JOHNSON v. BONDISKEY et al

Filing 79

OPINION FILED. Signed by Judge Renee Marie Bumb on 6/2/14. (js)

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

AARON R. JOHNSON,
Plaintiff,
Civil No. 11-3836 RMB/JS
v.
OPINION
LOUIS KING,
Defendant.
Aaron R. Johnson
546546C S.W.S.P.
215 Burlington Road
Bridgeton, NJ 08302
Pro se Plaintiff
James T. Dugan
Atlantic County Department of Law
1333 Atlantic Avenue, 8th Floor
Atlantic City, New Jersey 08401
Attorney for Defendant
This matter comes before the Court upon a motion by
Defendant Louis King (“Defendant”) to renew his motion for
summary judgment.

For the reasons that follow, Defendant’s

motion is denied and this matter will proceed to trial on June
19, 2014, as this Court will reconsider its prior decision
regarding the costs of transporting Plaintiff’s key witness.

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I.

Background
Pro se Plaintiff, Aaron Johnson (“Plaintiff”) 1, claims,

pursuant to 42 U.S.C. § 1983, that Defendant violated his
constitutional right to be free from excessive force while he was
a pre-trial detainee incarcerated in the Atlantic County Justice
Facility.

Plaintiff claims that on August 11, 2010, Defendant, a

corrections officer at the facility, kicked him down a set of
stairs while Defendant was escorting Plaintiff from the showers.
Plaintiff’s principal evidence in support of this claim is the
eyewitness account of his cellmate - Michael Williams.

Plaintiff

has offered the testimony of no others in support of his
contention that his fall was caused by Defendant kicking him.
The only support for his contention are his own statements, as
informed by Williams, and a written statement by Williams stating
that “I seen [sic] Officer L. King kick Aaron Johnson down a
flight stairs [sic].”

[Docket No. 42 at Ex. D].

Defendant

disputes Plaintiff’s version of events and claims that Plaintiff
simply fell down the stairs.
In this Court’s prior Order [Docket No. 44], the Court found
that Plaintiff could proceed with his claim against Defendant in
his individual capacity as Plaintiff intended to present the live

1

Plaintiff is proceeding in this matter in forma pauperis.
2

testimony of Williams at trial.

Pursuant to motions in limine,

this matter was set to proceed to a bifurcated trial with the
liability portion of trial set to commence on January 13, 2014.
Plaintiff’s only fact witness, Williams, was ordered by this
Court to be produced without the prepayment of fees by Plaintiff.
[Docket No. 57].
On December 20, 2013, Defendant moved for reconsideration as
to the production of inmate Williams at the expense of the State.
[Docket No. 58].

This Court granted that motion for

reconsideration and found that all costs related to producing
Williams needed to be paid in advance by the Plaintiff pursuant
to N.J.A.C. 10A:3-9.13, which states, in relevant part:
(a)

The costs of transporting an inmate to court for civil
action will be paid by the Department of Corrections
when:

1. The cause of action is related to the inmate's
confinement.
* * *
(b) The cost of transporting an inmate to court for a civil
action other than those listed in (a) above shall be
paid in advance of the transportation by:
1. The inmate;
2. The inmate’s attorney or representative; and/or
3. The person bringing the civil action against the
inmate or that person's representative.
A review of this statute persuaded this Court that, because
inmate Williams was not covered under subsection (a), Plaintiff

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had to pay the cost of production in advance, and that asking the
State to seek reimbursement for the transportation of Williams
would improperly require the State to absorb the related
expenses.
During a hearing on the pending motion for reconsideration
and other motions in limine, Plaintiff was informed that he would
have to bear the costs of producing Williams.

See Porter v.

Dept. of the Treasury, 564 F.3d 176, 180 n.3 (3d Cir. 2009) (“IFP
status exempts litigants from filing fees only. It does not
exempt litigants from the costs of copying and filing documents;
service of documents other than the complaint; costs .
expert witness fees. . . or sanctions.”).

.

.

The Court, in an

attempt to accommodate Plaintiff and allow him to present his
case via admissible evidence, offered him the opportunity to
either proceed to trial and pay the related expenses to produce
Williams or stay the matter for a limited time.

Plaintiff

elected to stay the matter pending Williams’ scheduled release
from prison, which was slated for some time in April of 2014.
Trial was set to commence on May 12, 2014, following Williams’
release date.
Shortly after his release date, Williams, for reasons
unknown, was re-incarcerated.

The parties appeared for trial on
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May 12, 2014, but the trial did not proceed as Plaintiff’s only
witness, Williams, was not available.

Although Plaintiff was

prepared to proceed to trial, he was not aware that Williams had
been re-incarcerated.

During a hearing held on May 12th in lieu

of trial, Defendant asked this Court to renew the motion for
summary judgment in light of the fact that the only evidence
Plaintiff planned to present in support of his contention that
Defendant kicked him down the stairs was the testimony of
Williams, who Plaintiff was not prepared to produce to testify at
trial.
In light of Plaintiff’s inability to pay the fees associated
with producing Williams, and in an effort to continue to ensure
that Plaintiff had every opportunity to present his case via
admissible evidence, this Court delayed decision on Defendant’s
renewed motion for summary judgment and provided Plaintiff with
ten days to supplement the record to present competent evidence.
The only additional submissions this Court has received are
Plaintiff’s request for a writ of habeas corpus ad testificandum
for inmate Williams and a letter regarding the reports of a
corrections officer.

[Docket No. 76 & 78].

In this first

submission, Plaintiff admits that his case “depends [in] large
part on Michael W. Williams[’] testimony.”
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[Docket No. 76].

Plaintiff has not represented that he will pay the costs
associated with producing Williams or that he has other
admissible evidence in support of his claim.

In a letter dated

May 22, 2014, counsel for Defendant, after speaking with
administrators at South Woods State Prison, indicated to this
Court that “no arrangements have been made to transport Michael
Williams to Court.”

II.

[Docket No. 77].

Standard
Summary judgment shall be granted 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” if it will “affect the outcome of

the suit under the governing law . . . .” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute is “genuine” if

it could lead a “reasonable jury [to] return a verdict for the
nonmoving party.”

Id.

When deciding the existence of a genuine

dispute of material fact, a court’s role is not to weigh the
evidence: all reasonable “inferences, doubts, and issues of
credibility should be resolved against the moving party.”

Meyer

v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).

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III. Analysis
Before entertaining Defendant’s renewed motion for summary
judgment, this Court feels compelled to first reconsider its
ruling that Plaintiff must pre-pay the expenses associated with
the production of Williams as it finds, for reasons discussed
further below, that such reconsideration is warranted to prevent
manifest injustice.
During his deposition, Plaintiff clarified that the basis
for his contention that he was “kicked” was based on the
statement of Williams:
Q: Isn’t it true that the first time you thought you
were kicked was when Michael Williams told you [that]
you were kicked?
A: Yes, and other inmates.
Pl.’s Deposition Transcript, 58:3-6.

Moreover, in his inmate

grievance form completed on August 15, 2010, Plaintiff stated, “I
don’t know what exactly happened, I heard I was kicked down the
steps . . .” Def.’s Ex. I (emphasis added).

Without the

testimony of inmate Williams, Plaintiff would be opposing
Defendant’s summary judgment motion and attempting to proceed to
trial on the sole basis of hearsay.

Hearsay is defined in

Federal Rule of Evidence 801(c) as "a statement, other than one
made by the declarant while testifying at the trial or hearing,
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offered in evidence to prove the truth of the matter asserted."
Fed. R. Evid. 801(c).

Certainly, Plaintiff seeks to present

classic hearsay evidence during trial in the form of Williams’
out of court statement that Plaintiff was kicked, which is being
offered for its truth.
It is clear, that without the testimony of Williams, summary
judgment in favor of Defendant would be warranted.

Upon

revisiting the statute related to transportation of inmates, this
Court finds that, based on the particular circumstances of this
case, Williams should be produced by the Department of
Corrections for purposes of testifying at trial set for June 19,
2014, without prepayment of fees by Plaintiff.
In coming to this conclusion, this Court starts with Section
(a) of N.J.A.C. 10A:3-9.13 which states, in relevant part, that:
(a)

The costs of transporting an inmate to court for civil
action will be paid by the Department of Corrections
when:
1. The cause of action is related to the inmate's
confinement.

Clearly, a § 1983 claim for excessive force alleged to have
occurred based on the conduct of an officer employed by the
Department of Corrections constitutes a cause of action “related
to the inmate’s confinement.”

In such instance, the

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Administrative Code requires that the Department of Corrections
transport, at its own cost, the inmate alleged to have been the
victim of excessive force.
Read literally, the Department of Corrections is required
only to pay the inmate/victim’s transportation costs but not such
costs for an inmate/witness.

In many cases, this presents an

insurmountable hurdle for inmates who have filed their civil
rights complaints in forma pauperis.

On the other hand,

requiring the Department of Corrections to transport any and all
inmates alleged to be involved in a cause of action covered by
subsection (a) presents an unrealistic and undue burden on the
institution.

In the end of its analysis, however, the Court will

require the Department of Corrections to transport Williams
without prepayment by Plaintiff. 2

2

In this case, the Department

It appears that the Court would not err in denying
Plaintiff’s request to have the Department of Corrections
transport Williams without prepayment, as Defendant strongly
urges this Court to do. See e.g., Boring v. Kozakiewicz, 833 F.
2d 468, 474 (3d Cir. 1987) (“[t]he plaintiffs’ dilemma in being
unable to proceed in this damage suit because of the inability to
pay for expert witnesses does not differ from that of nonprisoner
claimants who face similar problems.”). However, for the reasons
set forth herein, the Court will direct the Department of
Corrections to do so and charge the costs to the Plaintiff. Cf.
Boring, 833 F. 2d at 474 (3d Cir. 1987) (“There is no provision
for furnishing pretrial detainees expert witnesses at government
expense; but, without expert testimony, pretrial detainees'
complaints that their jailers neglected to provide them with
prescribed medical treatment cannot reach the jury. Thus indigent
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of Corrections should not be able to shield itself behind
subsection (a) when it or its employees are accused of wrongdoing
and the sole evidence to support the complainant is another
inmate within that same institution.

The appearance of Williams

will require no more than one day, even less, perhaps; thus, the
expenditure burden on the Department of Corrections is minimal.
This is not to say, however, that in all cases involving alleged
excessive force the Department of Corrections should be required
to transport every inmate/witness identified by a
plaintiff/inmate.

Instead, the Court will have to conduct a

fact-based inquiry on a case-by-case basis.

Here, that inquiry

results in the production of only one other inmate housed in the
same facility, without whom Plaintiff has no chance of pursuing
his civil rights claim.

Moreover, the Court will direct that the

costs of transporting Williams shall be ultimately borne by the
Plaintiff.

pretrial detainees can never recover for pain and suffering,
suffered as a result of neglected medical treatment unless they
are released, obtain funds, and can hire an expert. The
inhumanity of this paradoxical rule of law alone suggests a
serious flaw. If our superiors in the federal judicial hierarchy
were to insist upon such inhumane a rule, we would, despite
misgivings, have to apply it. The Supreme Court, however, has not
suggested it, and this court's caselaw is to the
contrary)(Gibbons, J., dissenting).
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In the event that Plaintiff prevails in the liability phase
of his trial and is awarded damages by a jury following the
damages trial, Plaintiff’s damages award shall be reduced by the
costs incurred by the State as a result of complying with this
Court’s order to produce Williams. 3

If, however, Plaintiff does

not prevail in this matter, for every month Plaintiff’s prison
account exceeds $10.00, until the costs of producing Williams are
paid, the agency having custody of the Plaintiff shall assess,
deduct from Plaintiff’s account, and forward to the Department of
Corrections payment equal to 20% of the preceding month’s income
credited to Plaintiff’s account.

Each payment shall reference

the civil docket number of this action.

The Court notes that

Plaintiff’s projected release date is in January of 2016,
ensuring that several payments will be collected prior to his
release, whereupon he will become a productive citizen and be
able to repay the amount in full.

This Court finds this solution

to be the most equitable balancing of interests in light of the
language of N.J.A.C. 10A:3-9.13 and Plaintiff’s rights under §
1983.

3

This Court assumes that the Plaintiff does not object to
this procedure as it was the Court’s original decision with
respect to producing Williams without prepayment by Plaintiff.
Indeed, Plaintiff has requested the Court adhere to its initial
ruling.
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IV.

Conclusion
For the foregoing reasons, Defendant’s request for summary

judgment is denied and trial in this matter will commence on June
19, 2014.

The Department of Corrections will produce Williams

and the appropriate Writ will issue.

/s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: June 2, 2014

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