BRYANT v. JACKSON et al

Filing 55

MEMORANDUM OPINION AND ORDER dismissing without prejudice 35 Motion for Summary Judgment for failure to exhaust administrative remedies. Signed by Chief Judge Jerome B. Simandle on 7/16/2015. (tf,n.m.)

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

PONTELL BRYANT,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 13-2823 (JBS-AMD)

v.
S/C.O. G. JACKSON, et al.,

MEMORANDUM OPINION AND ORDER

Defendants.

Before the Court is Defendants Higbee and Herman’s motion
for summary judgment. (Docket Entry 35).
1.

Defendants assert summary judgment is warranted on

Plaintiff Pontell Bryant’s excessive force claim because he
failed to exhaust his administrative remedies. In support of
their motion, Defendants submitted numerous institutional remedy
forms, none of which reference the assault alleged in the
complaint. (See, e.g., Docket Entries 35-3, 35-4, 35-5, and 356).
2.

Plaintiff filed a brief in opposition stating that he

did submit a remedy form regarding the assault and was
interviewed by the Special Investigations Division (“SID”) on
two occasions on camera. (See Docket Entry 40 at 1).
3.

In their response, Defendants denied any remedy form

was “properly filed,” and rely on the fact that Plaintiff has

not produced any documentation to support his assertion. (Docket
Entry 41 at 7).
4.

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.
P. 56(a). A fact is “material” only if it might affect the
outcome of the suit under the applicable rule of law. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
5.

The Prison Litigation Reform Act mandates that

prisoners exhaust internal prison grievance procedures before
filing suit. 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(a); see
Woodford v. Ngo, 548 U.S. 81, 84 (2006). Failure to exhaust
administrative remedies is an affirmative defense.
6.

“[T]o properly exhaust administrative remedies

prisoners must ‘complete the administrative review process in
accordance with the applicable procedural rules,’ rules that are
defined not by the PLRA, but by the prison grievance process
itself.” Jones v. Bock, 549 U.S. 199, 218 (2010) (quoting
Woodford, 548 U.S. at 88)). The Third Circuit has held that
“compliance with the administrative remedy scheme will be
satisfactory if it is substantial.” Nyhuis v. Reno, 204 F.3d 65,
77–78 (3d Cir. 2000); see also Small v. Camden Cnty., 728 F.3d
265, 272 (3d Cir. 2013).

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7.

Plaintiff has affirmed he has not received any

discovery. (Docket Entry 40 at 2); see Fed. R. Civ. Pro. 56(d).
8.

“[E]xhaustion is a question of law to be determined by

a judge, even if that determination requires the resolution of
disputed facts.” Small, 728 F.3d at 269. This Court finds there
is a dispute as to whether Plaintiff’s compliance with the
administrative remedy system was substantial.

There is a

reasonable inference that Plaintiff duly filed a grievance form,
as he claims, because he was interviewed about his assault
claim. The absence of such a form in the prison records may not
be dispositive of the issue of exhaustion if the institution was
aware of the incident and had the opportunity to investigate it
when the claim was fresh, which is a paramount purpose of the
administrative exhaustion requirement. It would, however, be
premature to decide the issue until the parties have had the
opportunity to obtain discovery regarding the alleged assault
claim including the interviews of plaintiff.

The Court will

dismiss the pending motion without prejudice to renewal after
the relevant discovery has been exchanged. Meanwhile, the
Defendants will be required to provide Plaintiff all discovery
relevant to the assault allegations of the June 12, 2013
incident within thirty (30) days hereof as set forth below.
WHEREFORE, IT IS, this

16th

hereby

3

day of

July

, 2015

ORDERED that Defendants Higbee and Herman’s motion for
summary judgment for failure to exhaust administrative remedies
[Docket Entry 35] is hereby DISMISSED without prejudice to
renewal; and it is further
ORDERED that Defendants shall, within thirty (30) days
hereof, provide to Plaintiff any and all evidence (such as
notes, documents, and records) that is in the possession or
control of South Woods State Prison and/or the Special
Investigation Division regarding Plaintiff’s allegation of the
use of excessive force on June 12, 2013 and any investigation
undertaken in response thereto; such evidence may redact
sensitive information such as any informant’s identity,
confidential investigative techniques, confidential personnel
information, and the like; and it is further
ORDERED that the Clerk shall serve a copy of this Order
upon Plaintiff by regular mail.

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

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