DOCHERTY v. CAPE MAY COUNTY et al

Filing 192

OPINION. Signed by Judge Renee Marie Bumb on 1/7/2019. (dmr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
EMILY DOCHERTY, GERALD DEARIE,:
JERMAINE MILLS, AND FREDERICK :
SCHARTNER individually and on :
behalf of all similarly
:
situated persons,
:
:
Plaintiffs,
: Civil Action No. 15-8785 (RMB)
:
v.
:
:
OPINION
CAPE MAY COUNTY, et al.,
:
:
Defendants.
:

APPEARANCES:
ROBERT MORLEY, ESQ.
Morley Law, LLC
1405 Wickapecko Drive, Suite 2
Ocean, N.J. 07712
TIMOTHY McILWAIN, ESQ.
McIlwain, LLC
2020 New Road, Suite A
Linden, NJ 08221
On behalf of Plaintiffs
EDWARD PARK, Esq.
RICHARD GOLDSTEIN, Esq.
Marshal Dennehey Warner Coleman & Goggin
15000 Midlantic Drive, Suite 200
P.O. Box 5429
Mount Laurel, NJ 08054
On behalf of Defendants

BUMB, United States District Judge
This

matter

comes

before

the

Court

to

adjudicate

the

affirmative defense asserted in Defendants’ Rule 12(b)(6) motion
to dismiss (ECF No. 30), that Plaintiffs Emily Docherty, Jermaine
Mills,

Frank

Schartner

and

Gerald

Dearie

(collectively

“the

Plaintiffs”) failed to exhaust administrative remedies prior to
suit as required by the Prison Litigation Reform Act, 42 U.S.C. §
1997e(a) (“PLRA”).

The

Court

held

an

evidentiary

hearing

to

resolve this matter on June 6 and June 27, 2018, at which time the
parties had the opportunity to present evidence and testimony and
to

submit

discussed

argument
below,

to

the

the

Court

thereafter.

Court

finds

that

with

For
the

the

reasons

exception

of

Plaintiffs’ allegations regarding overcrowding, each Plaintiff
have failed to properly exhaust administrative remedies under the
PLRA; however, the administrative grievance procedures at Cape May
County Correctional Facility were unavailable to Plaintiffs for
the issue of overcrowding.1
I.

BACKGROUND
Defendants

Plaintiffs’

brought

Second

a

Amended

Rule

12(b)(6)

Complaint

(ECF

motion
No.

to

30)

dismiss
based

on

Plaintiffs’ failure to exhaust the administrative remedies prior
to filing suit pursuant to the PLRA. (Defs.’ Mot. To Dismiss, ECF

The PLRA exhaustion requirement is inapplicable to claims in the
Third Amended Complaint under the New Jersey Law Against
Discrimination (“NJLAD.”)

1

2 

No. 42-4 at 5-9). On June 29, 2017, the Court denied Defendants’
motion to dismiss for Plaintiffs’ failure to plead exhaustion of
administrative
evidentiary

remedies;

hearing

however,

would

be

the

scheduled

Court
to

ruled

address

that
the

an
PLRA

exhaustion issue after discovery. (June 29, 2017 Order, ECF No.
73, at 1); see Bryant v. Rich, 530 F.3d 1368, 1377 n. 14 (11th
Cir. 2008) (“if the district court looks beyond the pleadings to
a factual record in deciding the motion to dismiss for failure to
exhaust—a procedure closely analogous to summary judgment—then the
court must assure that [the plaintiff] has fair notice of his
opportunity to develop a record”) (quoting Wyatt v. Terhune, 315
F.3d 1198, 1120 n. 14 (9th Cir. 2003); Small v. Camden County, 728
F.3d 265, 271 (3d Cir. 2013) (“judges may resolve factual disputes
relevant to the exhaustion issue[.]”)
The evidentiary hearing was held on June 6 and June 27, 2018.
(Minute Entries, ECF Nos. 171, 175.) Additionally, Plaintiffs
proffer an expert report by Wayne A. Robbins, who has specialized
knowledge in prison administration. (Plaintiffs’ Trial Brief, ECF
No. 182 at 17.) The expert report is offered by Plaintiffs to
describe how the grievance procedures at the Cape May County
Correctional

Facility

were

unavailable

to

Plaintiffs.

(Id.)

Defendants oppose admission of the expert report. (Defendants’
Trial Brief, ECF No. 181 at 56.)

3 

II.

PLAINTIFF’S EXPERT REPORT
The Court first turns to the issue of the Plaintiffs’ expert.

Plaintiffs offer the expert report of Wayne A. Robbins to opine on
the structure of the Cape May County Correctional Facility’s
grievance procedures and availability of the procedures to inmates.
Admissibility of expert testimony is governed by Fed. R. Evid.
702, which provides:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an opinion
or otherwise if:
(a) the expert’s scientific, technical,
or other specialized knowledge will help
the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient
facts or data;
(c) the testimony is the product reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of
the case.
Rule

702(a)

primarily

relates

to

relevance,

whether

the

testimony “assist[s] the trier of fact to understand the evidence
or to determine a fact in issue." Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 591 (1993). Exhaustion under the PLRA is a
question

of

law

to

be

determined

by

a

judge,

even

if

that

determination involves the resolution of disputed facts. Small,
728 F.3d at 269.
4 

Cape May County Correctional Facility’s written grievance
procedures are not complex and the testimony about how those
procedures work in practice is not difficult to understand. The
legal issue of whether Plaintiffs properly exhausted Cape May
County Correctional Facility’s written grievance procedures do not
require specialized knowledge and skill beyond the experience of
the Court. See Robinson v. Superintendent Rockview SCI, 831 F.3d
148, 153 (3d Cir. 2016) (“to properly exhaust administrative
remedies prisoners must complete the administrative review process
in accordance with the applicable procedural rules, rules that are
defined not by the PLRA, but by the prison grievance process
itself”) (internal quotations omitted).
Moreover, whether those procedures were in practice available
to Plaintiffs can be determined by the Court from the evidence and
testimony at the Hearing. See Ross v. Blake, 136 S. Ct. 1850, 1859,
1862 (2016) (“the court must perform a thorough review of materials
and then address the legal issues … concerning the availability of
administrative remedies.”) Nor has this Court found any precedent
for admission of expert testimony on the issue of PLRA exhaustion.
Accordingly, because it will not assist the trier of fact to
understand the evidence the Court determines the Expert Report of
Wayne A. Robbins is inadmissible under Federal Rule of Evidence
702.

5 

III.

LEGAL STANDARDS OF CLAIMS
A.

Exhaustion Under the PLRA

42 U.S.C. § 1997e(a) provides: “No action shall be brought
with respect to prison conditions under section 1983 of this title,
or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.” Failure to exhaust under
the PLRA is an affirmative defense, with the burden of proof on
the defendant. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).
After the defendant establishes that the inmate failed to exhaust
administrative remedies, the burden shifts to the inmate to show
that such remedies were unavailable. Rinaldi v. United States, 904
F.3d 257, 268 (3d Cir. 2018). “[E]xhaustion is a question of law
to be determined by a judge, even if that determination requires
the resolution of disputed facts.” Small, 728 F.3d at 269.
Whether or not an administrative remedy is formally adopted
by a State Department of Corrections is “irrelevant to the[]
rationales for exhaustion.” Concepcion v. Morton, 306 F.3d 1347,
1354 (3d Cir. 2002). An administrative remedy program satisfies
the requirements for PLRA exhaustion if it (1) gives inmates the
opportunity to inform prison administration about any complaints;
(2) provides written responses to inmates; (3) subjects written
responses to review by supervisors; and (4) requires signatures by
multiple administrative parties for final resolution. Id. at 1354.
6 

The administrative remedy program should provide “a forum through
which inmates could potentially resolve their disputes, thereby
reducing the quantity of prisoner litigation.” Id. at 1354–55.
Furthermore, “the remedy form submitted by the inmate and the
written response provided by the prison administration [should]
facilitate adjudication [in court] by clarifying the contours of
the controversy.” Concepcion, 306 F.3d at 1354–55 (citing Porter
v. Nussle, 534 U.S. 516, 525 (2002).
Exhaustion of all available remedies is mandatory. Ross, 136
S. Ct. at 1857. Failure to comply substantially with the procedural
requirements of the applicable prison's grievance system will
result in a procedural default of the claim. Woodford v. Ngo, 548
U.S. 81, 92-94 (2006).
“Under § 1997e(a), the exhaustion requirement hinges on the
‘availab[ility]’ of administrative remedies[.]” Ross, 136 S. Ct.
at 1853. There are at least three circumstances where an official
written administrative remedy procedure is unavailable. Id. at
1859.

First,

an

administrative

procedure

is

unavailable

when

corrections officers are “unable or consistently unwilling to
provide any relief,” resulting in a dead end. Id. (quoting Booth
v.

Churner,

532

U.S.

731,

736,

738

(2001)).

Second,

an

administrative remedy program “might be so opaque that it becomes,
practically speaking, incapable of use.” Id. at 1859.

When rules

are “so confusing that ... no reasonable prisoner can use them,”
7 

then

“they're

remedies

are

no

longer

unavailable

available.
“when

Id.

prison

Third,

administrative

administrators

thwart

inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. at 1860.
Where a prison’s grievance procedure excludes remedies for
certain issues, a district court might conclude that the grievance
procedures were a dead end. See Shumanis v. Lehigh County., 675
F. App'x 145, 149 (3d Cir. 2017) (remanding for further development
of the record where possible reading of prison grievance policy
excluded issues of federal law from administrative remedies).
Refusal to provide an inmate with a grievance form, if the form
is

necessary

to

exhaust

administrative

remedies,

renders

the

grievance process unavailable within the meaning of § 1997e. See
Spada v. Martinez, 579 F. App'x 82, 86 (3d Cir. 2014) (per curiam)
(remanding where a fact question existed concerning whether prison
officials refused to provide inmates with grievance forms).
B. Claims Under the New Jersey Law Against Discrimination
(“NJLAD”)
Counts IV and V of the Third Amended Complaint are brought
under the NJLAD, N.J. Stat. 10:5-12 et seq. The NJLAD does not
require a plaintiff to exhaust administrative remedies before
commencing an action. Mitchell v. W. Union, No. 06–949, 2007 WL
4440885 (JLL), at *3 n. 6 (D.N.J. Dec. 18, 2007) (citing N.J. Stat.
10:5-12); Davie v. Barnegat Bd. of Educ., No. CIV.A.09-5769 (MLC),
2010 WL 1186273, at *3 (D.N.J. Mar. 24, 2010).
8 

IV.

FINDINGS OF FACT ON PLRA EXHAUSTION
1. Plaintiff Emily Docherty was an inmate at Cape May County

Correctional Facility when she instituted this putative class
action on December 21, 2015. (Compl., ECF No. 1, ¶2.) On December
28, 2017, Plaintiffs filed a Third Amended Putative Class Action
Complaint against Defendants. (Third Am. Compl., ECF No. 127.)
2. Plaintiffs, former pretrial detainees at Cape May County
Correctional

Facility

(“Facility”),

are

putative

class

representatives for four separate classes of former, current, and
future pretrial detainees and convicted inmates at the Facility.
(Third Am. Compl., ¶¶9, 11-13, ECF No. 127.)
3. Plaintiff Docherty (“Docherty”) is a former female pretrial
detainee who was detained at the Facility on and off since December
21, 2015, and the putative class representative for all female
inmates and pretrial detainees. (Id. ¶¶2, 9.) On behalf of female
inmates and detainees, Docherty alleges that they are not provided
with adequate feminine hygiene products, toilet paper and clean
clothing. (Id. ¶¶42-44.)
4.

Plaintiff

Mills

(“Mills”)

is

a

former

male

pretrial

detainee who was detained at the Facility since September 2014,
and the putative class representative for all Muslim inmates and
pretrial detainees. (Id. ¶¶4, 12.) On behalf of all Muslim inmates
and detainees, Mills alleges that they are forced to congregate in
an unsanitary environment at the Facility and denied religious
9 

study time and instruction in contrast to other religious groups.
(Id. ¶¶45-55.)
5. Plaintiff Schartner (“Schartner”) is a former male pretrial
detainee with diabetes who was detained at the Facility between
May

26,

2016

and

October

14,

2016,

and

the

putative

class

representative for all inmates and detainees with a disability who
require reasonable accommodation. (Third Am. Compl. ¶¶5, 13, 57.)
On behalf of all inmates and detainees with a disability, Schartner
alleges that they are discriminated against and denied reasonable
access to medical care and accommodation in violation of NJLAD.
(Id. ¶¶56-65, 87-92.)
6. Plaintiff Dearie (“Dearie”) is a former male inmate and
pretrial detainee who was detained at the Facility, and the
putative class representative for all inmates and detainees who
have allegedly been harmed or have a reasonable apprehension of
being harmed by exposure to mold, insect infestation and inadequate
ventilation,

resulting

in

their

illnesses

or

apprehension

of

illnesses. (Id. ¶¶35-39.)
7.

Plaintiffs

allege

that

overcrowded

and

unsanitary

conditions at the Facility violate the Fourteenth Amendment Due
Process rights of pretrial detainees (Count I) and the Eighth
Amendment rights of convicted inmates (Count II). (Id. ¶¶67-73.)
Mills alleges that Muslim inmates’ and detainees’ religious rights
are denied in violation of the First Amendment and the Fourteenth
10 

Amendments (Count III), and the NJLAD (Count IV). (Third Am.
Compl., ¶¶74-86, ECF No. 127.) Schartner alleges that disabled
inmates and detainees are discriminated against in violation of
NJLAD. (Count V) (Third Am. Comp., ¶¶87-92, ECF No. 127.)
8. Based on these allegations, Plaintiffs are seeking damages,
attorney’s fees and costs, and injunctive and equitable relief
pursuant to 42 U.S.C. § 1983 and state law. (Id. ¶¶1-8, ECF No.
127 at 23-25.)
9. On May 15, 2018, this Court entered an Order scheduling an
evidentiary

hearing

for

June

6,

2018,

to

resolve

the

PLRA

exhaustion issue. (May 15, 2018 Order, ECF No. 161.) On May 30,
2018, counsel for Plaintiffs filed the “Expert Report on Behalf of
Plaintiff by Wayne A. Robbins.” (“Robbins Report,” ECF No. 165.)
10. On June 6, 2018, the Hearing was held and Plaintiffs
Docherty, Schartner, and Dearie testified on behalf of Plaintiffs.
(Minute Entry, ECF No. 171.)
11.
informal

At

the

request

Hearing,
to

Defendants

produce

objected

Lieutenant

to

Robert

Plaintiffs’

Campbell

for

Plaintiffs’ case-in-chief. (June 6, 2018 Hr’g Tr. 11:4-18, ECF No.
172.) In response, Plaintiffs requested to read into the record
the transcripts of Lieutenant Campbell’s Rule 30(b)(6) deposition
conducted over three days, in lieu of his live testimony. (Id.
11:20-12:18.) On August 8, 2018, the Court reviewed the deposition
testimony

of

Lieutenant

Robert
11 

Campbell

and

ruled

that

the

deposition testimony was admissible in part and inadmissible in
part. (Order, ECF No. 183.)
12. Also at the June 6, 2018 hearing, the Court ordered the
parties to submit briefing with respect to admissibility of expert
testimony on PLRA exhaustion. (Minute Entry, ECF No. 171.)
13. The hearing was continued on June 27, 2018 and Plaintiff
Jermaine

Mills

testified

on

behalf

of

Plaintiffs.

Lieutenant

Campbell testified on behalf of Defendants. After exhibits were
admitted into evidence without objection, all sides rested. (June
27, 2018 Hr’g Tr., ECF No. 181 at 259-465.)
14. Lieutenant Campbell is currently employed with the Cape
May County Sheriff’s Office. He has been employed by the Sheriff’s
Office for more than 20 years. He worked in the Cape May County
Correctional Facility during his entire career with the Sheriff’s
Office. Lieutenant Campbell began his career as an officer in 1997
and he was promoted to the position of Sergeant in 2006. In
September 2010, he was promoted to the position of Lieutenant.
(June 27, 2018 Hr’g Tr. 98:10-99:6, ECF No. 181 at 356-57.)
15. During his service in the capacity of sergeant, Lieutenant
Campbell supervised corrections officers. Supervisory sergeants
are also identified as “shift supervisors.” (Id. 99:16-23, ECF No.
181 at 357.)
16. In 2013, Lieutenant Campbell was transferred to Inmate
Affairs (“IA”) as the Inmate Affairs Officer. IA is responsible
12 

for dealing with inmate rights. (June 27, 2018 Hr’g Tr. 100:7101:1, ECF No. 181 at 358-59.)
17. Once an inmate complaint rises to the level of an official
grievance under the written grievance procedure, the grievance is
forwarded to Lieutenant Campbell’s attention to be addressed.
(June 27, 2018 Hr’g Tr. 100:18-24, ECF No. 181 at 358.)
18. The Cape May County Sheriff’s Office Standard Operating
Procedure (“SOP”) 1101 (Ex. D-4) regarding “Inmate Rights and
Grievance Procedure” is disseminated to all staff at the Facility.
(Id. 103:14-104:3, ECF No. 181 at 361-62.) SOP 1101 is issued
electronically

to

all

staff

and

requires

their

electronic

signatures to indicate receipt and understanding of the SOP. (Id.
104:4-15, ECF No. 181 at 362.) The stated purpose of SOP 1101 is:
“[p]rotecting the fundamental rights of the inmates assists in
maintaining a balance of equity and fair treatment for the inmates
within the correctional center, with emphasis on, the protection
of the inmates from personal abuse, corporal punishment, personal
injury, disease, property damage and/or harassment.” (Ex. D-4 at
CCC940.)
19. The Inmate Handbook was revised on April 1, 2013, March
6, 2014, and October 1, 2015. (Exs. D-1, D-2, D-3). The “Grievance
Procedure[s]” appear on page 47 of the Handbook in each revision.
The Grievance Procedures have remained the same since the April 1,

13 

2013 revision to the Handbook. (June 27, 2018 Hr’g Tr. 110:18-21;
111:7-22, ECF No. 181 at 368-69.)
20. The inmates are provided with the Handbook during their
intake process upon arrival at the Facility, pursuant to the Cape
May County Sheriff’s Office Standard Operating Procedure 406 (Ex.
D-5; June 27, 2018 Hr’g Tr. 101:6-102:22, ECF No. 181 at 359-60.)
“The purpose of the Inmate Handbook is to advise all inmates of
the Cape May County Correctional Center of the institutional rules
and

regulations

which

the

inmate

must

comply

with

while

incarcerated.” (Ex. D-5 at CCC945.)
21. During the intake process, an inmate’s personal property
is collected to be stored in the Facility’s property room and
certain items are issued to the inmate, including the Handbook.
The information is recorded on “institutional property inventory
receipt” and the receipt is placed in the inmate file maintained
in the records department. (June 27, 2018 Hr’g Tr. 102:3-19; 108:2109:7, ECF No. 181 at 360, 366, 367.) The inmate files are kept
in the ordinary course of business by the Facility. (Id. 133:610, ECF No. 181 at 391.)
22. The goal of the Grievance Procedures at the Facility is
to try to resolve the inmate’s complaint at the lowest step of the
procedure. (Id. 114:13-15, ECF No. 181 at 372.) The first step of
the Grievance Procedure provides:
1. Resolving
Level.

Inmate

Problems/Issue
14 

Officer

a. Every effort will be made by the
assigned
tier
and/or
housing
unit
correctional officer, to resolve inmate
problems or issues before they become
grievances.
b. Prior to submitting a formal grievance
the inmate must try to resolve the
problem with the Shift Supervisor first.
If the issue involves the decision or
behavior of the Shift Supervisor, the
inmate has the right to circumvent the
chain-of-command
to
present
his/her
grievance to the Inmate Affairs Officer.
(Ex. D-3 at CCC928.)
23. In practice, when inmates have complaints, they will
initially speak to their assigned tier officer and the tier officer
will address the problem if able to do so. (June 27, 2018 Hr’g Tr.
112:23-113:5, ECF No. 181 at 370-71.) Because an attempt is made
to resolve the complaint verbally at this step, complaints resolved
at Step 1 are not documented in writing. (Id. 120:19-121:2, ECF
No.

181

at

378-79.)

At

Step

1

of

the

Grievance

Procedures,

complaints may be raised verbally to more than one tier officer.
(Id. 165:12-21, ECF No. 181 at 423.) A verbal issue raised by an
inmate to a tier officer does not proceed to Step 2 if the tier
officer tells the inmate that the tier officer will resolve the
problem. (Lt. Campbell Depo Tr. Feb. 13, 2018, 44:8-21, ECF No.
177-1.)
24.

As the first step explains and as Plaintiffs understood,

in order to commence the grievance process, he/she had to deal
15 

with tier officers informally and escalate the issue by submitting
a Request Slip if the concerns were not addressed by the tier
officers. (June 6, 2018 Hr’g Tr. 153:15-22, ECF No. 181 at 214;
120:11-121:3, ECF No. 181 at 181-82; 130:19-21, ECF No. 181 at
191; 142:24-143:2, ECF No. 181 at 203-04; June 27, 2018 Hr’g Tr.
6:21-7:20, ECF No. 181 at 264-65.)
25.

If the tier officer cannot resolve the issue within “a

reasonable amount of time,” “more than likely it would be by the
end of the shift,” then the grievance moves to Step 2. (Id. 112:23113-11, ECF No. 181 at 370-71.)
26. If an inmate is satisfied with a tier officer’s response,
the Grievance Procedures are concluded.
27. In practice, if an inmate’s concern cannot be resolved by
the tier officer at Step 1, the tier officer would provide the
inmate with an “Office of the Sheriff–Inmate/Staff Correspondence”
form, often referred to as a “Request Slip.” (June 27, 2018 Hr’g
Tr. 118:11-15, ECF No. 177-2 at 376.) Request Slips are designed
to

contain

information

regarding

the

inmate’s

complaint

and

information regarding the attempts at resolution made at Step 1.
Request Slips also require the date of the slip and the inmate’s
signature. (June 27, 2018 Hr’g Tr. 113:6-21, ECF No. 181 at 371.)
28.

The Grievance Procedures contained in the Handbook do

not expressly refer to the Inmate/Staff Correspondence or Request
Slip as part of the procedure. In practice, the Request Slip is
16 

the “writing” that is referenced as part of the procedures in Step
2: “Matters that can’t be resolved, and that become an inmate
grievance, will be made known in writing to a Shift Supervisor.”
(Ex. D-3 at CCC928; June 27, 2018 Hr’g Tr. 156:24-158:13, ECF No.
181 at 414-16.)
29. Lieutenant Campbell is not aware of any incident when a
tier officer refused to provide a Request Slip. (Id. 118:25-119:2;
137:10-12; ECF No. 181 at 376-377, 395.) Likewise, Lieutenant
Campbell is not aware of any incident where a corrections officer
failed to process a Request Slip or ripped up a Request Slip. (Id.
137:13-22, ECF No. 181 at 395.)
30. The Request Slip is forwarded to a shift supervisor, often
a sergeant, who would in turn speak with the inmate regarding
his/her concern and attempt to resolve the issue. (Id. 113:23114:12, ECF No. 181 at 371-72.)
31. The Grievance Procedures provide:
2. Unresolved Inmate Problems/Issues
Commander/Shift Supervisor Level.

Shift

Matters that can’t be resolved, and that
becomes an inmate grievance, will be made
known in writing to a Shift Supervisor. The
Shift Supervisor will in turn discuss the
situation with the inmate and attempt to
satisfy the grievance. The Shift Supervisor
will file a written report with a copy of the
grievance to the Inmate Affairs Officer
indicating the outcome of the meeting.
(Ex. D-3 at CCC928.)

17 

32. Once an inmate’s complaint that was written on a Request
Slip is resolved, the Request Slip is placed in the inmate’s file
in the records department. (June 27, 2018 Hr’g Tr. at 184:8-25,
ECF No. 181 at 442.)
33. If a shift supervisor cannot resolve an issue raised by
an inmate on a Request Slip at Step 2, then the matter is escalated
to Step 3 of the Grievance Procedures. Step 3 of the Grievance
Procedure is initiated by a “Cape County Correctional Center Inmate
Grievance Form” (Ex. D-8), to be completed by both the inmate and
the shift supervisor. The form is then forwarded to Lieutenant
Campbell, who has been the Facility’s IA Officer since 2013, for
a decision. (Id. 119:11-22; 162:3-6, ECF No. 181 at 377, 420.)
34. The Court finds that if a shift supervisor promises a
resolution to an inmate’s complaint at Step 2 of the Grievance
Procedures, and the inmate indicates his/her satisfaction with the
promised resolution, it is incumbent on the inmate to submit a new
Request Slip seeking a Grievance Form if the issue was not resolved
as promised. The issue raised by the inmate would then proceed to
Step 3 of the Grievance Procedures if still unresolved.
35. The Grievance Form required at Step 3 of the Grievance
Procedures provides the following instructions:
Inmates who feel that their rights have been
violated; or feel that an institutional rule
adversely
affects
their
condition
of
confinement may invoke the grievance process.
The aggrieved inmate must first attempt to
resolve the grievance with the assigned tier
18 

officer, prior to completing this form. No
other
forms
or
correspondence
will
be
considered for official handling of an
internal inmate grievance. Asterisk (*) means
mandatory completion for the grievance to be
accepted.
(Ex. D-8.)
36. The Grievance Form includes certain categories that can
be checked: medical, disciplinary, food, religion, staffing, and
other. If an inmate concern does not fit into one of the provided
categories, “other” can be checked and allows for a description of
the concern. The form also requires the inmate to provide his/her
name, ID number, housing assignment, date, and signature. The form
requires other information, including the name of the tier officer
who

first

addressed

the

inmate’s

concern,

the

name

of

the

supervising officer involved and the officer’s comments. This is
required to provide the IA Officer with information regarding the
inmate’s concern as it was processed through the first two steps
of the Grievance Procedures. The form requires other information
such as “Statement of Grievance,” which provides the inmate with
an opportunity to summarize his/her concern. (June 27, 2018 Hr’g
Tr. 115:19-116:21, ECF No. 181 at 373-74.)
37. An inmate who was required to sleep on a mattress on the
floor due to lack of bed space was not permitted to file a Grievance
Form because there was no resolution to the lack of bed space.
(Lt. Campbell Depo. Tr. 2/13/18 at 50-1 to 9, ECF No. 177-1; Lt.
Campbell Depo. Tr. 2/21/18 at 38:24-39:55, ECF No. 177-2.)
19 

38. In response to Schartner’s complaints about overcrowded
conditions, officers at the Facility told him that those issues
were not grievable. (June 6, 2018 Hr’g Tr. 42:11-14, ECF No. 181
at 300.)
39. Forty-seven grievances were filed in 2013 through 2017
and none were about overcrowding. (Ex. D-9.)
40. Dearie complained about the overcrowded condition of the
eating area and was told overcrowding is not a grievable issue.
(June 6, 2018 Hr’g Tr. 87:5-13, ECF No. 181 at 148.)
41. The Facility does not provide prisoners with written
guidance about what is a grievable issue and what is not. (June
27, 2018 Hr’g Tr. 148:5-149:1, ECF No. 181 at 406-07.)
42. According to the written Grievance Procedures, the Inmate
Affairs Officer renders a decision at Step 3:
3. Unresolved Inmate Problems/Issues Inmate
Affairs Officer
Level Decision Results.
If the grievance isn’t resolved the Inmate
Affairs Officer will review the grievance and
render a decision. The Results of the Inmate
Affairs Officer’s decision will be forwarded
to the inmate filing the grievance, in writing
or with a private interview with the Inmate
Affairs Officer.
(Ex. D-3 at CCC928.)
43. The Grievance Form also includes sections that the IA
Officer

is

required

to

complete.

The

IA

Officer’s

name

and

signature are required, along with his determination as to whether
20 

the grievance is “substantiated” and the IA Officer’s comments.
(June 27, 2018 Hr’g Tr. 117:3-10, ECF No. 181 at 375.)
44. In practice, Lieutenant Campbell meets and speaks with
the grieving inmates personally at Step 3. He will then write his
conclusion on the Grievance Form. If the inmate requests a copy of
the completed Grievance Form, Lieutenant Campbell provides a copy.
A copy of the Grievance Form is then filed in the inmate’s file in
the records department of the Facility, whether the grievance was
determined as substantiated or not. (Id. 117:11-118:10, ECF No.
181 at 375.)
45. Once an inmate issue or concern reaches Step 3—a formal
grievance status—it is also included in the Facility’s “Monthly
Inmate Affairs Commander Report.” (Ex. D-9.) The Report identifies
the grieving inmate’s name and ID number, grievance type, and
status. A review of the Monthly Reports moved into evidence reveals
that there are months when no grievances have been reported and
other months when numerous grievances are reported. (See e.g. Ex.
D-9 at CCC1725-1728). Moreover, certain grievances included in the
Reports show the status of “substantiated,” which indicates that
the inmate’s concern is legitimate. (June 27, 2018 Hr’g Tr. 122:14125:22, ECF No. 181 at 380-383.)
46. A review of the Monthly Reports reveals that no Grievance
Form was filed by any of the named Plaintiffs between January 2013
and January 2018. (Ex. D-9.)
21 

47. Pursuant to the Facility’s Grievance Procedures, an inmate
is

provided

with

the

opportunity

to

appeal

the

IA

Officer’s

decision regarding his/her grievance at Step 3.
4. Appeal of Decision. Inmates may appeal the
decision of the Inmate Affairs Officer by
submitting a letter of appeal to the Warden or
Captain. The Warden or Captain will review the
original grievance and the decision of the
Inmate Affairs Officer before responding to
the inmate.
(Ex. D-3 at CCC928; June 27, 2018 H’rg Tr. 120:1-18, ECF No. 181
at 378.)
48. A copy of the warden’s or captain’s decision is placed in
the inmate file, as with any other documents generated during the
entire grievance procedure. (Id. 120:1-18, ECF No. 181 at 378.)
49. Lieutenant Campbell is not aware of any grievance reaching
Step 4 since he was promoted to the position of IA Officer. (Id.
178:6-8, ECF No. 181 at 436.)
50. The Facility’s Grievance Procedures haves been approved
annually by the New Jersey Department of Corrections since 2013.
(Id. 127:18-128:1, ECF No. 181 at 387-388.)
i. Plaintiff Emily Docherty
51. In the Third Amended Complaint, Docherty alleged female
inmates are not supplied with adequate feminine hygiene products
or toilet paper, and they do not receive such supplies in a timely
fashion. (Third Am. Compl., ¶¶42-44, ECF No. 127.) Further, in
some instances, sanitary napkins were not provided at all, forcing
22 

inmates to bleed into their clothing, which they are forced to
wear until clean clothing is provided. (Third Am. Compl., ¶¶4244, ECF No. 127.) She seeks relief for unconstitutional conditions
of

confinement

in

violation

of

the

Eighth

and

Fourteenth

Amendments. (Id.)
52.

Docherty

was

first

incarcerated

at

the

Facility

in

December 2013 for approximately three days. (June 6, 2018 Hr’g Tr.
128:1-9; 139:25-140:5, ECF No. 181 at 189, 201.) She returned to
the Facility in August 2015 for approximately three months, and
again in April 2017 for approximately five months. (Id. 129:3-8;
140:23-141:3, 147:10-24, ECF No. 181 at 190, 201-02, 208.) She
also stayed at the Facility in Spring of 2018 for approximately
two months. (Id. 150:20-22, ECF No. 181 at 211.) She has been at
the Facility on five separate occasions. (Id. 129:9-13, ECF No.
181 at 190.)
53. Docherty received the Inmate Handbook every time she
arrived at the Facility, except her last stay in 2018. (June 6,
2018 Hr’g Tr. 128:15-22, ECF No. 181 at 189.) Docherty was aware
that she was required to submit a Request Slip as part of the
Facility’s Grievance Procedures. (Id. 142:24-143:2, ECF No. 181 at
203-04.)
54. Docherty complained about the lack of toilet paper and
feminine hygiene pads for the female inmates at the Facility. (Id.
130:10-131:3, ECF No. 181 at 190-192.)
23 

55. Docherty was advised to submit a Request Slip for her
concerns. (Id. 130:19-21, ECF No. 181 at 191; 142:24-143:2, ECF
No. 181 at 203-04.)
56. Docherty admitted that she only complained verbally and
never submitted a Request Slip. (Id. 131:23-25, ECF No. 181 at
192; 130:8-9, ECF No. 181 at 191); 130:25-131:2, ECF No. 181 at
191-192; 133:4-7, ECF No. 181 at 194.) Docherty testified that she
did not write a Request Slip for toilet paper or pads because it
would take two days to get a response and she needed the supplies
faster. (June 6, 2018 Hr’g Tr. 130:13-131:25, ECF No. 181 at 19192.)
57. The Court finds that when Docherty complained verbally
about insufficient toilet paper and pads, her issue was resolved
by supplying her with those items, thus resolving her complaint at
Step 1 of the Grievance Procedures. At best, Docherty’s testimony
seems to be, not that she was denied sanitary pads and toilet
paper, but that she had to ask for these supplies when she ran out
and the correctional officers gave her a “hard time.” (Id. 131:9,
ECF

No.

181

at

192.)

Docherty

never

filed

a

Request

Slip

complaining about either the response time or other actions of the
correctional officers in response to her requests for toilet paper
and pads.
58.

Docherty

was

familiar

with

the

Facility’s

Grievance

Procedures and that the Handbook contained the procedures. She
24 

received the Handbook every time she arrived at the Facility,
except for her stay in 2018. (Id. 152:24-153:10, ECF No. 181 at
213-214.)
59. Docherty was familiar with the process regarding Request
Slips

and

indeed

submitted

them

for

other

issues—requesting

addresses of family and friends. She usually received a response
in approximately two days. (Id. 131:16-22, ECF No. 181 at 192.)
60. During her 2017 stay at the Facility, Docherty received
responses every time she submitted a Request Slip. (Id. 147:25148:16, ECF No. 181 at 208-09.)
61. Docherty was aware that if she was not satisfied with the
response from a tier officer at Step 1 of the Grievance Procedures,
she was to take her issue or concern to a shift supervisor. (June
6, 2018 Hr’g Tr. 153:15-22, ECF No. 181 at 214.) However, she
testified that she did not do so. (Id. 153:23-24.)
62. Docherty has never taken her issues to the level of a
formal grievance at Step 3 of the written procedures in the
Handbook. (Id. 156:3-14.)
63. Despite her knowledge that a Request Slip was a required
step in the Grievance Procedures and having submitted Request Slips
for certain requests, Docherty’s inmate file (Exs. D-10, D-10-D)
contains

no

Request

Slips

raising

any

issues

or

concerns

of

conditions of confinement which are the subject of this litigation.

25 

ii. Plaintiff Jermaine Mills
64. Mills was incarcerated at the Facility in 2013 for a
period and returned to the Facility in September 2014. He remained
at the Facility until Summer of 2017. (June 27, 2018 Hr’g Tr. 5:186:18, ECF No. 181 at 263-64.)
65. Mills entered this litigation as a named-plaintiff in
Plaintiffs’

First

Amended

Class

Action

Complaint,

filed

on

September 16, 2016. (First Am. Compl., ECF No. 23.) Mills was
incarcerated when he filed suit on behalf of all Muslims who were
incarcerated at that time or will become incarcerated at the Cape
May County Correctional Facility. (Id. ¶¶5, 14.) He confirmed his
status as the class representative for Muslim inmates with respect
to religious issues. (June 27, 2018 Hr’g Tr. 69:20-70:1; 71:8-12,
ECF No. 181 at 327-29.) Mills clarified that he participated in
Friday prayers with male inmates only. (Id. 76:17-24, ECF No. 181
at 334.)
66. Upon admission to the Facility in September 2014, Mills
was processed through intake, involving collection of his personal
property and issuance of an “intake bag,” including the Handbook.
Mills

reviewed

the

Handbook,

including

the

section

on

the

Facility’s Grievance Procedures. (Id. 6:21-7:20, ECF No. 181 at
264-65.) Mills was aware of the four-step Grievance Procedures,
including the appeals process at the fourth step. (Id. 77:4-23,
ECF No. 181-335.)
26 

67. During his 2014-2017 incarceration at the Facility, Mills
first complained about being assigned to sleep on the floor rather
than a bunk. When he verbally complained to a tier officer, he was
told that the Facility was overcrowded. (June 27, 2018 Hr’g Tr.
7:25-8:9, ECF No. 265-66.)
68. Mills made a written request to be moved off the floor.
He was advised that inmates are moved to bunks in the order of
admission to the Facility. (Id. 8:13-25, ECF No. 181 at 266.) He
was not provided a Grievance Form.
69. Mills was ultimately moved to a different cell and was
also assigned a bunk. (Id. 18:9-15, ECF No. 181 at 18.)
70. The next issue Mills complained about was not being on
the list for attending Friday prayer for Muslims—Jumu’ah. When he
was advised that he had to sign up for Jumu’ah, Mills submitted
several Request Slips. He was then added to the Jumu’ah list. (Id.
18:16-22, ECF No. 181 at 276.)
71. When Mills went to Jumu’ah the first few times, he noticed
there were not many people attending, and one time he was alone.
(Id. 18:23-1925, ECF No. 181 at 276.) Mills learned that people
were not coming because they were given dirty mats that people had
wiped their feet on to use as prayer mats. (Id. at 19:16-20:2, ECF
No. 181 at 277-78.)
72. After verbally complaining about the condition of the
mats, Mills submitted a Request Slip because he felt the mats were
27 

still unsanitary. (June 27, 2018 Hr’g Tr. 20:24-21:13, ECF No. 181
at 279-80.) He also complained in the Request Slip about the
location

of

Jumu’ah

because

it

was

in

an

area

where

people

urinated. (Id.) In response to his Request Slip, Mills spoke to
Lieutenant Denny. (Id. 21:12-21:17, ECF No. 181 at 279.) They spoke
about all issues Mills had with Jumu’ah. Lieutenant Denny said he
would get back to Mills but Mills never saw him again. (Id. 21:922:3, ECF No. 181 at 279-80.)
73. Mills filled out another Request Slip after Lieutenant
Denny failed to respond, and Lieutenant Campbell came to talk to
him. (Id. 28:13-19, ECF No. 181 at 286.)
74.

Mills

could

not

recall

the

dates

of

his

multiple

discussions with Lieutenant Campbell regarding Jumu’ah because
multiple issues were recurring. (Id. 28:20-29:6, ECF No. 181 at
286-87.) The first issue they discussed was the unsanitariness of
the location of Jumu’ah services. (Id. 29:7-12, ECF No. 287.)
Lieutenant Campbell told Mills that if changing the location of
Jumu’ah presented a security issue, there would not be anything
he could do. (Id.)
75. Mills also complained to Lieutenant Campbell that Muslims
were not permitted to congregate together. Lieutenant Campbell
told

him

it

presented

the

problem

of

mixing

prisoners

with

different classifications, and Lieutenant Campbell never resolved
the issue. (Id. 29:14-30:1., ECF No. 181 at 287-88.)
28 

76. Lieutenant Campbell was able to move Jumu’ah into the law
library based on Mills’ complaints about the unsanitary location
the services were held but the move lasted only two weeks. (June
27 Hr’g Tr. 30:2-7, ECF No. 181 at 288.)
77. According to Lieutenant Campbell, if an inmate simply
requests a Grievance Form without taking the first two steps of
the procedures, the shift supervisor will attempt to resolve the
issue before providing the Grievance Form to the inmate. (Id.
135:21-136:7, ECF No. 393-94.)
78.

Mills

submitted

a

Request

Slip

on

October

2,

2015

addressed to the “Grievance Committee/To whom it may concern.”
(Ex. D-12 at CCC170-71.) The Request Slip was his attempt to
present a formal grievance. He explained that after speaking with
different officers, he felt that his concerns were not being
addressed despite being advised by the officers that they would
attempt to make some changes. (June 27, 2018 Hr’g Tr. 30:22-32:1,
ECF No. 181 at 288-90.) Mills wrote in the Request Slip:
This correspondence is in reference to the
outright disrespect towards the Muslim prayer
service on Friday. It is an ongoing problem
that never gets the proper attention. I have
been here over a year and the situation on
where how and who attends changes on a
consistent basis. As well as the condition of
the room, the lack of sensitivity to the
religion itself needs to be changed to where
discrimination does not play a part. I request
a sit down with people who has a little
knowledge of the law and religion so a medium
can be reached. I truly feel this is a
situation that can not be solved on paper.
29 

(Ex. D-12 at CCC170-71.)
79. Mills had a conversation, which he remembered as being
with Lieutenant Campbell, after submitting his October 2, 2015
Request Slip, and said he was satisfied with the conversation.
(Id. 32:9-14, ECF 181 at 290.) The Request Slip includes the
following reply with an officer’s signature:
I/M was spoken to & advised that I would have
worker clean prayer mats. Although it will not
happen this week, I/M was satisfied that room
would be clean for next wk service.
(Ex. D-12 at CCC170.)
80. Lieutenant Campbell testified that the October 2, 2015
Request Slip was never presented to him, it was presented to
Sergeant McGuire. Sergeant McGuire treated Mills’ October 2, 2015
Request Slip not as a Step 3 grievance but as a Step 2 Request
Slip. (June 27, 2018 Hr’g Tr. 129:11-24, 129:22-130:19, ECF No.
181 at 387-88.)
81. The October 2, 2015, Request Slip was placed in Mills’
inmate file because he indicated that he was satisfied with the
response.

Mills

testified

that

he

was

satisfied

with

the

conversation that took place in response to his October 2, 2015
Request Slip, but he was not satisfied with the actual outcome.
(Id. 32:13-19, ECF No. 181 at 290.) Lieutenant Campbell, however,
credibly testified that the sanitation issue was resolved by
cleaning the prayer mats and the courtyard where Jumu’ah services
were held before the services every Friday. (Id. 172:5-17, ECF No.
30 

181 at 430.) The Court finds Mills’ testimony that Lieutenant
Campbell never got back to him about the dirty prayer mats not
credible. (June 27, 2018 Hr’g Tr. 30:1-3, 33:7-14.) Mills never
proceeded past Step 2 of the Grievance Procedures for his issues
of dirty prayer mats and the unsanitary condition of the room where
Jumu’ah services were held. Lieutenant Campbell is not aware of
any request by Mills for a Grievance Form to raise his religious
issues. (Id. 131:10-18, ECF No. 181 at 389.) Lieutenant Campbell
never

received

a

formal

grievance

from

Mills

regarding

his

religious concerns. (Id. 129:1-10, ECF No. 181 at 387.)
82. Mills also complained verbally about the lack of religious
study time for Muslims in contrast to other religious groups who
were provided with religious study classes. (Id. 46:18-47:4, ECF
No. 181 at 304-05.) He made a request for an Imam to assist in the
development of his faith. (Id. 47:24-48:1, ECF No. 181 at 305-06.)
Mills

admitted

that

he

received

a

response

after

having

conversations with officers and was advised that the Facility
attempted to contact a mosque in Atlantic City to arrange an Imam
to provide services at the Facility; however, that never came to
fruition. (June 27, 2018 Hr’g Tr. 48:3-11, ECF No. 181 at 306.)
83. After indicating to officers his satisfaction with their
promises to resolve his complaints, Mills did not submit a Request
Slip to complain that an Imam was not provided for religious study,
and that more religious study time was not provided. Mills never
31 

proceeded past Step 1 of the Grievance Procedures for his issues
of more religious study time and an Imam to assist in religious
study.
iii. Plaintiff Frederick Schartner
84. Schartner was incarcerated at the Facility between May
28, 2016 and October 14, 2016. (June 6, 2018 Hr’g Tr. 20:24-21:8,
ECF No. 181 at 81-82.)
85. Schartner entered this litigation as a named-plaintiff in
Plaintiffs’ Second Amended Putative Class Action Complaint filed
on October 7, 2016. (Second Am. Compl., ECF No. 30.) Schartner,
who suffers diabetes and vision impairment, was incarcerated when
he filed suit on behalf of all inmates with disabilities who were
incarcerated at that time or will become incarcerated at the Cape
May County Correctional Facility. (Id. ¶¶6, 16.)
86. Schartner seeks relief for violations of the New Jersey
Law Against Discrimination. (Third Am. Compl, ECF No. 127, ¶¶8792.)
iv. Plaintiff Gerald Dearie
87. Dearie was incarcerated at the Facility on numerous
occasions between 2004 and 2018. (June 6, 2018 H’rg Tr. 79:22-24;
ECF No. 181 at 140.) He was in the Facility in June 2016, October
2016 and March through September 2017. (Third Am. Compl., ECF No.
127, ¶3.)

32 

88. Dearie entered this litigation as a named-plaintiff in
the Third Amended Class Action Complaint in December 2017. (Id.)
Dearie was incarcerated when he filed suit on behalf of all inmates
at the Facility allegedly harmed by exposure to mold and/or have
a reasonable apprehension of being harmed by mold. (Third Am.
Compl., ¶¶3, 11, 14, ECF No. 127.)
89. Dearie has reviewed the Inmate Handbook and was familiar
with the Grievance Procedures at least since his incarceration at
the Facility in 2012. (June 6, 2018 Hr’g Tr. 80:2-6; 103:16-22,
ECF No. 181 at 141, 164.)
90. Dearie was aware the Grievance Procedures involved three
or four steps. He was familiar with the first step involving a
verbal complaint by the inmate and tier officers’ efforts to
resolve the issue at that stage. Dearie agreed that many issues
were resolved at Step 1 of the Grievance Procedures. (Id. 120:11121:3, ECF No. 181-82.)
91. Dearie was familiar with the second step of the Grievance
Procedures and understood it required a written submission. He
understood that the written submission referenced in Step 2 of the
procedures

referred

to

the

Request

Slips

or

Inmate/Staff

Correspondence. He also understood that an inmate had to submit a
Request Slip. (Id. 122:9-22, ECF No. 181 at 183.) Dearie understood
that pursuant to the Grievance Procedures, a shift supervisor will
discuss the situation with the inmate regarding the Request Slip
33 

and attempt to address the issues raised. (Id. 122:23-123:2; ECF
No. 181 at 183-84.) Dearie remembered putting in a request slip
about sleeping on the floor, with two or three follow ups. (June
6, 2018 Hr’g Tr. 123:12-23, ECF No. 181 at 184.)
92. Dearie was told overcrowding is not a grievable issue
because nothing can be done about it. (June 6, 2018 Hr’g Tr. 87:423, ECF No. 181 at 148.)
93. Dearie admitted that he never submitted a Request Slip
raising the issue of exposure to mold. (Id. 87:18-88:8, ECF No.
181 at 148-49.)
94. When Dearie reviewed his inmate file that Defendants
produced in this litigation, he did not see certain Request Slips
that he submitted during his incarceration at the Facility. (Id.
81:6-1, ECF No. 181 at 142.) Dearie acknowledged that he was aware
of the distinction between the “pink slips” regarding medical
issues and the white Request Slips associated with the Grievance
Procedures. (Id. 104:1-19, ECF No. 181 at 165.)
95. The Court finds that Dearie’s medical requests were
submitted

on

“pink

slips”

which

were

not

produced

in

this

litigation. In any event, submitting a pink medical slip is not
part of the Grievance Procedures.
96. Dearie verbally complained on many occasions, but he
submitted only two or three Request Slips raising his issue with
sleeping on the floor. (June 6, 2018 Hr’g Tr. 107:12-24.) The Court
34 

finds Dearie never advanced past Step 1 of the Grievance Procedures
concerning his complaint about exposure to mold causing him to
become ill.
III.

CONCLUSIONS OF LAW
1. Plaintiff Schartner’s disability discrimination claims in

the Third Amended Complaint may proceed because they are brought
solely under the NJLAD, for which there is no PLRA exhaustion
requirement.
2. Plaintiff Mills’ religious claims under the NJLAD may
proceed because there is no PLRA exhaustion requirement.
3. Cape May County Correctional Facility’s written grievance
procedures

satisfied

the

requirements

for

PLRA

exhaustion,

pursuant to Concepcion v. Morton, 306 F.3d 1347, 1354 (3d Cir.
2002).
4. In practice, Plaintiffs were not permitted to use Cape May
Correctional Facility’s Grievance Procedures to complain about
overcrowded conditions in the jail. Therefore, the Facility’s
Grievance Procedures were unavailable to Plaintiffs for the issue
of overcrowding.
5.

Plaintiff

Docherty

failed

to

properly

exhaust

administrative remedies for her Eighth and Fourteenth Amendment
claims regarding inadequate feminine hygiene products, toilet
paper and clean clothing, as required under the PLRA.

35 

6. Plaintiff Dearie failed to properly exhaust administrative
remedies for his Eighth and Fourteenth Amendment claims regarding
exposure to mold, insect infestation and inadequate ventilation,
as required under the PLRA.
7.

Plaintiff

Jermaine

Mills

failed

to

properly

exhaust

administrative remedies for his First and Fourteenth Amendment
claims regarding violation of his religious rights, as required
under the PLRA.
IV. CONCLUSION
For the foregoing reasons, Defendants have established the
affirmative defense of failure to exhaust administrative remedies
under

the

PLRA

for:

Counts

I

and

II,

Docherty’s

Eighth

and

Fourteenth Amendment claims regarding inadequate feminine hygiene
products, toilet paper and clean clothing; Counts I and II,
Dearie’s Eighth and Fourteenth Amendment claims for exposure to
mold, insect infestation and inadequate ventilation; and Count
III,

Mills’

First

and

Fourteenth

Amendment

claims

regarding

violation of his religious rights.
Counts I and II under the Eighth and Fourteenth Amendments
for overcrowding may proceed because administrative remedies were
unavailable to Plaintiffs. Count IV (religious discrimination) and
Count V (handicap discrimination) under the NJLAD may proceed
because PLRA exhaustion is inapplicable.

36 

An appropriate Order follows.
Date: January 7, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

37