JOHNSON v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al
Filing
95
OPINION filed re. 87 and 91 . Signed by Judge Renee Marie Bumb on 9/23/2015. (drw)n.m.
[NOT FOR PUBLICATION]
[Docket Nos. 87 & 91]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JEFFREY JOHNSON,
Plaintiff,
Civil No. 11-5764 (RMB/JS)
OPINION
v.
NEW JERSEY DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
Appearances:
Lisa J. Rodriguez, Esquire
Schnader Harrison Segal & Lewis LLP
Woodland Falls Corporate Park
220 Lake Drive East, Suite 200
Cherry Hill, New Jersey 08002-1165
Attorney for Plaintiff
Alex J. Zowin, AAG
State of New Jersey
Office of the Attorney General
Hughes Justice Complex
25 Market Street
Trenton, New Jersey 08611
Attorney for Defendants
BUMB, United States District Judge:
Plaintiff Jeffrey Johnson (“Plaintiff”) was incarcerated at
South Woods State Prison (“SWSP”) in Bridgeton, New Jersey.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983,
alleging that he was assaulted by two correctional officers at
SWSP, Defendants Philip Sheppard and Werner Zaak (collectively
1
“Defendants”).1
Specifically, Plaintiff alleges that following a
court trip, Defendants physically assaulted him while he was
restrained in handcuffs and shackles as he exited the
transportation van at SWSP.
[Docket No. 12].
Second Amended Complaint, ¶¶ 14-16
In his Second Amended Complaint, Plaintiff
alleges he sustained lacerations to his face and scalp, as well
as several bruises and abrasions on his arms, legs, torso, face,
and head.
Id. at ¶ 17.
Plaintiff seeks compensatory and
The Court notes that Plaintiff has also named New Jersey
Department of Corrections Commissioner Gary M. Lanigan
(“Lanigan”) as a defendant in his Second Amended Complaint.
However, the record reflects that Lanigan has never been served
in this action, let alone within 120 days of the filing of
Plaintiff’s complaint as required by Federal Rule of Civil
Procedure 4(m). Under Rule 4(m), “if a defendant is not served
within 120 days after the complaint is filed, the court . . .
must dismiss the action without prejudice against that
defendant” unless the plaintiff shows “good cause” for the
failure. “While the Marshals Service's failure to effectuate
service on behalf of an in forma pauperis plaintiff may
constitute ‘good cause’ within the meaning of Rule 4(m), the
plaintiff must take ‘reasonable steps . . . to identify for the
court the defendants named in the complaint.’” Novak v. Posten
Taxi Inc., 386 F. App’x 276, n. 1 (3d Cir. 2010) (quoting Rance
v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286-87 (11th Cir.
2009)). Over three years have passed since Plaintiff filed his
Second Amended Complaint and since the Marshal’s Service served
Defendants Sheppard and Werner. Plaintiff has since made no
efforts to have the Marshal’s Service serve Lanigan, despite
frequent contact with the Court and the appointment of pro bono
counsel, and as such the Court presumes he has abandoned any
claims asserted against Lanigan in this action. “[A]n in forma
pauperis plaintiff ‘may not remain silent and do nothing to
effectuate such service.’” Frierson v. St. Francis Med. Ctr.,
No. 07-3857, 2012 WL 1677134, at *3 (D.N.J. May 14, 2012) aff’d,
525 F. App’x 87 (3d Cir. 2013) (quoting Rance, 583 F.3d at 1288
n. 3).
1
2
punitive damages, injunctive relief, and expungement of the
disciplinary charges and vacation of the sanctions imposed upon
him as a result of the incident.
Defendants move for summary judgment as to all counts,
contending: (1) Plaintiff’s claim of excessive force would
impermissibly undermine his prison disciplinary sanction
pursuant to Heck v. Humphrey; (2) Plaintiff has failed to
establish that he has met the verbal threshold to bring his tort
claims of assault and battery and negligence; and (3) Defendants
are protected from liability under qualified immunity.
For the
reasons set forth in this Opinion, Defendants’ motion for
summary judgment will be denied.2
I.
STATEMENT OF FACTS
On November 10, 2010, Plaintiff and three other inmates
were picked up at Yardville Prison for a return to SWSP.
They
were placed on Central Transport Vehicle #235 (“CTV #235”) under
the supervision of Central Transportation Officer Enrique Ramos,
the bus driver, and Central Transportation Officer Philip
Sheppard (“Defendant Sheppard”).
According to Plaintiff, once he was on the bus, there was a
verbal exchange between him and Defendant Sheppard that began
2
Plaintiff has submitted a Motion to Seal [Docket No. 91] in
conjunction with his opposition papers. Because Plaintiff has
satisfied this Court that the motion meets the requirements of
Local Civil Rule 5.3, that motion is GRANTED.
3
when Plaintiff asked that the air conditioner be turned down
because he was cold.
See Plaintiff’s Statement of Disputed
Facts at ¶ 1 (“Plaintiff’s Statement”) [Docket No. 92-3].
Defendant Sheppard refused and threatened Plaintiff.
Id.
When they arrived at SWSP, before entering the inmate
unload sally port area, CTV #235 pulled over and Defendant
Sheppard exited the bus.
Plaintiff’s Statement at ¶ 3.
He
returned a few moments later with Central Transportation Officer
Werner Zaak (“Defendant Zaak”), and shined his flashlight into
Plaintiff’s face in an effort to identify the Plaintiff.
¶ 3.
Id. at
The bus entered the sally port, and Defendant Sheppard
directed Plaintiff, who was in both hand and leg shackles, to
leave the bus.
Id. at ¶¶ 4, 11.
Defendant Sheppard then
instructed Plaintiff to give his name to the officer controlling
the intake booth.
While Plaintiff stood at the intake window
alone, Defendant Sheppard entered SWSP and pulled a blue curtain
around the inmate strip search area so that it was not viewable
from either the intake window or the rest of the holding cell
area.
Id. at ¶ 7.
Defendant Sheppard then called Plaintiff through the intake
door and told him to sit down.
Id. at ¶ 8.
Defendant Sheppard
at first led Plaintiff to believe he was going to unlock his leg
shackles.
Rather than freeing his legs, Plaintiff alleges
Defendant Sheppard went behind him and hit him in the back of
4
his head with an unknown object.
Id.
He then walked in front
of Plaintiff and began punching him in the face.
Id. at ¶ 9.
Plaintiff avers that because he believed there were cameras
outside the curtained area, he stood up and, with shackled legs
and arms, ran through the curtains so that the beating would be
captured on camera.
Id. at ¶ 10.
Defendant Sheppard attempted
to pull him back into the curtained area, but Plaintiff
successfully ran through the curtain into an open area.
Id.
It
was at this point that Officer Timothy Hickman claims he called
a Code 33.
Id. at ¶ 6.
Defendant Zaak waited outside while
Defendant Sheppard took Plaintiff behind the curtain.
Hickman
informed him that there was a scuffle between Plaintiff and
Defendant Sheppard.
Id. at ¶ 6.
Defendant Zaak then entered
SWSP and also began assaulting Plaintiff.
Complaint at ¶¶ 15-16.
Second Amended
Other SWSP corrections officers arrived
and Plaintiff was first placed in a holding cell before being
taken for medical treatment.
As a result of the above incident, Plaintiff was charged
with and found guilty of two counts of *.002 (assaulting any
person) and one count of *.306 (conduct which disrupts or
interferes with the security or orderly running of the
correctional facility).
Plaintiff filed an administrative
appeal of this disciplinary action, and the findings of the
hearing officer were upheld.
5
II.
LEGAL STANDARD
Summary judgment should 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).
A fact is
“material” if it will “affect the outcome of the suit under the
governing law . . . .”
U.S. 242, 248 (1986).
Anderson v. Liberty Lobby, Inc., 477
An issue 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 issue 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 Products
Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983).
However, “[t]he
mere existence of a scintilla of evidence,” without more, will
not give rise to a genuine issue for trial.
at 252.
Anderson, 477 U.S.
In the face of such evidence, summary judgment is still
appropriate “[w]here the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party . . .
.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
“Summary judgment motions thus require judges
to ‘assess how one-sided evidence is, or what a ‘fair-minded’
jury could ‘reasonably’ decide.’”
Williams v. Borough of West
6
Chester, Pa., 891 F.2d 458, 460 (3d Cir. 1989) (quoting
Anderson, 477 U.S. at 265).
The movant “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.”
Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
56(c)).
Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.’”
56(e)).
Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
The non-movant’s burden is rigorous: it “must point to
concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir.
1995).
III. ANALYSIS
Relying on Heck v. Humphrey, 512 U.S. 477 (1994),
Defendants argue that summary judgment must be granted because
Plaintiff was found guilty of two disciplinary charges arising
from the incident, as set forth above.
without merit.
Defendants’ argument is
In Heck, the United States Supreme Court held
7
that a Section 1983 plaintiff may not recover for an
unconstitutional conviction if doing so would necessarily imply
the invalidity of a final conviction.
512 U.S. at 487.
In
Heck, the plaintiff sued prosecutors and investigators under
Section 1983 for his alleged unconstitutional conviction for
manslaughter that, according to him, was the result of an
unlawful investigation and arrest.
In effect, the plaintiff was
seeking to use Section 1983 as an end run to avoid his
conviction.
The Court held that:
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court’s issuance of a writ of
habeas corpus.
Id. at 486-87.
Since the plaintiff’s manslaughter conviction
was not reversed, his Section 1983 claim was necessarily barred.
The Court made clear, however, that this bar only applies when
“a judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence.”
(emphasis added).
8
Id. at 487
That is not the situation presented here.3
Disciplinary
proceedings were brought against Plaintiff as a result of a
prison disturbance.
The actions of Defendants were not
considered in that disciplinary proceeding.
The result of that
disciplinary proceeding was that Plaintiff was found guilty of
assault and conduct that disrupts or interferes with the
security of the jail.
A favorable outcome in this litigation
would not necessarily invalidate or call into question the
validity of the disciplinary conviction.
Although the facts and
issues overlap given that they arise from the same incident,
“that overlap would not speak to the propriety of the hearing
officer’s procedures or attack the legitimacy of the hearing
officer’s legal determination.”
Lassiter v. Sherrer, No. 09-
2979, 2011 WL 4594203, at *7 (D.N.J. Sept. 30, 2011).
In Concepcion v. Morton, 125 F. Supp. 2d 111, 123 (D.N.J.
2000), rev’d on other grounds, 306 F.3d 1347 (3d Cir. 2002), the
district court allowed the inmates’ Section 1983 action for
excessive force to proceed, notwithstanding the existence of
prior administrative assault findings against the prisoners.
The court cautioned only that it could “not consider evidence
3
In fact, Plaintiff concedes that he is not, through this
litigation, seeking a determination that he was wrongly
convicted of the internal disciplinary charges, or that the
procedures used in those hearings were improper, both of which
would be barred under Heck v. Humphries.
9
that implies that the disciplinary punishments imposed against
the plaintiffs are invalid.”
Id. at 123.
“[A]ny facts used as
a basis for plaintiffs’ excessive force claims cannot contradict
the disciplinary proceedings arising from this same incident[.]”
Id.
More recently, in a case with facts similar to those
presented here, the plaintiff filed a Section 1983 excessive
force claim, alleging that the defendant correction officers
assaulted him while he was still handcuffed.
4594203.
Lassiter, 2011 WL
At an earlier disciplinary hearing arising from the
same events, the plaintiff inmate was found guilty of assaulting
the defendant correction officers.
The defendants moved to
dismiss the civil litigation arguing, inter alia, that the court
could not consider facts or evidence that contradict the
disciplinary proceedings.
Id. at *6.
Applying the Concepcion
rationale, the district court held that the Concepcion decision
should not be read as an absolute bar to claims for excessive
force “because as a practical matter, procedure would trump
substance to the detriment of critical constitutional
safeguards.”
Id. at *7.
“The Supreme Court never held that
parties are collaterally estopped from contesting prison
disciplinary findings, but rather that a section 1983 claim
cannot be pursued if it would ‘necessarily imply’ that the
earlier determination process was invalid.”
10
Id.
As a result,
the Court held that a favorable outcome of plaintiff’s lawsuit
for excessive force “would not invalidate or draw into question
the validity of the disciplinary hearing.”
Id.
Rather, “[t]o
the extent that the issues in this case would overlap with facts
that were relevant in the disciplinary hearing, that overlap
would not speak to the propriety of the hearing officer’s
procedures or attack the legitimacy of the hearing officer’s
legal determination.”
Id.
That same rationale applies here.
Plaintiff alleges that
Defendants used excessive force and, in fact, physically
assaulted him when they returned to the prison after a court
appearance.
If Plaintiff prevails in his claims, and
establishes that the Defendants used excessive force, such
decision “would not speak to the propriety of the hearing
officer’s procedures or attack the legitimacy of the hearing
officer’s legal determination.”
Id.
Furthermore, the Third Circuit has made clear that Heck
does not create a per se bar to a claim for excessive force:
“Heck does not automatically bar a § 1983 claim for excessive
force against an officer even though the plaintiff was convicted
of resisting arrest (or, as here, simple assault) based on the
same interaction with police.”
Suarez v. City of Bayonne, 566
F. App’x 181, 184-85 (3d Cir. 2014) (citing Nelson v. Jashurek,
109 F.3d 142, 145-46 (3d Cir. 1997)); Garrison v. Porch, 376 F.
11
App’x 274, 278 (3d Cir. 2010); Lora-Pena v. F.B.I., 529 F.3d
503, 506 (3d Cir. 2008).
In Suarez, the Third Circuit reversed
the district court’s grant of summary judgment, holding that a
jury could find that the defendant officer “continued to beat
[plaintiff] beyond the point necessary to secure him after his
brief resistance . . . without undermining [plaintiff’s] assault
conviction.”
566 F. App’x at 185.
See also Sharif v. Picone,
740 F.3d 263, 269-70 (3d Cir. 2014) (“Regardless of whether he
engaged in assaultive conduct, [plaintiff] remains free to
contend that the reaction of the corrections officers was such
that it constituted excessive force in comparison to the threat
he posed.”).
“[T]he mere fact of a conviction for assault or
similar conviction arising out of the same incident does not
automatically preclude recovery on an excessive force claim
brought under § 1983.”
Garrison, 376 F. App’x at 278.
Accordingly, Defendants’ motion for summary judgment on this
ground is denied.
Defendants have also moved for summary judgment on the
grounds that Plaintiff has failed to establish that excessive
force was used against him.
The Court disagrees.
The Eighth
Amendment, which prohibits the “unnecessary and wanton
infliction of pain,” governs claims by an inmate against a
prison official for the use of excessive force.
Whitley v.
Alberts, 475 U.S. 312, 319 (1986); Brooks v. Kyler, 204 F.3d
12
102, 106 (3d Cir. 2000).
The principal inquiry in an excessive
force claim is “whether force was applied in a good-faith effort
to maintain or restore discipline, or maliciously and
sadistically to cause harm.”
Brooks, 204 F.3d at 106 (quoting
Hudson v. McMillian, 503 U.S. 1, 7 (1992)).
Courts look to
several factors to determine whether the facts support a
plaintiff’s Eighth Amendment excessive force claim.
Those
factors include: (1) the need for the application of force; (2)
the relationship between the need and the amount of force that
was used; (3) the extent of the injury inflicted; (4) the extent
of the threat to the safety of staff and inmates, as reasonably
perceived by the responsible officials on the basis of the facts
known to them; and (5) any efforts made to temper the severity
of a forceful response.
Id. (quoting Whitley v. Albers, 475
U.S. 312, 321 (1986)).
Here, Plaintiff avers that he was handcuffed at the time
Defendant Sheppard assaulted him.
And, although Defendant
Sheppard provides a different recollection of events and
testified that Plaintiff assaulted him once the handcuffs were
removed, those facts are genuinely disputed.
Notably, the
evidence demonstrates that most of the other officers cannot
support Defendant Sheppard’s recollection of events and, in
reports prepared immediately following the incident, most stated
13
that they were unsure if Plaintiff was handcuffed at the time of
the assault.
To be sure, Plaintiff will not be permitted to introduce
any facts that contradict the disciplinary proceedings, e.g., he
did not assault an officer.4
However, the Court finds that
Plaintiff has presented sufficient evidence that Defendants used
excessive force against him to defeat summary judgment.
Defendants also argue that summary judgment is appropriate
because Plaintiff fails to meet the verbal threshold
requirements of the New Jersey Tort Claim Act.
1, et. seq. (the “Act”).
N.J.S.A. § 59:1-
The Act, however, explicitly exempts
from its coverage certain acts committed by a public employee.
In particular, N.J.S.A. § 59:3-14 states:
a. Nothing in this act shall exonerate a public
employee from liability if it is established that his
conduct was outside the scope of his employment or
constituted a crime, actual fraud, actual malice or
willful misconduct.
b. Nothing in this act shall exonerate a public
employee from the full measure of recovery applicable
to a person in the private sector if it is established
that his conduct was outside the scope of his
4
The parties will be required to flesh out this issue in greater
detail prior to trial so that the Court may make its evidentiary
rulings. As it stands now the record is unclear as to what
evidence the hearing officer considered in finding Plaintiff
guilty of assault. In any event, as set forth above, a jury’s
finding that Defendants used excessive force would not
necessarily invalidate a hearing officer’s finding that
Plaintiff assaulted the officer. See Lora-Pena, 529 F.3d at
506.
14
employment or constituted a crime, actual fraud,
actual malice or willful misconduct.
(emphasis added).
Willful misconduct occurs when there is “a
deliberate act or omission with knowledge of a high degree of
probability of harm and reckless indifference to consequences.”
Leany v. Jersey City Bd. of Educ., 198 N.J. 557, 584 (2009).
“Stated another way, the public employee must know the act is
wrong, but he need not actually intend to harm the plaintiff.”
Brown v. Arrayo, No. 08-2661, 2012 WL 4506550, at *6 (D.N.J.
Sept. 28, 2012).
Whether or not a particular act of an employee constitutes
willful misconduct is a question for the trier of fact.
Costello v. City of Brigantine, No. 99-4072, 2001 WL 732402, at
*23 (D.N.J. June 28, 2001).
See also Brown, 2012 WL 4506550, at
*7 (plaintiff’s testimony that he was beat without provocation
and lost consciousness is sufficient evidence of willful conduct
to create a question of fact for the jury).
Defendants do not
dispute this proposition and appear to concede that this is a
jury question.
Accordingly, Defendants’ motion for summary
judgment on this ground is denied.
Finally, Defendants argue that they are entitled to
qualified immunity because the violation alleged by Plaintiff
was not clearly established at the time Defendants acted.
argument clearly fails.
15
This
“Qualified immunity protects government officials from
liability for civil damages where their performance of
discretionary functions ‘does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.’”
Giudice v. Cnty. of Atl., No. 07-1143, 2008
WL 4934040, at *4 (D.N.J. Nov. 13, 2008) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
Such immunity is not
available if the official “knew or reasonably should have known
that the action he took within his sphere of official
responsibility would violate the constitutional rights of the
[person] affected, or if he took the action with the malicious
intention to cause a deprivation of constitutional rights[.]”
Wood v. Strickland, 420 U.S. 308, 322 (1975).
A right is
clearly established if “[t]he contours of the right [are]
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.”
Giudice, 2008 WL
4934040, at *4 (quoting Saucier v. Katz, 533 U.S. 194, 202
(2001)) (refusing to grant summary judgment on basis of
qualified immunity where there exists genuine issue of material
fact as to whether defendants acted maliciously and sadistically
in violation of the Eighth Amendment).
It is clearly
established that officers may not use gratuitous force against
an inmate who is subdued.
Giles v. Kearney, 571 F.3d 318, 326
(3d Cir. 2009) (denying summary judgment on ground of qualified
16
immunity because genuine issue of material fact existed as to
whether inmate was resisting when officers kicked him); Bethune
v. Cnty. of Cape May, No. 08-5738, 2011 WL 2037627, at *3
(D.N.J. May 20, 2011).
Here, as it is genuinely disputed
whether Plaintiff was handcuffed at the time of the incident and
thus whether the force used against Plaintiff by Defendants was
“gratuitous,” summary judgment on the basis of qualified
immunity shall be denied.
Finally, Defendants argue that Plaintiff’s claim for
punitive damages should be dismissed because their actions did
not rise to the level of malice or disregard of the Plaintiff’s
rights.
The Court reserves on this aspect, pending trial on the
merits.
IV.
CONCLUSION
For the foregoing reasons, Defendants motion for summary
judgment is denied.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: September 23, 2015
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