DOTY v. UNITED STATES OF AMERICA et al

Filing 86

OPINION. Signed by Judge Noel L. Hillman on 11/25/2019. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
ALFRED DOTY,
:
:
Plaintiff,
:
Civ. No. 15-3016 (NLH) (JS)
:
v.
:
OPINION
:
FCI FT. DIX WARDEN JORDAN
:
HOLLINGSWORTH; UNIT MANAGER
:
BARBARA NEVINS; UNIT OFFICER :
JASON BAZYDLO; UNKNOWN UNIT
:
OFFICERS #1-#10,
:
:
Defendants.
:
______________________________:
APPEARANCES:
Paul E. Svensson, Esq.
Michael K. Burke, Esq.
Hodges Walsh Messemer & Burke, LLP
55 Church Street, Suite 211
White Plains, NY 10601,
Counsel for Plaintiff
Craig Carpenito, United States Attorney
Anne B. Taylor, Assistant United States Attorney
Office of the United States Attorney
401 Market Street, PO Box 2098
Camden, NJ 08101
Counsel for Defendants
HILLMAN, District Judge
This case concerns an assault that Plaintiff Alfred Doty, a
former federal prisoner, suffered at the hands of another inmate
while incarcerated at FCI Fort Dix (“Fort Dix”), New Jersey.
the second amended complaint (“SAC”), Plaintiff alleges that

In

former Fort Dix Warden Jordan Hollingsworth, FCI Fort Dix Unit
Manager Barbara Nevins, and Unit Officer Jason Bazydlo
(“Defendants”) failed to protect him from the assault in
violation of the Eighth Amendment.

ECF No. 33.

At issue is Defendants’ Motion for Summary Judgment, which
is ripe for adjudication.

See ECF No. 77.

The Court has

subject-matter jurisdiction over this case pursuant to 28 U.S.C.
§ 1331, as this case concerns a federal question.

For the

reasons that follow, the Court will grant the Motion.
I.

BACKGROUND
A.

Undisputed Facts
1. General Operations and Procedures at FCI Fort Dix

FCI Fort Dix is a federal prison which houses low security,
sentenced federal inmates.

ECF No. 82-1 ¶ 3.

Inmates at Fort

Dix are assigned to one of several housing units in the East or
West Compound.

ECF No. 85-1 at 18 ¶ 1.

The compounds are

distinct and secure areas consisting of several buildings
including dormitory style housing, inmate recreation, education,
and food services.

ECF No. 82-1 ¶ 3.

Inmates are prohibited

from entering any housing unit other than the one to which they
are assigned unless they have received authorization.
85-1 at 18 ¶ 1.

ECF No.

Inmates found in a housing unit other than

their assigned one without authorization should be issued an
incident report and are subject to disciplinary action.
2

Id.

The inmates can move about their compound during ten-minute
“moves.”

ECF No. 82-1 ¶ 4.

After the move has ended, the

inmate must wait until the next move to relocate.

Id.

However

on weekend afternoons, Fort Dix operates as an “open compound”
and inmates may move freely around their compound for
approximately an hour until afternoon recall.

Id. ¶ 6.

During

open compound, entrances to the housing units are left unlocked.
Id. ¶ 7.

The officers are supposed to monitor the doors during

moves and should prevent unauthorized inmates from entering the
housing units.

Id. ¶ 9.

The housing officer must permit

inmates to get to their next destination and therefore must
track entry to the housing unit as much as possible while also
allowing inmates to change location.

Id. ¶ 10.

The officers

use census counts and other tools to check inmates’ location
throughout the day.

Id. ¶ 13.

Correctional Officers and other

prison employees are “responsible for the accountability of all
inmates in their assigned areas, details, and housing units.”
ECF No. 85-1 at 18 ¶ 2.

Any officer who does not take action to

maintain inmate accountability could be disciplined.

Id. at 19

¶ 4.
2. Events up to and including the assault
On Saturday, August 24, 2013, Plaintiff was assigned to
Housing Unit 5711 (“Unit 5711”) within the East Compound.
No. 82-1 ¶ 14.

Defendant Jason Bazydlo was a correctional
3

ECF

officer serving as the Unit Officer for Unit 5711 at that time.
Id. ¶ 15.

He was responsible for approximately 366 inmates in

the three-floor unit.

ECF No. 85-1 at 22 ¶ 17.

He made it his

practice to conduct random and irregular rounds throughout the
unit to avoid establishing a pattern that inmates could
anticipate.

Id. at 21 ¶ 11.

During moves, he sometimes stayed

by the door and sometimes moved throughout the unit.
He also did this during the weekend lunch period.

Id. ¶ 12.

Id.

Before August 24, 2013, Officer Bazydlo and Plaintiff had
only interacted with each other when Officer Bazydlo delivered
Plaintiff’s mail.

ECF No. 82-1 ¶ 16.

Plaintiff never told

Officer Bazydlo that he felt his physical safety was at risk
before August 24, 2013.

Id.

Plaintiff also had never spoken or

otherwise communicated with Unit Manager Barbara Nevins or
Warden Jordan Hollingsworth about his personal safety prior to
August 24, 2013.

Id. ¶¶ 17-18.

On Thursday, August 22, 2013, another inmate woke Plaintiff
up from a nap to ask if Plaintiff wanted to fight.

Id. ¶ 19.

The inmate did not reside in Unit 5711.

There was no

Id. ¶ 20.

physical altercation at that time, and Plaintiff did not report
to Defendants or anyone else at Fort Dix that he had been
physically threatened by an inmate who did not reside in his
housing unit.

Id. ¶ 22.

Plaintiff testified that he did not

fear for his physical safety after the August 22 incident.
4

Id.

¶ 23.

Plaintiff did not receive any threats on Friday, August

23, 2013.

Id. ¶ 24.

On the morning of August 24, 2013, an intoxicated inmate
was found in Unit 5711 and was scheduled to be transported to
the Special Housing Unit (“SHU”).

ECF No. 85-1 at 22 ¶ 18.

Officer Bazydlo was not yet on duty when the intoxicated inmate
was discovered.

Id.

No inmates from other units had prior

permission to be in Unit 5711 on August 24, 2013.

Id. ¶ 19.

After the 10:00 morning count and before lunch, Plaintiff went
down to the sally port, an area around the door where inmates
congregate ahead of leaving the building.
26.

ECF No. 82-1 ¶¶ 25-

Plaintiff arrived at the sally port first and was alone

with Officer Bazydlo.

Id. ¶ 27.

Officer Bazydlo later quoted

Plaintiff as telling him that “If you go upstairs later with a
breathalyzer, you’ll catch a lot of them.

Hooch is getting bad

here, there is a whole black market and it’s getting violent.”
Id. ¶ 31.

This was the first time Plaintiff had reported the

production of intoxicants in the unit or expressed concerns
about unauthorized inmates.

Id. ¶ 33.

Although Plaintiff

apparently witnessed people in his unit drinking homemade
intoxicants several times a week, he had never seen them be
violent or threaten violence.

Id. ¶ 36.

Plaintiff did not tell

Officer Bazydlo that he felt at risk of physical harm.

5

Id. ¶

29.

Plaintiff stopped talking to Officer Bazydlo when other

inmates started filling the sally port.

Id. ¶ 32.

Officer Bazydlo believed Plaintiff’s report to be a general
statement about potential violence that was not worth reporting
to a lieutenant.

ECF No. 85-1 at 23 ¶ 20.

He would be required

to report a specific threat of violence to his lieutenant.
at 21 ¶ 14.

Id.

He could not recall what he did in response to

Plaintiff’s report, but he testified that he would not have
deviated from his normal routine of making random and irregular
rounds throughout the unit.

Id. at 23 ¶ 21.

Plaintiff went to lunch following his conversation with
Officer Bazydlo, and then went to the pill line.
37.

ECF No. 82-1 ¶

He returned to his housing unit after receiving his

medication.

Id. ¶ 38.

As it was a Saturday afternoon, Fort Dix

was operating as an open compound and Plaintiff was able to move
freely around without waiting for a ten-minute move.

Id. ¶ 39.

When Plaintiff returned to the housing unit, the door was
unlocked.

Id. ¶ 40.

Plaintiff did not see a guard at the

entrance and the door to the guard’s office was closed.

Id.

Plaintiff went to the restroom on the first floor, down the
hall from the entrance door.

Id. ¶ 41.

Upon exiting the stall,

Plaintiff was confronted by an inmate he identified as
“Jefferies.”

Id. ¶ 42.

Jefferies was not housed in Unit 5711

and was not authorized to be in that housing unit on August 24,
6

2013.

Id. ¶ 43.

Jefferies is also not the inmate who had

awoken Plaintiff the day before.

Id. ¶ 21.

Jefferies had been

waiting for Plaintiff and said he heard Plaintiff had problems
with him.

Id. ¶ 44.

Plaintiff told Jefferies that he did not

have a problem with him, but he did have a problem with the way
Jefferies treated Plaintiff’s friend and roommate, Russell
Ochocki.

Id. ¶ 45.

Plaintiff claimed that Jefferies had been

pressuring Ochocki to buy commissary for him under threat of
physical assault.

Id. ¶ 46.

Plaintiff asserted that Jefferies

had slapped Ochocki, leaving a bruise, and stolen Ochocki’s
commissary items when Ochocki did not buy the items Jefferies
requested.

Id. ¶ 47.

officials at Fort Dix.

This incident was never reported to the
Id.

Plaintiff and Jefferies had never

spoken to each other before the confrontation in the bathroom.
Id. ¶ 48.
The last thing Plaintiff remembers about the bathroom
confrontation is that Jefferies said something to the effect of
“you are nothing but chomos,” and Plaintiff responded that “you
don’t know anything about me.”
term for “child molester.”

Id.

Id. ¶ 49.

“Chomos” is a slang

Around 12:50 in the afternoon,

Jefferies assaulted Plaintiff, causing Plaintiff to lose
consciousness.

Id. ¶ 50.

Plaintiff does not know what he was

assaulted with, and Jefferies was gone by the time Plaintiff
regained consciousness.

Id. ¶ 51.
7

Plaintiff testified that

when he went to the housing unit officer’s office after he was
assaulted, he saw another officer with Officer Bazydlo.
52.

Id. ¶

Plaintiff further testified that Officer Bazydlo said to

that other officer: “I hope this isn’t in retaliation for what
Id. 1

he told me this morning.”

Jefferies’ assault on Plaintiff caused Plaintiff to sustain
a fractured skull, fractured orbital bones, fractured left
cheek, split hard pallet, a broken tooth, and lacerations on his
upper and lower lips.

Id. ¶ 53.

Plaintiff did not know

Jefferies was upset with him until immediately before Jefferies
assaulted Plaintiff in the bathroom on August 24, 2013.
54.

Id. ¶

Plaintiff testified that he met another inmate who had been

assaulted by Jefferies, but he did not know who that inmate is
and did not know if any of the Defendants were aware that
Jefferies had assaulted another inmate.
3.

Id. ¶ 55.

Investigation

As part of the investigation into the assault, Special
Investigative Section Department Lieutenant Joyce Tucker showed
Plaintiff a photo array and asked if he could identify his
assailant.

Plaintiff declined to identify Jefferies from the

photo array because he was afraid of retaliation.

1

Id. ¶ 57; ECF

The Court notes that Officer Bazydlo denies being in his office
with another officer and does not recall making this statement.
ECF No. 82-4 103:24 to 104:2. This dispute of fact is not
material.
8

No. 85-1 at 23 ¶ 23.

Lieutenant Tucker did not save the photo

array because the photographs did not result in an
identification.

ECF No. 85-1 at 24 ¶ 27.

There was a

surveillance camera positioned outside of Unit 5711 that would
have recorded anyone entering and exiting the unit through the
main door on August 24, 2013.

Id. ¶ 25.

Lieutenant Tucker

reviewed footage from that camera, which was recorded around the
time of the assault, but it is unknown what happened to the
video.

Id. ¶ 26.

Prison personnel later concluded that a group

of inmates from Baltimore was behind the assault.

Id. ¶ 24.

Some of those inmates lived in Unit 5711, others did not.
4.

Id.

Supervisory Defendants

In August of 2013, Barbara Nevins was a Unit Manager
responsible for the administrative oversight of ten staff
members, including the case managers, counselors, and unit team.
ECF No. 82-1 ¶¶ 70-71.

Much of Unit Manager Nevins’ work was

administrative, such as overseeing the paperwork for transfers
and halfway house referrals.

Id. ¶ 72.

She was not the

immediate supervisor of the correctional staff officers.

Id. ¶

73.
Unit Manager Nevins was not working on Saturday, August 24,
2013.

Id. ¶ 76.

She received a phone call that afternoon

informing her that an inmate had been assaulted in her housing
unit; she was asked to come to the prison.
9

Id.

After her

arrival at Fort Dix, she walked around the unit and informally
talked to other inmates to keep the atmosphere calm.

Id. ¶ 77.

She was not involved in the formal investigation of the assault
and did not speak to Officer Bazydlo about the assault.
78.

Id. ¶

Plaintiff did not speak with Unit Manager Nevins before

August 24, 2013 or inform her that he felt at risk of assault.
Id. ¶ 79.

Unit Manager Nevins learned for the first time that

inmates were coming into Unit 5711, without authorization, to
visit inmates housed in 5711 after August 24, 2013.

Id. ¶ 80.

During his tenure as Warden of Fort Dix, Jordan
Hollingsworth was responsible for overseeing the management of
the facility.

Id. ¶ 81.

Much of his time was consumed by

administrative matters, including staffing matters, although he
would be notified of certain assaults.

Id. ¶ 82.

Warden

Hollingsworth did not control the Fort Dix budget and would have
preferred to hire more officers throughout his tenure if he
could have.

Id. ¶ 82.

The correctional services chain of

command consisted of Warden Hollingsworth, associate wardens, a
captain, lieutenants, and correctional officers.

Id. ¶ 84.

Warden Hollingsworth did not know Officer Bazydlo, but he
did know Unit Manager Nevins.

Id. ¶ 85.

Prior to August 24,

2013, Plaintiff had never spoken or interacted with Warden
Hollingsworth in any way; he never expressed to Warden
Hollingsworth any concern that he felt he was at a risk for
10

assault.

Id. ¶ 86.

Warden Hollingsworth does not recall

whether he was contacted about the assault on Plaintiff when it
happened.
II.

Id. ¶ 87.

STANDARD OF REVIEW
Summary judgment should be granted when the pleadings,

depositions, answers to interrogatories, admissions on file, and
affidavits show that there is no genuine dispute as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.

Fed. R. Civ. P. 56(c).

A disputed

fact is material when it could affect the outcome of the suit
under the governing substantive law.
Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty Lobby,

A dispute is genuine if the

evidence is such that a reasonable jury could return a verdict
for the nonmoving party.

Id. at 250.

The Court should view the

facts in the light most favorable to the non-moving party and
make all reasonable inferences in that party’s favor.

Hugh v.

Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
Initially, the moving party must show the absence of a
genuine issue concerning any material fact.
v. Carrett, 477 U.S. 317, 323 (1986).

See Celotex Corp.

Once the moving party has

satisfied its burden, the non-moving party, “must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment.”

Anderson, 477 U.S. at 257.

“While the evidence that the non-moving party presents may be
11

either direct or circumstantial, and need not be as great as a
preponderance, the evidence must be more than a scintilla.”
Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).
If the court determines that “the record taken as a whole
could not lead a rational trier or fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting First Nat’l Bank of Arizona v. Cities Serv.
Co., 391 U.S. 253, 289 (1968)).

Rule 56 mandates the entry of

summary judgment against the party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.

Celotex Corp., 477 U.S. at 322.

III. DISCUSSION
The sole remaining claim in the SAC is Plaintiff’s failure
to protect claim under the Eighth Amendment.

The principal

issues to be decided are (1) whether Defendants are entitled to
summary judgment on Plaintiff’s claims that Officer Bazydlo
failed to reasonably respond to Plaintiff’s warning about the
possibility of violence from intoxicated or unauthorized inmates
in Unit 5711 and that Warden Hollingsworth and Unit Manager
Nevins implemented inadequate policies to prevent unauthorized
inmates from entering Unit 5711, and (2) to the extent there may

12

have been a violation, are Defendants entitled to qualified
immunity.
A.

Failure to Protect

“[P]rison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must
‘take reasonable measures to guarantee the safety of the
inmates[.]’”

Farmer v. Brennan, 511 U.S. 825, 832 (1994)

(quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).

“While

‘prison officials have a duty to protect prisoners from violence
at the hands of other prisoners,’ injury at the hands of a
fellow prisoner itself does not amount to an Eighth Amendment
violation.”

Counterman v. Warren Cty. Corr. Facility, 176 F.

App'x 234, 238 (3d Cir. 2006) (quoting Farmer, 511 U.S. at 833–
34).
“[T]o establish a failure-to-protect claim, an inmate must
demonstrate that (1) he is ‘incarcerated under conditions posing
a substantial risk of serious harm’; and (2) the prison official
acted with ‘deliberate indifference’ to his health and safety.”
Paulino v. Burlington Cty. Jail, 438 F. App'x 106, 109 (3d Cir.
2011) (per curiam) (quoting Farmer, 511 U.S. at 834).
“[D]eliberate indifference is a subjective inquiry, while risk
of harm is evaluated objectively.”

Betts v. New Castle Youth

Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010) (citing Atkinson v.
Taylor, 316 F.3d 257, 262 (3d Cir. 2003)).
13

To prove the

objective component of his claim, Plaintiff must establish (1)
the seriousness of the injury; (2) a sufficient likelihood that
serious injury will result under the circumstances present; and
(3) the risks associated with the circumstances under which the
injury occurred violate contemporary standards of decency.

Id.

at 257.
Defendants concede that Plaintiff suffered a serious
injury, but they argue “there is no evidence of a sufficient
likelihood that serious injury would result under the
circumstances present during Plaintiff’s incarceration, or that
the risks associated with the circumstances present violated
contemporary standards of decency.”

ECF No. 77-1 at 41.

Defendants further argue that Plaintiff cannot meet his
burden of proof on the subjective deliberate indifference
component.

In Farmer, the Supreme Court held that “a prison

official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate
health or safety[.]”

511 U.S. at 837.

“[T]he official must

both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also
draw the inference.”

Id.

“[S]ubjective knowledge on the part

of the official can be proved by circumstantial evidence to the
effect that the excessive risk was so obvious that the official
14

must have known of the risk.”

Beers-Capitol v. Whetzel, 256

F.3d 120, 133 (3d Cir. 2001).

Defendants assert Plaintiff

cannot show that they disregarded a known risk to his safety.
1.

Officer Bazydlo

Plaintiff argues that Officer Bazydlo’s “individual
practices as a housing unit officer as well as his response to
Mr. Doty’s report amounted to deliberate indifference of
substantial risks to Mr. Doty and the inmates within Unit 5711.”
ECF No. 82 at 15.

“Having full knowledge that inmate

accountability was a top safety concern as expressed in the
institutional supplements coupled with his own admission that
the housing units were understaffed, Bazydlo consciously
disregarded the requirement to man the door during inmate move
periods with full knowledge of the risks in not doing so.”
at 16.

Id.

“The risk that unaccounted inmates would be free to

enter and exit Unit 5711 during 10-minute moves and the entire
hour that the door was open during lunch on August 24, 2013, is
obvious and Bazydlo’s knowledge of that is fairly inferable.”
Id.
Plaintiff cannot establish that Officer Bazydlo failed to
protect him in violation of the Eighth Amendment.

There is no

evidence in the record that Officer Bazydlo “knew of, but
disregarded, ‘an objectively intolerable risk of harm.’”
Counterman v. Warren Cty. Corr. Facility, 176 F. App'x 234, 240
15

(3d Cir. 2006)(emphasis in original) (quoting Farmer, 511 U.S.
at 846).

Plaintiff admitted he was not aware that Jefferies was

upset with him until just before the assault in the bathroom.
ECF No. 77-4 at 80:11-14.

He also admitted the incident between

Jeffries and Russell Ochocki, which Plaintiff did not witness,
had not been reported to prison authorities.
25 to 72:2.

Id. at 71:12-13,

Plaintiff also could not identify the other inmate

allegedly assaulted by Jeffries, nor could he state with
certainty that Officer Bazydlo knew about the prior assault.
Id. at 93:4-14, 97:5-7.

Plaintiff did not report the August 22

incident, in which an inmate who did not live in Unit 5711 woke
Plaintiff up from a nap to ask if he wanted to fight, to Officer
Bazydlo and admitted that he did not fear for his physical
safety.

Id. at 47:9-19.

Plaintiff’s “warning” to Officer Bazydlo did not convey a
substantial threat of violence.

Plaintiff testified that he

told Officer Bazydlo “that there were people from other units
coming into the building and that there was a lot of wine being
made and that they were drinking.
54:8-11.

There are parties.”

Id. at

He “suggested that they do a search of the building.”

Id. at 54:25.

He stated this was the first time he had ever

told prison authorities about his concerns.

Id. at 56:6-8.

Plaintiff admitted he did not tell Officer Bazydlo that he felt
at risk of physical harm and that he had never seen any
16

intoxicated inmates become violent or threaten violence.

Id. at

79:11-13, 19-22.
Plaintiff’s argument against Officer Bazydlo is in essence
an argument that Officer Bazydlo should have known there was a
substantial risk of serious harm to the inmates of Unit 5711
based on the officer-to-inmate ratio and Plaintiff’s warning
that there was alcohol being made in the unit by inmates who
were not supposed to be there.

However, “the mere presence of

circumstances from which a reasonable person could infer ‘an
excessive risk to inmate health or safety’ is insufficient;
rather, the official must actually make the inference and
disregard it.”

Counterman, 176 F. App'x at 238 (emphasis in

original) (quoting Farmer, 511 U.S. at 837).

There is no

evidence in the record that Officer Bazydlo was aware of a
specific risk from Jeffries, nor is there circumstantial
evidence that there was an obvious, general danger to inmates in
Plaintiff’s situation.

See Beers-Capitol v. Whetzel, 256 F.3d

120, 131 (3d Cir. 2001).
Even if one assumes that Bazydlo had ignored Plaintiff’s
warnings about homemade alcohol and its attendant risks to
inmate safety, that risk was not the one that ripened into
Jefferies’s assault on Plaintiff.

Jefferies was apparently

angry at Plaintiff over his defense of Ochocki, his cellmate, a
brewing dispute that Bazydlo knew nothing about.
17

To hinge

liability on harm arising from an unreported risk simply because
of a vague warning about an unrelated risk would turn the
Defendants into Plaintiff’s protector against all risks.

The

physical harm here is indeed substantial and horrific, but to
hold these Defendants responsible something more is required.
While a more generalized risk could be enough, here
Plaintiff has provided no evidence that there was a
“longstanding, pervasive, well-documented, or expressly noted”
history of inmate violence caused by inmates being in units
other than their own.

Id.

Mere knowledge that inmates were in

Unit 5711 without authorization is not enough “to create a
subjective awareness, on [Officer Bazydlo’s] part, of an
objectively excessive risk to [Plaintiff’s] safety.”
Counterman, 176 F. App'x at 239.

Plaintiff himself admitted

that he was not in fear for his physical safety prior to this
incident.

In the absence of a genuine issue of material fact,

the Court grants summary judgment to Officer Bazydlo.
2.

Warden Hollingsworth and Unit Manager Nevins

Plaintiff’s Eighth Amendment claims against Warden
Hollingsworth and Unit Manager Nevins also fail.

He argues they

are liable as they implemented deficient policies “regarding 10
minute moves and the hour-long open door during lunch on the
weekends.”

ECF No. 82 at 24.

“Both Nevins and Hollingsworth

would have known that these polices were untenable given the
18

shortage of officers and the escalating issues throughout FCI
Fort Dix.”

Id.

In order to hold Warden Hollingsworth and Unit Manager
Nevins liable based on their policies or practices, Plaintiff
must identify a specific policy or practice that they failed to
employ and show that: (1) the existing policy or practice
created an unreasonable risk of injury; (2) they were aware that
there was an unreasonable risk; (3) they were indifferent to
that risk; and (4) the injury resulted from the policy or
practice.

Beers-Capitol, 256 F.3d at 134 (citing Sample v.

Diecks, 885 F.2d 1099 (3d Cir. 1989)).
Plaintiff can satisfy this standard by either showing that
Warden Hollingsworth and Unit Manager Nevins “failed to
adequately respond to a pattern of past occurrences of injuries”
like his, or by “showing that the risk of constitutionally
cognizable harm was ‘so great and so obvious that the risk and
the failure of supervisory officials to respond will alone’
support finding that the four-part test is met.”

Id. at 136–37

(quoting Sample, 885 F.2d at 1118).
Plaintiff cannot prove Warden Hollingsworth and Unit
Manager Nevins were aware of an unreasonable risk of injury for
the same reasons he could not prove Officer Bazydlo was actually
aware of an unreasonable risk.

Unit Manager Nevins did not know

until after August 24, 2013 that inmates were coming into Unit
19

5711 without authorization.

ECF No. 77-4 at 31:17-22.

Plaintiff did not inform Warden Hollingsworth or Unit Manager
Nevins that he felt unsafe in the unit, and there was no
longstanding, obvious history of inmate attacks caused by
unauthorized inmates in units other than their own.
Plaintiff cannot rely on the subsequent change in the move
policy to prove awareness of a risk. Fed. R. Evid. 407.

Nor

does the fact that the video footage of the entryway and the
photo array are unavailable warrant a spoliation inference in
Plaintiff’s favor.

“The spoliation inference is an adverse

inference that permits a jury to infer that ‘destroyed evidence
might or would have been unfavorable to the position of the
offending party.’”

Mosaid Techs. Inc. v. Samsung Elecs. Co.,

348 F. Supp. 2d 332, 336 (D.N.J. 2004) (quoting Scott v. IBM
Corp., 196 F.R.D. 233, 248 (D.N.J. 2000)).

“For the rule to

apply, it is essential that the evidence in question be within
the party's control.
Further, it must appear that there has been an actual
suppression or withholding of the evidence.”

Brewer v. Quaker

State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995) (internal
citation omitted).

The photo array was administered by

Lieutenant Tucker, who is not a party to this action.

There is

no evidence Defendants had control over the video footage or

20

that they actually suppressed the footage.

Therefore,

spoliation sanctions are not warranted.
Because there are no genuine issues of material fact,
Warden Hollingsworth and Unit Manager Nevins are entitled to
judgment as a matter of law.
3.

Unknown Officers

The SAC also raises claims against Unknown Unit Officers 110.

Despite the close of discovery some months ago, Plaintiff

has failed to identify these John or Jane Doe defendants.
Because Plaintiff has failed to identify them and because the
time for doing so has since past, the Court must dismiss them
without prejudice on its own motion pursuant to Federal Rule of
Civil Procedure 21.
Federal Rule of Civil Procedure 21 provides that “on motion
or on its own, the court may at any time, on just terms, add or
drop a party.” Fed. R. Civ. P. 21.

See also Blakeslee v.

Clinton County, 336 F. App’x 248, 250 (3d Cir. 2009) (affirming
dismissal of Doe defendants pursuant to Rule 21).

“Use of John

Doe defendants is permissible in certain situations until
reasonable discovery permits the true defendants to be
identified.

If reasonable discovery does not unveil the proper

identities, however, the John Doe defendants must be dismissed.”
Id.

See also Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 37

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(E.D.Pa. 1990) (“Fictitious parties must eventually be dismissed
. . . if discovery yields no identities.”).
Plaintiff has had more than enough time to allow him to
identify the individual John and Jane Doe defendants and
thereafter to amend the complaint.
so.

Plaintiff has failed to do

As such, the Court must dismiss the John and Jane Doe

defendants.

See Blakeslee, 336 F. App’x at 250-51; Adams v.

City of Camden, 461 F. Supp. 2d 263, 271 (D.N.J. 2006) (holding
that, after a reasonable period of discovery has passed, “[i]t
is appropriate, before proceeding to trial, to eliminate [the]
fictitious defendants from [an] action under Fed. R. Civ. P.
21.”).
B.

Qualified Immunity

Defendants further argue they are entitled to qualified
immunity on Plaintiff’s Eighth Amendment claim.

“Qualified

immunity shields government officials from civil damages
liability unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.”

Taylor v. Barkes, 135 S. Ct. 2042,

2044 (2015) (internal citation and quotation marks omitted).
The first prong of the analysis “asks whether the facts, [t]aken
in the light most favorable to the party asserting the injury,
... show the officer’s conduct violated a [federal] right[.]”
Tolan v. Cotton, 572 U.S. 650, 655-56 (2014) (internal quotation
22

marks and citations omitted) (alterations and omissions in
original).

“The second prong of the qualified-immunity analysis

asks whether the right in question was ‘clearly established’ at
the time of the violation.” Id. at 656 (internal citation and
quotation marks omitted). “Courts have discretion to decide the
order in which to engage these two prongs.”

Id.

As the Court grants summary judgment on the merits, it is
not necessary to address the qualified immunity question beyond
noting that Plaintiff has not proven a violation of a
constitutional right.
IV.

CONCLUSION
For the reasons set forth above, Defendants’ motion for

summary judgment is granted.

An appropriate Order follows.

Dated: November 25, 2019
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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