SANDERS v. COUNTY OF CAMDEN et al
OPINION. Signed by Judge Noel L. Hillman on 8/4/2017. (tf, )
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, P.C.
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
PARKER MCKAY, P.A.
By: Elizabeth M. Garcia, Esq.
9000 Midlantic Drive, Suite 300
P.O. Box 5054
Mount Laurel, New Jersey 08054
Counsel for Defendant Peter Farlow Sr.
THE VIGILANTE LAW FIRM, P.C.
By: Jacqueline M. Vigilante, Esq.
99 North Main Street
Mullica Hill, New Jersey 08062
Counsel for Defendant John Vernon
THE OFFICE OF CAMDEN COUNTY COUNSEL
By: Anne E. Walters, Assistant County Counsel
520 Market Street, 14th Floor
Camden, New Jersey 08102
Counsel for Defendants County of Camden, Camden County
Correctional Facility, Correctional Officer Nnakuru R.
Chukudi, and Warden Eric M. Taylor
HILLMAN, United States District Judge:
Plaintiff, Craig Sanders, who was at all relevant times,
incarcerated in the Camden County Correctional Facility (CCCF),
brings this § 1983 suit alleging that, as a pretrial detainee in
the CCCF, he was beaten by three corrections officers, Defendants
Vernon, Farlow, and Chukudi.
Sanders further asserts that he was
denied adequate medical treatment from Defendant CFG Health
Systems for the injuries he asserts resulted from the alleged
beating, which allegedly resulted in a 10-day hospital stay and
three surgeries on Sanders’ right leg.
Presently before the Court are Defendants’ Motions for
Summary Judgment [Docket Nos. 71, 75, 78, 79].
For the reasons
stated herein, Defendant CFG’s motion will be granted in its
entirety; the corrections officers’ motions will be granted in
part, denied as moot in part, and denied in all other respects;
and the remaining Camden County Defendants’ motion will be granted
in part and denied in part.
Between midnight and 1 a.m. on January 27, 2013, Plaintiff
Sanders was involved in a physical altercation with Defendant
Corrections Officers Vernon, Farlow, and Chukudi. (Pl’s Ex. 9,
Camden County Department of Corrections General Incident Report;
Vernon Dep. p. 69)
The incident occurred in Sanders’ cell, which he shared with
inmate William Cooper. (Pl’s Ex. 9; Sanders Dep. p. 17, 24, 89,
91, 136-37; Cooper Dep. p. 45-46)
Both Sanders and Cooper were
asleep when all three Defendants Vernon, Farlow, and Chukudi
entered the cell. (Pl’s Ex. 9, Sanders Dep. p. 15, 17; Cooper Dep.
p. 45) 1
It is undisputed that Vernon was yelling as he entered the
Sanders and Cooper testified that Vernon was yelling
profanities in a “vicious” or “degrading” manner. (Sanders Dep. p.
89; Cooper Dep. p. 45)
Vernon testified that he was “yelling” but
he could “not specifically” recall what he said. (Vernon Dep. p.
Defendant Farlow testified that Vernon was “definitely
agitated.” (Farlow Dep. p. 76)
Defendant Farlow further testified:
[Defendant Vernon] went right to the cell, he opened the
door. He walked in. I believe Chukudi followed, I stood
at the door, and he was yelling as he entered [Sanders’]
cell. And as he walked towards the center of the cell,
Mr. Sanders [who was on the top bunk] turned over with
his hands and feet flailing toward Lieutenant Vernon, at
which point Lieutenant Vernon grabbed him and threw him
to the floor. Chukudi assisted him. They were in front
When Defendant Vernon was asked at his deposition, “Did it look
like Sanders had been sleeping at the time you walked in[to] [the
cell]?” Vernon answered, “I couldn’t tell.” (Vernon Dep. p. 80)
(Farlow Dep. p. 75) 2
Defendant Vernon testified:
A: As I enter the cell, Inmate Sanders swings his feet
off the [top] bunk and kicks me.
Q: Did it look like Sanders had been sleeping at the
time you walked in?
I couldn’t tell.
Was he lying down?
A: When I saw him he was in a somewhat reposed position.
His legs were extended, but kind of, he was sitting up.
. . . Like in an L position.
. . . .
How did he swing his legs at you?
What was the
motion? Was it a kick or was it just sort of flailing?
It was a kick.
. . . .
A: When Inmate Sanders kicked me, I then reached up and
grabbed him, because him being in a higher position,
that kind of give him an advantage, you know, to kick me
again. I pulled him off the bunk to the floor.
. . . .
A: . . . After I pulled him off the bunk, ‘Place your
hands behind your back.’
At that time he failed to
comply. He was kind of struggling and flailing about.
Do you recall if Mr. Sanders had hit his head on
anything on his way from the bunk to the floor?
Defendant Chukudi testified that he did not enter the cell at
the same time as Defendants Farlow and Vernon. Chukudi testified
that by the time he entered the cell, Sanders was already on the
ground. (Def. Chukudi Dep. p. 86)
A: I thought he hit his head . . . . So when I pulled
him, on his way down, I thought his head hit the [steel]
table [welded into the wall] on the way down and then
onto the floor.
(Vernon Dep. p. 80-82)
Sanders testified that “all three [Defendants] grabbed [him]
and removed [him] from the bed” (Sanders Dep. p. 177), “[his] head
hit the stool that’s constructed coming out of the wall,” on the
way down to the floor, and he lost consciousness for an
indeterminate period of time. (Id. at p. 17, 21)
testified that Sanders “was in and out of consciousness” at that
time. (Cooper Dep. p. 50)
Cooper testified that he witnessed Defendant Vernon “punch”
Sanders while Sanders was on the ground. (Cooper Dep. p. 46)
Chukudi testified that he “saw Vernon throw a fist on one of the
inmates,” but could not say who the inmate was. (Chukudi Dep. p.
Farlow testified that he “did not see” Vernon punch
Sanders (Farlow Dep. p. 100); and Vernon testified, “I don’t
recall punching [Sanders].” (Vernon Dep. p. 83)
Sanders testified that Defendant Vernon “kicked” him in the
face, “hit” him in the head with a radio, and “repeatedly kicked .
. . and stomped” his side, legs, head, and back. (Sanders Dep. p.
Cooper similarly testified that Defendant Vernon “hit”
and “stomped” Sanders “in his face” “multiple, multiple times
through the whole thing,” (Cooper Dep. p. 56), and “used
[Vernon’s] radio” to hit Sanders. (Id. at p. 58)
Sanders testified that Defendant Farlow was holding him down
at this time (Sanders Dep. p. 18, 173), and that Farlow “kicked”
him, and Chukudi “was stomping” him. (Id. at p. 174, 206)
further testified that “somebody” “punched [him] with . . . keys”
in the back. (Id. at p. 208)
Cooper testified that he saw “Vernon hitting on [Sanders] and
Chukudi holding [Sanders].” (Cooper Dep. p. 50, 55)
Farlow testified that Vernon and Chukudi were “struggling” “to get
[Sanders] handcuffed and under control.” (Farlow Dep. p. 94)
Defendant Chukudi testified that Farlow instructed Chukudi to
“cuff [Sanders] down immediately and send him downstairs.”
(Chukudi Dep. p. 89) 3
Sanders and Cooper both testified that Sanders was compliant
through the entire altercation. (Sanders Dep. p. 212; Cooper Dep.
Defendant Vernon testified that Sanders “wasn’t complying”
with orders. (Vernon Dep. p. 82-83)
Sanders testified that he suffered the following injuries:
My left eye was gashed open,
bottom lip, my teeth was [sic]
back where somebody punched
contusions about my body. My
leg, I couldn’t stand up.
went through my
had a hole in my
Sanders testified that Farlow handcuffed him. (Sanders Dep. p.
(Sanders Dep. p. 92-93; see also Id. at p. 221)
Cooper testified that immediately after the incident Sanders
“complained” “my leg, my leg, my leg.” (Cooper Dep. p. 62)
Vernon testified that he saw that Sanders’ “eye was
bleeding,” 4 so he sent Sanders “down to get taken a look at by
Medical.” (Vernon Dep. p. 83)
The medical records maintained by Defendant CFG Health
Systems on behalf of the Camden County Correctional Facility
reflect the following.
Shortly after the incident, at
approximately 12:45 a.m., a nurse examined Sanders. (Pl’s Ex. 12
at C. Sanders CCCF 52)
She observed that he had “stable gait,”
clear speech, a laceration to the left eye with new and old
bruising, and swelling. (Id.)
The nurse cleaned the wound,
applied “steri-strips,” and referred Sanders to see a doctor “in
[the] a.m.” (Id.)
Sanders did not see a doctor the next morning, but did the
following day, on January 28th. (Pl’s Ex. 12 at C. Sanders CCCF 50)
The doctor recorded, in relevant part, “stable gait,” soreness,
swelling and discoloration to the left periorbital area and right
scapula tenderness. (Id.)
The doctor also observed that four of
Sanders’ teeth were loose and a referral to dental was made and an
x-ray ordered. (Id. at C. Sanders CCCF 26)
There is no record of
Defendant Chukudi similarly testified that he observed “some
blood gushing down on [Sanders’] jumpsuit.” (Chukudi Dep. p. 91)
any complaints of injury to the lower back or lower extremities.
(Pl’s Response to CFG’s Statement of Undisputed Material Facts,
hereafter “Pl’s R. CFG SUMF,” ¶ 19)
Sanders’ medical file further documents the following
sequence of events:
On March 7, 2013, Sanders submitted a sick call
slip complaining of headaches and pain in the lower back
down the right leg to the foot and it was noted by a
nurse that Sanders was on Neurontin and he would followup with a doctor. (Pl’s R. CFG SUMF ¶ 20)
Sanders submitted a sick call slip dated March 10,
2013 complaining of chronic headaches and pain in the
back and legs and a nurse, on March 12, 2013, noted that
Sanders had already been seen by a provider on March 11,
2013. (Pl’s R. CFG SUMF ¶ 21)
Sanders was seen by Dr. Ronsayro on March 11, 2013
with complaints of headache, pain in right buttock
shooting down right leg. Dr. Ronsayro’s assessment was
of sciatica in the right lower extremity and right foot
drop and orders were placed for an ace bandage and
Indocin for 90 days. (Pl’s R. CFG SUMF ¶ 22-23)
On March 25, 2013, Sanders submitted a sick call
slip complaining of pain in the right foot and leg as
well as swelling of the leg, foot and ankle; a nurse
noted that Sanders had been seen by the doctor on March
11, 2013 and that medications were ordered for the
Plaintiff and he was given an Ace® bandage. (Pl’s R. CFG
SUMF ¶ 24)
On or about March 31, 2013, Sanders submitted a
sick call slip complaining of swelling to the right leg,
ankle and foot, as well as pain and, on April 1, 2013,
a nurse noted swelling to the right ankle, non-pitting,
no redness, no ecchymosis. The nurse also noted that
Sanders denied any injury and referred Sanders to a
doctor. (Pl’s R. CFG SUMF ¶ 25-26)
Sanders was seen by medical director Dr. Juan
Utreras on April 2, 2013 who noted Sanders’ complaint of
right ankle tenderness as well as full range of motion
with occasional right foot dragging. Dr. Utreras noted
minimal edema, normal gait, normal sensation, that
Sanders was seeking more pain medication, threatening to
contact his lawyer, and pain medication, Indocin, was
given based on objective findings. (Pl’s R. CFG SUMF ¶
On April 12, 2013, Sanders submitted a sick call
slip seeking renewal of unspecified medications and, on
April 15, 2015, a nurse entered an order for Neurontin
for Sanders. (Pl’s R. CFG SUMF ¶ 29)
On April 27, 2013, Sanders submitted a sick call
slip seeking renewal of unspecified medications and a
nurse noted that Sanders’ prescription for Neurontin was
good through July 14 and his prescription for Indocin
was good through June 9, 2013. (Pl’s R. CFG SUMF ¶ 30)
On May 10, 2013, Sanders submitted a sick call slip
complaining of swelling to his right leg, foot and ankles
and a nurse referred Sanders to a doctor for this ongoing
issue, and noted that Sanders was to be seen on May 14,
2013. (Pl’s R. CFG SUMF ¶ 31)
On May 11, 2013, Sanders submitted a sick call slip
complaining of swelling to his right leg, foot and ankle,
and pain and, on May 12, 2013, Sanders was seen by a
nurse who referred Sanders to the doctor to be seen on
May 14, 2013. (Pl’s R. CFG SUMF ¶ 32)
Sanders was seen by medical director Dr. Juan
Utreras on May 14, 2013 for complaints of bilateral lower
extremity edema for 2 weeks.
Dr. Utreras ordered an
EKG, chest x-ray and lab work and prescribed Lasix with
a follow-up in 7 days. (Pl’s R. CFG SUMF ¶ 33-34)
Sanders was seen in follow-up by medical director
Dr. Utreras on May 21, 2013. Dr. Utreras noted Sanders’
complaint of continuing bilateral lower extremity edema,
injury history and drop foot, and lab results were noted
to be within normal limits. Dr. Utreras noted reduced
edema and the plan was to continue Lasix. (Pl’s R. CFG
SUMF ¶ 35-37)
On June 8, 2013, Sanders was seen by a nurse who
noted that Sanders complained of a knot in the groin,
thigh and calf, indicating that he woke up with these
complaints. The nurse noted tenderness in right thigh,
negative Homan’s sign and negative findings of a
palpable lump or mass, skin was warm and dry with no
visible lesions. The nurse noted that Sanders was on
Indocin and Lasix and Sanders was referred to the doctor.
(Pl’s R. CFG SUMF ¶ 38-40)
On June 9, 2013, Sanders was seen by Dr. Estrella
Ronsayro who noted Sanders’ complaint of diffuse
swelling upon waking up that morning. Dr. Ronsayro noted
diffuse swelling of the right lower extremity with
erythematous purplish discoloration and an erythematous
palpable cord along medial side of the right thigh,
positive tenderness on palpation, positive Homan’s sign,
and increased temperature.
Dr. Ronsayro ordered
Plaintiff transferred to Our Lady of Lourdes Hospital to
rule out cellulitis and to rule out deep vein thrombosis.
(Pl’s R. CFG SUMF ¶ 41-43)
Sanders testified that throughout this time “my leg kept
swelling up. . . . It would swell, go down, swell, go down.
felt a lump in my calf, my thigh, my groin area, and it would
come, it would go.
Then some days I could walk on it, some days I
couldn’t.” (Sanders Dep. p. 114)
Sanders received in-patient treatment at the hospital for 10
days. (Sanders Dep. p. 123; Pl’s Ex. 14)
He was diagnosed with
severe cellulitis, abscess of leg, and necrotizing fasciitis, and
underwent three surgeries during his hospital stay. (Pl’s Ex. 14)
Q: Have any of your physicians ever told you that
the surgery you received . . . back in June of 2013
was related to the incident of January 27, 2013?
They said the injury I sustained more
than likely came from blunt force trauma.
They said ‘more than likely’?
(Sanders Dep. p. 191)
It is undisputed that Sanders never filed a grievance form
related to either the alleged beating or the alleged denial of
Sanders testified that he feared retaliation if he
filed a grievance form:
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)
According to Sanders and Cooper, the beating on January 27th
was itself motivated by retaliatory intent.
Both men testified
that they believe corrections officers sought to punish inmates
for attempting to file grievances, or deter them from filing
grievances, about an assault of another inmate they had witnessed
approximately 4 to 6 hours prior. (Sanders Dep. p. 16; 76-82; 8587; Cooper Dep. p. 36-44)
Specifically, Sanders testified,
After the [assault] happened . . . Sergeant Monroe came
back on the tier, and people said they wanted grievance
forms. And he said well, if y’all want grievance forms,
what y’all trying to do, start a riot? He said if y’all
trying to incite a riot, we’ll come back and tear this
He came back with about 20 grievances for a hundred
and some people. . . . We was [sic] locked [down]. There
was no way that [the grievances] could get passed around
or circulated for everyone to sign them. And not just
that. When you sign them, you know, . . . it’s fearful
. . . .
[After that] I went to sleep and woke up to a
(Sanders Dep. p. 169-70)
Cooper similarly testified,
[Sergeant Monroe] said, what you threatening me, and the
rest of the inmates said we want grievances. So he said
what ya’ll trying to do, incite a riot? From there they
said no, we want grievances.
From there we took it as a threat right back. It
was a threat to us, because to say that we’re inciting
a riot, how can we incite a riot if we all locked behind
our doors. . . .
. . .
[Sergeant Monroe] came back within 20 minutes with
the grievances. . . .
. . .
[Within a few hours] me and Craig [Sanders] woke up
to a beating.
(Cooper Dep. p. 41-42, 44)
Defendant Vernon also testified that he was made aware of the
incident involving Sergeant Monroe upon starting his shift on
January 27th, and went to Sanders’ cell on the 27th with the
intention of addressing the “threats” that had been made.
Dep. p. 56, 79)
Defendant Farlow similarly testified that Vernon “was upset
about that an incident had occurred on [the] previous shift” and
asked Farlow to accompany him to Sanders’ cell specifically to
talk to the inmates about the previous incident. (Farlow Dep. p.
The Complaint asserts the following claims against “all
Defendants”: (1) “negligent, reckless, intentional and outrageous
conduct”; (2) “civil rights” violations pursuant to 42 U.S.C. §
1983; (3) assault; (4) battery; (5) “negligent, reckless,
intentional and outrageous conduct medical malpractice”; and (6)
“discrimination based on race/religion based [sic] in violation of
the 5th and 14th Amendments to the United States Constitution”
pursuant to 42 U.S.C. § 1983.
Against Defendant CFG, only the
constitutional claims (Counts 2 and 6) remain at this point in the
litigation. (Pl’s R. CFG SUMF ¶ 10)
Before the Court are the summary judgment motions of: (a)
Defendants County of Camden, Camden County Correctional Facility,
Officer Chukudi, and Warden Eric M. Taylor; (b) Defendant CFG; (c)
Defendant Officer Farlow; and (d) Defendant Officer Vernon.
Summary judgment is appropriate where the Court is satisfied
that “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ . . .
demonstrate the absence of a genuine issue of material fact” and
that the moving party is entitled to a judgment as a matter of
law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)(citing
Fed. R. Civ. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A fact is “material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
“In considering a motion for summary judgment, a
district court may not make credibility determinations or engage
in any weighing of the evidence; instead, the non-moving party’s
evidence ‘is to be believed and all justifiable inferences are to
be drawn in his favor.’” Marino v. Indus. Crating Co., 358 F.3d
241, 247 (3d Cir. 2004)(citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. Celotex, 477 U.S.
at 323 (“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.”);
see also Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n.2
(3d Cir. 2001) (“Although the initial burden is on the summary
judgment movant to show the absence of a genuine issue of material
fact, ‘the burden on the moving party may be discharged by
‘showing’ -- that is, pointing out to the district court -- that
there is an absence of evidence to support the nonmoving party’s
case’ when the nonmoving party bears the ultimate burden of
proof.”)(citing Celotex, 477 U.S. at 325).
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Celotex, 477 U.S.
A “party opposing summary judgment ‘may not rest upon the
mere allegations or denials of the . . . pleading[s.]’” Saldana v.
Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
For “the non-
moving party[ ] to prevail, [that party] must ‘make a showing
sufficient to establish the existence of [every] element essential
to that party’s case, and on which that party will bear the burden
of proof at trial.’” Cooper v. Sniezek, 418 F. App’x 56, 58 (3d
Cir. 2011)(citing Celotex, 477 U.S. at 322).
Thus, to withstand a
properly supported motion for summary judgment, the nonmoving
party must identify specific facts and affirmative evidence that
contradict those offered by the moving party. Anderson, 477 U.S.
CFG’s Motion for Summary Judgment
CFG moves for summary judgment on the remaining two claims
1. Deliberate indifference to Sanders’ serious medical needs
Sanders’ theory of his case is that “despite his repeated
[sick call] visits [over several months] and obvious pain, the CFG
medical professionals did not perform any diagnostic testing or
Instead, the CFG employees continued
prescribing [Sanders] the same medical [sic] and same treatment.”
(Opposition Brief, p. 37-38)
Critically, however, the only remaining claims are against
CFG the entity, not any of its individual employees.
In order to
impose liability on CFG, Sanders must establish that there was a
relevant CFG policy or custom, and that the policy caused the
constitutional violation Sanders alleges. Natale v. Camden Cty.
Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003)(citing Bd. of the
County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397,
Sanders argues that a reasonable factfinder could find a
policy or custom based on the pattern of Sanders’ treatment from
January to June 2013. (Opposition Brief, p. 38)
The pattern of treatment with regard to only Sanders
is insufficient to support a factual finding “that the relevant
practice is so widespread as to have the force of law.” Brown, 520
U.S. at 404; see generally Natale, 318 F.3d at 584 (“There are
three situations where acts of a government employee may be deemed
to be the result of a policy or custom of the governmental entity
for whom the employee works, thereby rendering the entity liable
under § 1983.
The first is where the appropriate officer or
entity promulgates a generally applicable statement of policy and
the subsequent act complained of is simply an implementation of
The second occurs where no rule has been announced
as policy but federal law has been violated by an act of the
Finally, a policy or custom may also exist
where the policymaker has failed to act affirmatively at all,
though the need to take some action to control the agents of the
government is so obvious, and the inadequacy of existing practice
so likely to result in the violation of constitutional rights,
that the policymaker can reasonably be said to have been
deliberately indifferent to the need.”)(internal citations an
The record evidence is insufficient to support a finding that
any alleged failing on the part of individual CFG employees was
the result of a policy, practice or custom of CFG.
summary judgment will be granted to CFG on this claim.
CFG also moves for summary judgment on Sanders’ claim that
CFG’s alleged failure to properly treat him was motivated by
Sanders makes no argument in opposition,
and points to no record facts supporting this claim.
Court’s review of the record reveals no facts supporting Sanders’
claim of discrimination against CFG or its individual employees.
Sanders has failed to sustain his summary judgment burden on
his discrimination claim against CFG. 5
Accordingly, CFG’s Motion
for Summary Judgment will be granted as to this claim.
Availability of CCCF’s grievance procedure under the PLRA
All of the remaining summary judgment motions have one issue
As the Court previously stated in the opinion
addressing CFG’s separate motion on this issue 6:
The question presented is whether the corrections
officers’ alleged actions, and Plaintiff’s alleged fear
of further retaliation, rendered the administrative
“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, 195 L. Ed. 2d 117 (June
6, 2016). The third circumstance is at issue here: the
administrative process may be rendered unavailable under
Additionally the discrimination claim fails for the same reason
the medical treatment claim fails. Sanders has put forth no
evidence of any policy, pattern or custom of CFG discriminating
The Court denied the motion without prejudice with leave to
renew in the event that the Court denied summary judgment on the
merits of Sanders’ claims against CFG.
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.
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
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) -- suggests that the
Supreme Court may have deliberately left this question
It is precisely this open question that is raised by the
Sanders v. Cty. of Camden, No. 15-1129, 2017 U.S. Dist. LEXIS
31781, at *3-4 (D.N.J. Mar. 1, 2017).
The Court need not answer the open question here because the
record evidence raises material issues of fact as to both
objective and subjective fear of retaliation.
As to objective fear, the record evidence, viewed in the
light most favorable to Sanders, supports a conclusion that a
reasonable inmate would fear that merely asking for a grievance
form would, within hours, result in a physical assault from
A reasonable factfinder could infer that
the alleged beating at issue in this suit was itself in reaction
to other inmates’ requests for grievances, or based on the
Defendant Corrections Officers’ mistaken belief that Sanders had
requested a grievance form.
Additionally, a reasonable factfinder
could find that Sergeant Monroe made a threat when inmates asked
for grievance forms.
As to subjective fear, Sanders testified that he feared
retaliation if he filed a grievance. (Sanders Dep. p. 201-02)
Accordingly, Defendants’ Motions for Summary Judgment will be
denied as to the PLRA exhaustion issue. 7
C. The Motions for Summary Judgment by Defendants Vernon, Farlow,
1. Excessive force
Sanders was a pretrial detainee during the relevant time
period; therefore his excessive force claim is analyzed under
Fourteenth Amendment Due Process standards. Kingsley v.
Hendrickson, 135 S. Ct. 2466 (2015); see also Bell v. Wolfish, 441
U.S. 520 (1979); see generally Graham v. Connor, 490 U.S. 386, 395
n.10 (1989)(“It is clear . . . that the Due Process Clause
protects a pretrial detainee from the use of excessive force that
amounts to punishment.”)(citing Wolfish).
In light of the disposition of this issue, the Court need not
reach Sanders’ alternate argument that the grievance procedure at
CCCF was optional, not mandatory. Even if the grievance procedure
was mandatory disputed facts remain as to whether the asserted
grievance procedure was “available” under the PLRA and Ross.
“[A] pretrial detainee must show only that the force
purposely or knowingly used against him was objectively
unreasonable.” Kingsley, 135 S. Ct. at 2473.
Considerations such as the following may bear on the
reasonableness or unreasonableness of the force used:
the relationship between the need for the use of force
and the amount of force used; the extent of the
plaintiff’s injury; any effort made by the officer to
temper or to limit the amount of force; the severity of
the security problem at issue; the threat reasonably
perceived by the officer; and whether the plaintiff was
The individual corrections officers’ arguments in support of
summary judgment on this issue fail to construe the record
evidence in the light most favorable to Sanders.
officers argue that there is insufficient evidence to support an
excessive force claim against them.
Indeed, Farlow goes so far as
to assert that he “did not touch Plaintiff during the altercation”
(Moving Brief, p. 14).
These arguments ignore the deposition testimony of Sanders
and Cooper which, as set forth above, clearly state that all three
officers actively participated in the beating.
Viewing the record
in the light most favorable to Sanders, a reasonable factfinder
could find that it was three (Vernon, Farlow, and Chukudi) on one
Moreover, the record evidence is sufficient to support a
finding that the amount of force used was objectively unreasonable
under the circumstances.
Again, viewing the record evidence in
the light most favorable to Sanders, all of the Kingsley factors
support this conclusion.
First, a reasonable factfinder could conclude that there was
no need to use force at all under the circumstances.
sought out Sanders in his cell, after midnight, while the jail was
on lock down, and awoke Sanders from sleep or near-sleep. 8
these facts, a reasonable factfinder could conclude that there was
no security problem at the time, and no reasonable officer could
perceive that there was a threat.
Second, even leaving aside the cellulitis in Sanders’ right
leg, which Defendants dispute was caused by the alleged beating,
Sanders’ other injuries were severe.
In addition to the gash
above his eye and other bruising, Sanders hit his head on a metal
table while being dragged from the top bunk, and lost
Medical records further document that Sanders had
four loose teeth after the incident.
Third, both Sanders and Cooper testified that Sanders was not
Indeed, even under the Defendants’ version of events, they went
to Sanders’ cell to address some unspecified threat that had
occurred several hours earlier.
Therefore, the record construed in the light most favorable
to Sanders sufficiently supports an excessive force claim against
each corrections officer.
Additionally, disputed issues of material fact preclude
summary judgment on the ground of qualified immunity. 9
law at the time, the corrections officers would have known that
their actions violated clearly established law. See Pearson v.
Callahan, 555 U.S. 223, 231 (2009)(“The doctrine of qualified
immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’”)(quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
“It is clear ... that the
Due Process Clause protects a pretrial detainee from the use of
excessive force that amounts to punishment.” Graham v. Connor, 490
U.S. at 395 n. 10 (citing Wolfish).
Whether force constitutes
“punishment” depends on whether it is “rationally related to a
legitimate nonpunitive governmental purpose” and whether it
“appear[s] excessive in relation to that purpose.” Wolfish, 441
U.S. at 561.
The Motions for Summary Judgment will be denied as to the
excessive force claim against each individual corrections officer.
Only Defendants Farlow and Chukudi move for summary judgment on
the issue of qualified immunity.
2. Assault and battery
Defendants Farlow and Chukudi assert that these state law
claims must be dismissed because Sanders’ Notice of Tort Claim
pursuant to N.J.S.A. § 59:8-4 does not specify how they
participated in, or caused Sanders’ injuries.
Rather, the Notice,
which is a fill-in-the-blank form apparently provided by Camden
County, states, “[o]n Jan. 27, 2013 the claimant was punched in
the face with keys held by Lt. Vernon and kicked on the right side
of the body.” (Farlow Ex. Q)
The Notice does, however, identify
Farlow and Chukudi by name, as people Sanders “claims is at
Sanders argues, and the Court agrees, that the Notice
includes all of the statutorily required items.
A claim . . . shall include:
The name and post office address of the claimant;
b. The post-office address to which the person
presenting the claim desires notices to be sent;
c. The date, place and other circumstances of the
occurrence or transaction which gave rise to the claim
d. A general description of the injury, damage or loss
incurred so far as it may be known at the time of
presentation of the claim;
e. The name or names of the public entity, employee or
employees causing the injury, damage or loss, if known;
f. The amount claimed as of
the claim, including the
prospective injury, damage,
be known at the time of the
together with the basis of
the date of presentation of
estimated amount of any
or loss, insofar as it may
presentation of the claim,
computation of the amount
N.J.S.A. § 59:8-4.
The statute does not require that the Notice of Tort
Claim include a description of how the identified employees
allegedly caused the injury.
Accordingly, Defendants’ Farlow
and Chukudi’s Motions for Summary Judgment on this issue will
Defendants Farlow and Chukudi further assert that the record
evidence does not support Sanders’ assault and battery claims on
The Court rejects this argument for the reasons
articulated with respect to the excessive force claim.
evidence, viewed in the light most favorable to Sanders, supports
a claim for assault and battery against each officer.
Specifically, Sanders testified that Farlow “kicked” him, and
Chukudi “was stomping” him. (Sanders Dep., p. 174, 206).
Lastly, Defendant Vernon asserts that he is entitled to good
faith immunity under N.J.S.A. § 59:3-3, which provides “[a] public
employee is not liable if he acts in good faith in the execution
or enforcement of any law.”
This argument fails.
with respect to the excessive force claim, a reasonable factfinder
could conclude that Defendant Vernon acted not in good faith, but
rather with the intent to punish.
The Motions for Summary Judgment will be denied as to the
assault and battery claims against each individual corrections
3. Failure to intervene
Defendants Farlow and Chukudi assert that they are entitled
to summary judgment on Sanders’ claim that they failed to
intervene to stop the use of excessive force by Defendant Vernon.
“[A] corrections officer who fails to intervene when other
officers are beating an inmate may be liable on a failure-toprotect claim if the officer had a realistic and reasonable
opportunity to intervene and simply refused to do so.” Bistrian v.
Levi, 696 F.3d 352, 371 (3d Cir. 2012).
Farlow and Chukudi assert that they had no realistic and
reasonable opportunity to intervene, but that argument is based on
their version of events.
As Sanders correctly observes, “there is
no dispute that Sgt. Farlow and Officer Chukudi were both in and
around Plaintiff’s cell at the very moment Vernon was applying
force against Plaintiff.” (Opposition Brief, p. 27)
evidence, taken as a whole and viewed in the light most favorable
to Sanders, raises sufficient issues of fact to support submitting
this question to the jury.
Additionally, issues of material fact preclude summary
judgment on the issue of qualified immunity.
The duty to
intervene was clearly established at the relevant time. See
Bistrian, 696 F.3d at 371; Smith v. Mensinger, 293 F.3d 641, 650
(3d Cir. 2002)(holding that “a corrections officer’s failure to
intervene in a beating can be the basis of liability for an Eighth
Amendment violation under § 1983 if the corrections officer had a
reasonable opportunity to intervene and simply refused to do so”);
Natale, 318 F.3d at 581 (“the Supreme Court has concluded that the
Fourteenth Amendment affords pretrial detainees protections at
least as great as the Eighth Amendment protections available to a
The Motions for Summary Judgment on Sanders’ failure to
intervene claim will be denied.
4. Intentional infliction of emotional distress
Defendants Farlow and Chukudi move for summary judgment on
the intentional infliction of emotional distress claim which is
arguably asserted in the complaint.
However, Sanders’ opposition
brief states that “Plaintiff has not alleged a cause of action for
intentional infliction of emotional distress.” (Opposition Brief,
p. 31 n. 4)
Accordingly, the motions for summary judgment as to this
claim will be denied as moot.
5. Punitive damages
All three corrections officers move for summary judgment on
Sanders’ claim for punitive damages.
As the Court’s discussion
above concerning excessive force, assault, and battery, make
clear, issues of disputed fact preclude summary judgment on
Sanders’ claim for punitive damages. See Springer v. Henry, 435
F.3d 268, 281 (3d Cir. 2006) (“A jury may award punitive damages
when it finds reckless, callous, intentional or malicious
conduct.”); Smith v. Whitaker, 160 N.J. 221, 242 (1999)(to obtain
punitive damages a “plaintiff must prove by clear and convincing
evidence a deliberate act or omission with knowledge of a high
degree of probability of harm and reckless indifference to the
The Motions for Summary Judgment will be denied as to this
6. Failure to provide constitutionally adequate medical
To the extent that Sanders asserts a failure to provide
medical care claim against the corrections officers, the
corrections officers’ motions for summary judgment on this claim
will be granted.
Sanders makes no argument in opposition, and points to no
record facts supporting this claim.
Moreover, nothing in the
record supports a finding that any corrections officer prevented
Sanders from getting medical treatment.
To the contrary, the
undisputed evidence demonstrates that Sanders was immediately
escorted to receive medical treatment after the alleged beating
All three corrections officers move for summary judgment
asserting that Sanders has failed to put forth sufficient evidence
in support of his claim for racial / religious discrimination.
Sanders makes no argument in opposition, and points to no record
facts supporting this claim.
Further, the Court’s review of the
record reveals insufficient facts supporting Sanders’ claim of
discrimination against the corrections officers. 10
Sanders has failed to sustain his summary judgment burden on
his discrimination claim.
Accordingly, the corrections officers’
Motions for Summary Judgment will be granted.
8. Causal link between the beating and Sanders’ cellulitis and
Lastly, Defendant Vernon argues that he is entitled to
summary judgment on Sanders’ claims for damages related to the
cellulitis in his leg and post-traumatic stress.
The only evidence the Court has found is Sanders’ deposition
testimony that he believes Vernon attacked him “[because it was
the thing with the Muslims. The Muslims have a problem with the
officers. I got caught up in it because my bunky was Muslim.
[Vernon] said you motherfuckers aren’t going to run this jail.
And the only people that’s Muslim over there is black.” (Sanders
Dep. p. 224)
that the lack of any expert testimony establishing causation is
fatal to Sanders’ claims.
In opposition, Sanders argues that the evidence from his
treating physicians is sufficient to support submitting the
question to the jury.
The Court agrees.
Stigliano by Stigliano v. Connaught Labs., Inc., which Vernon
relies upon in moving for summary judgment, explains, “as fact
witnesses, the treating doctors may testify about their diagnosis
and treatment of [their patient’s] disorder, including their
determination of that disorder’s cause.” 140 N.J. 305, 314 (1995).
In this regard, Sanders points to the following record
evidence: (1) his treating physician at the hospital told him that
his cellulitis was more than likely caused by blunt force trauma
(Sanders Dep. p. 191) and, (2) his medical records from South
Woods State Prison which document that he has post-traumatic
stress related to “being assaulted by CO’s at the county jail in
2013.” (Pl’s Ex. 15). 11
This record evidence is sufficient to support submitting the
question of causation to the jury.
Defendant Vernon’s Motion for
Summary Judgment on this issue will be denied.
The Court makes no ruling on the admissibility of any evidence
at this time. Defendants may raise such issues in an appropriate
motion in limine, if necessary.
The Motion for Summary Judgment by Defendants County of
Camden, Camden County Correctional Facility, and Warden Eric M.
1. CCCF is not an entity amenable to suit under § 1983
Camden County / CCCF moves for summary judgment on all § 1983
claims against CCCF asserting that “CCCF is not an entity separate
and apart from Camden County.
CCCF is not a governing body, and
does not have any autonomous existence; it is merely a building
where the Plaintiff was incarcerated.” (Moving Brief, p. 5)
Sanders makes no argument in opposition.
Other judges within this District have held that New Jersey
correctional facilities, and CCCF specifically, are not amenable
to suit under § 1983. Turner v. Camden Cty. Corr. Facility, 2017
WL 88976, at *1 (D.N.J. Jan. 10, 2017); Grabow v. Southern State
Corr. Facility, 726 F. Supp. 537, 538–39 (D.N.J. 1989).
The Motion for Summary Judgment will be granted on this
2. Constitutionally adequate medical treatment claim against
Sanders’ medical treatment claim against Camden County is
co-extensive with his medical treatment claim against CFG.
the same reasons CFG is entitled to summary judgment, Camden
County is entitled to summary judgment.
Camden County’s Motion
for Summary Judgment as to this claim will be granted.
3. Failure to adequately train the corrections officers in the
use of force
Sanders relies on the deposition testimony of Defendants
Vernon and Farlow to support his assertion that training in the
use of force was inadequate.
Vernon testified that corrections
officers only receive actual physical training and practice “at
the academy” but not on the job.
When you’re using force, it’s very stressful for
everybody. And from having it one time in the academy
and not having it again, for instance practicing
handcuffing or defensive tactic presents a problem. If
you don’t practice your techniques, you’ll lose the
ability to . . . apply those techniques.
(Vernon Dep. p. 24)
Farlow also testified that “[h]ands on training was done one
time through the academy. . . . It would have been helpful to be
given retraining and refresher training on . . . hand-to-hand take
downs, tactical handcuffing and those things we never received.”
(Farlow Dep. p. 14)
Sanders asserts a “single-incident” theory of failure to
train. (Opposition Brief, p. 32-35); see generally City of Canton,
Ohio v. Harris, 489 U.S. 378 (1989).
Relying on Thomas v.
Cumberland Cty., 749 F.3d 217 (3d Cir. 2014) and A.M. ex rel.
J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572
(3d Cir. 2004), Sanders argues that Camden County’s failure to
adequately train its corrections’ officers in the use of force:
(1) amounts to deliberate indifference to the rights of the
inmates with whom those officers will come into contact, and (2)
this failure caused Sanders’ constitutional injury.
The Court holds that issues of material fact preclude summary
judgment on this claim.
“Deliberate indifference is a stringent
standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.” Thomas,
749 F.3d at 223 (internal citations and quotations omitted).
“[I]n certain situations, the need for training ‘can be said to be
so obvious, that failure to do so could properly be characterized
as deliberate indifference to constitutional rights.’” Id.
(quoting City of Canton, 489 U.S. at 390 n.10).
The Court concludes that the need to train corrections
officers at CCCF on the use of force may be found to be obvious,
similar to the hypothetical obvious need to train police officers
in the use of deadly force discussed in City of Canton, 489 U.S.
at 390 n.10, and the obvious need to train juvenile facility child
care workers on conflict de-escalation techniques in A.M. 372 F.3d
at 575, 580.
A jury could find that there is a high “likelihood that the
situation will recur” and the “predictability” is also high “that
an officer lacking specific tools to handle that situation will
violate citizens’ rights.” Thomas, 749 F.3d at 223–24.
expert witness states in his report that “it is recognized that
correction officers may have to employ force,” 12 and the expert’s
reliance on model use of force policies prepared by the Legal and
Liability Risk Management Institute supports an inference that
lack of training will violate inmates’ rights. (Camden County Ex.
Additionally, Sanders’ expert’s opinion that the failure to
train caused the violation of Sanders’ Fourteenth Amendment rights
creates an issue of material fact as to causation.
report states, “[t]he incident and the use of force could have
been avoided . . . if Vernon, Farlow and Chukudi were better
trained.” (Camden County Ex. D) See Thomas, 749 F.3d at 226 (“the
causation inquiry focuses on whether the injury could have been
avoided had the employee been trained under a program that was not
deficient in the identified respect.”).
The Motion for Summary Judgment will be denied as to Sanders’
failure to train claim.
At the risk of unnecessary repetition, it appears that Sanders
has abandoned any discrimination claim, as he makes no argument in
Camden County argues that “Sanders has produced no evidence of
frequent excessive force cases at the CCCF.” (Reply Brief, p. 10)
Camden County misstates the relevant inquiry, which focuses on the
frequency with which the need to use any force arises. See Thomas,
749 F.3d at 225.
opposition to Camden County’s Motion for Summary Judgment on this
Camden County’s Motion for Summary Judgment will be granted
as to this claim.
5. The § 1983 claims against Defendant Warden Taylor
Warden Taylor moves for summary judgment asserting that there
is no evidence that he had any direct personal involvement in any
of the events at issue.
of supervisory liability.
Therefore, Sanders is left with a theory
In that regard, the Warden Taylor
asserts that “there [is no] evidence that [he] was involved by way
of personal direction or knowledge and acquiescence.” (Moving
Brief, p. 9)
Sanders makes no argument in opposition.
Sanders has failed to articulate any specific theory of
supervisory liability against Warden Taylor (as distinguished from
Sanders’ failure to train theory against Camden County), and has
pointed to no record evidence to support any theory.
Sanders has failed to sustain his summary judgment burden and
Warden Taylor’s Motion for Summary Judgment on this issue will be
For the reasons stated herein, Defendant CFG’s Motion for
Summary Judgment will be granted.
The corrections officers’
Motions for Summary Judgment will be granted in part, denied in
part, and denied as moot in part as follows: the motions are
granted as to Sanders’ claims for discrimination and failure to
provide constitutionally adequate medical treatment, denied as
moot as to the emotional distress claim, and denied in all other
The remaining Defendants’ Motion for Summary Judgment
will be granted in part and denied in part as follows: the motion
is granted as to Sanders’ claims for discrimination, failure to
provide constitutionally adequate medical treatment, supervisory
liability of Defendant Taylor, his § 1983 claims against CCCF, and
denied in all other respects.
An appropriate Order accompanies
Dated: August 4, 2017
At Camden, New Jersey
___s/ Noel L. Hillman___
Noel L. Hillman, U.S.D.J.
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