SANDERS v. COUNTY OF CAMDEN et al
OPINION. Signed by Judge Noel L. Hillman on 3/1/2017. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HONORABLE NOEL L. HILLMAN
CIVIL ACTION NO. 15-1129
COUNTY OF CAMDEN, et al.,
HARTMAN DOHERTY ROSA BERMAN & BULBULIA, LLC
By: Tal Z. Cushmaro, Esq.
65 Route 4 East
River Edge, New Jersey 07661
Counsel for Plaintiff
HOLTZMAN & McCLAIN, PC
By: Stephen D. Holtzman, Esq.
Jeffrey S. McClain, Esq.
524 Maple Avenue, Suite 200
Linwood, New Jersey 08221
Counsel for Defendant CFG Health Systems, LLC
HILLMAN, United States District Judge:
Plaintiff, who at all relevant times, was incarcerated in the
Camden County Correctional Facility, brings this § 1983 suit
alleging that, in a case of mistaken identity, he was beaten in
retaliation for his cellmate filing a grievance against
Plaintiff further asserts that he was
denied adequate medical treatment from Defendant CFG Health
Systems for the injuries he asserts resulted from the alleged
Presently before the Court is CFG’s motion for summary
judgment based on Plaintiff’s admitted failure to exhaust his
administrative remedies as required by the Prison Litigation
Reform Act (PLRA), 42 U.S.C. § 1997e(a).
For the reasons stated herein, the motion will be dismissed
without prejudice with leave to renew, if necessary, after the
Court decides CFG’s later-filed motion for summary judgment on the
merits of his 8th Amendment deliberate indifference to medical
needs claim against CFG. 1
Plaintiff alleges that on the night of January 26, 2013,
Defendant Corrections Officers Vernon, Farlow, and Chukudi came
into Plaintiff’s cell while he slept and severely beat him.
(Compl. ¶ 16)
Plaintiff asserts that the beating was in
retaliation for the officer’s mistaken belief that Plaintiff had
requested a grievance form related to an incident he had observed
earlier in the day. (Sanders Dep. p. 169) 2
Plaintiff further alleges that despite numerous requests for
medical treatment, Defendant CFG failed to adequately treat
See Docket Entry # 78, filed on January 27, 2017.
Plaintiff contends that it was actually his cellmate who
requested a grievance form. (Sanders Dep. p. 169)
Plaintiff’s resulting injuries, which ultimately led to
Plaintiff’s hospitalization and multiple surgeries on his right
leg. (Compl. ¶ 18-19)
Relevant to the exhaustion analysis, it is undisputed that
Plaintiff did not file any grievance concerning Defendant CFG’s
medical treatment of him.
Plaintiff contends that he feared
filing any grievance because corrections officers had already
demonstrated that they would retaliate against inmates for simply
asking for a grievance form.
Specifically, Plaintiff testified at his deposition:
Did you obtain a grievance form and fill it out?
A: Because I was in fear-- I was in fear of retaliation
because I know how the jail thing go. I already know,
when you fill it out, there’s going to be some retri-there’s going to be something happen behind, there’s
going to be somebody retaliate.
So, by the time that [corrections officers] passed
the forms out, [inmates] never got the chance to return
the forms in. [Corrections officers] passed the forms
out at 6 o’clock at night.
I was assaulted [at
(Sanders Dep. p. 201-02)
The question presented is whether the corrections officers’
alleged actions, and Plaintiff’s alleged fear of further
retaliation, rendered the administrative grievance procedure at
the Camden County Jail “unavailable” to Plaintiff under the PLRA.
See 42 U.S.C. § 1997e(a)(an inmate must exhaust such
“administrative remedies as are available” before filing suit to
challenge prison conditions).
The Supreme Court has recently identified “three kinds of
circumstances in which an administrative remedy, although
officially on the books, is not capable of use to obtain relief,”
and therefore not “‘available.’” Ross v. Blake, 136 S.Ct. 1850,
1859 (June 6, 2016).
The third circumstance is at issue here: the
administrative process may be rendered unavailable under the PLRA
“when prison administrators thwart inmates from taking advantage
of a grievance process through machination, misrepresentation, or
intimidation,” or when “officials misle[ad] or threaten
individual inmates so as to prevent their use of otherwise proper
procedures.” Id. at 1860.
Thus, Ross supports the holding that fear of retaliation
resulting from “threats or intimidation,” 136 S.Ct. at 1859 n.3,
can excuse a plaintiff’s failure to exhaust.
Ross’s facts did not
implicate this particular exception, however, and therefore the
Supreme Court had no occasion to elaborate on whether an inmate’s
fear of retaliation must be subjective, objective, or both.
Indeed, the Court’s citation to Schultz v. Pugh-- in which Judge
Posner wrote, “the law governing unavailability of prison remedies
on ground of intimidation is in some disarray.
The case law
distinguishes between ‘objective’ and ‘subjective’ availability
[and] it is unclear whether the prisoner should be required to
satisfy both in every case,” 728 F.3d 619, 620 (7th Cir. 2013) 3-suggests that the Supreme Court may have deliberately left this
It is precisely this open question that is raised by the
Relying on the undisputed fact that two days
after the alleged assault, Plaintiff complained about the
officers’ conduct to Internal Affairs, CFG argues that the Court
should not believe that Plaintiff truly feared retaliation for
filing a grievance (i.e., Plaintiff had no subjective fear).
Additionally, CFG seems to suggest that filing a grievance
against a medical provider is categorically different than filing
a grievance against a corrections officer, such that no reasonable
inmate would be deterred from filing a medical-related grievance,
as opposed to a grievance based on the actions of a corrections
officer (i.e., Plaintiff had no objective basis for his alleged
In the absence of any guidance from either the Supreme Court,
or the Third Circuit on this issue 4, the Court declines to address
See Ross, 136 S.Ct. at 1860 n.3.
The Third Circuit has not addressed the question since Ross was
decided. Prior to Ross, it appears the issue had only been
addressed in non-precedential opinions. See, e.g., Verbanik v.
Harlow, 441 F. App’x 931, 933 (3d Cir. 2011)(“retaliation or
it at this time. 5
If the exhaustion issue is not mooted by the
Court’s decision on CFG’s pending motion for summary judgment on
the merits of Plaintiff’s claim, CFG may refile the instant
Accordingly, CFG’s Motion for Summary Judgment for
failure to exhaust administrative remedies will be dismissed
without prejudice, with leave to renew after the Court renders its
summary judgment decision on the merits of Plaintiff’s claim
For the reasons set forth above, the Motion for Summary
Judgment will be dismissed without prejudice.
An appropriate Order accompanies this Opinion.
Dated: March 1, 2017
__s/ Noel L. Hillman ___
Noel L. Hillman, U.S.D.J.
At Camden, New Jersey
threats of retaliation against an inmate for pursuing a grievance
may make administrative remedies unavailable to the inmate. See
Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008); Kaba v.
Stepp, 458 F.3d 678, 684-86 (7th Cir. 2006); Hemphill v. New York,
380 F.3d 680, 686-87 (2d Cir. 2004). The test for determining
whether administrative remedies were available, set forth in
Hemphill, is whether a ‘similarly situated individual of ordinary
firmness’ would have deemed the grievance procedures to be
available. 380 F.3d at 688.”).
We note that “[e]xhaustion [under the PLRA] is a nonjurisdictional prerequisite.” Small v. Camden County, 728 F.3d
265, 269 n.3 (3d Cir. 2013)(citing Woodford v. Ngo, 548 U.S. 81
(2006)); see also Jones v. Block, 549 U.S. 199 (2007) (holding
that PLRA exhaustion is an affirmative defense which must be
asserted by the defendant, rather than a pleading requirement).
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