this court - or any other - to excuse
compliance with the exhaustion requirement, whether on the ground
of futility, inadequacy or any other basis.’"
Nyhuis v. Reno, 204
F.3d 65, 73 (3d Cir. 2000) (quoting Beeson v. Fishkill Corr.
27
Facility, 28 F. Supp. 2d 884, 894-95 (S.D.N.Y. 1998)). A plaintiff
is a prisoner under the PLRA if he was confined in a correctional
facility on the date the complaint was filed.
297 F.3d 201, 210 (3d Cir. 2002).
Ahmed v. Dragovich,
Failure to exhaust available
administrative remedies is an affirmative defense, and it is the
burden of a defendant asserting the defense to plead and prove
failure to exhaust.
Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.
2002)(citing Williams v. Rynyon, 130 F.3d 568, 573 (3d Cir. 1997).
Here, the alleged incident occurred on July 9, 2007,
while Plaintiff was incarcerated at BSP.
(Pl.’s Compl. 7.)
Between August 15, 2007 and April 6, 2009, Plaintiff submitted
several remedy forms,4 only one of which referenced the alleged
assault of Plaintiff.
In Plaintiff’s August 15, 2007 remedy form,
Plaintiff requested a polygraph test for his disciplinary hearing,
and also handwritten on the form is the following: “This I/M states
that he did not assault the officer[.] [I]t is his word against the
officers[].
There is no SID report in his folder.
on a[] SID Investigation.
I/M is waiting
Requested a polygraph from SID.
I/M
claims he was [a]ssaulted.” (See Scott Decl. Ex. C, V.Jackson88.)
4
The remedy forms submitted by Plaintiff contained five
parts. The inmate submitting the form was to complete part one
by explaining his grievance and the remedy requested. Part two
was to be completed by the staff member who received the remedy
form. Part three contained the staff response to the remedy
requested. Part four contained a space for the inmate to appeal
the response given in part three. Part five contained space for
an appeals decision. (See Decl. of Robert LaForgia [Doc. No. 585] Ex. B.)
28
Plaintiff’s request for a polygraph was denied, but his statement
in the August 15, 2007 remedy form set forth that Plaintiff was
assaulted. (Id. at 72.)
Plaintiff submitted his initial complaint
in this matter on March 9, 2009 and it was filed on March 13, 2009.
(Pl.’s Compl. 8.)
December 2009.
4.)
2010.
Plaintiff was released from custody during
(Certification of Vince Jackson [Doc. No. 64-1] ¶
Plaintiff then filed his amended complaint on January 25,
(Pl.’s Am. Compl.)
Plaintiff admits that he was a prisoner incarcerated with
the New Jersey Department of Corrections at the time his complaint
was filed on March 13, 2009. (Certification of Vince Jackson [Doc.
No. 64-1] ¶¶ 3-4.)
oral
argument
Additionally, Plaintiff’s counsel admitted at
that
Plaintiff
did
not
exhaust
the
official
administrative remedies detailed in the SWSP Inmate Handbook or in
the EJSP Inmate Handbook.
(Oral Argument, Dec. 19, 2011.)
Plaintiff’s counsel did not, however, concede that Plaintiff’s
claims should be dismissed under the PLRA.
Id.
Plaintiff’s
counsel asserts that the PLRA does not bar Plaintiff’s federal
claims for the following reasons: (1) the amended complaint was
filed when Plaintiff was no longer a prisoner; (2) had Defendants
moved
to
have
Plaintiff’s
original
complaint
dismissed
on
exhaustion grounds, the case would have been dismissed without
prejudice to Plaintiff re-filing his case following his release;
and (3) Plaintiff was unable to exhaust his administrative remedies
29
due to the fact that he was transferred twice and was placed in
administrative segregation.
In addressing Plaintiff’s first argument, the Court notes
that Plaintiff’s amended complaint was filed on January 25, 2010,
after Plaintiff’s release from prison. However, the filing of this
amended complaint does not excuse the fact that the original
complaint was filed in violation of the PLRA. See Tretter v. Penn.
Dep’t of Corr., No. 3:11-CV-00423, 2012 WL 360029 (M.D. Pa. Feb. 2,
2012).
In Tretter, the District Court for the Middle District of
Pennsylvania held that the filing of an amended complaint by the
surviving relatives of a deceased inmate did not overcome the fact
that the deceased failed to exhaust his administrative remedies
before filing the initial complaint.
Id. at *4.
The Tretter court
noted that a “plaintiff’s status as a prisoner at the time of
filing was controlling and that his change of status, or his
release from prison, did not excuse plaintiff from exhausting his
administrative remedies.” Id. at *4 (citing Ahmed v. Dragovich, 297
F.3d 201 (3d Cir. 2002).
The court then dismissed plaintiff’s
claims for failure to exhaust administrative remedies.
Likewise, albeit for § 1997e(e) of the PLRA and not §
1997e(a),5 the Eleventh Circuit found that plaintiff’s status as of
5
42 U.S.C. § 1997(e)(e) provides: “No Federal civil action
may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury.”
30
the filing of the initial complaint determines the applicability of
the PLRA to a plaintiff’s claims.
(11th Cir. 2000).
Harris v. Garner, 216 F.3d 970
In Harris, the plaintiffs had filed their
complaint when they were prisoners and were therefore subject to
the PLRA.
Id. at 972.
The plaintiffs were released from prison
and attempted to then amend their complaint to indicate that they
were no longer prisoners subject to the PLRA's requirements.
Id.
The Eleventh Circuit held that the filing date of the amendment
could not overcome the requirements of the PLRA:
The reason such an amendment or supplement makes no
difference is that . . . the confinement status of
the plaintiffs at any time after the lawsuit is
filed is beside the point. The status that counts,
and the only status that counts, for purposes of
section 1997e(e) is whether the plaintiff was a
'prisoner confined in a jail, prison, or other
correctional facility' at the time the federal
civil action was 'brought,' i.e., when it was
filed. It is an undisputed historical fact that all
of these plaintiffs were confined in a Georgia
prison or correctional facility at the time their
complaint was filed. No amendment of supplement to
a pleading can change a historical fact, and the
[amended complaint] in question did not purport to
do so.
Id. at 981.
The Eleventh Circuit then affirmed the District
Court’s dismissal of plaintiffs’ claims and remanded to have
several claims dismissed without prejudice to allow for refiling
following plaintiffs’ release.
Id. at 985.
Here, it is undisputed that Plaintiff’s initial complaint
was filed while Plaintiff was a prisoner incarcerated with the New
Jersey Department of Corrections. (Jackson Certification [Doc. No.
31
64-1] ¶¶ 3-4.)
remedies
As such, Plaintiff was required to exhaust the
available
to
him
before
filing
his
complaint.
In
addition, the filing of the amended complaint after he was released
does not save the original action from dismissal for failure to
exhaust.
while
The fact that Plaintiff’s amended complaint was filed
Plaintiff
was
no
longer
a
prisoner
does
not
excuse
Plaintiff’s failure to exhaust his administrative remedies before
filing the initial complaint as required by the PLRA.
In Plaintiff’s second argument in opposition to the
applicability
of
the
PLRA,
Plaintiff
argues
that
Plaintiff’s
federal claims are not barred by the PLRA because Defendants failed
to raise a PLRA defense in response to the original complaint.
However, Plaintiff provides no support for his assertion that the
PLRA defense is waived if not brought by motion in response to the
original
complaint.
complaint,
Defendants
In
their
raised
as
answer
their
to
Plaintiff’s
amended
seventeenth affirmative
defense that “Plaintiff has failed to exhaust his administrative
remedies as required by the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a).”
(Answer to Am. Comp. 7.) Moreover, the Third Circuit
in Drippe v. Tobelinski,604 F.3d 778, 782 (3d Cir. 2010) explicitly
declined to “read into the PLRA a procedural requirement for which
the PLRA provides no textual support.” In Drippe, Plaintiff sought
to have the Court impose a requirement that the PLRA exhaustion
defense be raised by Defendants before the deadline for dispositive
32
motions. (Id.)
The Third Circuit found that the PLRA contained no
such timing requirement and therefore declined to impose such a
requirement.
(Id.)
However, the Third Circuit held that the
filing of a summary judgment motion based on a PLRA affirmative
defense filed outside the deadline for dispositive motions may only
be filed after receiving leave from the Court to file a dispositive
motion outside the scheduling order.
(Id. at 784-85.)
The Court
here finds Plaintiff’s argument unpersuasive. The Court finds that
Defendants’ failure to raise a PLRA defense in response Plaintiff’s
initial complaint does not waive Defendants’ right to assert a PLRA
defense to Plaintiff’s amended complaint.
Finally, Plaintiff argues that he is excused from the
requirements of the PLRA because his transfer to SWSP and then to
EJSP, and as a result of his administrative segregation, he was
unable to exhaust his administrative remedies. However, “the Third
Circuit has found that transfer to another prison facility does not
excuse the PLRA’s exhaustion requirement.”
Litig.,
In re Bayside Prison
No. 97-5127, 2008 WL 2387324, at *4 (D.N.J. May 19,
2008)(citing Williamson v. Wexford Health Sources, Inc., 131 F.
App’x 888, 890 (3d Cir. 2005).
and
Williamson,
plaintiffs
administrative remedies
exhaust.
In both In re Bayside Prison Litig.
who
had
failed
to
exhaust
their
had their cases dismissed for failure to
Williamson, 131 F. App’x at 890; In re Bayside Prison
Litig., 2008 WL 2387324, at *5.
In both of those cases, the fact
33
that the plaintiff had been transferred had no effect on the
Court’s decision to dismiss the claims based the on plaintiff’s
failure to exhaust under the PLRA.
Williamson, 131 F. App’x at
890; In re Bayside Prison Litig., 2008 WL 2387324, at *4.
Likewise, the Sixth Circuit stated in Napier v. Laurel Cnty., Ky.,
636 F.3d 218 (6th Cir. 2011), “[g]enerally, the transfer of a
prisoner from one facility to another does not render the grievance
procedures
at
purposes of
the
transferor
exhaustion.’”
facility
Id.
at
‘unavailable’
223 (citations
for
the
omitted).
Moreover, Plaintiff filed grievance forms while at both SWSP and
EJSP.
(Scott Decl. Ex. B; LaForgia Decl. Ex. B.) Therefore, the
fact that Plaintiff was transferred from BSP to SWSP then to EJSP
does not excuse Plaintiff of his obligations under the PLRA.
With respect to Plaintiff’s argument that he was unable
to exhaust his administrative remedies due to his administrative
segregation, the Court finds this argument unpersuasive in light of
the fact that Defendants have provided the Court with copies of
several unrelated administrative complaints filed by Plaintiff
while in
administrative
segregation.
By way
of
example,
on
September 25, 2007, two months after the alleged July 9, 2007
incident, Plaintiff filed a remedy form stating:
I have been in AD-SEG since 8/29/07. Since being here A
unit has not been called to the law library. I have been
inquiring about this to the officers and no one seems to
know the schedule.
I have been sentenced to over 15
months in Ad-Seg and would like to exercise my right to
appeal. Could you please send me a law library schedule
34
and also remedy this situation.
(LaForgia Decl. Ex. B).
The fact that Plaintiff filed a remedy
form in reference to this unrelated matter while in Administrative
Segregation demonstrates that administrative segregation did not
impede Plaintiff’s ability to exhaust the available administrative
remedies.
Plaintiff filed additional remedy forms on February 13,
2008; February 26, 2008; August 18, 2008; September 12, 2008;
November 4, 2008; February 2, 2009; and April 6, 2009.
Decl. Ex. B.)
(LaForgia
Moreover, this argument was raised by Plaintiff at
oral argument, but no affidavits or certifications were filed to
support Plaintiff’s argument.
Faced with the undisputed fact that
Plaintiff filed remedy forms while in administrative segregation,
Plaintiff’s administrative segregation does not excuse Plaintiff’s
failure to comply with the requirements of the PLRA.
While the Court finds Plaintiff’s arguments opposing the
application of the PLRA to be unavailing, failure to exhaust
available administrative remedies is an affirmative defense, and it
is the burden of a defendant asserting the defense to plead and
prove it.
Ray, 285 F.3d at 297-98.
In construing the evidence
before the Court in the light most favorable to the non-moving
party,
the
Court
finds
unresolved
questions
as
Plaintiff’s claim of excessive force was exhausted.
to
whether
The Court
notes that Defendants submitted in their papers an administrative
investigation
report
written
by
35
Kenneth
Crotty,
a
senior
investigator
with
the
Department
of
Corrections,
Special
Investigation Division, which addressed the allegations made by
Plaintiff as to the alleged use of excessive force and made
findings as to Plaintiff’s allegations.
V.Jackson124.)
(Scott Decl., Ex. C,
Defendants additionally submitted a statement by
Plaintiff in which Plaintiff complained of the alleged use of
excessive force. (Scott Decl. Ex. C., V.Jackson183-84.) The Court
notes that Plaintiff also included the Special Investigations
Division’s Administrative Investigation report as Exhibit D to his
opposition to Defendants’ motion for summary judgment. (Amended
Document by Vince Jackson [Doc. No. 67] Ex. D.)
In the report, the
Special Investigations Division found that steps could have been
taken which would have negated prison staff’s need to pursue
Plaintiff in the manner which they did. (Scott Decl. Ex. C,
V.Jackson132.)
Plaintiff’s initial complaint alleged “[a]ll remedies and
grievances have been forward[ed] to the Administration and the
Department of Correction[s].
No response has been forwarded back
to Mr. Jackson and it ha[s] been over 300 days.” (Pl.’s Compl. 8.)
At Plaintiff’s deposition he repeatedly asserted that he filed
grievance forms related to the incident in question. (Jackson Dep.
Tr. [Doc. No. 58-3] Ex. G, 44:5-50:16.)
A review of the documents
submitted along with Defendants’ motion for summary judgment show
that, in fact, Plaintiff filed a remedy form on August 15, 2007
36
requesting a polygraph, asserting that he was assaulted, and
stating that no SID report was in his folder.
V.Jackson88.)
judgment
(Scott Decl. Ex. C,
While Plaintiff’s opposition to Defendants’ summary
motion
does
not
elaborate
on
the
process
by
which
Plaintiff allegedly forwarded his grievances to the Administration,
the
exhibits
attached
to
Defendants’
summary
judgment
motion
establish that the events of July 9, 2007 were addressed by prison
administrators
during
the
Special
Investigations
Division’s
administrative investigation of the incident.6 (Scott Declaration,
Ex. C, V.Jackson124.)
Moreover, an email dated August 1, 2007
indicates that the SID investigation and report were regarding
“allegations made by I/M Jackson.”
(Id. at Ex. C, V.Jackson82.)
Several courts have found that exhaustion of alternative
grievance procedures, which run parallel to the official grievance
procedures, can be sufficient to meet the exhaustion requirements
of the PLRA.
See Baez v. Fauver, 351 F. App’x 679, 681-82 (3d Cir.
2009); Smith v. Merline, 719 F. Supp. 2d 438, 445-46 (D.N.J. 2010).
In Baez, the Third Circuit in a nonprecedential opinion vacated and
remanded the decision of a district court which failed to consider
the existence of a parallel reporting procedure put in place at
6
Additionally, the events of July 9, 2007 were addressed at
Plaintiff’s disciplinary hearing of August 20, 2007. (Scott Decl.
Ex. B.) However, in Woodford v. Ngo, 548 U.S. 81 (2006), the
Supreme Court required that a “grievant compl[y] with the
system’s critical procedural rules.” Id. at 2388. Plaintiff does
not assert that he exhausted his administrative remedies as a
result of the disciplinary hearing.
37
BSP.
Baez, 351 F. App’x at 682.
The plaintiff in Baez transmitted
a letter complaint to the prison’s Internal Affairs department, but
failed to complete the official Administrative Remedy Form (“ARF”).
Id. at 680. According to the deposition of a prison administrator,
the prison had been converting all complaints regarding a prison
lockdown to administrative remedy forms regardless of the form in
which they were received.
noting
multiple
issues
Id. at 682.
material
to
The Third Circuit remanded
the
exhaustion
inquiry,
including:
(1) whether Bayside began accepting letter complaints in
lieu of ARFs; (2) whether Baez's letter to Internal
Affairs was, in fact, converted to an ARF, forwarded to
the Special Investigations division, and adjudicated by
Bayside in a timely manner; (3) if so, whether Baez filed
suit prematurely, or whether he properly awaited
adjudication of his ARF before commencing his federal
action; and (4) whether Bayside afforded identical
administrative review and remedies for “converted” ARFs,
such as Baez's, and ARFs prepared personally by inmates.
Id.
Finding that these fact issues impacted directly on whether
the plaintiff properly exhausted his administrative remedies, and
were not specifically addressed by the district court, the Third
Circuit vacated the grant of summary judgment and remanded the
case.
Id. at 682.
In Smith, the court recognized that “an inmate may
satisfy the exhaustion requirement [of the PLRA] where he follows
an
accepted
grievance
procedure,
contradicts a written policy.”
even
where
that
procedure
Smith, 719 F. Supp. 2d at 445.
The
Smith court stated that while a “prison’s administrative grievance
38
program serve[s] as the measure for whether an inmate has exhausted
his administrative remedies,” the court need not “blindly apply the
written administrative exhaustion procedure without considering the
reality of the review process.”
Id. at 445 (citing Spruill v.
Gillis, 372 F.3d 218, 231 (3d Cir. 2004); Williams v. Beard, 482
F.3d 637, 640 (3d Cir. 2007)). In Smith, the plaintiff claimed to
have
submitted
procedure
a
handwritten
recognized
by
the
grievance
prison.
through
Id.
at
a
grievance
444.
However,
plaintiff did not complete an official grievance form or an inmate
request form.
Id.
The Smith court found “several material
questions in genuine dispute: (1) Whether a parallel procedure for
addressing grievances exists and is recognized at the [Gerard L.
Gormley Justice Facility] GGJF; (2) Whether Plaintiff adequately
raised the issues presented in this litigation through such a
grievance procedure; and (3) Whether Plaintiff exhausted that
remedy and provided GGJF officials adequate time to respond to the
relevant grievances.” Id. at 447. The Smith court therefore found
that the defendants were not entitled to summary judgment on the
question of administrative exhaustion.
Here, the documents submitted demonstrate that Plaintiff
informed the Special Investigations Division of his claims and that
the Special Investigations Division conducted an administrative
investigation into Plaintiff’s allegations.
C, V.Jackson124-32.)
(See Scott Decl. Ex.
However, neither party has addressed whether
39
this administrative investigation is the same investigation that
would have
occurred
had
Plaintiff
completed
a remedy
form.
Moreover, Defendants have not disputed that there is no parallel
grievance procedure.
Consequently, the Court finds at this time
that Defendants have not met their burden on this affirmative
defense.
Defendants’ motion does not adequately address the role
of the Special Investigations Division or whether the Special
Investigations
Division’s
role
overlaps
with
the
established
grievance procedures. Consequently, Defendants’ motion for summary
judgment on the issue of exhaustion is denied without prejudice
with the right to refile on this issue.
For the reasons set forth above, and for good cause
shown:
IT IS on this 29th day of June 2012,
ORDERED that Defendants’ motion for summary judgment
[Doc. No. 58] shall be, and hereby is, GRANTED in part, DENIED in
part, and DENIED WITHOUT PREJUDICE in part; and it is further
ORDERED that Defendants’ motion for summary judgment
shall be, and hereby is, GRANTED with respect to all claims against
the Defendants in their official capacities; and it is further
ORDERED that Defendants’ motion for summary judgment
shall be, and hereby is, GRANTED with respect to all claims against
Defendants
Balicki,
Sullivan,
and
40
Hayman
in
their
individual
capacities;
ORDERED that Defendants’ motion for summary judgment
shall be, and hereby is, DENIED with respect to Plaintiff’s
excessive force claims against Defendant Officers Gandy, Saduk, and
Roman; and it is further
ORDERED that Defendants’ motion for summary judgment
shall be,
and
hereby
is,
DENIED
with
respect
to
Defendants’
arguments based on the qualified immunity of Defendant Officers
Gandy, Saduk, and Roman; and it is further
ORDERED that Defendants’ motion for summary judgment
shall be, and hereby is, DENIED WITHOUT PREJUDICE with respect to
Defendants’ argument that Plaintiff is not entitled to punitive
damages; and it is further
ORDERED that Defendants’ motion for summary judgment
shall be, and hereby is, DENIED WITHOUT PREJUDICE, with respect to
Defendants’
argument
that
Plaintiff
failed
to
exhaust
administrative remedies.
s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE
41
his
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