WALKER v. ROMAN et al

Filing 30

MEMORANDUM AND ORDER that Defendants shall have ten days from the date of this Order to submit an affidavit in support of their motion for summary judgment; Plaintiff shall have ten days from the date of this Order to submit evidence disputing the fact that he failed to exhaust administrative remedies. Signed by Judge Renee Marie Bumb on 8/4/2016. (tf, n.m.)

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

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RODNEY WALKER,
Plaintiff,
v.

SCO. ANDREW ROMAN, et al.,
Defendants.

Civil Action No. 14-1182(RMB)

MEMORANDUM AND ORDER

This matter comes before the Court upon the motion for
summary judgment of Defendants SCO Andrew Roman (“Roman”) and
SCO Natalie Zenyuk (“Zenyuk”). (Mot. for S.J., ECF No. 23.)
Plaintiff Rodney Walker filed this action February 24, 2014, and
he filed an Amended Complaint on April 2, 2014. (Compl., ECF.
No.

1;

Am.

Compl.,

ECF

No.

4.)

Upon

screening

the

Amended

Complaint pursuant to 28 U.S.C. §§ 1915A, 1915(e)(2)(B), this
Court allowed Plaintiff’s claims for monetary damages against
Roman and Zenyuk in their individual capacities to proceed, and
dismissed the remaining claims. (Opinion and Order, ECF Nos. 5,
6.) Discovery was conducted.
Defendants brought the present motion for summary judgment
on April 8, 2016. (Mot. for Summ. J., ECF No. 23; Brief in Supp.
1

of Mot. for Summ. J. (“Defs’ Brief”), ECF No. 24-1.) Defendants
contend Plaintiff failed to exhaust his administrative remedies,
as required under 42 U.S.C. § 1997(e)(a).1 Plaintiff did not file
an opposition to the summary judgment motion.
Summary Judgment is proper where the moving party “shows
there is no genuine dispute as to any material fact,” and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir.
1999). The moving party has the burden to show there is an
absence

of

evidence

to

support

the

nonmoving

party’s

case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A party
asserting
support

that
the

a

fact

assertion

is

or

by

is

citing

not

genuinely

materials

disputed

in

the

must

record,

including depositions, documents, affidavits or declarations or
other materials. Fed. R. Civ. P. 56(c)(1). “An affidavit or
declaration used to support or oppose a motion must be based on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
Defendants inadvertently failed to submit an affidavit of
someone

with

personal

with

knowledge

1

stating

that

Plaintiff

42 U.S.C. § 1997(e)(a) provides, “[n]o 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.”
2

failed to exhaust the administrative remedy procedure at Bayside
State Prison, and whether any remedy procedure remains available
to him. See Veasey v. Fisher, 307 F. App’x 614, 616 (3d Cir.
2009)(citing Spruill v. Gillis, 372 F.3d 218, 230-31 (3d Cir.
2004)(“The exhaustion requirement includes a procedural-default
component, and a prisoner must comply with the prison grievance
procedures to properly exhaust his claims.”) Because it appears
that Defendants may be entitled to summary judgment on this
basis, the Court will give Defendants an opportunity to cure
this defect.
IT IS therefore on this 4th day of August 2016,
ORDERED that Defendants shall have ten days from the date
of this Order to submit an affidavit in support of their motion
for

summary

judgment

for

failure

to

exhaust

administrative

remedies pursuant to 42 U.S.C. § 1997e(a); and it is further
ORDERED that Plaintiff shall have ten days from the date of
this Order to submit evidence disputing the fact that he failed
to exhaust administrative remedies at Bayside State Prison, and
it is further
ORDERED that the Clerk shall serve a copy of this Order on
Plaintiff by regular U.S. mail.
s/RENÉE MARIE BUMB__________
Renée Marie Bumb
United States District Judge

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