HINES v. LANIGAN

Filing 148

OPINION. Signed by Judge Noel L. Hillman on 2/26/2024. (mag)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
ERIC HINES,
:
:
Plaintiff,
:
Civ. No. 17-2864 (NLH) (MJS)
:
v.
:
OPINION
:
:
GARY M. LANIGAN, et al.,
:
:
Defendants.
:
:
______________________________:
APPEARANCES:
Solomon M. Radner, Esq.
Radner Law Group PLLC
17515 West Nine Mile Rd
Southfield, MI 48075
Attorneys for Plaintiff
Matthew J. Platkin, Attorney General of New Jersey
Marvin L. Freeman, Deputy Attorney General
New Jersey Attorney General’s Office
R.J. Hughes Justice Complex
25 Market Street - P.O. Box 112
Trenton, NJ 08625
Attorneys for Defendants New Jersey Department of
Corrections, Lanigan, Bonds, Marin (aka Marvin), Waters, Vallie,
Hicks, Jackson, Moratelli, Smith, Goffred, McNear, and Horsey
HILLMAN, District Judge
Plaintiff Eric Hines is proceeding on his Fourth Amended
Complaint (“FAC”), ECF No. 119, against Defendants New Jersey
Department of Corrections (“NJDOC”), former NJDOC Commissioners
Gary Lanigan and Marcus Hicks, NJDOC Deputy Director Willie

Bonds, Corrections Officers E. Marin (aka Marvin), Waters, T.
Jackson, Moratelli, L. Smith, Goffred, McNear, and Sergeants
Vallie, Horsey, and Jackson.
judgment.
140.

ECF No. 137.

Defendants have moved for summary

Plaintiff opposes the motion.

ECF No.

Defendants filed a reply in further support of their

motion.

ECF 142.

Defendants also accepted the Court

invitation, ECF 144, to file evidence to support their
affirmative defense of failure to exhaust administrative
remedies.

ECF 147.

For the reasons herein, the Court will grant the motion and
enter judgment in Defendants’ favor.
I.

BACKGROUND1
Plaintiff, a convicted and sentenced state prisoner, was

confined in East Jersey State Prison (“EJSP”) in 2015.
1.

DSOF ¶

He was transferred from EJSP to South Woods State Prison

(“SWSP”) on July 30, 2015.

Id.

He

These facts are derived from Defendants’ Local Civil Rule 56.1
Statement of Material Facts and the exhibits specifically
referenced. Defendants’ Statement of Material Facts, ECF No.
137-2 (“DSOF”). Plaintiff’s “Statement of Facts,” ECF No. 140
at 1, does not comply with Local Civil Rule 56.1 because it does
not “address[ ] each paragraph of the movant’s statement,
indicating agreement or disagreement and, if not agreed, stating
each material fact in dispute and citing to the affidavits and
other documents submitted in connection with the motion....”
Local Civ. R. 56.1(a). Accordingly, the Court adopts
Defendants’ Rule 56.1 Statement because “facts submitted in the
statement of material facts which remain uncontested by the
opposing party are deemed admitted.” Hill v. Algor, 85 F. Supp.
2d 391, 408 n.26 (D.N.J. 2000); see also Local Civ. R. 56.1(a).
2
1

On April 26, 2017, Plaintiff filed an application for in
forma pauperis without an accompanying complaint.
No. 1..

Id. ¶ 2; ECF

The Court denied the in forma pauperis application

without prejudice.

ECF No. 2.

Plaintiff, at that time acting

pro se, submitted a new in forma pauperis application and an
amended complaint raising claims under Title II of the Americans
with Disabilities Act (“ADA”), as well as First and Eighth
Amendment claims under 42 U.S.C. § 1983.

ECF No. 4.

The Court

granted the in forma pauperis application on November 15, 2017.
ECF No. 6.
On September 24, 2018, Plaintiff filed another motion to
amend.

ECF No. 10.

The Court granted the motion on January 18,

2019, and directed Plaintiff to file a second amended complaint
within 30 days.

ECF No. 12.

Plaintiff obtained counsel, who

filed a second amended complaint on March 27, 2019.

ECF No. 18.

The Court permitted the second amended complaint to proceed.
ECF No. 19.
Plaintiff filed a pro se motion to file an “all-inclusive”
third amended complaint on January 7, 2020.

ECF No. 47.2

Magistrate Judge Joel Schneider granted the motion on July 15,
2020.

ECF No. 58.

Plaintiff’s Counsel at that time was permitted to withdraw on
October 16, 2019. ECF No. 41.
3
2

Defendant Scott Miller filed a motion for summary judgment
based on Plaintiff’s failure to provide an affidavit of merit
for Plaintiff’s medical negligence claims.

ECF No. 67.

The

Court granted the motion and entered judgment in favor of
Defendant Miller on October 26, 2021.

ECF No. 83.

The Court

granted Defendant Sharmalie Perera’s unopposed motion to dismiss
on November 5, 2021.

ECF No. 87.

Defendant Miller’s

crossclaims were dismissed on December 9, 2021.

ECF No. 88.

Plaintiff, now represented by current counsel, filed the
FAC on March 31, 2023.

DSOF ¶ 12.

The FAC alleges Defendants

NJDOC, Lanigan, Hicks, and Bonds violated Title II of the ADA by
failing to put Plaintiff, who is confined to a wheelchair and
uses a catheter, in an accessible cell.

FAC ¶¶ 6-9.

that he fell and injured his shoulder while in EJSP.

He alleges
Id. ¶ 7.

He alleged his SWSP cells were non-ADA compliant until 2021.
Id. ¶ 8.

Plaintiff also alleged that Defendants Lanigan, Hicks,

and Bonds violated the Eighth Amendment by putting him into
cells that were “infested with spiders, frogs, mice, and
crickets . . . .”

Id. ¶ 11.

He alleged that Defendant Waters

violated the Eighth Amendment by using excessive force during a
strip search, id. ¶ 15, and that Defendants Perry, Vallie,
Petit, Marin, Jackson, Moratelli, Smith, Horsey, and McNear
retaliated against him when he filed a Prison Rape Elimination
Act (“PREA”) complaint against Defendant Waters, id. ¶¶ 19-28.
4

Plaintiff dismissed his claims against Defendants Perry and
Petit on June 20, 2023.

ECF No. 133.

As noted above, the

remaining defendants filed a motion for summary judgment on July
3, 2023.

ECF No. 137.

That motion is now fully briefed and

ripe for adjudication.
II.

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(a).

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 non-moving 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 Cnty. Fam. 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
5

motion for summary judgment.”

Anderson, 477 U.S. at 257.

“While the evidence that the non-moving party presents may be
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).
III. DISCUSSION
A.

Failure to Exhaust
Defendants assert the FAC must be dismissed because

Plaintiff failed to exhaust his administrative remedies.
No. 137-1 at 18.

ECF

Under the Prison Litigation Reform Act,

(“PLRA”), prisoners must “exhaust ‘such administrative remedies
as are available’ before bringing suit to challenge prison
conditions.”

Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting

42 U.S.C. § 1997e(a)).

This includes constitutional claims,

Woodford v. Ngo, 548 U.S. 81, 91 n.2 (2007), and “applies to all
inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.”
U.S. 516, 532 (2002).

Porter v. Nussle, 534

See also Bayete v. Dep’t of Corr., No.

22-2975, 2023 WL 8827474, at *3 (D.N.J. Dec. 21, 2023) (noting
exhaustion requirement applies to ADA claims).
The PLRA’s “language is ‘mandatory’: An inmate ‘shall’
bring ‘no action’ (or said more conversationally, may not bring
any action) absent exhaustion of available administrative
6

remedies.”
at 85).

Ross, 578 U.S. at 638-39 (citing Woodford, 548 U.S.

“There is no question that exhaustion is mandatory

under the PLRA and that unexhausted claims cannot be brought in
court.”

Jones v. Bock, 549 U.S. 199, 211 (2007).

A district court may decide whether plaintiffs exhausted
their administrative remedies without a jury even if there are
disputed facts after providing notice to the parties and an
opportunity to submit further evidence.

Paladino v. Newsome,

885 F.3d 203, 211 (3d Cir. 2018); Small v. Camden Cnty., 728
F.3d 265, 270 (3d Cir. 2013).
parties on January 5, 2024.

The Court provided notice to the

ECF No. 144.

In support of their

motion, Defendants have submitted copies of relevant grievances
and inquiries filed by Plaintiff, ECF No. 137-8 at 56-101; the
2019 EJSP Inmate Handbook, id. at 103-11; and the 2017 SWSP
Inmate Handbook, id. at 113-26.

Defendants submitted the

Declaration of Steven Jonaitis (“Jonaitis Dec.”) in response to
the Court’s Paladino notice.

ECF No. 147.

Plaintiff did not

submit any material in response to the Paladino notice.
“The burden to plead and prove failure to exhaust as an
affirmative defense rests on the defendant.”
States, 904 F.3d 257, 268 (3d Cir. 2018).

Rinaldi v. United

“Furthermore, the

defendant must prove that the prisoner-plaintiff failed to
exhaust each of his claims.

There is no ‘total exhaustion’ rule

permitting dismissal of an entire action because of one
7

unexhausted claim.”
original).

Small, 728 F.3d at 269 (emphasis in

“[O]nce the defendant has established that the

inmate failed to resort to administrative remedies, the onus
falls on the inmate to show that such remedies were unavailable
to him.”
1.

Rinaldi, 904 F.3d at 268.
Count One – Americans With Disabilities Act

Count One alleges a violation of the ADA against the
Defendants NJDOC and Lanigan, Hicks, and Bonds in their official
capacities.

FAC ¶¶ 5-9.

According to the FAC, Plaintiff was

placed into a non-accessible cell in EJSP on June 7, 2015.
¶ 7.

A few days later, he fell and injured his shoulder.

The injury required surgery.
SWSP on July 30, 2015.

Id.

Id.
Id.

Plaintiff was transferred to

DSOF ¶ 1.

While at SWSP, Plaintiff “was placed in an ADA compliant
cell in about August 2016 for a few days and then taken to a
medical unit for a few days, after which he was then moved to a
non-compliant cell in D Building from October 2016 through
August 2021 . . . .”

FAC ¶ 8.

The Court considers the SWSP Handbook to provide the
relevant administrative process because the submitted EJSP
Handbook is the 2019 edition.

ECF No. 137-8 at 103.

was transferred to SWSP on July 30, 2015.

DSOF ¶ 1.

Plaintiff
SWSP uses

JPay kiosks to file and track inmate grievances and inquires.
ECF No. 137-8 at 125; Jonaitis Dec. ¶¶ 10-20.
8

“Staff who

receive the remedy form can review the form through the JPay
system and provide a response electronically.

When a response

is provided, it is also submitted electronically and can be
accessed . . . through the ‘Communications Center’ option.”
Jonaitis Dec. ¶ 22.

The JPay kiosks are also used to submit

appeals of staff responses to grievances.

Id. ¶ 23.

“Appeals

to grievance forms are tracked under the same reference number
as the initial submission.”

Id. ¶ 26.

“Appeal decisions shall

be rendered by the administrator and are therefore to be
considered as final decisions at the correctional facility
level.”

ECF No. 137-8 at 122.

Plaintiff submitted Grievance 16077 on September 8, 2015,
stating “[your] refusal to respond to inmate inquiry has
violated my rights to redress as a ada in wheelchair with a
disability and not being afforded just what other inmates are is
a [violation] of the disability act.
channel [sic] for relief.”

I will pursue these

Id. at 83.

Prison officials

responded on September 8, 2015 asking Plaintiff to be more
specific on the form and stating that they were unable to find
any unanswered forms.

Id.

The same official filed another

response on September 18, 2015, asking Plaintiff to state his
request.

Id.

A different official wrote on November 4, 2015

that “[i]f this is medical issue, you must submit medical form
located on your housing unit.

If you have an ADA grievance you
9

may submit ADA grievance form.”

Id.

Plaintiff never appealed

this grievance, making it unexhausted.
Plaintiff submitted Inquiry 026772 on October 14, 2015
stating that he had previously requested help because he was
unable to get on and off the toilet without assistance.
77.

Id. at

He said that he was still waiting for an answer to that

request and stated “[a]lso every complaint dealing with [ADA]
that I have submitted, redress has been refused.”

Id.

The

inquiry was rejected on October 19, 2015 because the inquiry had
“more than one (1) concern that this system can handle.”

Id.

“Unlike a Grievance, an Inquiry Form is not subject to an
administrative appeal; therefore, they do not suffice for
exhaustion.”

Jonaitis Dec. ¶ 33.

Therefore, this inquiry does

not comply with the SWSP administrative remedy program.
Plaintiff submitted Grievance 250380 on October 30, 2016
alleging that he was being denied medical supplies or supplies
to clean his diaper in violation of the ADA.

ECF No. 137-8 at

61.

Prison officials responded on November 21 and 28, 2016.

Id.

Plaintiff did not appeal, making this grievance

unexhausted.
Plaintiff submitted an inquiry on December 13, 2017,
asserting that the SWSP medical director failed to supervise a
doctor who did not provide Plaintiff with medical supplies or

10

supplies to clean his diaper.

Id. at 56.

This inquiry does not

comply with the SWSP administrative remedy program.
Plaintiff filed Grievance 806638 on March 6, 2018.
67.

Id. at

The grievance stated that “Commissioner and prison official

violating title 2 of the [ADA].

Housing [ADA] wheelchair

inmates in cells unaccessible [sic] to handicaps.”

Id.

A

prison official responded on March 12, 2018, stating “[p]er
policy and procedures, inmates in wheelchair are house [sic] at
handicaps unit.”

Id.

Plaintiff submitted an appeal on March

24, 2018, asking “[t]hen please explain to me why cell 1026 has
[no] hand[i]cap railing to prevent accident.

Your action[s] are

violating Title 2 of American with disability act and
rehabilitation act because you receive federal money.”

Id.

Defendant Bonds responded on April 30, 2018: “Mr. Hines please
note that I am having this matter researched.

Once I receive

the needed information a response will be provided.”

Id.

Defendants argue that Plaintiff did not properly exhaust
his ADA claim in part because he did not file any grievances
within 10 days of his June 2015 accident.
23; DSOF ¶ 27.

ECF No. 137-1 at 22-

“[T]o 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.”

Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting
11

Woodford v. Ngo, 548 U.S. 81, 88 (2007)).

However, Grievance

806638 is considered exhausted because Defendant Bonds
considered the merits of the grievance instead of rejecting it
on procedural grounds.

See Rinaldi v. United States, 904 F.3d

257, 271 (3d Cir. 2018) (holding claim is exhausted “where a
prison disregards its own procedures and rejects an inmate’s
otherwise procedurally defaulted complaint on the merits”); Camp
v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (finding prisoner
exhausted PLRA remedies when the “allegations have been fully
examined on the merits by the ultimate administrative authority”
(emphasis in original)).
Although Grievance 806638 was exhausted, Plaintiff did not
comply with the PLRA because he completed exhaustion after he
filed his § 1983 complaint in 2017.

“The [PLRA] prohibits an

inmate from bringing a civil rights suit alleging specific acts
of unconstitutional conduct by prison officials ‘until such
administrative remedies as are available are exhausted.’”
Oriakhi v. United States, 165 F. App’x 991, 993 (3d Cir. 2006)
(per curiam) (emphasis in original) (quoting 42 U.S.C. §
1997e(a)).

See also Porter v. Nussle, 534 U.S. 516, 524 (2002)

(“[E]xhaustion is a prerequisite to suit.”).

“[T]here appears

to be unanimous circuit court consensus that a prisoner may not
fulfill the PLRA’s exhaustion requirement by exhausting
administrative remedies after the filing of the complaint in
12

federal court.”

Oriakhi, 165 F. App’x at 993.

See also

Thornton v. West, 529 F. App’x 107, 110 (3d Cir. 2013) (per
curiam) (“Because Thornton filed his medical grievance after
commencing this action, his claims were not properly
exhausted.”);

Aaron v. Whetsel, 147 F. App’x 5 (10th Cir. 2005)

(holding inmate’s failure to exhaust his administrative remedies
before filing complaint required dismissal of his § 1983 action
even though he subsequently exhausted his administrative
remedies); Johnson v. Ozmint, 567 F. Supp. 2d 806, 815 (D.S.C.
2008) (“[A]ny grievances that Plaintiff has filed since the
filing of this lawsuit would not entitle him to proceed on these
claims.”).

Therefore, Plaintiff’s ADA claim is subject to

dismissal for failure to exhaust because Plaintiff did not
complete the exhaustion process before filing suit.
2.

Count Two – Conditions of Confinement

Count Two of the FAC alleges Defendants Lanigan, Hicks, and
Bonds placed Plaintiff into a cell “that was infested with
spiders, frogs, mice, and crickets in 2016, 2017, 2018.”
11.

FAC ¶

He alleges they placed him “in this particular cell knowing

he would be subjected to these conditions.”

Id. ¶ 12.

Plaintiff failed to exhaust this claim.
Plaintiff filed Inquiry SWSP18036403 on October 17, 2018
complaining about “[e]xposure to insects, crickets, spiders,
frogs, and other vermin.”

ECF No. 137-8 at 71.
13

“Unlike a

Grievance, an Inquiry Form is not subject to an administrative
appeal; therefore, they do not suffice for exhaustion.”
Jonaitis Dec. ¶ 33.

This inquiry does not comply with the SWSP

administrative remedy program.
Plaintiff also filed Grievance SWSP18038005 stating that
“[s]everal complaints submitted on 10/30/2016 and 1/23/2017
about exposure to constant insects, crickets, spider, frogs, and
other vermin.”

ECF No. 137-8 at 74.

A prison official

responded on October 29, 2018, saying “[y]our issues is [sic]
being referred to the Custody Department for investigation.”
Id.

Plaintiff did not file an appeal as required by SWSP

procedures.

Id.; id. at 122 (“Appeal decisions shall be

rendered by the administrator and are therefore to be considered
as final decisions at the correctional facility level.”).
also Jonaitis Dec. ¶ 32.

See

Plaintiff did not properly exhaust the

claims in Count Two.
3.

Count Three – Excessive Force During Strip Search

Plaintiff alleges in Count Three that Defendant Waters
“intentionally pulled out Mr. Hines’ catheter and grabbed his
penis, didn’t allow Mr. Hines to put on a diaper, and interfered
with Mr. Hines’ prescribed medications” during a strip search on
October 17, 2016.

FAC ¶ 15.

He also alleges that he was

retaliated against for filing a PREA complaint against Defendant
Waters.

Id. ¶ 16.
14

Plaintiff submitted Inquiry 242073 on October 20, 2016
alleging that Defendant Waters violated the ADA by not giving
Plaintiff privacy to change his catheter and diaper.
137-8 at 76.

ECF No.

This Inquiry does not allege excessive force

during the strip search, so it is not enough to put prison
officials on notice of Plaintiff’s claim.

“The point of the

grievance is to alert prison officials to a problem, so they
have an opportunity to correct it.

The wrong to which a

prisoner must alert the prison officials cannot be construed so
broadly as to undermine the basic purpose of the grievance
process.”

Olivares v. United States, No. 07-3476, 2010 WL

5251429, at *6 (D.N.J. Dec. 16, 2010), aff’d, 447 F. App’x 347
(3d Cir. 2011).

See also ECF No. 137-8 at 120 (requiring remedy

forms to “include a summary of the requested information or
presented issues, concerns or complaints”).

Moreover, an

inquiry is insufficient to exhaust administrative remedies.
Jonaitis Dec. ¶ 33.
Plaintiff filed Grievance SWSP18000345 on March 14, 2018
alleging that former Defendant Perry failed to investigate
Plaintiff’s PREA complaint against Defendant Waters and
threatened to retaliate against Plaintiff for filing the PREA
complaint.

Id. at 81.

Prison administration filed a response

on March 20, 2018 stating that “[t]his matter is being referred
to PREA for review and response.”
15

Id.

Plaintiff appealed on

March 28, 2018 objecting to the lack of investigation and making
more allegations of retaliation by former Defendants Perry and
Petit.
2018.

Id.

Prison administration responded “Noted” on April 3,

Id.

Plaintiff filed Grievance SWSP18000835 on March 17, 2018
alleging that former Defendant Petit retaliated against
Plaintiff for filing the PREA complaint against Defendant
Waters.

Id. at 80.

Prison administration filed a response on

March 22, 2018 stating that “[t]his matter is being referred to
the Special Investigations Division and PREA here at Central
Office for review and response.”

Id.

Plaintiff submitted an

appeal on March 28, 2018 referring the administration to
Grievance SWSP18000345 as the appeals “originated from the same
source.”

Id.

SWSP18000835.

There was no further response to Grievance
Id.

Plaintiff filed Grievance SWSP18032627 on September 25,
2018.

Id. at 79.

The initial filing alleged that Plaintiff was

being threatened by Defendants Waters and Vallie and requested a
housing change.

Id.

Prison administration filed a response on

October 24, 2018 stating that “[t]his matter is being referred
to the Special Investigations Division here at Central Office
for review and response.”

Id.

In his October 26, 2018 appeal,

Plaintiff wrote “Sco. Waters stripped search me twice, and then
had the nerve to snatch the catheter out of inmates penis.”
16

Id.

Prison administration responded on October 31, 2018, “[t]his
will also be forwarded to SID.”

Id.

Grievances SWSP18000345 and SWSP18000835 do not serve to
exhaust Plaintiff’s claim against Defendant Waters because they
concern the alleged acts of retaliation that followed the strip
search, not the use of force during the strip search.
137-8 at 81.

ECF No.

Even if Grievance SWSP18032627 served to exhaust

the excessive force claim despite not mentioning the strip
search until the appeal, exhaustion did not take place until
after Plaintiff filed his § 1983 complaint.

This claim is

subject to dismissal because Plaintiff did not complete
exhaustion before filing his suit.

Thornton v. West, 529 F.

App’x 107, 110 (3d Cir. 2013) (per curiam).
4.

Count Four – Retaliation

The final count of the FAC alleges Defendants Vallie,
Marin, Jackson, Moratelli, Smith, McNear, and Horsey violated
the First Amendment by retaliating against Plaintiff for filing
the PREA complaint against Defendant Waters.
a.

FAC ¶¶ 20-28.

Defendant Vallie

According to Plaintiff, Defendant Vallie told him on
November 8, 2016 that he “hope[d] they beat the shit out of
[Plaintiff] for ‘ratting on officers.’”

Id. ¶ 20.

Plaintiff

submitted Grievance SWSP18000721 on March 17, 2018 making a
similar allegation against Defendant Vallie.
17

ECF No. 137-8 at

92.

Prison administration filed a response on March 22, 2018

stating that “[t]his matter is being referred to the Special
Investigations Division here at Central Office for review and
response.”

Id.

Plaintiff submitted an appeal on March 28, 2018

referring the administration to Grievance SWSP18000345 as the
appeals “originated from the same source.”
further response to Grievance SWSP18000721.

Id.

There was no

Id.

This claim is subject to dismissal because Plaintiff did
not complete exhaustion before filing his suit.
b.

Defendant Marin

Plaintiff alleged that Defendant Marin called him a “rat”
and told other inmates that Plaintiff raped children.
Plaintiff alleged this occurred around July 7, 2019.

FAC ¶ 22.
Id.

Plaintiff also alleged that Defendant Marin allowed other
inmates to steal Plaintiff’s property.

Id.

Plaintiff submitted Grievance SWSP19030736 on July 17, 2019
that stated Defendant Marin “allowed inmates unescorted to pack
personnal [sic] property, a piece of picture was in the toilet.”
ECF No. 137-8 at 85.

He asked that the video footage be

retained for this Court’s review.

Id.

Prison officials

responded on July 19, 2019.

Id.

“[n]ot an S.I.D. grievance.

Will be forwarded to

administration.”

Id.

One stated that this was

The next response directed Plaintiff to

file an Open Public Records Act (“OPRA”) request form.
18

Id.

Plaintiff responded on July 20, 2019: “Your failure to act
concerning previous grievances of retaliation are not of
concern, I [am] putting this administration on notice, making a
formal request to retain video footage of incident for the
court’s review.”

Id.

On August 2, 2019, the administrator

responded by directing Plaintiff to the prior answer that told
Plaintiff to file an OPRA request.

Id.

Plaintiff has not exhausted his allegations that Defendant
Marin called him a “rat” and rapist in front of other inmates
because Grievance SWSP19030736 does not make these claims.

See

Id. at 120 (requiring remedy forms to “include a summary of the
requested information or presented issues, concerns or
complaints”).

However, Plaintiff did exhaust his claim that

Defendant Marin permitted other inmates to take Plaintiff’s
personal property on July 7, 2019.

The grievance sufficiently

alerted prison officials that Plaintiff claimed Defendant Marin
was retaliating against him for his participation in this
lawsuit.

Therefore, only Plaintiff’s allegations that Defendant

Marin called him a “rat” and rapist are subject to dismissal for
failure to exhaust.3
c.

Defendant Jackson

Since the alleged retaliation did not take place until July
2019, Plaintiff could not have exhausted his remedies for this
claim before he filed the original complaint.
19
3

Plaintiff alleges Defendant Jackson told him that he “would
let [Plaintiff’s] property get stolen because of the PREA on an
officer.”

FAC ¶ 23.

Plaintiff alleged “[t]his happened on four

separate occasions between 11/20/16-11/20/19.”

Id.

Plaintiff alleged in the same grievance that made the
retaliation allegation against Defendant Marin, Grievance
SWSP19030736, that Defendant Jackson “returned property Jplayer
headphone, 2pk of batteries, and pictures were missing.”
No. 137-8 at 85.

ECF

This is insufficient to exhaust Plaintiff’s

claim because it does not sufficiently alert prison officials
that Plaintiff is alleging Defendant Jackson acted out of
retaliation.
Plaintiff only alleges that Defendant Jackson returned
Plaintiff’s property with some items missing.

Id.

In contrast,

Plaintiff specifically alleges Defendant Marin “has retaliated
before . . . .”

Id.

Read as a whole, the grievance appears to

blame Defendant Marin for Plaintiff’s missing property because
Defendant Marin allowed other inmates to pack Plaintiff’s
property and has a history of retaliation.

The grievance does

not sufficiently alert prison officials that Plaintiff was
alleging that Defendant Jackson told Plaintiff that he would
allow Plaintiff’s property to be stolen because of the PREA
complaint.

See Olivares v. United States, 447 F. App’x 347,

351–52 (3d Cir. 2011) (holding inmate failed to exhaust claim
20

about lack of a knee-brace because his grievance “isolated the
concerns expressed to those involving surgery and possible
relocation”).

See also ECF No. 137-8 at 120 (requiring remedy

forms to “include a summary of the requested information or
presented issues, concerns or complaints”).

Therefore,

Plaintiff did not exhaust his claims against Defendant Jackson.
d.

Defendant Moratelli

Plaintiff alleged in the FAC that “Defendant Moratelli
wrote on Mr. Hines’ cell door that Hines weas a rat, as direct
retaliation and in refence to Hines’ PREA complaint; 1/30/2019.”
FAC ¶ 24.

He also alleged that “[o]n or about Feb. 9, 2019,

Defendant Moratelli retrieved the keys to Mr. Hines’ cell from
Officer L. Smith and opened Hines’ door and said that L. Smith
and Officer Goffred told Moratelli that Hines filed a PREA . . .
.’”

Id. ¶ 25.
Plaintiff did not file a grievance about these alleged

incidents.
e.

Therefore, he did not exhaust this claim.
Defendants Goffred and Smith

Plaintiff alleges Defendant Smith gave Defendant Moratelli
the key to Plaintiff’s cell and told Defendant Moratelli about
the PREA complaint.

Id.

He also alleges that Defendant Smith

put him into a chokehold “and whispered that he would break
Hines’ neck” in April 2019.

Id. ¶ 26.

Plaintiff asserts

Defendant Goffred told Defendant Moratelli about the PREA
21

complaint and told Plaintiff “‘n****r you’re fucking with our
jobs now, we’re going to hang your ass.’”

Id. ¶ 25.

Plaintiff filed two grievances in April 2019, but neither
concerned Defendants Goffred or Smith.
appointment.
about mail.

ECF No. 137-8 at 101.
Id. at 100.

One requested a dental

The other grievance was

Therefore, Plaintiff did not exhaust

his claim against Defendants Goffred and Smith.
f.

Defendants McNear and Horsey

Plaintiff’s final retaliation claim alleges that “[o]n or
about September 28, 2019, Defendant McNear said ‘this is what we
do to rats’ and rammed Mr. Hines’ wheelchair into the wall;
Defendant Sgt Horsey watched and laughed and said he didn’t see
anything.”

FAC ¶ 27.

Plaintiff did not file a grievance about this alleged
incident.

Therefore, he did not exhaust this claim.

The Court finds that Plaintiff failed to exhaust his
administrative remedies for all his claims, except for his claim
that Defendant Marin permitted other inmates to take Plaintiff’s
personal property on July 7, 2019.

Plaintiff now bears the

burden of showing that the administrative remedy program was
unavailable to him.

Rinaldi v. United States, 904 F.3d 257, 268

(3d Cir. 2018).
B.

Availability of Remedy

22

Plaintiff argues that administrative remedies were
unavailable because Defendants prevented him from using the
system through intimidation.

“Despite filing complaints,

[Plaintiff] continued to be harassed and threatened and his
medical needs denied.

Even though Plaintiff was filing proper

complaints, relief was a dead end.”

ECF No. 140 at 13.

“With

all deference given to Plaintiff’s version of event[s] for
Summary Judgment purposes, certainly it is a reasonable
interpretation of defendant’s conduct to be thwarting,
intimidating and depriving Plaintiff of any real relief.”

Id.

at 14 (citing Ross v. Blake, 578 U.S. 632, 644 (2016)).
“‘[I]ntimidation’ by prison officials can ‘thwart inmates
from taking advantage of a grievance process’ and thus render
that process ‘unavailable.’”
Ross, 578 U.S. at 644).

Rinaldi, 904 F.3d at 268 (quoting

“To defeat a failure-to-exhaust

defense, an inmate must show (1) that the threat was
sufficiently serious that it would deter a reasonable inmate of
ordinary firmness and fortitude from lodging a grievance and (2)
that the threat actually did deter this particular inmate.”
at 269.

Id.

The Court finds that Plaintiff has not established that

he was deterred from filing grievances.
Plaintiff did not testify during his deposition that prison
officials kept him from using the grievance system.
Dep. passim.

See Pla.

Nor did he submit a certification to that effect
23

after the Court’s Paladino notice.

ECF No. 144.

Additionally,

Plaintiff filed other grievances alleging retaliation,
suggesting that he was not deterred.
at 79-80, 92, and 94.

See, e.g., ECF No. 137-8

See also Rinaldi, 904 F.3d at 269

(“Evidence that an inmate continued to file substantially
similar claims through the same grievance process, for example,
may be sufficiently compelling to defeat an inmate’s assertion
of subjective deterrence.”).

Plaintiff did exhaust other

grievances through the system, which supports the Court’s
conclusion that he had access to the remedy system.

See, e.g.,

ECF No. 137-8 at 96-101.
After considering the record before the Court, the Court
finds that Plaintiff failed to exhaust available remedies for
his claims, excluding the claim that Defendant Marin permitted
other inmates to take his personal property, before filing this
lawsuit.

Therefore, the Court will award summary judgment on

the unexhausted claims.
C.

Merits
The Court has concluded that Plaintiff exhausted his

administrative remedies for the claim that Defendant Marin
permitted other inmates to take his personal property in
retaliation for filing the PREA complaint against Defendant
Waters.

FAC ¶ 22.

The Court now assesses whether Defendant

Marin is entitled to judgment as a matter of law.
24

To prove his retaliation claim, Plaintiff must show that:
(1) he was engaged in constitutionally protected conduct, (2)
‘he suffered some “adverse action” at the hands of prison
officials,’ and (3) ‘his constitutionally protected conduct was
“a substantial or motivating factor” in the decision’ to take
that action.”

Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir.

2017) (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001)).
Defendant Marin testified under oath at a deposition.
Marin Deposition, ECF No. 137-8 at 3 (“Marin Dep.”).

He denied

the accusation that he let other inmates steal Plaintiff’s
property.

Id. 12:15, 13:3-6.

He testified that he worked as a

property officer and became familiar with Plaintiff’s property
because he had to pack up Plaintiff’s property every time
Plaintiff went to administrative segregation.

Id. 14:1-14.

He

recalled that Plaintiff’s property was mostly legal paperwork
aside from his state-issued property.

Id. 16:6-15.

He also

denied knowing that Plaintiff filed a PREA complaint against
Defendant Waters.

Id. 24:20-22.

He stated that he could not

remember if anyone had ever filed a grievance against him.
26:4-11.
Plaintiff has not produced any admissible evidence to
contradict Defendant Marin’s sworn statements.

At his

deposition, Plaintiff testified that Defendant Jackson was
25

Id.

responsible for the theft of his property because Defendant
Jackson was the property officer at the time.

See Pla. Dep.

79:14-15 (“Q: Do you know who stole your property? A: He’s the
property officer.

He the one who took it.”); id. 79:25

(testifying that Defendant Jackson was “the only one that went
in there”); 80:16-19 (“Q: So your allegation is that [Defendant
Jackson] stole your property as a means of retaliation.

A:

He

— he told me he was going to let them steal it.”); 82:11-13 (“[]
Terrance Jackson have control of my property and allowed the
inmates to take the property to him.
gone.”).

Thus, my property is

Plaintiff did not mention Defendant Marin’s alleged

involvement beyond acknowledging the accusation from the FAC.
Id. 78:17 to 79:4.
“[S]ummary judgment is essentially ‘put up or shut up’ time
for the non-moving party: the non-moving party must rebut the
motion with facts in the record and cannot rest solely on
assertions made in the pleadings, legal memoranda, or oral
argument.”

Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195,

201 (3d Cir. 2006).

See also Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 257 (1986) (“[T]he plaintiff must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment.”).

Plaintiff has not provided

evidence that would permit a factfinder to conclude that

26

Defendant Marin retaliated against him.

Therefore, the Court

will award summary judgment to Defendant Marin.4
IV.

CONCLUSION
For the reasons set forth above, the Court will grant

Defendants’ motion for summary judgment.

Judgment will be

entered in Defendants’ favor.
An appropriate Order follows.

Dated: February 26, 2024
At Camden, New Jersey

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

As the Court has awarded summary judgment to Defendants on all
claims, it is unnecessary to address their qualified immunity
arguments.
27
4