BARNES v. BROYLES et al

Filing 31

OPINION. Signed by Judge Noel L. Hillman on 12/19/2016. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TUERE BARNES,
Plaintiff,
v.
OFFICER BROYLES, et al.,
Defendants.

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Hon. Noel L. Hillman
Civil No. 13-737 (NLH/KMW)

OPINION

APPEARANCES:
TUERE BARNES, PRO SE
84034-054
FCI Danbury
Route 37
Danbury, Connecticut 06811
OFFICE OF THE UNITED STATES ATTORNEY
By: Kristin L. Vassallo, Esq.
970 Broad Street
Newark, New Jersey 07102
Attorney for Defendants

HILLMAN, District Judge:
This is a civil rights Bivens action brought by pro se
Plaintiff federal inmate Tuere Barnes. 1
this stage of the case.

Two claims remain at

First, Barnes asserts that Defendant

Corrections Officer Tara Broyles sexually assaulted him while
conducting a pat down search.

Second, Barnes asserts Defendant

Corrections Officers James Bartell, Michael Hanneman, and Ralph

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The Court has federal question subject matter jurisdiction
pursuant to 28 U.S.C. § 1331.

Rodriguez retaliated against him for complaining about the
alleged sexual assault.
Defendants move for summary judgment, asserting that Barnes
failed to exhaust his administrative remedies as required by the
Prisoner Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a).
For the reasons stated herein, the motion will be granted.
I. BACKGROUND
The record facts relevant to the exhaustion analysis are as
follows.
As to two of the Defendants, Officers Hanneman and
Rodriguez, Plaintiff never filed any sort of Request for
Administrative Remedy. (Moran Decl. ¶ 5)
As to Defendant Officer Bartell, Plaintiff filed an appeal
of discipline imposed as a result of an incident report (i.e.,
“a shot”) issued by Officer Bartell, but the appeal did not
assert that Officer Bartell took any retaliatory actions against
Plaintiff; it only argued that the finding of guilt was
erroneous. (Moran Decl. ¶ 7, Ex. 3)
As to Defendant Officer Broyles, Plaintiff did partially
pursue his administrative remedies.

Plaintiff filed a complaint

of sexual misconduct 2 with the Warden, to which the Warden

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The alleged “sexual misconduct” allegedly consisted of Officer
Broyles “feeling” and “squeezing” Plaintiff’s “genital area”
during a search. (Pl’s Exhibit in Support of Opposition, Docket
2

responded. (Moran Decl. ¶ 6, Ex. 2)

However, Plaintiff did not

appeal the Warden’s response to the Northeast Regional Director.
(Id.)
II. STANDARD OF REVIEW
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,’ . . . demonstrate the absence of a genuine
issue of 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, 322-23 (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 (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 non-moving party’s evidence ‘is to be believed and
all justifiable inferences are to be drawn in his favor.’”

# 28, p. 17) Plaintiff expressly stated that “Officer Broyles
never touched the skin of [his] genital area.” (Id.)
3

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.”); 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.]’”
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Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

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 257.
III. DISCUSSION
A federal inmate may not bring suit for damages against an
individual prison official unless he first fully exhausts his
administrative remedies. See 42 U.S.C. § 1997e(a).
In opposition to the instant motion, Plaintiff does not
dispute that he has failed to fully exhaust his administrative
remedies.

Rather, he argues that his failure should be excused

because his administrative remedies were not available to be
exhausted.

He argues that his remedies were unavailable due to:

(1) intimidation by corrections officers; and (2) the prison’s
delay in processing his sexual misconduct complaint against
Defendant Broyles.
As to the first issue, Plaintiff asserts that “the way in
which Defendants [and other corrections officials] acted towards
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the Plaintiff” (Opposition Brief, p. 5)-- frequently “shaking
down” Plaintiff’s cell and “telling [Plaintiff] in a threatening
manner” that pursuing his administrative remedies “was gonna
make more trouble for [Plaintiff]”, as well as changing
Plaintiff’s work assignment (Barnes Aff. p. 2-3)-- would deter a
person of ordinary firmness from attempting to exhaust his
administrative remedies.
This argument fails because, as Defendants correctly
observe, not only were administrative remedies effectively
available to Plaintiff, he pursued those remedies during the
time he says corrections officers were attempting to intimidate
him. (See Moran Decl. Exs 2-4) See Dickens v. Taylor, 655 Fed.
Appx. 941 (3d Cir. 2016)(“ Dickens conceded that he did not
timely file a grievance, but he claimed that such a remedy was
unavailable because, while his time to file a grievance came and
went, he was housed in isolation where he was denied access to a
pen and paper.

In rejecting that argument, the District Court

found Dickens’s claim belied by the record-- specifically, while
he was in isolation, Dickens used a pen to complete an
authorization form requesting reimbursement in a different case,
he used a pen to sign for his legal mail, and he used a pen and
paper to draft a three-page motion for reargument in a different
case.

In light of this record evidence, the District Court did

not err in ruling that Dickens could have filed, but did not, a
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prison grievance regarding these claims.”)(citing Small v.
Camden Cty., 728 F.3d 265, 269-71 (3d Cir. 2013)).
As to the second issue, the Court observes that Plaintiff’s
argument does nothing to potentially save his claims against
Defendant Officers Bartell, Hanneman, and Rodriguez insofar as
Plaintiff asserts that the prison only delayed processing of his
sexual misconduct complaint against Defendant Broyles.
Moreover, the asserted delay in processing was not so
substantial as to render administrative remedies altogether
unavailable.

According to Plaintiff’s own affidavit, “an inmate

officially has 20 days from the date of the Warden’s Answer to
submit [an appeal] to the Regional Office 3 . . . . The Warden
signed the BP-9 on the 17th . . . [but it] was not delivered [to
Plaintiff] until November 2nd, 16 days [after the date of
Warden’s Answer].”
to mail his appeal.

Thus, Plaintiff still had at least four days
Plaintiff’s vague assertion that his

“counselor” “was unavailable over the next couple of days” to
provide him with the proper appeal form (Barnes Aff. p. 4) is
insufficient evidence upon which to excuse Plaintiff’s
procedural default.
IV. CONCLUSION

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See 28 C.F.R. § 542.15(a).
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For the aforementioned reasons, Defendants’ Motion for
Summary Judgment will be granted.

Dated: December 19, 2016
At Camden, New Jersey

__s/ Noel L. Hillman ___
NOEL L. HILLMAN, U.S.D.J.

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