PARKER v. GATEWAY NU-WAY FOUNDATION

Filing 23

MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 11/30/2011. (TH, )

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

HONORABLE JEROME B. SIMANDLE

ANTHONY PARKER,
Plaintiff,

Civil No. 10-2070 (JBS/KMW)
v.
GATEWAY NU-WAY FOUNDATION, et
al.,

MEMORANDUM OPINION

Defendants.

SIMANDLE, District Judge:
This matter is before the Court upon Defendant Grace
Cookewater's motion for summary judgment. [Docket Item 19.]
Plaintiff Anthony Parker was served by regular and certified mail
at the address provided to the Court.

This mail was returned to

the Defendant and was unable to be delivered at the Plaintiff's
designated address.
1.

The Court finds as follows:

Under Local Civil Rule 10.1(a), an unrepresented party

must advise the Court of any change in address within five days
of the occurrence of such change by filing a notice of the change
with the Clerk of the Court.

The Rule further provides, "Failure

to file a notice of address change may result in the imposition
of sanctions by the court."
2.

The Plaintiff has not notified the Court of a change of

address and has not responded to the instant motion.

Therefore,

the Court will treat this motion for summary judgment as

unopposed.
3.

The facts and procedural history underlying this action

were set forth in the Court's previous opinion in this matter.
[Docket Item 7.]

The Plaintiff brought the instant action pro se

pursuant to 42 U.S.C. § 1983 and alleged violations of his
constitutional rights.

After conducting a sua sponte screening

of the Plaintiff's amended complaint, the Court dismissed with
prejudice Defendants Gateway Nu-Way Foundation, State of New
Jersey, Department of Corrections, South Woods State Prison, and
Karen Balicki.

However, the Court allowed the Plaintiff's

amended complaint to proceed against Grace Cookewater and
John/Jane Does. [Docket Item 7.]

The Plaintiff claims Defendant

Cookewater and other John/Jane Does1 removed Plaintiff from the
"Nu-Way" program2 for filing of disciplinary grievances and
initiating the instant matter in retaliation against the
Plaintiff.
4.

Defendant Cookewater now moves for summary judgment.

1

The Court presumes these John/Jane Does to be correctional
officers, who, upon Cookewater's alleged complaint to South Woods
about Plaintiff's filing of grievances and this action,
retaliated against Plaintiff by removing him from the Nu-Way
program, though the complaint is ambiguous as to the claims
against the John/Jane Does.
2

A rehabilitation program administered by the Gateway
Foundation to inmates confined at the South Woods State Prison
which aims to rehabilitate the enrolled inmates and provide them
with a certain certificate or status upon their completion of the
program.
2

Defendant Cookewater denies removing the Plaintiff from the NuWay rehabilitation program.

Instead, Defendant Cookewater

maintains that Plaintiff withdrew from the Nu-Way program
voluntarily despite the staff's clinical recommendations that he
remain in treatment. (Certification of Grace Cookewater
"Cookewater Cert." ¶ 7).
5.

In support of her motion for summary judgment, Defendant

Cookewater attaches her own certification and several documents
including the Therapeutic Discharge Summary, Narrative Progress
Note and Weekly Summary Progress Notes.

All documents and

Defendant Cookewater's certification state that the Plaintiff
voluntarily withdrew from the Nu-Way program on April 8, 2010,
against Defendant Cookewater's recommendation and the
recommendation of the staff.

This withdrawal occurred before he

filed his initial complaint in this lawsuit on April 19, 2010.
6.

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."
P. 56(a).

Fed. R. Civ.

A fact is "material" only if it might affect the

outcome of the suit under the applicable rule of law.
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Anderson

Summary

judgment will not be denied based on mere allegations or denials
in the pleadings; instead, some evidence must be produced to
support a material fact.

Fed. R. Civ. P. 56(c)(1)(A); United

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States v. Premises Known as 717 S. Woodward Street, Allentown,
Pa., 2 F.3d 529, 533 (3d Cir. 1993).

Failure to oppose the

motion means that the Court may consider facts asserted by the
moving party "undisputed for the purposes of the motion."

Fed.

R. Civ. P. 56(e)(2); see also Anchorage Assocs. v. V.I. Bd. of
Tax Review, 922 F.2d 168, 175 (3d Cir. 1990)("The court will
accept as true all material facts set forth by the moving party
with appropriate record support.").
7.

Since the Plaintiff has not opposed this motion and

Defendant Cookewater sets forth her factual allegations with
record support, the Court will accept these facts as true for the
purposes of this motion.
8.

Anchorage Assocs., 922 F.2d at 175.

A plaintiff must show three elements to support a First

Amendment retaliation claim: (a) constitutionally protected
conduct, (b) retaliatory action sufficient to deter a person of
ordinary firmness from exercising his constitutional rights, and
(c) a causal link between the constitutionally protected conduct
and the retaliatory action.

See Thomas v. Independence Twp., 463

F.3d 285, 296 (3d Cir. 2006).
9.

In this case, it is undisputed that the Plaintiff

voluntarily withdrew from the Nu-Way Program.

This action was

taken against the advice of Defendant Cookewater and staff who
urged the Plaintiff to stay in the program.

Consequently, there

is no evidence of retaliatory action taken by Defendant

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Cookewater or Defendant John/Jane Does.

Therefore, summary

judgment is appropriate.
10.

The Court will grant Defendant Cookewater's motion for

summary judgment and the Plaintiff's complaint is hereby
dismissed with prejudice.

The accompanying Order will be

entered.

November 30, 2011
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge

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