BERRY v. S. FITZGERALD et al

Filing 31

OPINION. Signed by Judge Noel L. Hillman on 6/28/2019. (rss, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
LARRY LAVONNE BERRY,
:
:
Plaintiff,
:
Civ. No. 17-4904 (NLH)(JS)
:
v.
:
OPINION
:
S. FITZGERALD, OFFICER WRIGHT,:
:
Defendants.
:
______________________________:
APPEARANCES:
Larry Lavonne Berry, No. 70372-056
FCI Fairton
P.O. Box 420
Fairton, NJ 08320
Counsel for Plaintiff
Kristin Lynn Vassallo, Esq.
Office of the U.S. Attorney
970 Broad Street
Newark, NJ 07102
Counsel for Defendants
HILLMAN, District Judge
Plaintiff Larry Lavonne Berry, a pro se inmate formerly
incarcerated at the Federal Correctional Institution in Fort
Dix, New Jersey, brings this action pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), against two employees of the Federal Bureau of
Prisons, Stephen Fitzgerald and Robert Wright, alleging that
they coerced and threatened him into having sex while he was
incarcerated at FCI Fort Dix.

Presently before the Court is

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

See ECF No 17.

For the reasons that follow, the

Court will deny the Motion.
I.

Factual Background
In the Complaint, Plaintiff alleges that he was “force[d]

to have a sexual relationship with Officer Wright,” who worked
in the laundry, beginning on August 21, 2014.

ECF No. 1 at 5.

Plaintiff further alleges that Wright told Officer Fitzgerald
about what he did with Plaintiff, and that Plaintiff was then
“coerce[d] and threaten[ed] to have sex with Officer S.
Fitzgerald [in] approximately June [or] July 2015.”

Id. at 5-6.

According to Plaintiff, he would be paged to the “School
Building” on Sundays, when the building was closed, and Officer
Fitzgerald would be waiting for him.

Id.

Plaintiff states that

this “went on for months” and that when he “got enough nerve to
make [Fitzgerald] stop,” he was written up on false charges.
Id. at 6.
Plaintiff alleges that he informed several people about
some or all of these events including case manager Wright (who
Berry did not realize was Officer Wright’s sister), the “head
psychologist,” and his case manager, Olsen and that “nothing
changed,” but Olsen told him to “come talk to him” if it
happened again.

Id.

Plaintiff also alleges that he prepared a

“Prison Rape Elimination Act BP-8 remedy” and spoke with
Lieutenants Miyoc and Hackney about it but they “threaten[ed] to
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send [him] to SHU,” and although he re-wrote his statement,
neither “did anything to protect” him.

Id. at 5-6.

Based upon these allegations, Plaintiff asserts
constitutional claims for sexual assault against Defendants
Wright and Fitzgerald in their individual capacities.
relief, Plaintiff seeks $5,000,000 in damages.

As

See id. at 6.

Defendants answered the Complaint, ECF No. 16, and then
moved for summary judgment before discovery, ECF No. 17.

In

support of their Motion for Summary Judgment, Defendants assert
the judgment should be entered in their favor because Plaintiff
failed to exhaust his administrative remedies regarding the
claims alleged in the Complaint.

See id.

In support of their

Motion, they provide the following undisputed facts regarding
the exhaustion of Plaintiff’s administrative remedies.

See ECF

No. 17-4.
Plaintiff arrived at FCI Fort Dix on August 19, 2014, and
remained in custody there until March 1, 2016, when he was
transferred to FCI Fairton in Fairton, New Jersey.
17-7.

See ECF No.

According to the BOP’s records, Plaintiff has never filed

an administrative remedy concerning the events alleged in his
complaint.

See ECF No. 17-6.

These records show that Plaintiff

has filed a total of five administrative remedies while in the
custody of the Bureau of Prisons.

See id.

Specifically,

Plaintiff has filed the following grievances:
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•

An April 2016 BP-10 Regional Office appeal from a
disciplinary hearing (Remedy ID 859688-Rl), which
was denied in May 2016;

•

A June 2016 BP-11 Central Office appeal from the
same disciplinary hearing (Remedy ID 859688-Al),
which was denied in April 2017;

•

An August 2016 BP-9 administrative remedy to the
warden of FCI Fairton asking the records department
to “stop trying to open old cases” (Remedy ID
872780-Fl), which was withdrawn at his request;

•

An October 2016 BP-9 administrative remedy to the
warden of FCI Fairton asking the BOP to remove a
“point” on his custody classification for a prior
escape (Remedy ID 879641-Fl), which was denied on
October 28, 2016; and

•

A November 2016 BP-9 administrative remedy to the
warden of FCI Fairton asking the records department
to “stop sending [a] detainer action letter” (Remedy
ID 883711-Fl), which was denied on December 6, 2016.

See ECF Nos. 17-6, 17-7.
Plaintiff did, however, file an informal resolution form (a
“BP-8”) alleging that he was sexually harassed by Officer
Wright.

See id.

In the BP-8, Plaintiff claimed that on August

26, 2014, he complained about the size of the clothing Wright
had issued to him, and that Wright sexually harassed him by
telling Plaintiff to turn around so that he could see if
Plaintiff’s underwear “were in fact tight and sticking in my
rear end.”

Id.

The BP-8 does not allege that Wright touched

Plaintiff or assaulted him.

See id.

Plaintiff did not file a

BP-9, BP-10, or BP-11 concerning the interaction with Defendant
Wright alleged in the BP-8.

See ECF No. 17-6.
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On February 2, 2016, Plaintiff sent an e-mail to the Office
of Inspector General (OIG) alleging that Officer Fitzgerald
sexually assaulted him on January 12, 2016.

See id.

In

particular, Plaintiff claimed that Officer Fitzgerald stared at
him when he was in the shower, “touch[ed] my butt” through his
back pocket during a pat search, and “stuck his hands onto my
front pockets.”

Id.

Plaintiff did not file a BP-9, BP-10, or

BP-11 concerning the interaction with Defendant Fitzgerald
alleged in this email.

See ECF No. 17-6.

Plaintiff did not file a formal opposition brief to the
Motion for Summary Judgment.

He did, however, file a letter to

the Court explaining that he started the administrative remedy
process as to the sexual assault claims, but was forced to stop.
ECF No. 22.

Echoing the allegations of the Complaint, Plaintiff

explained that he “was called to the Lieutenant’s office.

Once

I got to the Lieutenant’s Office and explained the situation, I
was threatened not to go any further with any complaint
concerning this matter, if I did, I’d be placed in the special
housing unit (SHU).”

Id.

As a result of his inability to

proceed with the grievance process, he was further assaulted by
the officer.

Id.

In the letter, he requests the appointment of

counsel and had, a few days prior, filed an application for the
appointment of counsel, see ECF No. 21.

The Court denied

Plaintiff’s first request for counsel because he failed to
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satisfy the Tabron factors utilized by the court in assessing
the appointment of counsel request.

See ECF No. 29.

Specifically, Plaintiff only stated that “Plaintiff does not
know or understand the law, or know how to respond properly to
address motions for the courts” and that he is “unable to pay an
attorney.”

ECF No. 21.

Within days of the denial of his first request, Plaintiff
filed a second request for the appointment of counsel, which
provides more detail as to his need for counsel.
This motion remains pending before the Court.

ECF No. 30.

Notably, for the

purposes of this summary judgment motion, Plaintiff explains
that “two lieutenants threatened Plaintiff not to move forward
with any complaint concerning this matter” and that he “needs
records of defendants that cannot be obtained without counsel.
Plaintiff cannot receive any official records without counsel to
assist Plaintiff.”
II.

Id.

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.
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Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

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
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.’”

Matushita

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
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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 exhaustion of administrative remedies is a mandatory
prerequisite to any prisoner’s filing of a civil rights action
regarding prison conditions.

42 U.S.C. § 1997e(a); Woodford v.

Ngo, 548 U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S.
731, 739 (2001)).

Specifically, § 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.
Exhaustion is a precondition for bringing suit and, as such, it
is a “‘threshold issue that courts must address to determine
whether litigation is being conducted in the right forum at the
right time.’” Small v. Camden County, 728 F.3d 265, 270 (3d Cir.
2013).

“[T]he . . . exhaustion requirement 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

A prisoner must exhaust all available

administrative remedies even where the relief sought, such as
monetary damages, cannot be granted through the administrative
process, as long as the grievance tribunal has authority to take

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some responsive action.

Booth v. Churner, 532 U.S. 731, 741

(2001).
The applicable procedural rules for properly exhausting
administrative remedies “are defined not by [§ 1997e(a)], but by
the prison grievance process itself.

Compliance with prison

grievance procedures, therefore, is all that is required by [§
1997e(a)] to ‘properly exhaust.’”
218 (2007).

Jones v. Bock, 549 U.S. 199,

See Drippe v. Tobelinski, 604 F.3d 778, 781 (3d

Cir. 2010) (“[W]hether a prisoner properly exhausted a claim is
made by evaluating compliance with the prison's specific
grievance procedures.”).

The burden of proving non-exhaustion

lies with the defendants asserting the defense.
216–17.

Id. at 212,

A court evaluating the “threshold” issue of exhaustion

looks at whether the inmate “compli[ed] with the prison’s
specific grievance procedures” and whether those procedures were
available to the inmate.

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

265 (3d Cir. 2018) (quoting Drippe, 604 F.3d at 781 and Small v.
Camden County, 728 F.3d at 269-71).
The BOP's Administrative Remedy Program is a multi-tier
process that allows “an inmate to seek formal review of an issue
relating to any aspect of his/her own confinement.” 28 C.F.R. §
542.10.

The inmate first must attempt to informally resolve his

issue with the institutional staff.

See id. § 542.13(a).

informal resolution fails or is waived, the inmate then may

If

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submit a formal Administrative Remedy Request on the appropriate
BP–9 form within twenty calendar days following the date for
which the basis for the request occurred.

See id. § 542.14(a).

If the inmate is unsatisfied with the warden's response to his
Administrative Remedy Request, he may submit an appeal on the
BP–10 form to the appropriate Regional Director within twenty
calendar days of the date the warden signed the response.
id. § 542.15(a).

See

An inmate who is not satisfied with the

Regional Director's response may appeal to the General Counsel
on the appropriate BP–11 form within thirty calendar days of the
date the Regional Director signed the response.

See id.

An

inmate's appeal to the General Counsel is the final
administrative appeal.

See id.

Thus, to satisfy the PLRA’s

exhaustion requirement, a federal inmate must complete each step
of the BOP’s administrative remedy process, which is not
considered complete until an inmate’s final appeal is considered
by the Central Office.

See 28 C.F.R. §§ 542.14-542.15; Rinaldi,

2018 WL 4344674, at *3; Schreane v. Marr, 722 F. App’x 160, 164
(3d Cir. 2018).
In support of the Motion for Summary Judgment for failure
to exhaust administrative remedies, Defendants have submitted
information related to the administrative grievances filed by
Plaintiff, detailed above.

In addition, Defendants assert

Plaintiff started the administrative remedy process by filing an
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informal request for resolution, the BP-8 form, for his sexual
assault claims but failed to continue the process through all
levels of the administrative remedy procedure.
not in dispute.

These facts are

This does not end the Court’s inquiry, however,

because it must also consider whether the grievance procedures
were “available” to Plaintiff.
In Ross v. Blake, 136 S. Ct. 1850 (2016), the Supreme Court
most recently outlined the three instances in which remedies
would not be “available” such that exhaustion may be excused:
(1) when an administrative procedure “operates as a simple dead
end with officers unable or consistently unwilling to provide
relief to aggrieved inmates;” (2) where the administrative
remedies are so unclear that “no ordinary prisoner can make
sense of what it demands;” and (3) where prison officials
“thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.”

Id.

at 1859-60.
Here, Plaintiff has argued that he could not exhaust his
grievance because of the threats made against him, which, in
light of his pro se status, the Court construes as arguing that
the grievance system was not available to him under the third
Ross scenario.

This fact remains in dispute, and further, the

Court construes Plaintiff’s request for the need for records in
his most recent application for appointment of counsel as a
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request for discovery in order to oppose Defendants’ Motion for
Summary Judgment.
Federal Rule of Civil Procedure 56(d) provides as follows:
“If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify
its opposition, the court may: (1) defer considering the motion
or deny it; (2) allow time to obtain affidavits or declarations
or to take discovery; or (3) issue any other appropriate order.”
Summary judgment should generally be granted only when the
nonmoving party has had an “adequate time for discovery.”
Celotex, 477 U.S. at 322.

“[N]othing precludes a party from

requesting an opportunity for discovery under Rule 56(d) by
simply attaching an appropriate affidavit or declaration to that
party’s response to a motion for summary judgment, and by
asserting that summary judgment should not be granted without
affording the responding nonmovant an opportunity for
discovery.”
2015).

Shelton v. Bledsoe, 775 F.3d 554, 568 (3d Cir.

In such circumstances, the court “is obligated to give a

party opposing summary judgment an adequate opportunity to
obtain discovery.”

Dowling v. City of Phila., 855 F.2d 136,

139-40 (3d Cir. 1988).

Such requests for discovery are usually

provided as a matter of course.

Shelton, 775 F.3d at 568.

The Court is satisfied that Plaintiff, proceeding pro se
and having requested the appointment of counsel to assist with
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discovery in order to respond to the pending motion, has met his
burden under Rule 56(d), and the Court will thus deny without
prejudice the Motion for Summary Judgment.

After Plaintiff has

had a reasonable opportunity to obtain discovery regarding
exhaustion and more specifically whether the grievance system
was available to him in light of the alleged threats, Defendants
may refile their motion.
IV.

Conclusion
The Court will deny without prejudice Defendants’ Motion

for Summary Judgment.

An appropriate order follows.

Dated: June 28, 2019
At Camden, New Jersey

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

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