KING v. CHRISTIE et al

Filing 30

OPINION. Signed by Chief Judge Jerome B. Simandle on 11/9/2015. (TH, )

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

HONORABLE JEROME B. SIMANDLE

SHARROD KING,
Plaintiff,

Civil Action
No. 13-3433 (JBS-AMD)

v.
T. SHEPPARD, et al.,

OPINION
Defendants.

APPEARANCES:
SHARROD KING, Plaintiff pro se
#654916/617696-B
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
GREGORY R. BUENO, 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 Redmond and Chris Mercardo
SIMANDLE, Chief Judge:
INTRODUCTION
This matter comes before the Court on the Motion of
Defendants Mercardo1 and Redmond (“Defendants”) (Docket Entry
26). Pro se Plaintiff Sharrod King (“Plaintiff”) did not file
opposition to the motion. The motion is being considered on the

1

Improperly pled as “Mercado.”

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 June 3, 2013. (Docket
Entry 1). By order dated June 11, 2013, this Court
administratively terminated the complaint. (Docket Entry 2).
After Plaintiff submitted an application to proceed in forma
pauperis, (Docket Entries 4 and 5), the Court directed the Clerk
to file the complaint. (Docket Entry 6). The Court also screened
the complaint pursuant to 28 U.S.C. § 1915 and ordered certain
defendants dismissed from the case. (Docket Entry 6). The
complaint was permitted to proceed against Officers Sheppard,
Mercardo, and Redmond. (Docket Entry 6).
Plaintiff filed an amended complaint as well as a motion to
appoint pro bono counsel on September 5, 2014. (Docket Entries 9
and 10).2 Magistrate Judge Ann Marie Donio denied Plaintiff’s
motion for the appointment of counsel on September 18, 2014.
(Docket Entry 11). With the Court’s permission, Defendants
Mercardo and Redmond filed the instant summary judgment motion

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The amended complaint added Disciplinary Hearing Officer J.
Zimmerman as a defendant. (Docket Entry 9 at 2). Zimmerman does
not appear to have been served a copy of the amended complaint.
It also appears Defendant Sheppard was never served with a copy
of the original complaint. (Docket Entry 13).
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on March 26, 2015. (Docket Entry 6). On April 20, 2015,
Plaintiff moved to stay the proceedings in order to retain
counsel. (Docket Entry 27). Magistrate Judge Donio denied that
motion on May 7, 2015. (Docket Entry 29). To date, Plaintiff has
not filed any objection to the summary judgment motion.
B. Factual Background
1.

Allegations in the Pleadings

On March 13, 2013, Plaintiff was allegedly in a fight with
another inmate at Southern State Correctional Facility (“SSCF”).
(Docket Entry 9 at 3). Several officers responded to an
emergency code called by Officer Buswell, including Defendant
Sheppard. (Docket Entry 9 at 3).
At the time Defendant Sheppard arrived at the scene of the
alleged fight, Plaintiff was lying face-down on the bathroom
floor. (Docket Entry 9 at 3). Defendant Sheppard lifted
Plaintiff’s head and proceeded to slam Plaintiff’s face into the
floor. He also grabbed Plaintiff’s right arm and “stretched it
upward, beyond the limit, causing injury to [Plaintiff’s]
shoulder.” (Docket Entry 9 at 3). Plaintiff was then handcuffed
and removed from the unit. Defendant Sheppard escorted Plaintiff
to the bottom floor, threatening and calling Plaintiff “vulgar
names” along the way. (Docket Entry 9 at 3).
Plaintiff was taken to detention for evaluation by a nurse.
(Docket Entry 9 at 3). He attempted to report Defendant
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Sheppard’s assault on him at that time; however, Defendant
Mercardo intervened by steering the nurse away and claiming
Plaintiff was lying about the assault. (Docket Entry 9 at 3).
Defendant Redmond visited Plaintiff later that evening and
threatened him that if he tried to tell anyone else about the
assault, she would “send officers to [Plaintiff’s] cell to beat
[him] until [he] could no longer remember [his] name.” (Docket
Entry 9 at 3).
Plaintiff was charged with fighting with another inmate and
taken before Defendant Zimmerman. (Docket Entry 9 at 4).
Defendant Zimmerman found Plaintiff guilty of the offense and
sentenced him to 120-days in administrative segregation, 120days loss commutation credits, and 10-days detention. (Docket
Entry 9 at 4). Plaintiff appealed, and the New Jersey Appellate
Division ordered a rehearing. (Docket Entry 9 at 4). At the
rehearing on April 30, 2014, a different hearing officer found
Plaintiff not guilty of the offense. (Docket Entry 9 at 4).
Plaintiff asserts that as a result of the guilty finding from
Defendant Zimmerman, he was removed from a substance abuse
program and denied the opportunity to enter into a halfway house
or community release program. (Docket Entry 9 at 4).
Plaintiff states that the assault resulted in permanent
injuries to his right shoulder. (Docket Entry 9 at 4). He also
asserts mental and psychological suffering.
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2.

Defendants’ Statement of Facts

Defendants Redmond and Mercardo argue the claims against
them should be dismissed as Plaintiff failed to exhaust his
administrative remedies. They argue Plaintiff was incarcerated
at the time the alleged assault occurred, (Defendants’ Statement
of Material Facts ¶ 1); the date on which Plaintiff submitted
his original complaint, (Defendants’ Statement of Material Facts
¶ 2); and the date on which the amended complaint was filed,
(Defendants’ Statement of Material Facts ¶ 2). Plaintiff had
previously used the facilities’ grievance procedures, but none
of the filed grievances related to the allegations contained in
the complaint. (Defendants’ Statement of Material Facts ¶¶ 7-8).
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.
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, and disputes over
irrelevant or unnecessary facts will not preclude a grant of
summary judgment. Ibid.

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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). “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
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
Plaintiff, proceeding in this case pro se, has not filed
any opposition to the instant motion. Plaintiff's failure to
respond “is not alone a sufficient basis for the entry of a
summary judgment.” See Anchorage Assocs. v. Virgin Islands Bd.
of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990). The Court must
still determine whether granting summary judgment is
appropriate. See Fed. R. Civ. Pro. 56(e)(3) (“If a party fails
to properly support an assertion of fact or fails to properly
address another party's assertion of fact . . . the court may
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grant summary judgment if the motion and supporting materials .
. . show that the movant is entitled to it.”); see also Muskett
v. Certegy Check Servs., Inc., No. 08–3975 (JBS/JS), 2010 WL
2710555, at *3 (D.N.J. July 6, 2010) (citing Anchorage Assocs.).
The Court does, however, deem Defendants’ facts undisputed for
the purposes of this motion. Fed. R. Civ. Pro. 56(e)(2); Local
Civ. R. 56.1(a).
Defendants argue they are entitled to judgment as a matter
of law because Plaintiff failed to exhaust his administrative
remedies on the claims raised in the complaint. The Prison
Litigation Reform Act (“PLRA”) states:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted.
42 U.S.C. § 1997e(a). As an affirmative defense, Defendants bear
the burden of proof. See Brown v. Croak, 312 F.3d 109, 111 (3d
Cir. 2002).
The exhaustion requirement contemplates that the prisoner
must bring a grievance to the attention of the appropriate
prison official so that he or she may respond to the grievance
on its merits before the prisoner resorts to the courts. Spruill
v. Gillis, 372 F.3d 218, 227 (3d Cir. 2004); see also Porter v.
Nussle, 534 U.S. 516, 524–25 (2002) (indicating PLRA “afford[s]
corrections officials time and opportunity to address complaints
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internally before allowing the initiation of a federal case.”).
After filing an initial complaint, the prisoner must carry the
grievance through any available appeals process. Nyhuis v. Reno,
204 F.3d 65, 67 (3d Cir. 2000). Thus, a prisoner has not
exhausted administrative remedies until the prisoner has pursued
a grievance through each level of appeal available within the
prison system. Spruill, 372 F.3d at 232.
In support of their motion, Defendants have submitted the
declaration of Jessica Smith (“Smith Declaration”), New Jersey
State Prison’s (“NJSP”) Litigation Liaison and Inmate Remedy
Coordinator, along with various administrative records
pertaining to Plaintiff and portions of the NJSP Inmate’s
Handbook. (Smith Declaration ¶¶ 2, 5). The handbook sets forth
the manner in which inmates are to file administrative
grievances with NJSP, including the appeals process. (Docket
Entry 26-2 at 12-15). According to the documents produced by
Defendants, Plaintiff filed five grievance forms at NJSP between
March and October 2013, (Smith Declaration ¶ 14; Docket Entry
26-2 at 17), none of which concerned the claims he now makes
against the moving Defendants. (Docket Entry 26-2 at 18-40).
Defendants also submitted the declaration of Patricia
Mansell (“Mansell Declaration”), SSCF’s Inmate Remedy
Coordinator, and portions of SSCF’s Inmate Handbook. (Docket
Entry 26-3). According to the documents produced by Defendants,
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Plaintiff filed one grievance form during the relevant time
period, which was unrelated to the instant complaint. (Mansell
Declaration ¶ 14; Docket Entry 26-3 at 17).
The Court finds that no reasonable jury could conclude
Plaintiff was unaware of the grievance procedures at NJSP and
SSCF as he used them on at least six occasions. Likewise, no
reasonable jury could conclude these procedures were unavailable
to Plaintiff as he received responses to each filed grievance.
In spite of being aware of the available remedies, Plaintiff
failed to exhaust them prior to filing his complaint in
accordance with 42 U.S.C. § 1997e. As a reasonable jury could
not rule in Plaintiff’s favor on the issue of exhaustion,
Defendants have met their burden of proof and are entitled to
judgment as a matter of law. The claims against the moving
Defendants shall be dismissed without prejudice as the handbooks
do not appear to set a “limitations period” on the filing of
inmate grievances. (Docket Entry 26-2 at 12-15; Docket Entry 263 at 12-15); see also N.J. ADMIN. CODE 10A:1-4.5.3
To the extent the complaint raises claims against moving
Defendants in their official capacities, those claims are barred
by the Eleventh Amendment. “A suit against a public official

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Cf. Mitchell v. Horn, 318 F.3d 523, 528-29 (3d Cir.
2003)(noting failure to exhaust remedies could not be cured when
state law only provided inmates “fifteen days ‘after the events
upon which the claims are based’ to file a grievance.”),
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“‘in his or her official capacity is not a suit against the
official but rather is a suit against the official's office . .
. .’” Printz v. United States, 521 U.S. 898, 930–31 (1997)
(quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 71
(1989)). Plaintiff’s claims against the moving Defendants in
their official capacities are dismissed with prejudice.
V. CONCLUSION
For the reasons stated above, Defendants’ motion for
summary judgment is granted. An accompanying Order will be
entered.

November 9, 2015
Date

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

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