WILSON v. HAAS et al

Filing 61

OPINION. Signed by Judge Noel L. Hillman on 6/29/2015. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Plaintiff,
:
:
v.
:
:
JAMES HAAS, et al.,
:
:
Defendants.
:
___________________________________:
DAVID WILSON,

Civ. No. 11-7001 (NLH)
OPINION

APPEARANCES:
Charles Harry Landesman
Law, Froelich & Landesman
360 Kearny Ave.
Kearny, NJ 07032
Counsel for Plaintiff
Randy Miller
State of New Jersey Department of Law & Public Safety
25 Market St.
P.O. Box 112
Trenton, NJ 08625
Counsel for Defendants

HILLMAN, District Judge
This matter comes before the Court by way of a motion (ECF
No. 53) by Defendants seeking summary judgment pursuant to
Federal Rule of Civil Procedure 56.

The Court has considered

the parties’ submissions and decides this matter pursuant to
Federal Rule of Civil Procedure 78.
For the reasons that follow, Defendants’ motion for summary
judgment will be GRANTED in part and DENIED in part.

I.

BACKGROUND

At all times relevant to this action, Plaintiff was an
inmate at South Woods State Prison in Bridgeton, New Jersey.
Plaintiff’s claims arise from events that occurred on November
15, 2010.

Specifically, on that date Plaintiff had an

altercation with another inmate at the facility, Garcia, in the
hall just outside — and partially in — inmate Garcia’s cell.

A

Code 33 was called and numerous officers responded to the scene.
(Defs.’ Statement of Material facts [ECF No. 53-3] (hereinafter
“Defs.’ SOMF”), ¶ 3); see also (Pl.’s Responsive Statement of
Material Facts [ECF No. 58] (hereinafter, “Pl.’s Resp. SOMF”), ¶
1).
When the officers arrived, the inmates were still fighting
on the floor and Plaintiff’s hand was in Garcia’s mouth. (Defs.’
SOMF, ¶ 4) (Pl.’s Resp. SOMF, ¶ 1, 2).

The officers told the

inmates to stop fighting. (Defs.’ SOMF, ¶ 7) (Pl.’s Resp. RSOMF,
¶ 3).

The officers then began to pull the inmates apart.

(Defs.’ SOMF, ¶ 5) (Pl.’s Resp. SOMF, ¶ 1).

At that time,

Plaintiff believed that the officers would use some force
against him to end the fight. Id.
Once separated, the officers placed restraints on Garcia
and Plaintiff. (Defs.’ SOMF, ¶ 10) (Pl.’s Resp. SOMF, ¶ 5).

The

parties dispute what happened after the inmates were restrained.
Defendants contend that Plaintiff continued to resist the
2

officers and continued to attempt to assault Garcia. (Defs.’
SOMF, ¶ 9, 11).

Plaintiff asserts that he complied with the

officers’ orders to stop and denies resisting the restraints or
continuing the assault. (Pl.’s Resp. SOMF, ¶ 4, 6).
Plaintiff claims that during the fight, Garcia assaulted
him with a padlock and bit him. (Defs.’ SOMF, ¶ 13, 14) (Pl.’s
Resp. SOMF, ¶ 7).

After Plaintiff was restrained, he was taken

to the hospital area of the prison for treatment of his
injuries.

He was given an “HIV cocktail” — because he had been

bitten — and he continued to receive this HIV medication for 28
or 29 days. (Defs.’ SOMF, ¶ 16-18) (Pl.’s Resp. SOMF, ¶ 7).
Upon his initial arrival to the hospital area of the prison, he
was examined by Nurse Sacco-McCord who cleaned his wounds.
(Defs.’ SOMF, ¶ 19, 20) (Pl.’s Resp. SOMF, ¶ 7).

Another

unknown female nurse tended to Plaintiff’s wounds during the
night to control the bleeding. (Defs.’ SOMF, ¶ 21) (Pl.’s Resp.
SOMF, ¶ 7).
The following morning, the same unknown nurse examined
Plaintiff and determined that his wounds were closing. (Defs.’
SOMF, ¶ 22) (Pl.’s Resp. SOMF, ¶ 7).

Plaintiff was given

treatment for his wounds, including a tetanus shot, antibiotics,
cleaning of the wound, and a two day stay in the infirmary
during which he was under observation (Defs.’ SOMF, ¶ 23) (Pl.’s
Resp. SOMF, ¶ 7).
3

After two days of observation by medical staff, they
determined that Plaintiff’s condition permitted removal, and he
was removed from the infirmary. (Defs.’ SOMF, ¶ 25) (Pl.’s Resp.
SOMF, ¶ 7).
Plaintiff then filed this action pursuant to 42 U.S.C. §
1983 alleging that Defendants violated his constitutional rights
by: (1) using excessive force against him; (2) failing to
intervene while the excessive force was being used against him;
and (3) failing to provide adequate medical care.
Specifically, Plaintiff asserts that Defendant Officers
Zeller, Trullender, and Vest-2 continued to beat him after he
was restrained and no longer resisting or fighting.

Plaintiff

also contends that Defendant Officer Brown watched from the
control room and failed to intervene, and that Defendant
Officers Castro and Blizzard were approximately eight to ten
feet away from Plaintiff at the time he was restrained and
beaten, but they failed to intervene.

Finally, Plaintiff

asserts that he needed stitches, but that Defendant Haas refused
to allow him to go to an outside hospital to receive them and
directed medical personnel to effectively deny Plaintiff
treatment. 1

1

Plaintiff’s claims against Defendant Nurse Sacco–McCord were
dismissed by stipulation of the parties on December 9, 2013.
(ECF No. 34).
4

The parties engaged in discovery and Defendants now move
for summary judgment.
II.

DISCUSSION

A. SUMMARY JUDGMENT STANDARD
In the present motion, Defendants seeks the entry of
summary judgment in their favor on all of Plaintiff's claims.
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, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986) (citing FED. R. CIV. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A fact is

“material” if, under the governing substantive law, a dispute
about the fact might affect the outcome of the suit. Id.

“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

5

favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004) (citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
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 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. Celotex, 477
U.S. at 324.

A “party opposing summary judgment may not rest

upon the mere allegations or denials of the ... pleading[s.]”
6

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001)
(internal quotations omitted).

For “the non-moving party[ ] to

prevail, [that party] 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, the
nonmoving party must identify specific facts and affirmative
evidence that contradict those offered by the moving party.
Anderson, 477 U.S. at 256–57.
B. 42 U.S.C. § 1983
A plaintiff may have a cause of action under 42 U.S.C. §
1983 for certain violations of his constitutional rights.
Section 1983 provides, in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
... subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper
proceeding for redress[.]”
42 U.S.C. § 1983.
“To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege a person acting under color of state law engaged in
conduct that violated a right protected by the Constitution or
7

laws of the United States.” Morrow v. Balaski, 719 F.3d 160,
165–66 (3d Cir. 2013) (citing Nicini v. Morra, 212 F.3d 798, 806
(3d Cir. 2000)).

The Court's “‘first step in evaluating a

section 1983 claim is to ‘identify the exact contours of the
underlying right said to have been violated’ and to [then]
determine ‘whether the plaintiff has alleged a deprivation of a
constitutional right at all.’” Morrow, 719 F.3d at 166 (quoting
Nicini, 212 F.3d at 806.); see also West v. Atkins, 487 U.S. 42,
48 (1988).
III. ANALYSIS
A. EXCESSIVE FORCE CLAIM
1. THERE IS A GENUINE DISPUTE OF MATERIAL FACT
The Eighth Amendment prohibits cruel and unusual
punishment, which includes the unnecessary and wanton infliction
of pain by prison officials. U.S. Const. amend. VIII; see also
Rhodes v. Chapman, 452 U.S. 337, 345–46, 101 S.Ct. 2392, 69
L.Ed.2d 59 (1981); Whitley v. Albers, 475 U.S. 312, 319, 106
S.Ct. 1078, 89 L.Ed.2d 251 (1986).

The Eighth Amendment both

restrains prison officials from applying excessive force against
inmates, see Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995,
117 L.Ed.2d 156 (1992), and it imposes affirmative duties on
prison officials to provide humane conditions of confinement,
see Farmer v. Brennan, 511 U.S. 825, 832–33, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994).

Here, Plaintiff alleges that Officers
8

Zeller, Trullender, and Vest–2 violated the Eight Amendment by
applying excessive force when they beat him in the head, face,
and body, while he was on the ground handcuffed behind his back.
Where the Eighth Amendment claim is one of excessive use of
force, the core inquiry as to the subjective component is
“whether force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very
purpose of causing harm.” Whitley, 475 U.S. at 319.

“When

prison officials maliciously and sadistically use force to cause
harm, contemporary standards of decency always are violated.”
Hudson, 503 U.S. at 9.
In such cases, a prisoner may prevail on an Eighth
Amendment claim even in the absence of a serious injury, the
objective component, so long as there is some pain or injury and
something more than de minimis force is used. Id. at 9–10
(finding that blows which caused bruises, swelling, loosened
teeth, and a cracked dental plate were not de minimis for Eighth
Amendment purposes).
To determine whether force was used in “good faith” or
“maliciously and sadistically,” courts have identified several
factors, including: (1) “the need of the application of force”;
(2) “the relationship between the need and the amount of force
that was used”; (3) “the extent of injury inflicted”; (4) “the
extent of the threat to the safety of staff and inmates, as
9

reasonably perceived by responsible officials on the basis of
the facts known to them”; and (5) “any efforts made to temper
the severity of a forceful response.” Brooks v. Kyler, 204 F.3d
102, 106 (3d Cir. 2000) (quoting Whitley, 475 U.S. at 321).
Thus, not all use of force is “excessive” to the level of a
constitutional violation.

Deference is given to prison

officials' adoption of policies to restore order and discipline.
Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d
447 (1979).
In this case, it is clear that officers responded to an
inmate fight and that some force was used, and even anticipated
by Plaintiff, in breaking up that fight.

The parties also agree

that Plaintiff suffered some injury as a result of the force
used by Defendants. 2
However, a genuine dispute of fact exists as to whether the
officers continued to beat Plaintiff after the fight had ended
and Plaintiff had been restrained and subdued.

Plaintiff

testified that he complied with the officers’ orders, and that
he was lying face-down on the ground with his hands shackled

2

Though the extent of the injuries Plaintiff attributes to the
excessive force is not entirely clear, Defendants concede that
Plaintiff suffered at least “minor bruising.” (Defs.’ Mot. Summ.
J. 14-15, ECF No. 53-4). Pursuant to Hudson, injuries of this
type may be sufficient to show harm for purposes of the cruel
and unusual punishments clause. Hudson, 503 U.S. 1.
10

behind his back when he was beaten. 3

Defendants assert that

Plaintiff continued to resist and was attempting to continue his
assault on inmate Garcia at this point.

At the summary judgment

stage, however, the Court must accept Plaintiff’s version of the
facts. 4
Because Plaintiff's excessive force claim turns on which of
two conflicting stories best captures what happened, summary
judgment is not permitted in Defendants' favor. See Saucier v.

3

Plaintiff indicates that he complied with the officers’ order
in his affidavit in opposition to Defendants’ motion for summary
judgment. (Pl.’s Aff. in Opp’n ¶ 4, ECF No. 55). Defendants
point out that the affidavit is unsigned and they ask the Court
to disregard it because it is, effectively, not a sworn
statement. (Defs.’ Reply 6-7, ECF No. 59). Plaintiff thereafter
submitted a copy of the affidavit which is properly executed by
Plaintiff. (ECF No. 60). Accordingly, Defendants’ challenge to
the affidavit is moot in this respect.
4

Defendants argue that Plaintiff’s assertion that he complied
with officers’ direction to stop fighting is inconsistent with
his previous testimony. Specifically, Defendants point out that
Plaintiff previously testified that he was on the ground when
officers arrived on the scene, but that Plaintiff states in his
affidavit that he obeyed an order to get down on the ground.
(Defs.’ Reply 7, ECF No. 54). Defendants urge the Court to
disregard these allegations under the “sham affidavit doctrine.”
Under this doctrine, a court can disregard a witness’s affidavit
when it is inconsistent with prior deposition testimony. Jiminez
v. All Am. Rathskeller, 503 F. 3d 247, 255 (3d Cir. 2007).
However, a review of the deposition transcript provided by
Defendants shows that Plaintiff’s previous testimony is not
inconsistent with his allegation that he complied with orders to
get down and stop fighting. Throughout the deposition,
Plaintiff repeatedly stated that he obeyed commands to “get
down” and “stop.” See, e.g., (Pl. Dep. 9:9-10, June 6, 2014,
Defs.’ Ex. B at 24, ECF No. 53-2); (Pl. Dep. 27:13-15, Defs.’
Ex. B at 29). Thus, the “sham affidavit doctrine” is
inapplicable in this instance.
11

Katz, 533 U.S. 194, 216, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)
(Ginsburg, concurring) (“[T]hat is as it should be.

When a

plaintiff proffers evidence that the official subdued her with a
chokehold even though she complied at all times with his orders,
while the official proffers evidence that he used only stern
words, a trial must be had.”).
In this case, the factual dispute goes directly to the
amount of force used and the context in which it was used.
Viewing the evidence provided to the Court in the light most
favorable to Plaintiff, as this Court must, a reasonable
factfinder could conclude, based on the fact that Plaintiff was
subdued and restrained, that Defendants applied force
unnecessarily and wantonly to inflict pain.
Because accounts of this critical event are controverted,
summary judgment is improper. See Brooks v, 204 F.3d at 106
(quoting Whitley, 475 U.S. at 322, 106 S.Ct. 1078) (“Summary
judgment in favor of a defendant is not appropriate ‘if it
appears that the evidence, viewed in the light most favorable to
the plaintiff, will support a reliable inference of wantonness
in the infliction of pain.’”); see also Giles v. Kearney, 571
F.3d 318, 327 (3d Cir. 2009) (finding summary judgment
inappropriate on a prisoner's claim of excessive force where
there was a genuine dispute of fact as to the necessity for the
force, and a reasonable trier of fact could have concluded,
12

based on the prisoner's testimony that he had been struck by
prison guards even after he had ceased resisting, that the force
used was excessive).
Accordingly, the Court will deny summary judgment as to
Plaintiff’s excessive force claim.
2. DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY
Government officials are immune from suit in their
individual capacities unless, “taken in the light most favorable
to the party asserting the injury, ... the facts alleged show
the officer's conduct violated a constitutional right” and “the
right was clearly established” at the time of the objectionable
conduct. Saucier, 533 U.S. at 201.

For a right to be clearly

established, “[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what he
is doing violates that right.” Id. at 202 (quoting Anderson v.
Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523
(1987)).

“If officers of reasonable competence could disagree

on th[e] issue, immunity should be recognized.” Malley v.
Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271
(1986).
The Supreme Court has since held that the sequence of the
two-part Saucier analysis is no longer mandatory and trial
courts are now permitted to use discretion as to which prong of

13

the analysis to apply first. See Pearson v. Callahan, 555 U.S.
223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009).
Qualified immunity is a complete immunity from suit, not
just a defense to liability, and is considered at the earliest
possible stage of proceedings, apart from the analysis of the
underlying claim itself. Saucier, 533 U.S. at 194, 121 S.Ct.
2151.

The issue of qualified immunity is generally a question

of law, although a genuine issue of material fact will preclude
summary judgment on qualified immunity. See Giles, 571 F.3d at
326 (citations omitted); see also Curley v. Klem, 499 F.3d 199,
208 (3d Cir. 2007) (citations omitted) (finding that where
factual issues are in dispute, Third Circuit precedent makes
clear that such disputes must be resolved by a jury after a
trial).
In this case, Defendants contend that, if Plaintiff’s
claims are not dismissed on the merits, they must be dismissed
because Defendants are entitled to qualified immunity.

However,

accepting Plaintiff’s version of the events as true, Plaintiff
was hit and punched numerous times with a closed fist on his
back and on the side of his head while restrained on the ground,
after he ceased to resist.

Thus, Plaintiff has alleged conduct

by the officers in violation of his Eighth Amendment rights that
a reasonable officer would have known was a violation under the
circumstances.

No reasonable officer could agree that striking
14

and punching a subdued, non-resisting inmate in the side, with
force enough to cause injuries — even minor bruising, was
reasonable or necessary under established law. See Giles, 571
F.3d at 326; see also Hudson, 503 U.S. 1 (finding that use of
excessive physical force against prisoner may constitute cruel
and unusual punishment even though inmate does not suffer
serious injury).
Moreover, although Defendants dispute these allegations, as
set forth above, a genuine issue of material fact precludes
summary judgment on the basis of qualified immunity. See Giles,
571 F.3d at 326.
Accordingly, Defendants are not entitled to summary
judgment on the basis of qualified immunity.
B. FAILURE TO INTERVENE CLAIM
“[A] corrections officer's failure to intervene in a
beating can be the basis of liability for an Eighth Amendment
violation under § 1983 if the corrections officer had a
reasonable opportunity to intervene and simply refused to do so.
Furthermore, ... a corrections officer cannot escape liability
by relying upon his inferior or non-supervisory rank vis-a-vis
the other officers.” Smith v. Mensinger, 293 F.3d 641, 650 (3d
Cir. 2002) (citations omitted).
Here, Plaintiff contends that Officer Brown watched the
beating from a control room and did not intervene; and that
15

Officers Blizzard and Castro stood eight to ten feet away and
did not intervene.

Plaintiff does not assert, however, that any

of these officers had a realistic and reasonable opportunity to
intervene. Id.

As Defendants point out, the parties agree that

the incident happened very quickly. (Defs.’ SOMF, ¶ 32) (Pl.’s
Resp. SOMF, ¶ 11).

Given the short time frame in which the

incident occurred and the absence of factual allegations
indicating that these officers had a realistic opportunity to
intervene, no genuine issue as to any material fact regarding
this claim exists and Plaintiff’s claim fails.
The Court will grant summary judgment in favor of
Defendants with respect to the failure to intervene claim.
C. INADEQUATE MEDICAL CARE CLAIM
The Eighth Amendment proscription against cruel and unusual
punishment requires that prison officials provide inmates with
adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103–04
(1976).

In order to set forth a cognizable claim for a

violation of his right to adequate medical care, an inmate must
allege: (1) a serious medical need; and (2) behavior on the part
of prison officials that constitutes deliberate indifference to
that need. Id. at 106.
To satisfy the first prong of the Estelle inquiry, the
inmate must demonstrate that his medical needs are serious.
“Because society does not expect that prisoners will have
16

unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’“ Hudson, 503 U.S. at 9.
Serious medical needs include those that have been
diagnosed by a physician as requiring treatment or that are so
obvious that a lay person would recognize the necessity for
doctor's attention, and those conditions which, if untreated,
would result in lifelong handicap or permanent loss. See Johnson
v. Stempler, 373 F. App'x 151, 153 n. 1 (3d Cir. 2010) (citing
Monmouth County Correctional Institutional Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U .S. 1006
(1988)).
The second element of the Estelle test requires an inmate
to show that prison officials acted with deliberate indifference
to his serious medical need.

“Deliberate indifference” is more

than mere malpractice or negligence; it is a state of mind
equivalent to reckless disregard of a known risk of harm.
Farmer, 511 U.S. at 837–38.

Furthermore, a prisoner's

subjective dissatisfaction with his medical care does not in
itself indicate deliberate indifference. Andrews v. Camden
County, 95 F. Supp.2d 217, 228 (D.N.J. 2000); Peterson v. Davis,
551 F. Supp. 137, 145 (D. Md. 1982), aff'd, 729 F.2d 1453 (4th
Cir. 1984).

Similarly, “mere disagreements over medical

17

judgment do not state Eighth Amendment claims.” White v.
Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).
Rather, to establish deliberate indifference, a prisoner
must show that the defendant was subjectively aware of the unmet
serious medical need and failed to reasonably respond to that
need. See Farmer, 511 U.S. at 837; Natale v. Camden Cnty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003).

Deliberate

indifference may be found where the prison official (1) knows of
a prisoner's need for medical treatment but intentionally
refuses to provide it; (2) intentionally delays necessary
medical treatment based on a non-medical reason; or (3)
deliberately prevents a prisoner from receiving needed medical
treatment. See Pierce v. Pitkins, 520 F. App'x 64, 66 (3d Cir.
2013) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999)).
In this case, Defendants acknowledge that Plaintiff had a
wound to the head which was bleeding and, significantly,
Defendants do not dispute the fact that his medical needs were
serious.

Instead, Defendants request summary judgment on the

basis that there is no genuine issue of fact as to whether
Defendant Haas acted with deliberate indifference to that
serious medical need. 5

5

Plaintiff initially asserted claims for inadequate medical care
against both Administrator Haas and Nurse Sacco-McCord.
18

With regard to deliberate indifference, Plaintiff’s
argument is two-fold.

First, Plaintiff asserts that he was in

need of stitches to his head and that Defendant Haas refused to
allow him to go to an outside hospital to receive this
treatment. (Third Am. Compl. ¶ 28, ECF No. 24).

Next, Plaintiff

asserts that Defendant Haas acted with deliberate indifference
when he instructed his subordinates to stay away from Plaintiff
until the following day. Id.
Both of these claims of liability against Defendant Haas
are premised upon the assertion that Defendant Haas was aware of
Plaintiff’s need for medical treatment, and that he made the
decision to deny Plaintiff this medical treatment.

Defendants

respond that Plaintiff’s claim is “incompetent,” (Defs.’ Reply
at 9, ECF No. 59), and they argue that Plaintiff’s claim must
fail because Plaintiff did, admittedly, receive treatment for
his wounds.

Presumably, then, Defendants contend that any

alleged direction given by Defendant Haas is immaterial in light
of the fact that Plaintiff ultimately received adequate medical
treatment.
However, this is not the standard by which a claim for
inadequate medical care is evaluated.

Rather, Third Circuit

However, the claims against Nurse Sacco-McCord were dismissed
per the terms of a December 10, 2013 Stipulation of Dismissal
(ECF No. 34).
19

case law dictates that a plaintiff sets forth a cognizable claim
for inadequate medical care when he satisfies the two-prongs of
Estelle; namely, that there exists (1) a serious medical need;
and (2) behavior on the part of prison officials that
constitutes deliberate indifference to that need. Estelle, 429
U.S. at 106.

Therefore, the fact that Plaintiff received

medical treatment from another prison official, in defiance of
Defendant Haas’ alleged orders, does not eliminate the
possibility that Defendant Haas may have acted with deliberate
indifference.
The Court then looks to the evidence in the record to
determine whether there exists a genuine issue of material fact
as to Defendant Haas’ conduct which precludes summary judgment.
The only evidence submitted in support of Plaintiff’s assertion
that Defendant Haas acted with deliberate indifference is
Plaintiff’s own affidavit, submitted in response to Defendants’
motion for summary judgment:
Nurse McCord told Lt. Durham in my presence . . . that
I needed stitches to my head and that I needed to go
to an outside hospital because the prison doctor was
not available at the prison. Lt. Durham informed
defendant Haas by telephone of this in my presence but
Haas refused to allow me to be taken to an outside
hospital. Defendant Haas ordered that I be stripped
of all of my clothing and that I be placed in a locked
cell in the prison hospital in the nude and that no
one was to go near me until I saw the prison internal
affairs.
(Aff. In Opp’n ¶ 8, ECF No. 60-1).
20

These declarations, however, provide a different narrative
than the one Plaintiff offered during his deposition, as
discussed in detail below.

For the following reasons, the Court

will disregard the portions of Plaintiff’s affidavit which are
inconsistent with his prior deposition testimony and summary
judgment will be granted in favor of Defendants.
1. DEFENDANT HAAS’ REFUSAL TO PERMIT PLAINTIFF TO GO TO AN
OUTSIDE HOSPITAL TO RECEIVE STITCHES
As to Plaintiff’s first claim — that Defendant Haas acted
with deliberate indifference by refusing to allow Plaintiff to
be taken to an outside hospital for stitches — there exists no
genuine issue of material fact and summary judgment is
appropriate.

Plaintiff concedes that Defendant Haas was not

present at the time of his injury, and it is undisputed that
Defendant Haas is non-medical prison staff.

Therefore, in order

to succeed on his claim, Plaintiff must show that Defendant Haas
knew of Plaintiff’s serious medical need, and disregarded same.
See Barkes v. First Corr. Med., Inc., 766 F.3d 307, 319 (3d Cir.
2014) abrogated on other grounds by Taylor v. Barkes, 135 S. Ct.
2042 (2015) (citations omitted) (finding that in order to
succeed on his claim, a plaintiff must point to some evidence
that a prison official knew of, and disregarded, the risk to the
plaintiff’s health and safety.); see also Davis v. Norwood, No.
14-4688, 2015 WL 3875785 (3d Cir. June 24, 2015) (finding that
21

non-medical prison official must have actual knowledge that
prison medical staff are mistreating a prisoner) (citing Spruill
v. Gillis, 372 F.3d 218 (3d Cir. 2004)).
The crux of Plaintiff’s claim, then, is that he was in need
of stitches and that Lt. Durham relayed this treatment
recommendation to Defendant Haas who then refused treatment.
However, the record does not clearly establish that Plaintiff
was in need of stitches and the only evidence submitted in
support of this assertion is Plaintiff’s own affidavit,
submitted in response to Defendants’ motion for summary
judgment.

Beyond this affidavit, there is nothing to indicate

that any medical professional made this treatment
recommendation.

Rather, it appears that Plaintiff, himself,

believes that he should have received stitches and he is simply
dissatisfied that he did not receive his desired treatment.

As

stated above, however, disagreements over medical judgment and
subjective dissatisfaction with medical care do not state an
Eighth Amendment claim. See Andrews, 95 F. Supp.2d at 228;
Peterson, 551 F. Supp. at 145; White, 897 F.2d at 110.
Moreover, this assertion — that Plaintiff was told he was
in need of stitches and that this treatment recommendation was
relayed to Defendant Haas — is inconsistent with Plaintiff’s
prior deposition testimony.

As an initial matter, nowhere in

Plaintiff’s deposition does he state that he heard Nurse Sacco22

McCord tell anyone that Plaintiff needed stitches.

At the most,

Plaintiff states that Nurse Sacco-McCord “didn’t bandage [him]
up.

Because she know and I knew that I needed stitches.” (Pl.

Dep. 34:15-17, Defs.’ Ex. B at 31).
Most significantly, later in the deposition when Plaintiff
discusses the alleged telephone conversation between Lt. Durham
and Defendant Haas, Plaintiff recalls prison officials reporting
to Defendant Haas that Plaintiff was in stable condition.
Specifically, Defendant states that prison officials said
“[t]hat I’m okay.” (Pl. Dep. 47:8 Ex. B at 34).

When questioned

as to who said that he was okay, Plaintiff responded, “Durham.
Lieutenant Durham.

Was saying — because Sacco-McCord was

telling that — that they — she was inquiring about something to
them about me being stable.

And I didn’t have to go [to the

hospital].” (Pl. Dep. 47:15-19 Ex. B at 34).
“A party may not create a material issue of fact by filing
an affidavit disputing his or her own testimony without
demonstrating a plausible explanation for the conflict.” Baer v.
Chase, 392 F.3d 609, 624 (3d Cir. 2004).

“[I]f it is clear that

an affidavit is offered solely for the purpose of defeating
summary judgment, it is proper for the trial judge to conclude
that no reasonable jury could accord that affidavit evidentiary
weight and that summary judgment is appropriate.” Jiminez, 503
F.3d at 253.
23

Here, the affidavit offered by Plaintiff in an attempt to
avoid summary judgment directly contradicts his deposition
testimony on several crucial facts.

Most importantly, as

discussed above, Plaintiff testified during the deposition that
prison officials reported to Defendant Haas that he was in
“okay,” stable condition, and that he did not have to go to the
hospital.

In his affidavit, however, Plaintiff asserts that

Defendant Haas was told that Plaintiff needed to go to an
outside hospital to receive stitches but that Defendant Haas
refused to allow him to go.

This difference is crucial because

it goes toward Defendant Haas’ subjective state of mind, which
is an essential element of the deliberate indifference inquiry.
Plaintiff does not provide any explanation for the
inconsistencies between his affidavit and his prior testimony
regarding what was told to Defendant Haas during the telephone
conversation.

Therefore, it is clear to the Court that

Plaintiff’s affidavit is offered solely for the purpose of
defeating summary judgment by creating a triable issue of fact
as to Defendant Haas’ knowledge.

Accordingly the Court will

disregard the portions of the affidavit which contradict
Plaintiff’s previous deposition testimony. See Jiminez, 503 F.3d
at 253-54 (holding that a district court may disregard this type
of affidavit unless there is independent evidence to bolster the
contradictory testimony); see also Martin, 965 F. Supp. 2d at
24

526; Penn Environment v. PPG Indus., Inc., 23 F. Supp. 3d 553,
583 (W.D. Pa. 2014) (holding that under the Third Circuit’s
flexible approach, a district court may disregard affidavits to
the extent they are inconsistent with prior deposition
testimony).
Without this affidavit, there is no evidence in the record
to suggest that Defendant Haas knew of, let alone disregarded,
Plaintiff’s serious medical need, assuming one existed.

As

discussed above, Plaintiff’s own deposition testimony indicates
that medical staff at the prison reported to Defendant Haas that
Plaintiff was okay, in stable condition, and that he did not
need to go to the hospital.

Accordingly, there exists no

genuine issue of material fact as to whether Defendant Haas
acted with deliberate indifference and Defendants are entitled
to summary judgment on this claim. 6
2. DEFENDANT HAAS ACTED WITH DELIBERATE INDIFFERENCE BY
DIRECTING PRISON STAFF TO STAY AWAY FROM PLAINTIFF

6

The Court notes that Plaintiff testified during the deposition
that he “heard [Nurse Sacco-McCord] tell [Lt. Durham] that,
Yeah, he needs to be taken to the hospital but the – that was
it.” (Dep. Testimony p 10, Lines 14-16, at 25, ECF No. 53-2).
However, as discussed above, Plaintiff dismissed his claim as to
Nurse Sacco-McCord and there is nothing in the record to
indicate that this recommendation was ever relayed to Defendant
Haas. Accordingly, even accepting this allegation as true, no
genuine issue of fact exists and Plaintiff’s claim against
Defendant Haas does not survive summary judgment.
25

Likewise, summary judgment is appropriate with respect to
Plaintiff’s second claim — that Defendant Haas acted with
deliberate indifference to his serious medical need by
instructing prison officials to stay away from Plaintiff.

As

discussed below, this assertion is speculative, at best, and is
not supported by the evidence in the record.
Plaintiff’s affidavit asserts that Defendant Haas gave an
affirmative and specific order that Plaintiff prison staff was
to stay away from Plaintiff for the night which, construing
Plaintiff’s submission liberally, amounts to an effective denial
of medical treatment.

However, Plaintiff’s deposition testimony

reveals that this this assertion is based on pure speculation,
and the evidence in the record does not provide support for this
allegation.
First, Plaintiff’s deposition testimony indicates that
Plaintiff merely assumed that Lt. Durham was speaking to
Defendant Haas during the telephone call at issue.

Specifically

Plaintiff admitted that he only “believe[d] him to be talking to
Superintendent Haas.” (Pl. Dep. 48:5-6 Ex. B at 34).

When asked

what led Plaintiff to believe that Lt. Durham was talking to
Defendant Haas on the phone, Plaintiff responded, “Because I
heard them say they were talking to — I heard someone or Durham.
I can’t remember — I just know that they were talking to
[Defendant Haas] on the phone.” (Pl. Dep. 47:9-12 Ex. B at 34).
26

Plaintiff later stated, “I can’t remember word-for-word what
they said.

But I just know that I heard his name.

was on the phone.

And why he

And I also know that’s the procedure anyway.”

(Pl. Dep. 47:19-22 Ex. B at 34).
Likewise, it appears that Plaintiff’s conclusion that
Defendant Haas gave the specific orders mentioned in Plaintiff’s
affidavit is also speculation.

With regard to the substance of

the alleged conversation with Defendant Haas, Plaintiff admitted
that no one directly discussed the content of the conversation
with him; nor did Plaintiff overhear anyone talking about the
content of the conversation.

Furthermore, when directly asked

whether anyone told Plaintiff about any directions given by
Defendant Haas during that phone conversation, Plaintiff
conceded that he did not.

Rather, Plaintiff stated “I read it

in the report.” (Pl. Dep. 49:6 Ex. B at 34).

However, Plaintiff

was unable to identify the report to which he was referring
during the deposition and he has not submitted any reports in
conjunction with his opposition to Defendants’ motion for
summary judgment.
“Summary judgment cannot be avoided by resorting to
speculation, or statements of personal opinion or mere belief;
indeed, ‘inference based on speculation or conjecture does not
create a material factual dispute.’” Martin v. Unknown U.S.
Marshals, 965 F. Supp. 2d 502, 527-28 (D.N.J. 2013) (citing
27

Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d
Cir. 1990)); see also Blair v. Scott Specialty Gases, 283 F.3d
595, 608 (3d Cir. 2002) (party opposing summary judgment must
rely on facts, not “opinions or conclusions”).

In this case,

there is no evidence apart from speculation that Defendant Haas
was on the phone with Lt. Durham, let alone that Defendant Haas
specifically ordered that Plaintiff be stripped of all his
clothing and locked in a cell while still bleeding from the
head; or that Defendant Haas forbade other prison staff from
going near Plaintiff.

These are mere opinions and speculative

conclusions and, as such, are insufficient to defeat summary
judgment. Blair, 283 F.3d 595.
Furthermore, the evidence in the record supports the
conclusion that Defendant Haas did not give an order to lock
Plaintiff in a hospital cell, while his head was still bleeding,
and deny him medical treatment throughout the night.

Defendants

submit Plaintiff’s prison medical records in support of their
motion for summary judgment.

With respect to the incident at

issue, the medical records show that Nurse Sacco-McCord first
treated Plaintiff by cleaning and disinfecting his wounds, which
she described as “small” and “superficial.” (Medical Chart,
Defs.’ Ex. I, ECF No. 53-2 at 101).

Nurse Sacco-McCord also

reported that there was no active bleeding at 9:21 p.m. on
November 15, 2010, the night of the incident. Id.
28

During the early morning hours of November 16, 2010, only a
few hours after the incident, Nurse Linda Bigay performed
infirmary rounds and again cleaned Plaintiff’s wounds and
applied a saline compress. Id. at 95.

Her report, which was

signed at 3:32 a.m., indicates that Plaintiff was “refusing to
keep saline on – says he doesn’t need it.” Id. at 95, 97.

Later

that morning, the prison doctor reviewed the case with the nurse
and reported “[a]ll lacerations described as superficial by
[nurse] and does not need sutures nor dermabond.” Id. at 97.
Plaintiff’s version of the facts, therefore, requires a
jury to believe that at least three prison medical staff members
conspired to misreport Plaintiff’s injuries.

Furthermore, if a

jury were to believe that Defendant Haas had, in fact, ordered
medical personnel to deny treatment, then a jury would also have
to believe that Nurse Bigay not only defied his orders, but also
documented her insubordination by reporting her treatment
efforts.
As the Supreme Court has explained, only genuine disputes
of material fact preclude summary judgment, and the party
opposing summary judgment must “do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., 475 U.S. at 586–87, 106 S.Ct. 1348.
Therefore, “[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no
29

reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct.
1769, 167 L.Ed.2d 686 (2007).

The evidence here only supports

one version of facts – that Plaintiff had injuries which were
treated sufficiently and periodically during his two day stay in
the infirmary.

For these reasons, summary judgment is granted

in favor of Defendants as to Plaintiff’s inadequate medical care
claim.
IV.

CONCLUSION

For the foregoing reasons, the Court will grant Defendants’
request for summary judgment as to Plaintiff’s failure to
intervene claim and inadequate medical care claim.

Because a

genuine issue of material fact exists with respect to
Plaintiff’s excessive force claim, Defendants’ request for
summary judgment as to that claim will be denied.
An appropriate Order follows.
____s/ Noel L. Hillman____
NOEL L. HILLMAN
United States District Judge
Dated: June 29, 2015
At Camden, New Jersey

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