JOHNSON v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 25

ORDER administratively terminating 20 Motion for Summary Judgment ; denying 21 Motion for Default Judgment. Signed by Judge Renee Marie Bumb on 5/7/2013. (drw)

[Dkt. Nos. 20, 21]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

JEFFREY JOHNSON,
Plaintiff,
Civil No. 11-5764 RMB/JS
v.
ORDER
N.J. DEPARTMENT OF CORRECTIONS,
et al.,
Defendants.

Jeffrey Johnson
#556532/977662
Southern State Correctional Facility
4295 Route 47
Delmont, NJ 08314
Pro se Plaintiff
Erin Marie Greene
State of New Jersey
Office of the Attorney General
Division of Law
25 Market Street, P.O. Box 112
Trenton, New Jersey 08625
Attorneys for Defendants Philip Sheppard and Werner Zaak
Plaintiff Jeffery Johnson (“Plaintiff”), formerly an inmate
at Southwoods State Prison, claims that the Defendants correction officers Philip Sheppard and Werner Zaak
(“Defendants”) - beat him.

Plaintiff also claims that he was

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denied medical treatment after he was beaten.

He asserts both

federal constitutional and state law claims of assault and
battery.

Defendants have moved for dismissal and, in the

alternative, summary judgment.1
I.

Background
Plaintiff claims he was beaten by the Defendants following a

trip to court and subsequently denied appropriate medical care.
In the motion briefing, Defendants submitted a declaration that
purports to attach grievances submitted by Plaintiff between
November 10, 2010 to November 30, 2011, none of which concern the
claims at issue in this case. [Declaration of Frank Pellegrino ¶
16].

However, the grievances attached include grievances dated

January 13, 2012 and April 16, 2012.

[Id. at Ex. D].

In Plaintiff’s responsive briefing, Plaintiff disputes the
notion that he failed to seek administrative remedies.
Plaintiff’s initial Complaint [Docket No. 1 at p. 4] indicates
that he wrote prison officials regarding the incident at issue.

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Plaintiff also moved for default judgment. [Docket No. 21]. That
motion is DENIED for two reasons. First, it is inappropriate because
the Defendants appear to have received permission from the Court to
respond to Plaintiff’s complaint out of time [Docket Nos. 17, 19] and
Defendants responded within the time allowed [Docket No. 20]. Fed. R.
Civ. Pro. 55(a)(requiring the party against who entry of default is
sought to have failed to plead or defend). Second, default judgment
requires, and Plaintiff failed, to first obtain entry of default from
the Clerk of the Court. McGann v. Collingswood Police Dep’t, No. 10-cv3458, 2011 WL 2600725, at *7 (D.N.J. June 28, 2011).

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Plaintiff’s responsive briefing also attached a grievance form
dated September 1, 2012 – a form that was not attached to
Defendants’ briefing.

[Docket No. 23].

While that form is a

grievance regarding a request to transfer, it appears to indicate
that Plaintiff submitted a “complaint” related to the incident at
issue in this litigation, though it is unclear whether that
reference refers to an administrative grievance or this action.
Plaintiff has sought discovery from Defendants on his prior
grievances.
II.

{Docket No. 22].

Standard
Defendants have requested that this Court treat their motion

as a motion to dismiss or, in the alternative, a motion for
summary judgment.

Because Defendants submitted a declaration in

support of their motion, and that evidence was extrinsic to
Plaintiff’s Complaint, this Court must treat Defendants’ motion
as one for summary judgment if it is to consider the declaration.
Reyes v. Sobina, 333 F. App’x 661, 662 n. 1 (3d Cir. 2009).

This

Court can, and will, do so here because Plaintiff was on notice
that this Court could treat the motion as one for summary
judgment, given the Defendants’ submission of outside materials
and their invitation to treat the motion as one for summary
judgment.

Id.
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Summary judgment should only be granted if “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).

“An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect
the outcome of the suit under governing law.”

Kaucher v. County

of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In opposing a motion for summary judgment, a litigant may
not stand on his pleadings alone, but must instead cite to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made
for purposes of the motion only) or other materials in support of
their claim.

Federal Rules Of Civil Procedure Rule 56(c).

III. Analysis
Defendants argue that: (1) Plaintiff’s federal claims, which
are lodged under 42 U.S.C. § 1983, should be dismissed because
Plaintiff was required, and failed, to exhaust his administrative
remedies under the Prison Litigation Reform Act (“PLRA”); and (2)
with Plaintiff’s federal claims dismissed, this Court should
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decline to exercise supplemental jurisdiction over Plaintiff’s
state law claims.
However, on the record before this Court, Defendants’ motion
is premature.

With respect to Defendants’ first argument, the

issue of Plaintiff’s efforts to seek administrative relief
requires greater clarity and further factual development given:
(1) the disconnect between the dates listed in Defendants’
declaration and the dates of the attached grievances; (2) the
fact that Plaintiff submitted a grievance form in the briefing
that was not submitted by Defendants; (3) Plaintiff’s reference
to grievance efforts in his Complaint; and (4) Plaintiff’s
potential reference to grievance efforts in the grievance form he
submitted in connection with the briefing.

With respect to

Defendants’ second argument, because that argument is contingent
on the dismissal of Plaintiff’s federal claims, and this Court
declines to dismiss those claims at this time, it too is
premature.
IV.

Conclusion
For the foregoing reasons, Defendants’ motion for summary

judgment is ADMINISTRATIVELY TERMINATED, pending the completion
of limited discovery on the exhaustion issue.

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Defendants shall

advise the Court whether they intend to renew their motion for
summary judgment at the conclusion of that discovery.
/s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: May 7, 2013

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