SUMNER v. SCHRECK et al

Filing 35

OPINION. Signed by Chief Judge Jerome B. Simandle on 9/23/2015. (TH, )

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

HONORABLE JEROME B. SIMANDLE

CALEEF SUMNER,
Plaintiff,

Civil Action
No. 13-1840 (JBS-JS)

v.
RYAN SCHRECK, et al.,

OPINION
Defendants.

APPEARANCES:
CALEEF SUMNER, Plaintiff pro se
#779427
Albert C. Wagner Youth Correctional Facility
500 Ward Avenue
P.O. Box 500
Bordentown, New Jersey 08505
ROBERT P. PREUSS, ESQ.
OFFICE OF THE ATTORNEY GENERAL
Richard J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, New Jersey 08625
Attorney for Defendants Ryan Schreck and Christopher Coacci
SIMANDLE, Chief Judge:
INTRODUCTION
This matter, which has been litigated for 30 months, comes
before the Court on Defendants’ Defendants Ryan Schreck and
Christopher Coacci (“Defendants”) Motion for Summary Judgment
(Docket Entry 27). Pro se Plaintiff Caleef Sumner (“Plaintiff”)
filed an opposition to Defendants’ motion (Docket Entry 29). The

motion is being considered on the papers pursuant to Fed. R.
Civ. P. 78(b). For the reasons set forth below, Defendants’
motion shall be granted.
BACKGROUND
A. Procedural History
Plaintiff filed this complaint on March 19, 2013. (Docket
Entry 1). By order dated April 17, 2013, this Court dismissed
certain defendants and ordered summonses served on Defendants
Schreck and Coacci. (Docket Entry 3). Defendants filed a motion
for extension of time to
answer on September 11, 2013, (Docket Entry 6), and Magistrate
Judge Joel Schneider granted that motion on September 12, 2013,
(Docket Entry 7). A second extension was granted on October 16,
2013, (Docket Entry 9), and Defendants filed their answer on
October 28, 2013, (Docket Entry 10).
Magistrate Judge Schneider issued a scheduling order
requiring any amendment to the pleadings to be filed by February
3, 2014, factual discovery to be completed by April 30, 2014,
and dispositive motions to be filed by June 30, 2014. (Docket
Entry 12). Defendants filed their pretrial memorandum on January
30, 2014. (Docket Entry 13). On April 30, 2014, Defendants
requested an extension of the factual discovery period as
Plaintiff had not responded to the interrogatories Defendants
sent him or submitted his pretrial memorandum. (Docket Entry

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14). They additionally sought leave to file a motion to compel.
(Docket Entry 14). Judge Schneider granted both of those
requests on May 29, 2014. (Docket Entry 16). He thereafter
issued an amended scheduling order requiring factual discovery
to conclude by July 31, 2014, dispositive motions by September
5, 2014, and the joint final pretrial order by October 15, 2014.
(Docket Entry 17). On July 24, 2014, Defendants requested
another extension of the discovery period as they had not had
any contact with Plaintiff. (Docket Entry 19). The court denied
that request. (Docket Entry 20).
On October 20, 2014, Judge Schneider issued an order to
Defendants requiring an explanation as to why the joint final
pretrial order had not been submitted to the Court. (Docket
Entry 22). Defendants’ new counsel responded that he had been
unaware of the scheduling order, and that Plaintiff had never
served his portion of the order on Defendants. (Docket Entry
23). He requested an additional extension of the discovery
period. (Docket Entry 23). Judge Schneider denied the request,
but issued an amended scheduling order. (Docket Entry 25). The
amended order required the submission of the joint final
pretrial order by December 15, 2014. (Docket Entry 25).
Defendants filed this motion for summary judgment on
December 12, 2014. (Docket Entry 27). Plaintiff filed his
opposition on December 30, 2014. (Docket Entry 29). Defendants

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filed response papers on January 13, 2015, (Docket Entry 33),
and Plaintiff filed an unauthorized sur-reply on February 4,
2015, (Docket Entry 34).
B. Factual Background
1.

Allegations in the Pleadings

On February 8, 2013, Plaintiff was walking to the dining
hall of the Albert C. Wagner Youth Correctional Facility
(“ACW”). (Docket Entry 1-2 at 9). After passing through the
metal detectors, an officer, later identified as Defendant
Schreck, ordered Plaintiff out of the line. (Docket Entry 1-2 at
9). Defendant Schreck instructed Plaintiff to face the wall and
place his hands on top of his head; Plaintiff complied. (Docket
Entry 1-2 at 9).
While Plaintiff was standing facing the wall, Defendant
Coacci, grabbed Plaintiff’s arm. (Docket Entry 1-2 at 9). The
officers proceeded to threaten Plaintiff and yell obscenities at
him. (Docket Entry 1-2 at 9). After about two minutes of
standing at the wall, Plaintiff was thrown to the ground and was
kicked, stepped on, and punched in the face by Defendants
Schreck and Coacci, as well as other officers who had arrived on
scene. (Docket Entry 1-2 at 9). He was then “hog tied”1 and

1

See Cruz v. City of Laramie, 239 F.3d 1183, 1188 (10th Cir.
2001) (defining “hog-tying” as “tying of the [prisoner’s] arms
behind his back, binding his ankles together, securing his
ankles to his wrists, and then placing him face down on the

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carried up the stairs. (Docket Entry 1-2 at 9). Plaintiff
asserted he sustained a bloody nose and shoulder and neck
injuries. (Docket Entry 1-2 at 9). He requested relief in the
form of $11 million and the termination of Defendants’
employment. (Docket Entry 1 at 3).
2.

Defendants’ Statement of Facts

Defendants assert that on the date in question, February 8,
2013, they were assigned to conduct a “mess movement” of
prisoners at ACW. (Docket Entry 27-2 ¶ 2). According to
Defendants, “mess movements significantly increase the risk a
violent incident because they involve taking a large group of
prisoners out of the controlled environment of their cells and
moving them en mass though the corridors of the prison.” (Docket
Entry 27-2 ¶ 3). Due to security concerns, “prisoners are
supposed to keep their hands out of their pockets at all times
and in a place where the supervising officers can see them.”
(Docket Entry 27-2 ¶ 4).
Defendant Schreck noticed Plaintiff had his hands in his
pockets in violation of this procedure as he was moving through
the hallway. (Docket Entry 27-2 ¶ 5). He ordered Plaintiff to

ground. . . . [W]e understand such to involve the binding of the
ankles to the wrists, behind the back, with 12 inches or less of
separation.”); see also Gunter v. Twp. Of Lumberton, 535 F.
App’x 144, 148 (3d Cir. 2013) (citing Cruz).

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stand against the wall, place his hands on top of his head, and
interlock his fingers. (Docket Entry 27-2 ¶ 6). He could not
search Plaintiff’s pockets at that time as the hallway still had
other inmates present. (Docket Entry 27-1 ¶ 6). Defendant
Schreck “explicitly told the plaintiff to stop moving, and that
his movement would be taken as a sign of aggression.” (Docket
Entry 27-2 ¶ 6).
In spite of receiving that order, Plaintiff continued to
move around and remove his hands from his head. (Docket Entry
27-2 ¶ 6). Defendant Schreck then reached up and held
Plaintiff’s hands to his head in order to control their
movement. (Docket Entry 27-2 ¶ 6). He states that Plaintiff
“suddenly” took his hands off of his head and began to turn.
(Docket Entry 27-2 ¶ 6). “Following standard procedure,
[Defendant] Coacci and I pulled [Plaintiff] to the ground.”
(Docket Entry 27-2 ¶ 6). Defendants called a Code 33, bringing
other officers to their assistance. (Docket Entry 27-2 ¶ 6).
Defendant Schreck states that Plaintiff thereafter resisted
having handcuffs placed on him. (Docket Entry 27-2 ¶ 7). The
other officers assisted Defendants in placing Plaintiff in
handcuffs and escorting him to a cell. (Docket Entry 27-2 ¶ 7).
He denies ever punching, hitting, or using other forms of
excessive force against Plaintiff, as well as seeing any other
officers punch, hit, or use other force against Plaintiff.

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(Docket Entry 27-2 ¶ 8). After initially refusing medical
attention, Plaintiff was evaluated by a nurse and was given
Tylenol and an ice pack for a swollen nose and sore shoulder and
back. (Docket Entry 27-2 at 11-16).
3.

Plaintiff’s Statement of Facts2

Plaintiff asserts that it is not protocol for inmates to be
pulled aside while entering the dining hall, but instead they

2

Defendants assert Plaintiff has failed to file a statement of
material undisputed facts with his opposition, and urge this
Court to treat their facts as uncontested. (Docket Entry 33 at
6). Local Civil Rule 56.1(a) provides:
On motions for summary judgment, the movant shall
furnish a statement which sets forth material facts as
to which there does not exist a genuine issue, in
separately numbered paragraphs citing to the affidavits
and other documents submitted in support of the motion
. . . . The opponent of summary judgment shall furnish,
with its opposition papers, a responsive statement of
material facts, addressing each paragraph of the
movant's statement, indicating agreement or disagreement
and, if not agreed, stating each material fact in dispute
and citing to the affidavits and other documents
submitted in connection with the motion; any material
fact not disputed shall be deemed undisputed for
purposes of the summary judgment motion.
Plaintiff’s opposition papers do not include a separate
statement of material facts. (See generally Docket Entry 29).
The Court is inclined to interpret this rule liberally, however,
as Plaintiff, who is appearing pro se, has filed some opposition
that includes specific references to certain “facts” with which
he disagrees. Compare Hooks v. Schultz, No. 07-5627 (JBS), 2010
WL 415316, at *4-5 (D.N.J. Jan. 29, 2010) (deeming Defendants’
facts to be undisputed where pro se Plaintiff failed to file any
response whatsoever to the summary judgment motion). The Court
will therefore deems the facts that are specifically referred to
in Plaintiff’s papers to be disputed. Those material facts not
addressed by Plaintiff in his papers will be deemed undisputed
for summary judgment purposes. L. Civ. R. 56.1(a.)

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are searched upon exiting in order to ensure no food is removed
from the hall. (Docket Entry 29 ¶ 9). He denies lowering his
hands at any point in time, (Docket Entry 29 ¶ 11). He further
denies turning or acting aggressively towards any of the
officers, (Docket Entry 29 ¶ 12), and resisting having the
handcuffs placed on him, (Docket Entry 29 ¶ 13). He indicates
the claims he had his hands in his pockets and was moving while
he was facing the wall, (Docket Entry 29 ¶¶ 8, 10), are not
supported by the video of the incident or by the officers’
initial reports.3 He states he was treated for shoulder injuries
for months after the incident due to being “beaten and hogtied
and dragged away by seven officers.” (Docket Entry 29 ¶¶ 7, 13).
In an unauthorized sur-reply, L. Civ. R. 7.1(d)(6),
Plaintiff specifically denied having his hands in his pockets
during the mess movement. (Docket Entry 34 at 2).
STANDARD OF REVIEW
Summary judgment is appropriate “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.” Fed. R. Civ.

3

Neither the video nor the reports were provided by Plaintiff.
Defendants submitted the video with their response papers.
Although not submitted with either the moving or opposition
papers, the Court will consider the video as all parties have
previously viewed the video, and Plaintiff specifically relies
on the video in his opposition papers. The Court cannot consider
the alleged contents of the reports as they are not part of the
record. Fed. R. Civ. P. 56(c)(1)(A).

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P. 56(a). A dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is “material” only if it might affect the outcome
of the suit under the applicable rule of law. See ibid. Disputes
over irrelevant or unnecessary facts will not preclude a grant
of summary judgment. See id.
The non-moving party “‘need not match, item for item, each
piece of evidence proffered by the movant,’ “but must simply
present more than a “mere scintilla” of evidence on which a jury
could reasonably find for the non-moving party. Boyle v. Cnty.
of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998) (quoting
Anderson, 477 U.S. at 252). A plaintiff opposing summary
judgment, such as Mr. Sumner in the present case, must come
forward with admissible evidence4 “Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party,” no genuine issue for trial exists and summary
judgment shall be granted. Matsushita Elec. Indus. Co. v. Zenith

4

Such evidence required for opposing summary judgment may
include citing to materials in the record, “including
depositions, documents, electronically stored information,
affidavits or stipulations, admissions, interrogatory answers,
or other materials.” Fed. R. Civ. P. 56(c)(1)(A). Further, any
such affidavit must be on personal knowledge and set out facts
that would be admissible in evidence.” Fed R. Civ. P. 56(c)(4).
In other words, mere statements in a brief or memorandum are not
“evidence” and do not constitute facts in opposition to a
summary judgment motion.

9

Radio Corp., 475 U.S. 574, 587 (1986) (internal citation
omitted). The Court will view any evidence in favor of the
nonmoving party and extend any reasonable favorable inferences
to be drawn from that evidence to that party. See Scott v.
Harris, 550 U.S. 372, 378 (2007).
DISCUSSION
A. Excessive Force
Defendants argue Plaintiff’s claim of excessive force
against fails as a matter of law. They assert Plaintiff has
failed to show that the use of force was done maliciously,
sadistically, and for the purpose of causing harm. (Docket Entry
27-4 at 8). They also argue the use of force was proportionate
to the need to regain control and restore order.
As a convicted and sentenced state prisoner, Plaintiff was
protected from the excessive use of force by the Eighth
Amendment. The Eighth Amendment prohibits prison officials from
unnecessarily and wantonly inflicting pain in a manner that
offends contemporary standards of decency. See Hudson v.
McMillian, 503 U.S. 1, 8 (1992); Rhodes v. Chapman, 452 U.S.
337, 347 (1981) (The Eighth Amendment prohibits conditions which
involve the unnecessary and wanton infliction of pain or are
grossly disproportionate to the severity of the crime warranting
imprisonment). When reviewing an Eighth Amendment excessive
force claim, the district court must determine whether the

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“force was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very purpose
of causing harm.” Hudson, 503 U.S. at 6; Giles v. Kearney, 571
F.3d 318, 326 (3d Cir. 2009) (quoting Whitley v. Albers, 475
U.S. 312, 319 (1986)).
The factors used to determine whether force was used in
“good faith” or “maliciously and sadistically,” include: (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 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.” Whitley, 475 U.S. at 321. See also Freeman v. Dep’t
of Corr., 447 F. App’x 385, 388 (3d Cir. 2011); Brooks v. Kyler,
204 F.3d 102, 106 (3d Cir. 2000).
There is insufficient evidence in the record for Plaintiff
to establish either the objective or subjective component of his
excessive force claim in a manner sufficient to survive summary
judgment. In support of their motion, Defendants have submitted
an affidavit by Defendant Schreck, (Docket Entry 27-2 at 6);
medical records indicating Plaintiff received ice and Tylenol
after initially refusing medical treatment after the use of
force, (Docket Entry 27-2 at 11-13); and a video that

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contradicts the key aspects of Plaintiff’s allegations.5
Plaintiff has submitted nothing to counteract Defendants’
evidence.
In order to survive a motion for summary judgment “‘the
nonmoving party must come forward with specific facts showing
that there is a genuine issue for trial’ and do more than
‘simply show that there is some metaphysical doubt as to the
material facts.’” United States v. Donovan, 661 F.3d 174, 185
(3d Cir. 2011) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586–87 (1986) (internal quotation
marks omitted)). Plaintiff cannot rely on the unsupported
allegations in his complaint, Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986), and “must present more than the ‘mere existence
of a scintilla of evidence’ in his favor.” Shah v. Bank of Am.,
346 F. App'x 831, 833 (3d Cir. 2009) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). As Plaintiff has
submitted no admissible evidence supporting his claims, let

5

For example, the video shows that Plaintiff did in fact remove
his hands from his head shortly before being taken to the ground
by Defendants. See Docket Entry 33, Exhibit A at timestamp
5:34:00.306 to 5:34:20.676. It also refutes Plaintiff’s
unsupported assertion that he was “beaten and hogtied and
dragged away by seven officers.” (Docket Entry 29 ¶¶ 7, 13). The
tape clearly shows Plaintiff being helped up by an officer and
walking off camera under his own power. Docket Entry 33, Exhibit
A at timestamp 5:35:55.183 to 5:36:03.582.

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alone a scintilla of evidence,6 Defendants are entitled to
summary judgment.
The Court acknowledges Plaintiff’s request for more time to
engage in discovery in order to obtain materials necessary for
opposition. Rule 56(d) states that the Court may delay decision
on or deny a pending motion for summary judgment “[i]f a
nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition”. Fed. R. Civ. P. 56(d). The Third Circuit has long
interpreted this rule to require that “a party seeking further
discovery in response to a summary judgment motion submit an
affidavit specifying, for example, what particular information
is sought; how, if uncovered, it would preclude summary
judgment; and why it has not previously been obtained.” Dowling
v. City of Phila., 855 F.2d 136, 140–41 (3d Cir. 1988). Vague or
general statements of what a party hopes to gain through a delay
for discovery under Rule 56(d) are insufficient. Hancock Indus.

6

Plaintiff argues his claim is further supported by the fact
that he was found not guilty in his disciplinary hearing of
assaulting an officer, and by the fact that the courtline
officer determined the officers used excessive force. (Docket
Entry 29 ¶ 5). As there is nothing in the record to support
these claims, the Court will not consider these alleged facts.
See Fed. R. Civ. P. 56(c)(1)(A). Likewise, the Court will not
consider Plaintiff’s assertion that he received medical
treatment for his shoulder for months after the encounter as
there is nothing in the record to support this allegation. Fed.
R. Civ. P. 56(c)(1)(A).

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v. Schaeffer, 811 F.2d 225, 230 (3d Cir.1987). The Court
declines to postpone summary judgment at this time.
Even liberally interpreting Plaintiff’s filing as the
“affidavit or declaration” needed under Rule 56(d), he has not
sufficiently addressed why he could not complete discovery
within the proscribed period of time. Plaintiff filed this
complaint in March 2013. (Docket Entry 1). The Magistrate Judge
ordered fact discovery to conclude by April 30, 2014, (Docket
Entry 12), and the discovery deadline was extended once at
Defendants’ request as Plaintiff had failed to answer the
interrogatories they sent to him. (Docket Entries 14 and 16). A
second request to extend discovery was denied by the Magistrate
Judge on July 28, 2014. (Docket Entry 20). As of July 28, 2014,
the Court had not received any communications from Plaintiff
since the filing of the complaint.
Plaintiff claims he has not been receiving his mail in a
timely fashion due to all of the mail being sent to ACW and then
forwarded to his current place of confinement.7 (Docket Entry 29
¶ 2). According to the complaint, he was incarcerated at ACW at

7

According to the State of New Jersey’s Inmate Locator,
available at
https://www20.state.nj.us/DOC_Inmate/inmatefinder?i=I (last
visited September 17, 2015), Plaintiff has been released.

14

the time of filing. (Docket Entry 1 at 2).8 Plaintiff, who by his
own admission did in fact receive his mail,9 never filed a change
of address as required by Local Civil Rule 10.1(a). He also has
never filed any communications with the Court during the
discovery period indicating that he was unable to engage in
discovery. Indeed the only docketed communication from Plaintiff
prior to his responses to the summary judgment motion is a
letter to the magistrate judge dated November 20, 2014, after
the conclusion of fact discovery. (Docket Entry 32). If
Plaintiff was having difficulty with his mail or the discovery
process, the time to address it was during the discovery period,
not after the filing of a summary judgment motion. In any event,
Plaintiff was indeed informed of all discovery deadlines, and he
had ample opportunity to request any further relevant discovery
during the first eighteen months of his case.
Defendants’ motion for summary judgment shall be granted as
Plaintiff has failed to provide sufficient evidence in support
of his allegations.

8

This contradicts a later letter to the magistrate judge
claiming he had not been in ACW since 2012. (Docket Entry 32 at
2).
9 Only one letter to Plaintiff was returned to the Court as
undeliverable. (Docket Entry 18). Defendants’ filings indicate
they sent Plaintiff copies of their correspondence to the Court
at East Jersey State Prison, see, e.g., Docket Entries 6, 8, 13,
and 23; and Northern State Prison, see Docket Entry 26.

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B. Qualified Immunity
As the Court grants summary judgment to Defendants on the
merits, it is unnecessary to determine whether Defendants are
entitled to qualified immunity.
V. CONCLUSION
For the reasons stated above, Defendants’ motion for
summary judgment is granted. An accompanying Order will be
entered.

September 23, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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