BRAGG v. JACKSON

Filing 73

OPINION. Signed by Judge Noel L. Hillman on 6/23/2014. (drw)n.m.

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BRIAN KEITH BRAGG,
Plaintiff,
v.
SCO JACKSON,
Defendant.

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Civil Action No. 10-3803(NLH)

OPINION

APPEARANCES:
Brian Keith Bragg
68 South Walter Ave.
Trenton, NJ 08609
Plaintiff pro se
Alex Joseph Zowin, Esq.
State of New Jersey
Office of the Attorney General
Hughes Justice Complex
25 Market Street
Trenton, NJ 08611
Counsel for Defendant SCO Jackson
HILLMAN, District Judge
This matter is presently before the Court pursuant to the
submission of a Motion [62] to dismiss, by Defendant Senior
Corrections Officer Dwayne Jackson (“SCO Jackson”).

By Orders

[67, 71] entered March 6, 2014, and April 2, 2014, this Court
converted the Motion to dismiss to a Motion for summary judgment
(hereinafter, the “Motion” or the “Motion for summary
judgment”), because it relied upon matters outside the

1

pleadings, see Fed.R.Civ.P. 12(d), and granted the parties an
opportunity to respond to the newly-designated Motion for
summary judgment, see Renchenski v. Williams, 622 F.3d 315, 34041 (3d Cir. 2010).

Plaintiff has not filed a response to the

Motion.
For the reasons state below, the Motion will be granted.
I.BACKGROUND
This matter was originally opened to the Court by Plaintiff
Brian Keith Bragg’s submission, on or about July 29, 2010, of a
Complaint [1], pursuant to 42 U.S.C. § 1983, and a later
application [2] for leave to proceed in forma pauperis.

By

Opinion and Order [11, 12] entered February 22, 2011, and
pursuant to 28 U.S.C. §§ 1915 and 1915A, this Court granted
Plaintiff leave to proceed in forma pauperis, screened the
Complaint, and dismissed it without prejudice for failure to
state a claim.

Subsequently, this Court granted Plaintiff leave

to re-open, and Plaintiff filed an Amended Complaint and a
Second Amended Complaint.

At this time, the only remaining

claim is a claim against Defendant SCO Jackson, and various
“John Doe” corrections officers and “Jane Doe” nurses, for
excessive use of force and failure to provide medical treatment,
all allegedly in violation of the Eighth Amendment to the U.S.
Constitution.
More specifically, Plaintiff alleges that on or about
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December 5, 2010, while Plaintiff was confined at South Woods
State Prison and was being escorted in handcuffs to an isolation
cell, SCO Jackson and several other “John Doe” corrections
officers “slammed” Plaintiff down to the concrete, “without
warning or provocation and beat plaintiff with their fists and
kicked plaintiff with their steel toe boots as [Plaintiff] lay
in a fetal position.”
¶ 2.)

(Doc. No. 21, Second Amended Complaint,

Plaintiff contends that he was attacked in retaliation

for having filed grievances and lawsuits and that he suffered
serious (undescribed) injuries as a result of the attack.
Plaintiff further asserts that a “John Doe” Sergeant observed
the attack and failed to intervene.

Finally, Plaintiff alleges

that two “Jane Doe” nurses refused to provide treatment for the
injuries he sustained in the attack. 1

Plaintiff seeks

unspecified monetary damages.
As noted above, Defendant SCO Jackson, the only served
defendant, has moved to dismiss the Second Amended Complaint
because Plaintiff failed to exhaust his administrative remedies
as required by 42 U.S.C. § 1997e(a).

This Court converted the

Motion to dismiss to a Motion for summary judgment and granted
Plaintiff an opportunity to respond.

1

Plaintiff has failed to

Plaintiff has never identified or served any of the fictitious
defendants.
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respond.
This Court has considered the Motion and the various
submissions of the parties and will decide the Motion on the
briefs, pursuant to Federal Rule of Civil Procedure 78(b).
II.

JURISDICTION

This Court exercises subject matter jurisdiction over this
matter pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), in that the
Complaint alleges federal civil rights claims under 42 U.S.C.
§ 1983.

See Max v. Republican Comm. of Lancaster County, 587

F.3d 198, 199 n.1 (3d Cir. 2009), cert. denied 560 U.S. 925
(2010).
III.

SUMMARY JUDGMENT

A district court shall grant summary judgment, as to any
claim or defense, “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.”

Fed.R.Civ.P. 56(a).

Thus,

summary judgment is appropriate where the Court is satisfied
that “‘the pleadings, 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)

(citing Fed.R.Civ.P. 56).
An issue is “genuine” if it is supported by evidence such
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that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

“By its very terms, this standard

provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.”

Id. at 247-48

(emphasis in original).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
See Fed.R.Civ.P. 56(c)(1), (4); Celotex, 477 U.S. at 323 (“[A]
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying 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.”
(citation omitted)); see also Singletary v. Pa. Dept. of Corr.,
266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although the initial
burden is on the summary judgment movant to show the absence of
a genuine issue of material fact, ‘the burden on the moving
party may be discharged by “showing” - that is, pointing out to
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the district court - that there is an absence of evidence to
support the nonmoving party’s case’ when the nonmoving party
bears the ultimate burden of proof.” (citing Celotex, 477 U.S.
at 325)).
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
U.S. at 324.

Celotex, 477

“[T]he non-moving party, to prevail, must ‘make a

showing sufficient to establish the existence of [every] element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.’”

Cooper v. Sniezek, 418

F.App’x 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at 322).
Thus, to withstand a properly supported motion for summary
judgment, “its opponent must do more than simply show that there
is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (citations omitted).

Instead, the non-moving party

must “go beyond the pleadings and by [its] own affidavits, or by
the ‘depositions, answers to interrogatories, and admissions on
file,’ designate ‘specific facts showing that there is a genuine
issue for trial.’”

Celotex, 477 U.S. at 324; see also Lujan v.

National Wildlife Fed’n, 497 U.S. 871, 888 (1990) (“The object
of [the Rule] is not to replace conclusory allegations of the
complaint ... with conclusory allegations of an affidavit.”);
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Anderson, 477 U.S. at 249; Big Apple BMW, Inc. v. BMW of N. Am.,
Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S.
912 (1993) (“To raise a genuine issue of material fact, ... the
opponent need not match, item for item, each piece of evidence
proffered by the movant,” but must “exceed[] the ‘ mere
scintilla’ threshold and ... offer[] a genuine issue of material
fact.”).
“In considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any
weighing of the evidence; instead, the nonmoving party’s
evidence ‘is to be believed and all justifiable inferences are
to be drawn in his favor.’”

Marino v. Indus. Crating Co., 358

F.3d 241, 247 (3d Cir. 2004) (citing Anderson, 477 U.S. at 255).
In making this determination, however, the court may consider
materials in the record other than those cited by the parties.
Fed.R.Civ.P. 56(c)(3).
IV.

DISCUSSION

The exhaustion of administrative remedies is a mandatory
prerequisite to any prisoner’s filing of a civil rights action
regarding prison conditions.

42 U.S.C. § 1997e(a); Woodford v.

Ngo, 548 U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S.
731, 739 (2001)).

Specifically, Section 1997e(a) provides:

No 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,
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prison, or other correctional facility until such
administrative remedies as are available are
exhausted.
“[T]he ... 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) (citation omitted).

See also Nyhuis v.

Ngo, 204 F.3d 65, 68-69 (3d Cir. 2000) (holding that the
§ 1997e(a) exhaustion requirement applies equally to claims
brought by federal and state prisoners).

In addition, a

prisoner must exhaust all available administrative remedies even
where the relief sought, such as monetary damages, cannot be
granted through the administrative process, as long as the
grievance tribunal has authority to take some responsive action.
Booth v. Churner, 532 U.S. 731 (2001).
Exhaustion is a precondition for bringing suit and, as
such, it is a “‘threshold issue that courts must address to
determine whether litigation is being conducted in the right
forum at the right time.’”

Small v. Camden County, 728 F.3d

265, 270 (3d Cir. 2013) (alternation in original) (citations
omitted).

Accordingly, “judges may resolve factual disputes

relevant to the exhaustion issue without the participation of a
jury.”

Id. at 271.

The applicable procedural rules for properly exhausting
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administrative remedies “are defined not by [§ 1997e(a)], but by
the prison grievance process itself.

Compliance with prison

grievance procedures, therefore, is all that is required by
[§ 1997e(a)] to ‘properly exhaust.’”
199, 218 (2007).

Jones v. Bock, 549 U.S.

Cir. 2004) (same).

See also Spruill v. Gillis, 372 F.3d 218 (3d
The burden of proving non-exhaustion lies

with the defendants asserting the defense.

Jones, 549 U.S. at

212, 216-17.
Section 1997e(a) “demands that a prisoner exhaust his
administrative remedies before filing suit.”

Strickengloss v.

State Correction Institution at Mercer, 531 F.App’x 193, 194 (3d
Cir. 2013) (emphasis added) (citing Jones v. Bock, 549 U.S. at
204).

See also Thrower v. U.S., 528 F.App’x 108 (3d Cir. 2013)

(affirming dismissal of Bivens claim for failure to exhaust,
even though prisoner exhausted his remedies after filing suit)
(citing Ahmed v. Dragovich, 297 F.3d 201, 209 & n.9 (3d Cir.
2002) (collecting cases)); Oriakhi v. United States, 165 F.App’x
991, 993 (3d Cir. 2006) (noting “unanimous circuit court
consensus” that a prisoner cannot fulfill the exhaustion
requirement after filing the complaint).

Accordingly, if

Plaintiff failed to exhaust his administrative remedies before
filing this action, he cannot cure that defect during the
pendency of this suit.
Here, the New Jersey Department of Corrections has
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established a comprehensive Inmate Remedy System, through which
“inmates may formally communicate with correctional facility
staff to request information from, and present issues, concerns,
complaints or problems to the correctional facility staff.”
N.J.A.C. 10A:1-4.1 et seq.

See

The Inmate Remedy System Form is

available from inmate housing units, the Social Services
Department, and the law library.

N.J.A.C. 10A:1-4.4(f).

An

aggrieved inmate must submit the Inmate Remedy System Form to
the designated institutional coordinator, who refers it to the
appropriate official for response.

N.J.A.C. 10A:1-4.8.

The

Inmate Remedy System Form must be complete and legible and must
include “a clear and concise statement summarizing the request.”
N.J.A.C. 10A:1-4.4(e).

Generally, the response to a routine

request is to be provided to the inmate within 30 days.
N.J.A.C. 10A:1-4.4(i), 10A:1-4.5(e).

Where further deliberation

is necessary, the initial response to the inmate shall include
statements that indicate that further deliberation is necessary,
the nature of the deliberation required, and the timeframe
within which the final response shall be provided to the inmate.
N.J.A.C. 10A:1-4.4(i).

An inmate may appeal the initial

response to the institution Administrator within 10 calendar
days from the issuance of the initial decision, and the
Administrator is to respond within 10 business days.
10A:1-4.4(i), 10A:1-4.6.

N.J.A.C.

The response from the Administrator
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completes the administrative remedy procedure.
4.4(d); 10A:1-4.6.

N.J.A.C. 10A:1-

The New Jersey regulations specifically

provide that “[t]he comprehensive Inmate Remedy System to
include a ‘Routine Inmate Request’ and/or ‘Interview Request,’
and an ‘Administrative Appeal’ must be utilized and fully
exhausted prior to an inmate filing any legal action regarding
information requests, issues, concerns, complaints, or
problems.”

N.J.A.C. 10A:1-4.4(d).

Here, on December 7, 2010, two days after the alleged
incident at South Woods State Prison, Plaintiff was transferred
to New Jersey State Prison, where he remained confined until
December 13, 2010.

(Motion, Decl. of Yolanda Cruz.)

On

December 13, 2010, Plaintiff was transferred to Northern State
Prison, where he remained confined until July 2, 2012.

(Motion,

Decl. of Frank Pellegrino.)
On February 8, 2011, while Plaintiff was confined at
Northern State Prison, he submitted an Inmate Remedy System Form
regarding the incident which is the subject of this litigation.
It reads, in pertinent part, as follows:
On December 05th, 2010, while at South Woods
State Prison, I was viciously attacked by several
correctional officers (while a supervisor stood by and
watched), who slammed me down to the concrete (handcuffed from the back) with[out] warning or provocation
and beat me with their fists and kicked me with their
boots as I lay in a fetal position. As a result, I
suffered a severe injury to my right knee3, bruises
and head trauma.
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Pursuant to 10A:3-7.3 Requesting a Polygraph
examination:
I am requesting approval from the Commissioner of
the N.J. Department of Corrections for a polygraph
examination to the truth about the events as described
herein. (See attached enclosures).
(Motion, Decl. of Frank Pellegrino, Ex. A, at PageID: 429.) 2
On March 1, 2011, the initial response was delivered to
Plaintiff.

It indicated that the reviewing officials considered

Plaintiff’s grievance to be a request for “investigation” and
further noted that the matter would be forwarded to South Woods
State Prison Special Investigations Division.

Id.

Plaintiff

did not appeal this response.
Neither the applicable New Jersey regulations nor the
Inmate Remedy System Form explicitly require an inmate to
specify whether he desires monetary damages, and the Court of
Appeals for the Third Circuit has held that it will not imply
such a requirement.

See Spruill v. Gillis, 372 F.3d at 234.

The New Jersey Administrative Code, however, does require the
inmate to provide “a clear and concise statement summarizing the
request.”

N.J.A.C. 10A:1-4.4(e).

Here, the only request that

Plaintiff made was that he be permitted to take a polygraph exam
in support of his statement regarding the alleged attack.

2

The referenced “enclosures” were not attached to Mr.
Pellegrino’s Declaration.
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To

the extent the referral of this matter for an internal
investigation was not a satisfactory resolution of Plaintiff’s
request, he was required to appeal the decision in order to
exhaust his administrative remedies.

Cf. Ramos v. Hayman, Civil

No. 11-0259, 2011 WL 3236395 (D.N.J. July 27, 2011) (holding
that New Jersey state prisoner who failed to appeal or respond
to initial response asking him to contact an investigator had
failed to exhaust available administrative remedies). 3
Accordingly, this Court finds that Plaintiff failed to
exhaust the administrative remedies that were available to him.
The Motion for summary judgment will be granted. 4
V.

CONCLUSION

For the reasons set forth above, the Motion will be
granted.

An appropriate order follows.

At Camden, New Jersey

Dated:

s/Noel L. Hillman
Noel L. Hillman
United States District Judge

June 23, 2014

3

In addition, the Court notes that the Inmate Remedy System Form
makes no mention of any claim regarding failure to provide
medical care for the injuries Plaintiff allegedly sustained as
the result of the attack.
4

As the time for appealing the administrative remedy has long
since passed, and as Plaintiff has advised the Court that he is
no longer confined, it appears that Plaintiff can no longer
exhaust his administrative remedies with respect to the claims
asserted here. Accordingly, all claims will be dismissed with
prejudice.
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