PRALL v. BOCCHINI et al

Filing 166

OPINION. Signed by Chief Judge Jerome B. Simandle on 12/26/2012. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TORMU E. PRALL,
Plaintiff,
v.
CHARLES ELLIS, et al.,
Defendants.

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Civil Action No. 10-1228 (JBS)

OPINION

APPEARANCES:
TORMU E. PRALL, Plaintiff pro se
#700294B/650739
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
CHRISTINE H. KIM, ESQ.
STATE OF NEW JERSEY OFFICE OF THE ATTORNEY GENERAL
25 Market Street, P.O. Box 112
Trenton, New Jersey 08625
Counsel for Defendants, Michelle R. Ricci, William J.
Moliens, Chris Holmes, Jimmy Barnes, James Drumm, Ron
Wagner, James Keil, Lt. Alaimo, and Ortiz
JOI LYNNE ORTIZ, ESQ.
OFFICE OF THE MERCER COUNTY COUNSEL
McDade Administration Building
640 South Broad Street, P.O. Box 8068
Trenton, New Jersey 08650-0068
Counsel for Defendants, E. Williams, T. Wilkie, Nurse Pete
S., and John Does 1-25
SIMANDLE, Chief Judge
THIS MATTER comes before the Court on the motion of New
Jersey State Prison (“NJSP”) defendants, Jimmy Barnes, James
Keil, Michelle Ricci, Chris Holmes, William Moleins, James Drumm,

Lt. Alaimo and Ortiz, (hereinafter referred to as the “NJSP
defendants”), to dismiss this action and/or for summary judgment
(Docket entry no. 85), and by way of motion and cross-motion of
the Plaintiff, Tormu E. Prall, for summary judgment and discovery
requests (Docket entry no. 92).

These motions are being

considered on the papers pursuant to Fed.R.Civ.P. 78.

For the

reasons set forth below, the motions will be denied in part and
granted in part.
I.
A.

BACKGROUND

Procedural History
On or about March 8, 2010, Plaintiff filed a civil

Complaint, pursuant to 42 U.S.C. § 1983, raising claims of
constitutional violations.

(Docket entry no. 1).

2010, Plaintiff filed an amended Complaint.
5).

On July 1,

(Docket entry no.

This case, however, was administratively terminated on

August 16, 2010, because Plaintiff had not paid the filing fee
and was subject to a three strikes preclusion under 28 U.S.C.
§ 1915(g).

(Docket entry nos. 10, 11).

Plaintiff appealed the

administrative termination, and on April 28, 2011, the United
States Court of Appeals for the Third Circuit vacated the
dismissal and remanded the matter with instructions to grant
Plaintiff’s in forma pauperis application.
16).

2

(Docket entry no.

After remand, in an Opinion and Order filed on September 23,
2011 (Docket entry nos. 31 and 32), the Honorable Freda L.
Wolfson, U.S.D.J., dismissed without prejudice, pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), all claims asserted
by Plaintiff in his original and amended Complaints that
attempted to challenge Plaintiff’s state court conviction,
sentence and/or extradition.

Likewise, Plaintiff’s claims

against the Mercer County Prosecutor defendants, namely,
defendants Bocchini and Galuchie were dismissed.

In addition,

the original and amended Complaints were dismissed without
prejudice in their entirety as against named defendants Sypek,
Blair, Hughes, Ganges, Mair, Blakey and Crowley, because
Plaintiff failed to state a viable claim against these defendants
based on more than mere supervisor liability.

Further, Judge

Wolfson dismissed without prejudice Plaintiff’s claims asserting
conspiracy, retaliation, denial of access to the courts, and
denial of his First Amendment right to free exercise of religion.
Plaintiff’s claims asserting deprivation of property, denial of
due process based on his Management Control Unit (“MCU”)
placement and classification, denial of due process based on
false disciplinary charges, denial of equal protection, denial of
his Ninth Amendment right to revolt, and denial of his rights
against self-incrimination and to a presumption of innocence, and
his claims asserted against the Ann Klein Forensic Center

3

(“AKFC”) defendants, were dismissed with prejudice, for failure
to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).

However, Judge Wolfson allowed Plaintiff’s claims

alleging unconstitutional conditions of confinement and excessive
force in violation of his Eighth and Fourteenth Amendment rights
to proceed with respect to the named NJSP defendants, Michelle R.
Ricci; William J. Moliens; Chris Holmes; Jimmy Barnes; James
Drumm; Ron Wagner; James Keil; Lt. Alaimo; Sgt. Ortiz and Captain
Ortiz; and John Roes 1-99, the unknown correctional officers and
Special Investigations Division (“SID”) investigators at NJSP;
and the Mercer County Correctional Center (“MCCC”) defendants,
McCall, Williams, Wilkie and the John Doe MCCC officers.
Plaintiff’s claim asserting denial of free exercise of religion
in violation of Religious Land Use and Institutionalized Persons
Act (“RLUIPA”) also was allowed to proceed, but Judge Wolfson
directed that Plaintiff must amend his Complaint to name the
appropriate NJSP defendants with respect to this claim within 30
days from entry of the accompanying Order.

Finally, Plaintiff’s

motion for preliminary injunctive relief (Docket entry no. 18)
was denied, except with respect to his claim of ongoing physical
abuse.

As to that claim, Judge Wolfson directed that the NJSP

defendants, namely, Michelle R. Ricci, William J. Moliens, Chris
Holmes, Jimmy Barnes, James Drumm, Ron Wagner, James Kiel, Lt.
Alaimo, Sgt. Ortiz and Captain Ortiz, respond in writing to the

4

Court concerning Plaintiff’s allegations of ongoing physical
abuse, and to show cause why an injunction should not be issued
against the defendants.

(September 23, 2011 Opinion and Order,

Docket entry nos. 31 and 32).1
On October 6, 2011, this action was reassigned to this
Court.

(Docket entry no. 34).

On March 5, 2012, this Court denied Plaintiff’s application
for a preliminary injunction, but did not dismiss Plaintiff’s
Eighth Amendment claim of retaliatory and ongoing physical abuse
and torture.2

(See Opinion and Order docketed at entry nos. 77

and 78).
Thereafter, on or about March 16, 2012, Plaintiff filed
another motion for an injunction, alleging that, in addition to
the ongoing physical abuse and torture previously pled, on March
10, 2012, New Jersey State Prison (“NJSP”) correctional officers,
J. Ilardi, McNair, Sergeant J. Lindsey, and two unknown
correctional officers, forced Plaintiff to perform oral sex on
them.

(Docket entry no. 81 at ¶ 1).

In his motion, Plaintiff

1

Plaintiff has filed three motions seeking to vacate the
September 23, 2011 Opinion and Order because it dismissed a
substantial portion of Plaintiff’s action. All three motions
have been denied. In addition, Plaintiff filed an appeal to the
United States Court of Appeals for the Third Circuit, which was
denied on May 3, 2012, for failure to timely prosecute.
2

The Court notes that Plaintiff’s RLUIPA claim has not
been properly amended pursuant to the September 23, 2011 Opinion
and Order, and therefore, at this time, such claim is not pending
in this action.
5

also alleged that before the sexual assault occurred, Officer J.
Dominguez and one of the unknown correctional officers
“ransacked” Plaintiff’s cell and threw away or confiscated
Plaintiff’s legal documents related to this case.
also left Plaintiff’s cell in a “shambles.”

These officers

(Id., ¶ 2).

Plaintiff further alleged that Sergeant B. Gilmartin and other
unknown custody supervisors failed to contact the Special
Investigation Division (“SID”) about the incident, failed to
summon medical staff to provide medical treatment for Plaintiff,
and failed to prevent the officers under their command and
control from starving Plaintiff from the food served on the
prison menu.

(Id., ¶ 3).

In sum, Plaintiff alleged that, since

his placement in the Management Control Unit, the physical abuse
“has not stopped,” and the NJSP defendants “are unable and
unwilling to prevent these abuses.”

(Id., ¶ 4).

On March 26, 2012, Plaintiff filed a motion for supplies.
(Docket entry no. 84).

While, Plaintiff principally asked that

he be provided with pens, legal size note pads, white envelopes
and manilla envelopes so that he can prepare and file legal
documents with respect to his case before the Court, he also
argued that he did not receive the grievance responses, making

6

prison administrative remedies “unavailable.”

(Docket entry no.

84, Motion at ¶ 1, Declaration at ¶ 1).3

3

The Declaration submitted by Plaintiff in support of his
motion for supplies further reiterates the charges Plaintiff made
concerning the physical abuse, sexual assault, and ransacking of
his cell and confiscation/loss of his legal documents, which he
had alleged in his motion for injunctive relief (Docket entry no.
81). (See Docket entry no. 84 at ¶ 3). Plaintiff also alleged
that, on March 11, 2012, the SID conducted a “sham” investigation
regarding Plaintiff’s alleged sexual assault. The SID officers
purportedly told Plaintiff that nothing would come of his
complaint because “inmates are scum of the earth and prison
officials [are] considered the good guys.” (Docket entry no. 84,
Decl., ¶ 4). Plaintiff further alleged that, on March 13, 2012,
Disciplinary Hearing Officer (“DHO”) C. Ralph approached
Plaintiff’s cell and told Plaintiff that she was present to
adjudicate Plaintiff guilty on disciplinary charges. Plaintiff
replied that he had never been served with disciplinary charges.
DHO Ralph allegedly told Plaintiff that the named defendants in
this civil action were her “good friends” and asked the DHO to
sanction Plaintiff to administrative segregation so that
Plaintiff would not receive state pay, would receive only 4X6
inch writing paper, be allowed only three showers per week, and
would get a state care package of toiletries containing only an
ink pen, a small tube of toothpaste and deodorant. (Id., ¶¶ 5
and 6). Plaintiff also alleged that an hour after the DHO came
to his cell, he received an adjudication of disciplinary charge
form. Plaintiff claimed that DHO Ralph lied about what Plaintiff
had told her, and sanctioned Plaintiff to 15 days loss of
recreation, 15 days detention, 60 days loss of communication, and
90 days administrative segregation. (Id., ¶ 7). Plaintiff
further alleged that after he received the disciplinary report,
Officer Dominguez and two unknown officers came to Plaintiff’s
cell, beat Plaintiff to the body, made him ingest hallucinating
drugs, and forced Plaintiff again to perform oral sex on them.
These officers then told Plaintiff that their coworkers don’t
care about anything the court has to say in this case. (Id., ¶
8). On May 29, 2012, Plaintiff filed a reply to the NJSP
defendants’ opposition to his motion for supplies. (Docket entry
no. 110). Plaintiff argued that he had exhausted his
administrative appeals, and that the letters he wrote to the
Chief Disciplinary Hearing Office/Central office on appeal were
not submitted by counsel purposely as a cover-up. (Plaintiff’s
Reply at ¶¶ 2-4, Docket entry no. 110).
7

Following the Court’s denial of Plaintiff’s motion for a
preliminary injunction, on March 30, 2012, the NJSP defendants
filed a motion to dismiss the action and/or for summary
judgment.4

(Docket entry no. 85).

Plaintiff filed an opposition

to the NJSP defendants’ motion, and his own cross motion for
summary judgment on or about April 18, 2012.
91, 92).
30, 2012.

(Docket entry nos.

The NJSP defendants filed a reply letter brief on April
(Docket entry no. 99).

Thereafter, on or about September 4, 2012, Plaintiff filed a
second amended Complaint without leave of court.
no. 135).

(Docket entry

In this amendment, Plaintiff attempts to re-introduce

claims that were previously dismissed, add new parties, and add
new claims regarding his allegations of physical abuse.

Namely,

the new claims include the allegations raised in his second
motion for an injunction and motion for supplies, in which he
alleged that on March 10, 2012, new defendants, Officers J.
Dominguez and M. Moura ransacked his cell and that Sgt. J.
Lindsey, Officer McNair, Officer J. Ilardi and two unknown
correctional officers forced Plaintiff to perform oral sex on
them.

(2d Am. Compl., ¶ 123).

Plaintiff also alleged that these

4

The initial motion was filed on behalf of NJSP
defendants, Jimmy Barnes, James Keil, Michelle Ricci, and Chris
Holmes. On April 23, 2012, NJSP defendants, William Moleins,
James Drumm, and Lt. Alaimo asked to join the other NJSP
defendants’ motion. (Docket entry no. 94). On July 12, 2012,
NJSP defendant Ortiz also asked to join in the motion for summary
judgment. (Docket entry no. 127).
8

officers, Sgt. Gilmartin and unknown nurses and custody
supervisors refused to provide Plaintiff medical treatment and
covered up the incident until it was reported to the SID on March
11, 2012.

(Id.).

Plaintiff also alleged that he received

disciplinary sanctions as a result of the incident in retaliation
for Plaintiff pursuing this litigation.

(2d Am. Compl., ¶ 124).

Plaintiff further alleged that on or about March 14, 2012,
Officer Dominguez and two unknown officers beat Plaintiff, forced
him to ingest hallucinating drugs and then forced him to perform
oral sex on them.

The SID conducted investigations of both

incidents, but Plaintiff contends that the investigation was a
sham.

Id., ¶ 125).

In an Opinion and Order entered on December 21, 2012, this
Court denied Plaintiff’s motion for legal supplies (Docket entry
no. 84), granted in part Plaintiff’s application to file a second
amended Complaint5 (Docket entry no. 135), and directed that the

5

The Court allowed only those claims of alleged sexual
assault, physical abuse and continuing torture, regarding the
March 2012 incidents, as well as the claims alleging denial of
medical treatment for injuries allegedly sustained during the
March 2012 incidents, and the retaliatory disciplinary charges
stemming from those incidents, to proceed against the remaining
NJSP defendants and the newly named defendants, Officers J.
Dominguez, M. Moura, McNair, J. Ilardi, Sgt. J. Lindsey, and the
two unknown correctional officers who allegedly took part in the
alleged incidents of physical abuse against Plaintiff on March
10, 2012 and March 14, 2012, and Charles Warren, Administrator at
NJSP, Vincent B. Wojciechowicz; Special Investigation Division
(“SID”) Investigator at NJSP; Suzanne Lawrence, NJSP Assistant
Superintendent; and Kenneth Nelson, NJSP Associate Administrator.
. In addition, Plaintiff’s claims of will be allowed to proceed
9

NJSP defendants, as well as the newly added defendants, respond
in writing to this Court within thirty (30) days from the date of
entry of the Order, concerning Plaintiff’s new allegations of
physical and sexual abuse in March 2012, as alleged in
Plaintiff’s motion for an injunction (Docket entry no. 81) and
the second amended Complaint.

(See Docket entry nos. 163 & 164).

This Court observes that these new claims and defendants are not
part of these motions for summary judgment, and will be excluded
from consideration herein.
On November 15, 2012, an Amended Scheduling Order was
entered in this matter extending pretrial factual discovery to
February 4, 2013.

(Docket entry no. 156).

On November 16,

2012, a Consent Order was entered regarding the conduct of
Plaintiff’s deposition, which is yet to be taken.

(Docket entry

no. 155).
B.

Statement of Facts
1.

Allegations in Pleadings

In his Complaint and amended Complaint, Plaintiff asserts
that he is being subjected to unconstitutional treatment and
conditions of confinement at the MCU at NJSP in violation of his
rights under the Eighth Amendment.

First, Prall alleges that, on

or about February 5, 2010, when he was first placed in the MCU,

as against these defendants as well. All other claims reasserted in the second amended Complaint were dismissed pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
10

he was put under camera watch for three weeks and given only a
filthy gown and a dirty mattress on the floor in his cell during
this time.

(Amended Complaint at ¶ 63, Docket entry no. 5).

He

states that the floor and walls in his cell were filthy, covered
in blood and feces.

He had complained about the conditions and

that his skin was itching from not taking showers.
provided.

(Id.).

No remedy was

After the three weeks expired, Plaintiff was

placed in a regular cell in the MCU.
Plaintiff also alleges that he was and still is subjected to
torture and physical abuse at least once a week in the MCU at
NJSP.

(Id., ¶ 76).

Plaintiff alleges that the NJSP defendants

ordered defendant Newsom and other unnamed correctional officers
to choke Plaintiff until he loses consciousness, slap his face,
stomp on his toes and fingers, spray mace in his eyes, nose,
throat and on his genital and rectal areas.

Plaintiff also

alleges that he has been poked with needles; kicked and beat with
blackjacks, fists and boots; electrocuted with devices that burn
holes in rugs; homosexually touched in his genital area and
buttocks; and threatened that he will be “man-handled” and
sodomized by a stick.
2.

(Id., ¶¶ 63, 73).

NJSP Defendants’ Statement of Material Facts

The NJSP defendants set forth the inmate grievance procedure
for inmates at NJSP as follows.

In accordance with N.J.A.C.

10A:8-1.1 to 10A:8-3.6, the NJSP has adopted Inmate Handbooks

11

that set forth the rights and privileges of its inmates at NJSP.
The Inmate Handbook also sets forth the inmate grievance
procedure at NJSP.

(Declaration of Brenda A. Hutton, ¶¶ 3, 5 at

Docket entry no. 37-2, and Exhibit B at Docket entry no. 37-3).
In particular, Inmate Remedy System Forms (“IRSF”) are made
available to NJSP inmates within their housing units, at the
prison law library, and from the unit social workers.
Decl., ¶ 6 and Ex. B).

(Hutton

Once an inmate completes the IRSF and

submits it, the IRSF is given to the appropriate staff person for
a response.

When the inmate receives a response to his IRSF, he

may then appeal the response.

After an administrative response

is provided to the inmate’s appeal, the inmate’s administrative
remedies have been exhausted.

(Hutton Decl., ¶¶ 7-9 and Ex. B).

The NJSP defendants state that Plaintiff has filed numerous
IRSFs, and attaches them to their response at Exhibit C to
Hutton’s Declaration.

(Docket entry no. 37-3).

Out of the

numerous IRSFs filed by Plaintiff, he briefly mentions being
“physically abused” by NJSP officers only twice in April 2010.
(See Hutton Decl., Ex. C at DOC3 and DOC6).

For instance, on

April 6, 2010, Plaintiff complained about the lack of supplies
for his legal work and that he was placed in MCU to hinder his
legal capabilities and to physically and mentally abuse him.
(Id. at DOC3).

Then, on April 15, 2010, Plaintiff filed an IRSF

alleging that he was physically abused when he complained about

12

the showers and other conditions at the MCU.

(Id. at DOC6).

The

NJSP defendants show that Plaintiff has failed to
administratively appeal the April 6, 2010 and April 15, 2010
IRSFs.

(Id., Ex. C, DOC3, DOC6).

As to the claim regarding denial of medical care, the NJSP
defendants note that an inmate must submit a sick call request by
completing a Health Services Request Form, Form MR-007.
Decl. at ¶ 12).

(Hutton

The NJSP defendants also state that Plaintiff

has filed only two Health Services Request Forms from 2010 to the
present time; one requesting Benadryl and the other seeking an
appointment with an optometrist.

(Id., Ex. D, MED102-MED103).

There are no medical request forms for any alleged injuries due
to the conditions of confinement or from excessive use of force
and physical abuse.
Further, review of Plaintiff’s medical records reveal that
Plaintiff consistently received medical treatment.
Decl., Ex. E).

(Hutton

Plaintiff’s NJSP medical records do not disclose

any medical treatment for the alleged physical abuse that
Plaintiff claims he is continually experiencing, such as his
allegations of choking, marks on his face, injured toes, fingers,
eyes, nose, throat, genital area, needle marks, and/or signs of
electrocutions.

(Hutton Decl., Ex. E).

In addition, NJSP

defendants show that Plaintiff underwent several mental health
evaluations that did not reveal any psychological problems
related to being housed in the MCU and purportedly being

13

subjected to physical abuse.

(Hutton Decl., Ex. E at MED22-24,

MED26-31, MED38-44, MED65, MED69-71, MED78-80, MED84, MED91,
MED96, and MED98).

Moreover, Plaintiff underwent several

medical/physical examinations that did not disclose any physical
injuries consistent with Plaintiff’s allegations of physical
abuse.

In fact, there are no notations in Plaintiff’s medical

records at NJSP that he had any physical injuries attributable to
physical abuse, and physical examinations and observations made
during 2010 and early 2011 did not reveal any physical injuries.
(Hutton Decl., Ex. E at MED5, MED32-34, MED73-76, MED82-83).

For

instance, on February 29, 2010, Plaintiff underwent a physical
evaluation that revealed everything was normal.
MED32-MED34).

(Id., Ex. E,

Consequently, there is no medical documentation

that Plaintiff has suffered from the excessive use of force or
physical abuse as alleged.
The NJSP defendants state that when an incident of physical
abuse occurs or is suspected to have happened, the Special
Investigations Division (“SID”) will conduct an investigation.
(See Declaration of Vincent B. Wojciechowicz, ¶ 4 and N.J.A.C.
10A:21-5.1(a)).

After an investigation is completed, the SID

will prepare written reports regarding any incident brought to
its attention.

N.J.A.C. 10A:21-8.5(a).

A search of the SID

records reveals no incidents between Plaintiff and NJSP
corrections officers from February 5, 2010 to September 28, 2010
that led to an SID investigation.

14

(Wojciechowicz Decl., ¶ 5).

However, on September 28, 2010, the SID did receive a copy
of Plaintiff’s complaints, in particular, his Amended Complaint
(Docket entry no. 5), in this action alleging physical abuse.
(Wojciechowicz Decl., ¶ 6).

Consequently, SID Investigator

Shawn Harrison conducted an investigation of Plaintiff’s
allegations. (Wojciechowicz Decl., ¶ 7).

On September 30, 2011,

the SID requested NJSP medical staff to conduct a physical
examination of Plaintiff to determine if there were any injuries
from the alleged physical abuse, but Plaintiff refused to leave
his cell and participate in the medical assessment.
(Wojciechowicz Decl., ¶¶ 8, 9).

Therefore, NJSP medical staff,

namely, Neal West, R.N., completed a visual assessment of
Plaintiff that revealed no signs of physical injury or distress.
(Wojciechowicz Decl., ¶¶ 10, 11, 13).
As to Plaintiff’s claims concerning the conditions of his
confinement, the administrative record shows that Plaintiff filed
IRSFs regarding clothing, sneakers and recreational issues, but
he did not mention any issues concerning a filthy gown, dirty
mattress, or blood and feces on the floors and walls of his cell.
(Hutton Decl., Ex. C, DOC5, DOC10, DOC12, DOC14, DOC26, DOC28,
DOC42, DOC74).

The NJSP defendants state that, upon arrival at

NJSP, a new inmate is issued the following items: (1) two full
sets of clothing that includes two pairs of khaki pants, two
khaki shirts, two t-shirt, and two pairs of boxer shorts, two
pairs of socks and one pair of sneakers; (2) personal hygiene

15

items including one toothpaste, one soap, toilet paper, one
deodorant, and one comb; (3) two linen sheets; and (4) one
blanket.
5-7).

(Declaration of Major Nya Booth [“Booth Decl.”], at ¶¶

The record shows that upon his arrival at NJSP from the

MCCC, Plaintiff received the above items.

(Id., ¶ 8).

The NJSP defendants also state that NJSP policy makes MCU
inmates responsible for maintaining their cells in a safe and
sanitary manner.

(Id., ¶ 9).

MCU inmates are provided with soap

and cleaning supplies (i.e., cleanser, mixture of disinfectant
and water, toilet bowl brush, dust pan, broom, mop and a mop
bucket) once a week.

(Id., ¶ 10).

MCU inmates also are given

deodorant, toothpaste, soap, toilet paper, pen and paper once a
month on the fifteenth.

(Id., ¶ 11).

Further, MCU inmates are

provided clean linens once a week and a clean blanket every six
months.

(Id., ¶ 12).

Therefore, Plaintiff had the opportunity

and supplies to keep himself and his cell sanitary.

(Id., ¶¶ 13,

15).
3.

Plaintiff’s Opposition

Plaintiff provided his own “statement of facts”6 in
opposition to the NJSP defendants’ motion to dismiss and/or for
summary judgment.

(Docket entry no. 91).

Plaintiff contends

that he filed grievances on each and every issue but did not
receive responses to all of them.

6

(Docket entry no. 91 at ¶ 3).

Plaintiff’s “Statement of Facts” are mostly legal
arguments and conclusory statements.
16

He further alleges that the NJSP defendants control the log
listing and disposition of grievances as well as health services
requests, and that the forms and assessment reports for MED 35,
39, 45 and 58 are missing from the record.

These documents

purportedly show that Plaintiff was treated with pain medication
and hydrocerin cream to be applied to his feet after having been
made to walk barefoot in blood and excrement covered floors.
(Id., ¶¶ 4, 5).

Plaintiff argues that the NJSP defendants have

manipulated the grievance process by not processing, delivering
or responding to grievances filed by inmates.
In support of this allegation, Plaintiff provides a
declaration by another MCU inmate, Brian Paladino, which
Plaintiff attaches to his cross motion for summary judgment.
(Docket entry no. 92–2).

In his declaration, Paladino alleges

that he has suffered physical attacks by Sgt. Newsom and other
correctional officers at NJSP, and filed multiple grievances that
were never addressed.

He also alleges that he was not given

hygiene and cleaning supplies.

Paladino further alleges that

inmates don’t receive responses to their grievances because
“staff cover up for their colleagues and don’t process the
forms,” []“officers have a habit of trashing grievances, loudly
labeling inmates as snitches for either filing grievances or for
the ones trashed,” staff makes “mistakes and giving one inmate’s
mail to the other,” staff “placing responses to grievances in
inmates files without notifying inmates of the disposition, and
17

the mailroom mishandling responses from reaching their
destination.”
2).

(Paladino Declaration at ¶ 8, Docket entry no. 92-

Paladino further confirms that Plaintiff had sent a health

service request form to Paladino to give to medical personnel
between March 10 and 11, 2012, because medical personnel were not
permitted to stop at Plaintiff’s cell.

Plaintiff had asked

Paladino to give the form to a nurse dispensing medication in the
MCU regarding the alleged March 2012 sexual assault incident,
which Paladino says the nurse discarded.

(Id., ¶ 10).

Plaintiff alleges that when he arrived at NJSP, he was
placed in a dry cell for three weeks.

Under N.J.A.C. 10A:4-

9.17(d), an inmate may be placed in a dry cell if he damages or
destroys plumbing fixtures or floods his cell.

Plaintiff alleges

that he had not committed these acts to support his confinement
in a dry cell.

(Docket entry no. 91 at ¶ 11).

Plaintiff

maintains that the mattress provided him in the dry cell smelled
of urine and had blood and feces stains.

He was given a dirty

gown and no cleaning supplies to clean the blood and feces on the
floor and walls of his cell.

He further alleges that he was

unable to sleep due to the stench and itching from not being able
to take a shower.
12, 13).

His feet were cracked and peeling.

(Id., ¶¶

Plaintiff alleges that defendant Ricci must approve a

restrictive placement in a dry cell.

He further alleges that all

of the named NJSP defendants were aware of the conditions in the

18

dry cell because they toured the housing unit where Plaintiff was
confined.

(Id., ¶ 14).

Plaintiff alleges that he received only one pair of
clothing.

He was not given a towel, washcloth, pillow, thermals,

boots, knit hat or personal hygiene items.

Plaintiff was

provided with toothpaste, soap, toilet paper, deodorant, sheets
and a blanket through the help of other inmates.

(Id., ¶ 20).

It was only after he contacted the Ombudsman that Plaintiff was
provided the rest of his clothing in “March 2009.”7

(Id.).

Plaintiff now alleges that from March 2010 through March
2012, he was not allowed to shower or clean his living quarters
because he only had one set of clothing.

He claims that this

allegation is supported by MED25 and MED29.

(Id., ¶ 21).

Plaintiff further alleges that medical staff have
“manipulated his complaints” of torture, and he refers to MED 26,
29, 38 and 42.

The Court notes that these documents reference

progress notes taken during Plaintiff’s mental health visits, and
mention Plaintiff’s complaints about laser rays, maggots in his
wall and spikes in his feet, which were made by Plaintiff without
distress or agitation.

Plaintiff also states that MED 35, 39, 45

and 58 show that he was prescribed pain medication for being
beaten as well as cream for his feet, but these health services

7

The Court presumes that this date is in error because
Plaintiff was not placed in the NJSP MCU until February 2010.
Accordingly, it would appear that the appropriate date is March
2010.
19

forms and assessments are missing from the record.

(Id., ¶¶ 39,

40).
With his cross-motion for summary judgment, Plaintiff also
seeks leave to photograph the dry cell where he had been confined
for three weeks, the non-congregate MCU exercise cages, the
congregate MCU exercise yard, and his MCU living quarters and his
sneakers.

Plaintiff also seeks leave to serve five sets of 25

questions on each NJSP defendant, and to tape record the
depositions in this case at the expense of the NJSP defendants.
(Docket entry no. 92 at ¶¶ 2, 3 and 4).
II.
A.

DISCUSSION

Motion to Dismiss Standard
In deciding a motion to dismiss pursuant to Fed.R.Civ.P.

12(b)(6), the Court must look to the face of the Complaint and
decide, taking all of the allegations of fact as true and
construing them in a light most favorable to Plaintiff, whether
the allegations state any legal claim, and “determine whether,
under any reasonable reading of the complaint, the plaintiff is
entitled to relief.”

Phillips v. County of Allegheny, 515 F.3d

224, 231 (3d Cir. 2008)(citing Pinker v. Roche Holdings Ltd., 292
F.3d 361, 374 n. 7 (3d Cir. 2002)).

For Plaintiff to proceed

with his claims, his pleadings must contain “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662 (2009)

20

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007));
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.009).
B.

Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
56(a).

Fed.R.Civ.P.

A dispute is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the non-moving party.”
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A

fact is “material” only if it might affect the outcome of the
suit under the applicable rule of law.

Id.

Disputes over

irrelevant or unnecessary facts will not preclude a grant of
summary judgment.

Id.

The Court will view any evidence in favor

of the nonmoving party and extend any reasonable favorable
inferences to be drawn from that evidence to that party.
Cromartie, 526 U.S. 541, 552 (1999).

Hunt v.

See also Scott v. Harris,

550 U.S. 372, 378 (2007)(The district court must “view the facts
and draw reasonable inferences in the light most favorable to the
party opposing the summary judgment motion.”).
C.

Failure to Exhaust Administrative Remedies
The NJSP Defendants first argue that Plaintiff failed to

exhaust his administrative remedies, as required by the Prisoner
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), which would
bar this Court from undertaking further review of Plaintiff’s
claims.

The PLRA provides that “[n]o action shall be brought
21

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 exhaustion requirement requires

proper exhaustion.”

Woodford v. Ngo, 548 U.S. 81, 93 (2006);

Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010)(citing
Woodford).

That means a prisoner must show compliance with his

prison’s specific grievance procedures prior to filing suit.
Drippe, 604 F.3d at 781.

This stricture applies to claims of

deliberate indifference to medical needs, such as the claims
Plaintiff raises here.

See, e.g., Watts v. Herbik, 364 Fed.

Appx. 723, 724 (3d Cir. 2010)(affirming dismissal of deliberate
indifference claim where plaintiff failed to exhaust
administrative remedies).

“The availability of administrative

remedies to a prisoner is a question of law.”

Mitchell v. Horn,

318 F.3d 523, 529 (3d Cir. 2003)(quoting Ray v. Kertes, 285 F.3d
287, 291 (3d Cir. 2002).
In support of their motion, the NJSP Defendants have
submitted the declaration of Brenda A. Hutton, the Executive
Assistant II at NJSP, which provides the various administrative
and medical records pertaining to Plaintiff.

The evidence

provided by the NJSP Defendants also establishes some basic facts
regarding the NJSP administrative grievance procedures, and
Plaintiff’s treatment and conduct during his incarceration.
22

For instance, NJSP has an established grievance system for
prisoners requesting administrative remedies pertaining to the
conditions of incarceration.

Inmates are provided with IRSFs

that allow them to address any concerns, problems, and
complaints.

Once an inmate completes the form, he submits it to

the appropriate staff person for a response.

There is generally

a thirty-day processing period, and once the inmate receives a
response to his IRSF, he may appeal the response.

After a

response is provided to the inmate’s appeal, his remedies are
exhausted.
The NJSP Defendants also show by evidence that Plaintiff had
filed numerous grievances since his arrival at NJSP, but only two
of these grievances pertain Plaintiff’s allegations of physical
abuse, albeit, the alleged physical abuse was not the primary
complaint in the grievance.

In the April 6, 2010 Administrative

Remedy Form, Plaintiff complains about a lack of legal supplies,
and generally alleged that custody staff physically and mentally
abused him.

Plaintiff did not describe the physical abuse, name

the abuser or provide a date when the alleged abuse occurred.
(Hutton Decl., Ex. C, DOC3).

In an April 15, 2010 form,

Plaintiff again makes a general allegation of physical abuse
without identifying any details of the incident, such as the
officer involved or the date and place of the alleged incident.
(Id., Ex. C at DOC6).

The NJSP Defendants further point out that

23

Plaintiff did not file an administrative appeal from the April 6,
2010 and April 15, 2010 grievances.

(Id.).

Furthermore, Plaintiff never filed any grievances regarding
his allegations of ongoing physical abuse and torture (i.e., the
choking, slapping, mace spraying, electrocution, needle poking,
etc.), and he never filed grievances regarding the conditions of
his confinement while he was housed in the dry cell for the first
three weeks of confinement in the MCU.

The NJSP Defendants

acknowledge that Plaintiff filed grievances about clothing,
sneakers and recreational issues, but none of these IRSFs
mentioned the allegations concerning a filthy mattress, gown or
feces and blood on the walls and floors of his cell.

(Id., Ex. C

at DOC5, DOC10, DOC12, DOC14, DOC26, DOC28, DOC42, and DOC74).
Finally, Plaintiff has never filed a grievance concerning a
denial of medical care, or that he was in need of medical care
due to excessive use of force or physical abuse.

(Id.).

Plaintiff attempts to overcome the defendants’ argument by
alleging that he filed grievances but these were not produced,
are missing or were thrown away.

In support of his claim, he

submits the affidavit of another inmate who alleges that
grievance forms are routinely discarded, misplaced or ignored.
There is no evidential support for that inmate’s hearsay
allegations.

Further, the only allegation by inmate Paladino

pertaining to Plaintiff involves the recent March 2012 incidents
of sexual abuse, which are not the subject of this motion.
24

Having carefully reviewed the documentary evidence provided
by the NJSP Defendants, the Court finds that these records
indicate that not only did Plaintiff fail to exhaust his
remedies, he did not use the process at all to attempt to remedy
the issues that form the basis of his Section 1983 claims, with
the exception of the recent March 2012 incidents.

While the

Plaintiff attempts to refute the NJSP Defendants’ evidence, his
allegations, even the declaration by another inmate, are simply
accusations unsupported by documentary proof.
Plaintiff’s many allegations are contradictory.

Moreover,
For instance, he

alleges that he never received more than one set of clothing for
two years, yet he admits at one point, in March 2010, that he
received his clothing allotment after complaining to the
Ombudsman.
Therefore, because Plaintiff fails to proffer any evidence
contrary to the NJSP Defendants documentary evidence, the Court
finds that no genuine issue of material fact exists as to whether
Plaintiff has exhausted his administrative remedies with regard
to his remaining Eighth Amendment claims against the NJSP
Defendants, with the exception of the most recent allegations in
his second amended Complaint concerning March 2012 incidents of
sexual and physical abuse.

Thus, summary judgment in the NJSP

Defendants’ favor is appropriate with regard to all Eighth
Amendment claims preceding the newly alleged March 2012 claims of
Eighth Amendment violations.
25

D.

Eighth Amendment Conditions Claim
Moreover, even if Plaintiff could demonstrate that he had

exhausted his administrative remedies, his Eighth Amendment
claims fail to state cognizable constitutional deprivations and
are lacking in merit.
“The Eighth Amendment’s prohibition on ‘cruel and unusual
punishment’ ... imposes on [prison officials] a duty to provide
‘humane conditions of confinement.’”

Betts v. New Castle Youth

Dev., 621 F.3d 249, 256 (3d Cir. 2010)(quoting Farmer v. Brennan,
511 U.S. 825, 832 (1994)), cert. denied, 131 S.Ct. 1614 (2011).
That is, “prison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must
‘take reasonable measures to guarantee the safety of the
inmates.’”
(1984)).

Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526–27
For an alleged deprivation to rise to the level of an

Eighth Amendment violation, it must “result in the denial of ‘the
minimal civilized measure of life’s necessities.’”

Id. at 835

(quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1982)).
To state a claim under the Eighth Amendment, an inmate must
allege both an objective and a subjective component.

Wilson v.

Seiter, 501 U.S. 294, 298 (1991); Counterman v. Warren Cnty.
Corr. Fac., 176 Fed. Appx. 234, 238 (3d Cir. 2006).

The

objective component requires that the deprivation sustained by a
prisoner be sufficiently serious because only “extreme
deprivations” are sufficient to make out an Eighth Amendment
26

claim.

Hudson v. McMillian, 503 U.S. 1, 9 (1992).

A plaintiff

may satisfy the objective component of a conditions-ofconfinement claim if he can show that the conditions alleged,
either alone or in combination, deprive him of “the minimal
civilized measure of life’s necessities,” such as adequate food,
clothing, shelter, sanitation, medical care, and personal safety.
Rhodes, 452 U.S. at 347-48.

However, while the Eighth Amendment

directs that convicted prisoners not be subjected to cruel and
unusual punishment, “the Constitution does not mandate
comfortable prisons.”

Rhodes, 452 U.S. at 349.

To the extent

that certain conditions are only “restrictive” or “harsh,” they
are merely part of the penalty that criminal offenders pay for
their offenses against society.

Id. at 347.

The subjective component requires that the state actor have
acted with “deliberate indifference,” a state of mind equivalent
to a reckless disregard of a known risk of harm.

See Farmer v.

Brennan, 511 U.S. at 835 (1994); Wilson, 501 U.S. at 303.

This

component may be fulfilled by demonstrating that prison officials
knew of such substandard conditions and “acted or failed to act
with deliberate indifference to a substantial risk of harm to
inmate health or safety.”

Ingalls v. Florio, 968 F. Supp. 193,

198 (D.N.J. 1997).
Here, Plaintiff alleges that for three weeks he was housed
in a dry cell with a dirty mattress, filthy gown and blood and
feces on the floor and walls of his cell.
27

He further complains

that his housing at the MCU deprives him of a surrounding
sanitary environment, and that he has not been provided with the
standard clothing, toiletries and cleaning products to keep
himself and his own cell clean.

However, as the record plainly

confirms, Plaintiff was not subjected to cruel conditions of
confinement and deprived of necessities.

For instance, the

record confirms that upon his arrival at NJSP, Plaintiff was
provided with two full sets of clothing, personal hygiene items
including toothpaste, soap, deodorant, toilet paper and a comb,
as well as sheets for his bed and a blanket.

(Booth Decl., ¶ 8).

Further, the record confirms that Plaintiff was given cleaning
supplies once a week to keep his cell clean, clean bed sheets
once a week, and a clean blanket every six months.
10 and 12).

(Id., ¶¶ 9,

Personal hygiene items are provided on or about the

fifteenth of each month.

(Id., ¶ 11).

In addition, Plaintiff’s medical records at NJSP do not
reveal any evidence of physical abuse or excessive force used
against Plaintiff for which medical treatment was required.
There are no records that Plaintiff requested medical care that
was denied.

The NJSP Defendants provided an extensive medical

record of 105 pages that reveals no allegations or complaints of
physical abuse, maltreatment, or excessive force that would
require medical care.
While several notations in Plaintiff’s medical records
confirm that Plaintiff was under constant watch and that he
28

complained of being deprived of showers and clean clothes, (see
e.g., MED22), there is no evidence, other than Plaintiff’s
allegations in his amended pleadings, that Plaintiff was confined
under the conditions he alleges.

Moreover, even if this Court

were to accept Plaintiff’s allegations as true, the duration of
these alleged conditions was so short and non-persistent, that
they fail to rise to the level of a constitutional deprivation
under the Eighth Amendment.

Accordingly, the NJSP Defendants are

entitled to summary judgment with respect Plaintiff’s Eighth
Amendment conditions claim.
E.

Eighth Amendment Denial of Medical Care Claim
The Eighth Amendment proscription against cruel and unusual

punishment also requires that prison officials provide inmates
with adequate medical care.

Estelle v. Gamble, 429 U.S. 97, 103-

04 (1976); Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999).

In

order to set forth a cognizable claim for a violation of his
right to adequate medical care, an inmate must allege:

(1) a

serious medical need; and (2) behavior on the part of prison
officials that constitutes deliberate indifference to that need.
Estelle, 429 U.S. at 106; Natale v. Camden County Correctional
Facility, 318 F.3d 575, 582 (3d Cir. 2003).
To satisfy the first prong of the Estelle inquiry, the
inmate must demonstrate that his medical needs are serious.
“Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to
29

medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’”
(1992).

Hudson v. McMillian, 503 U.S. 1, 9

The Third Circuit has defined a serious medical need as:

(1) “one that has been diagnosed by a physician as requiring
treatment;” (2) “one that is so obvious that a lay person would
recognize the necessity for a doctor’s attention;” or (3) one for
which “the denial of treatment would result in the unnecessary
and wanton infliction of pain” or “a life-long handicap or
permanent loss.”

Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d

Cir. 2003)(internal quotations and citations omitted); see also
Monmouth County Correctional Institutional Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006
(1988).
The second element of the Estelle test requires an inmate to
show that prison officials acted with deliberate indifference to
his serious medical need.

See Natale, 318 F.3d at 582 (finding

deliberate indifference requires proof that the official knew of
and disregarded an excessive risk to inmate health or safety).
“Deliberate indifference” is more than mere malpractice or
negligence; it is a state of mind equivalent to reckless
disregard of a known risk of harm.
825, 837-38 (1994).

Farmer v. Brennan, 511 U.S.

Furthermore, a prisoner’s subjective

dissatisfaction with his medical care does not in itself indicate
deliberate indifference.

Andrews v. Camden County, 95 F. Supp.2d

217, 228 (D.N.J. 2000); Peterson v. Davis, 551 F. Supp. 137, 145
30

(D. Md. 1982), aff’d, 729 F.2d 1453 (4th Cir. 1984).

Similarly,

“mere disagreements over medical judgment do not state Eighth
Amendment claims.”
1990).

White v. Napoleon, 897 F.2d 103, 110 (3d Cir.

“Courts will disavow any attempt to second-guess the

propriety or adequacy of a particular course of treatment ...
[which] remains a question of sound professional judgment.”
Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d
Cir. 1979) (internal quotation and citation omitted).

Even if a

doctor’s judgment concerning the proper course of a prisoner’s
treatment ultimately is shown to be mistaken, at most what would
be proved is medical malpractice and not an Eighth Amendment
violation.

Estelle, 429 U.S. at 105-06; White, 897 F.3d at 110.

The Third Circuit has found deliberate indifference where a
prison official: (1) knows of a prisoner’s need for medical
treatment but intentionally refuses to provide it; (2) delays
necessary medical treatment for non-medical reasons; or (3)
prevents a prisoner from receiving needed or recommended
treatment.

See Rouse, 182 F.3d at 197.

The court also has held

that needless suffering resulting from the denial of simple
medical care, which does not serve any penological purpose,
violates the Eighth Amendment.

Atkinson, 316 F.3d at 266.

See

also Monmouth County Correctional Institutional Inmates, 834 F.2d
at 346 (“deliberate indifference is demonstrated ‘[w]hen ...
prison authorities prevent an inmate from receiving recommended
treatment for serious medical needs or deny access to a physician
31

capable of evaluating the need for such treatment”); Durmer v.
O’Carroll, 991 F.2d 64 (3d Cir. 1993); White v. Napoleon, 897
F.2d 103 (3d Cir. 1990).
Here, Plaintiff’s general allegations that the NJSP
Defendants were deliberately indifferent to his medical needs in
violation of his Eighth Amendment rights are without merit.

The

substantial medical records provided the Court (under seal)
confirm that Plaintiff received ongoing and continuous medical
mental health care.

There are no records that Plaintiff

requested treatment for injuries consistent with the use of
excessive force or physical abuse that went unaddressed.
Moreover, Plaintiff points to MED35, 39, 45 and 58 as proof that
he suffered skin irritations to his feet, but this Court notes
that these records confirm that Plaintiff was given treatment, in
the form of creams and Ibuprofen, for his medical complaints.
Consequently, there is absolutely no evidence in the substantial
record provided that would support an Eighth Amendment denial of
medical care claim, and therefore, the NJSP Defendants are
entitled to summary judgment on this claim as well.
F.

Eighth Amendment Excessive Force and Physical Abuse Claim
The Eighth Amendment further prohibits prison officials from

unnecessarily and wantonly inflicting pain in a manner that
offends contemporary standards of decency.

See Hudson v.

McMillian, 503 U.S.1, 8 (1992); Rhodes v. Chapman, 452 U.S. 337,
347 (1981)(The Eighth Amendment prohibits conditions which
32

involve the unnecessary and wanton infliction of pain or are
grossly disproportionate to the severity of the crime warranting
imprisonment).

Id. at 347.

When reviewing an Eighth Amendment

excessive force claim, the district court must determine whether
the “force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very
purpose of causing harm.”

Hudson, 503 U.S. at 6.

The Supreme Court outlined the factors to be used in making
this determination in Whitley v. Albers, 475 U.S. 312, 320-21
(1986).

The factors used to determine whether force was used in

“good faith” or “maliciously and sadistically,” include: (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.”
Whitley v. Albers, 475 U.S. at 321.

See also Brooks v. Kyler,

204 F.3d 102, 106 (3d Cir. 2000); Freeman v. Department of
Corrections, 447 Fed. Appx. 385, 388 (3d Cir. Oct. 6, 2011).
In this case, the NJSP Defendants argue that Plaintiff can
prove neither the subjective or objective components of an Eighth
Amendment excessive force claim.

Plaintiff makes the general

allegation that he has been subjected to physical abuse on a
weekly basis since he was confined to the MCU at NJSP.
33

Nevertheless, Plaintiff fails to identify any details of the
alleged abuse and has never reported the allegations of physical
abuse and use of excessive force to NJSP officials for
investigation.

In short, Plaintiff merely alleges that he is

being physically abused without offering any proof.
As discussed previously, Plaintiff’s medical records clearly
reveals that Plaintiff never received or needed medical attention
or treatment for the alleged weekly physical abuse.

The medical

records reveal that Plaintiff received full physical and mental
health examinations that showed him to be normal and healthy
without any indications of physical abuse.

(Hutton Decl., Ex. E

at MED32-34, MED22-24, MED26-31, MED38-44, MED65, MED69-71,
MED78-80, MED84, MED91, MED96, and MED98).

Further, there were

no requests for medical care consistent with allegations of
physical abuse.

Finally, after this action was instituted and an

investigation of Plaintiff’s complaints of physical torture was
undertaken, Plaintiff refused to cooperate and would not
participate in a physical assessment by RN West.
Wojciechowicz Decl., ¶ 11).

(See

RN West thus conducted a visual

assessment of Plaintiff and concluded that Plaintiff exhibited no
signs of injuries or distress.

(Id., ¶ 13).

Therefore, except for Plaintiff’s bald and unsupported
allegations of weekly physical abuse and use of excessive force,
there are no records or signs that Plaintiff was subjected to
physical abuse and torture by the NJSP Defendants.
34

Moreover, it

appears that Plaintiff has consciously thwarted any attempts to
document or investigate the veracity of his claims of physical
abuse.

Accordingly, the NJSP Defendants will be granted summary

judgment on this claim, except with respect to Plaintiff’s
recently added allegations of physical and sexual abuse in March
2012, which is the subject of his second amended Complaint, see
the Opinion filed herein on December 21, 2012, and otherwise not
part of this motion for summary judgment.
G.

Remaining Arguments
Because this Court has determined that the NJSP Defendants

are entitled to summary judgment as to all of Plaintiff’s
remaining claims against them (with the exception of the newly
added and unanswered Eighth Amendment claims of excessive force
and physical abuse relating to March 2012 incidents, that are not
the subject of the NJSP Defendants’ motion for summary judgment),
the remaining arguments by the NJSP Defendants, namely the
Eleventh Amendment immunity claim and the qualified immunity
claim, need not be reached for discussion.
Moreover, because this Court has determined that the NJSP
Defendants are entitled to partial summary judgment, Plaintiff’s
cross-motion for summary judgment will be denied for lack of
merit.

Moreover, Plaintiff’s motions for leave to photograph

certain areas of the MCU, to serve extra interrogatories on the
NJSP defendants and to tape record depositions of the NJSP

35

Defendants, will be denied as moot because the claims for which
such discovery requests pertain have been dismissed.
III.

CONCLUSION

Therefore, for the reasons set forth above, the NJSP
Defendants’ motion to dismiss and/or for summary judgment
(Docket entry no. 85) will be granted in part, Plaintiff’s crossmotion for summary judgment and motions for discovery (Docket
entry no. 92) will be denied.

An appropriate order follows.

s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated:

December 26, 2012

36