HANNAH v. ADMINISTRATOR ALBERT C. WAGNER YOUTH CORRECTIONAL FACILITY et al

Filing 55

OPINION. Signed by Judge Noel L. Hillman on 4/14/2020. (rtm, )(nm)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
KARON HANNAH,
:
:
Plaintiff,
:
Civ. No. 17-8066 (NLH) (JS)
:
v.
:
OPINION
:
:
ADMINISTRATOR
:
ALBERT C. WAGNER YOUTH
:
CORRECTIONAL FACILITY et al., :
:
Defendants.
:
:
______________________________:
APPEARANCES:
Gurbir S. Grewal, Attorney General of New Jersey
Kathryn M. Hansen, Deputy Attorney General
Office of the New Jersey Attorney General
R.J. Hughes Justice Complex
PO Box 116
Trenton, NJ 08625
Counsel for Defendants Mark Goodson, Matthew Smith, Craig
LaFontaine, Gregory McLaughlin, Marisol Velazquez, and Joseph
Guicheteau

Karon Hannah
777077/863299D
East Jersey State Prison
Lock Bag R
Rahway, NJ 07065
Plaintiff pro se

HILLMAN, District Judge
Plaintiff Karon Hannah filed a complaint alleging that he
was assaulted by corrections officers while he was incarcerated

at the Albert C. Wagner Youth Correctional Facility and was
denied medical care afterwards.

ECF No. 1.

Defendants Mark Goodson, Matthew Smith, Craig LaFontaine,
Gregory McLaughlin, Marisol Velazquez, and Joseph Guicheteau now
move for partial summary judgment.
opposes the motion.

ECF No. 48.

ECF No. 46.

Plaintiff

The Court has subject-matter

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

For the reasons that follow, the

Court will deny summary judgment.
I.

BACKGROUND
On November 28, 2016, Plaintiff Karon Hannah was confined

in the Albert C. Wagner Youth Correctional Facility (“ACWYCF”).
Plaintiff’s Statement of Facts (“PSOF”) ¶ 4.

Defendant

McLaughlin was escorting Plaintiff, who was handcuffed, from the
yard to his cell in the East Compound.

Id.

When they reached

the stairs, Defendant Ruggiero stated, “Why is this n----- so
close to me?”

Id. ¶¶ 4-5.

Plaintiff told Defendant Ruggiero to

“watch his mouth,” at which point Defendant Ruggiero grabbed
Plaintiff and threw him face-first into a steel fence.
Defendants’ Statement of Facts (“DSOF”) ¶ 9.

Id. ¶ 5;

Defendant Ruggiero

began assaulting Plaintiff, who was in handcuffs.

PSOF ¶ 6.

The

parties agree that Defendant LaFontaine called a Code 33, but
the reason the Code was called is disputed.

PSOF ¶ 6; DSOF ¶ 15.

Plaintiff alleges Defendants McLaughlin, Guicheteau, and Goodman
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punched, kicked, and stomped him while Defendants Velazquez and
DSOF ¶¶ 11-12.

LaFontaine failed to intervene.
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(c).

A disputed

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

Anderson v. Liberty Lobby,

A dispute is genuine if the

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

Rule 56 mandates the entry of

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

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

III. DISCUSSION
Defendants now move for summary judgment on the grounds
that Plaintiff failed to exhaust his administrative remedies as
required by the Prison Litigation Reform Act (“PLRA”).

They

also argue the facts do not support a failure to intervene claim
against Defendant LaFontaine.

Plaintiff argues he was prevented

from exhausting his available remedies.
The principal issues to be decided are (1) whether
Plaintiff failed to exhaust his administrative remedies before
filing this civil suit; (2) if so, were those remedies
“available” within the meaning of the PLRA; and (3) is Defendant

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LaFontaine entitled to judgment as a matter of law on
Plaintiff’s failure to intervene claim.
A.

Exhaustion of Administrative Remedies

Defendants assert Plaintiff failed to exhaust his
administrative remedies before he filed his complaint in federal
court.

Plaintiff argues the grievance procedure was not

available to him.
The PLRA “mandates that an inmate exhaust ‘such
administrative remedies as are available’ before bringing suit
to challenge prison conditions.”

Ross v. Blake, 136 S. Ct.

1850, 1854–55 (2016) (quoting 42 U.S.C. § 1997e(a)).

“[T]hat

language is ‘mandatory’: An inmate ‘shall’ bring ‘no action’ (or
said more conversationally, may not bring any action) absent
exhaustion of available administrative remedies.”

Id. at 1856

(citing Woodford v. Ngo, 548 U.S. 81, 85 (2007)).

“There is no

question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.”
549 U.S. 199, 211 (2007).

Jones v. Bock,

This includes constitutional claims,

Woodford, 548 U.S. at 91 n.2, 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.”

Porter v. Nussle, 534 U.S. 516, 532 (2002).

Exhaustion under the PLRA must be proper, meaning
“prisoners must ‘complete the administrative review process in
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accordance with the applicable procedural rules,’ rules that are
defined not by the PLRA, but by the prison grievance process
itself.”
88).

Jones, 549 U.S. at 218 (quoting Woodford, 548 U.S. at

“A prisoner must exhaust these remedies ‘in the literal

sense[;]’ no further avenues in the prison’s grievance process
should be available.”

Smith v. Lagana, 574 F. App’x 130, 131

(3d Cir. 2014) (quoting Spruill v. Gillis, 372 F.3d 218, 232 (3d
Cir. 2004)).
The Court finds that Defendants have not met their burden
of proof on failure to exhaust.

See Small v. Camden Cty., 728

F.3d 265, 268 (3d Cir. 2013) (“Failure to exhaust is an
affirmative defense the defendant must plead and prove[.]”).
There is a discrepancy between the ACWYCF remedy system as set
forth in its Inmate Handbook and the materials submitted to the
Court; moreover, it is not clear whether prison authorities
responded to Plaintiff’s grievances.
According to the ACWYCF Inmate Handbook, the “[i]nmate
Remedy System which provides a mechanism for inmates to address
complaint, concerns, questions, problems and/or grievances to
correctional facility Administration for resolution through the
use of the Inmate Inquiry Form, the Inmate Grievance Form and
the Appeal process.”

ECF No. 46-6 at 78.

“Inmates are required

to utilize and exhaust the Inmate Grievance Form and Appeal
process before applying to the courts for relief.”
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Id.

The

Inmate Grievance Form “is a multi-part form” that “must be
placed into the correctional facility box marked INMATE REMEDY
SYSTEM FORMS ONLY. . . . If an Inmate Remedy System Form(s) is
deposited into any other box or forwarded through any other
means, the form will not be processed.”

Id.

The Inmate Grievance Form has white, yellow, and pink
pages.

Id. at 79.

“The white and yellow colored pages of the

form must not be separated.

The pink colored page is to be

retained by the inmate once Part 1 has been completed.”

Id.

“If the Inmate Grievance Form was not responded to or returned
to the inmate in the established response time frame of 30 days
for a routine Inmate Grievance Form, the inmate may submit
another Inmate Grievance Form noting the date the original form
was submitted.”

Id.

To appeal an unsatisfactory response, inmates are to return
the “answered yellow copy of the Inmate Grievance Form” within
10 days of receipt.

Id. at 80.

“The inmate must re-deposit the

originally-answered Inmate Grievance Form in the box marked
‘INMATE REMEDY SYSTEM FORMS ONLY.’”

Id.

The Coordinator shall

forward the appeal to the Administrator or Administrative
designee, who has 10 working days to respond to the appeal.

Id.

“The decision or finding of the Administrator or designee to the
Administrative Appeal is the final level of review and decision
or finding of the New Jersey Department of Corrections.”
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Id.

Amy Emrich, an Assistant Superintendent at New Jersey State
Prison, stated in her declaration that Plaintiff submitted
Inmate Remedy Form, Ref # 396807 on March 26, 2017 “in which he
writes about the November 28, 2016 incident, which is the basis
of his federal claim.”

Declaration of Amy Emrich (“Emrich

Dec.”), ECF No. 46-5 ¶ 15.

She asserts he received a timely

response on April 3, 2017 but did not file an appeal of the
decision.

Id. ¶ 16.

The documents submitted by Defendants in support of their
motion differ from the documents described in the Handbook.
Instead of papers with handwritten comments and written
instructions as described in the Handbook, the documents
produced by Defendants appear to be printouts from an electronic
filing system.

See ECF No. 46-7.

The “grievance” identified by

Ms. Emrich indicates Plaintiff sought a remedy for the assault
on November 28, 2016 and ended by stated he was “seeking civil
justice and money damages!”

Id. at 27.

Chellsea Tessein, an

unknown employee, wrote on March 28, 2017 that “NJSP
Administration cannot assist you in receiving ‘money damages’”
but did not address his claim further.
thereafter closed the inmate form.

Id.

Id.

Ms. Tessein

She reopened the form

on April 3, 2017 and closed it 10 seconds later after writing
“copy sent 4/3.”

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Plaintiff also produces printouts of grievances wherein he
attempted to seek redress for the assault.

On December 1, 2016

he submitted a grievance stating, “I have been assaulted badly
and I needto [sic] be seen as sooon [sic] as possible please I
still have not seen the doctor or nobody come see me please.”
ECF No. 48 at 64.

On December 5, 2016, Nancy Zook wrote: “You

were interviewed regarding the matter on 12/2, and the issue is
being reviewed.
Id.

Additionally, you were medically assessed.”

He alleges that “Plaintiff submitted several remedies in

the months of December and Plaintiff would not get responses to
most of them but kept receipts.”
71.

Id. at 13; see also id. at 65-

He states that he received responses to only two of his

grievances.

Id. at 13; see also id. at 74. 1

He states “[p]rison

officials failed to comply with the inmate remedy form process
by failing to send inmate the returned answered yellow copy of
the inmate grievance form to appeal staff response.”

Id. at 7.

Plaintiff asserts he did attempt to appeal one grievance:
“Ref #292832 is attempt to appeal since the facility would not
send back receipts to properly appeal.

Note response plaintiff

received to ref#292832 states ‘this matter is being addressed,
“grievance is repetitive”’ showing that plaintiff took the first

1

Plaintiff has also submitted copies of the Inmate Grievance
form with very faint handwritten notations in the section for
inmate requests. The Court is unable to make out what was
written in those sections. ECF No. 48 at 65-71.
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step of exhausting but did not get no receipt of a response.”
Id. at 13.

Grievance 292832 was created on December 15, 2016

and states: “This grievance was created by Lori Reed, ID# 20956
on behalf of the inmate.”

Id. at 75.

There is no indication

what the complaint is about as the only direction is to “see
attached written Inquiry.” Id.

The written inquiry is

illegible; the only readable portion indicates SID, the Special
Investigation Division, was the division to receive the
complaint, and the staff response was “See Ref#292832.”
76.

Id. at

On December 20, 2016, Nancy Zook closed #292832, saying

“This matter is already being addressed, the grievance is
repetitive.”

Id. at 75. 2

There is not enough information before the Court to resolve
the exhaustion question.

Defendants assert the grievance

process must be carried out on a series of handwritten forms but
have not provided the written responses.

They assert that the

electronic response to Plaintiff on April 3, 2017 is sufficient
to trigger his duty to appeal but have not pointed to the
section of the ACWYCF Inmate Handbook describing the

2

If prison authorities did not respond to Plaintiff’s original
grievance in a timely manner, he was entitled under the terms of
the Handbook to submit a new grievance: “If the Inmate Grievance
Form was not responded to or returned to the inmate in the
established response time frame of 30 days for a routine Inmate
Grievance Form, the inmate may submit another Inmate Grievance
Form noting the date the original form was submitted.” ECF No.
46-6 at 79.
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relationship between the written grievance procedure and the
electronic JPAY grievance procedure, or even explained how one
appeals on the JPAY kiosk.

See ECF No. 48 at 82 (“Inmates are

also able to submit grievance and internal inquiry forms to the
various departments within the institution utilizing the JPAY
kiosks.”).

It seems prisoners are provided conflicting

information as to how to properly exhaust their administrative
remedies.
The Court declines to grant summary judgment on the basis
on failure to exhaust at this time.

Defendants may renew their

failure to exhaust argument by submitting additional evidence,
to which Plaintiff may respond with any additional arguments or
evidence of his own.

Paladino v. Newsome, 885 F.3d 203 (3d Cir.

2018); Small v. Camden County, 728 F.3d 265 (3d Cir. 2013).

Any

further motion should include a legible copy of Grievance
292832’s written inquiry.
B.

Failure to Intervene

Defendants’ final argument is that there is insufficient
evidence to state a claim against Defendant LaFontaine for
failure to intervene. 3

3

In its opinion denying Defendants’ motion to dismiss, the Court
permitted Plaintiff to proceed against Defendant LaFontaine on
excessive force and failure to intervene claims. ECF No. 39.
Defendants have only requested summary judgment on the failure
to intervene claim.
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Plaintiff alleged in his complaint Defendant LaFontaine
“falsely called a Code 33 (fighting) even though I did nothing .
. . placing my life in jeopardy and causing others (officers) to
respond to the Code in punching and kicking me though I was
already on the ground and in handcuffs violating my Eighth
Amendment.”

ECF No. 1 at 3.

Defendant LaFontaine wrote in his

special custody report: “On 11/28/16 at 1535 hrs, this officer
was escorting yard in.

Upon reaching the east compound podium,

this officer saw I/M Hannah, Karon #8632990 push off of the
fence into Officer Ruggiero.

This officer immediately called a

code 33 and started to secure the returning I/Ms into the east
high side holding cage.”

ECF No. 48 at 51.

He denied seeing

Defendant Ruggiero push Plaintiff into the fence, and states a
Code 33 “must be called” “[w]hen there is more than normal
physical contact on an escort, especially aggressive contact, in
this case pushing said Inmate’s body into an officer’s body . .
. .”

ECF No. 46-9 at 5.
Plaintiff presents a different version of events.

Plaintiff testified during his deposition that Defendant
LaFontaine “hit the button because he seen Ruggiero attack me,
but he tried to clean up his actions.

So he had to call a code

for assaulting an officer, basically.

That’s what the code was

about.”

ECF No. 46-11 at 32:10-13.

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Plaintiff was charged with conduct which disrupts or
interferes with the security or orderly running of the
correctional facility, prohibited act .306.
4.1(xxix).

N.J.A.C. § 10A:4-

The Disciplinary Hearing Officer reviewed the

witness statements and a video of the incident.

The officer’s

description of the video reads: “I/M is observed standing w/an
Officer (who is to I/M’s right) & at approx. 15:47:15 on video,
I/M is then taken into the fence by a second officer.

The I/M

appears to turn around once hitting the fence at which time I/M
was taken to the ground by the same officer.”

ECF No. 48 at 47. 4

The Disciplinary Hearing Officer concluded “that the evidence
provided is inconsistent & does not support the charge as
written.”

Id. at 49.

Plaintiff was found not guilty.

Id.

Under Plaintiff’s version of events, which the Court must
accept for summary judgment purposes, Defendant Ruggiero called
Plaintiff a vile racial epithet, causing Plaintiff to respond
that Defendant Ruggiero should “watch his mouth.”

Defendant

Ruggiero thereafter grabbed Plaintiff and threw him face-first
into a steel fence.

Defendant LaFontaine witnessed the entire

4

A video was provided to the Court with Defendants’ response
papers. ECF No. 54. Plaintiff alleges this is not the video
the Disciplinary Hearing Officer viewed because it shows the
incident from the “rec cage which is not the original video and
it dilutes what really took place that day.” ECF No. 51.
Plaintiff alleges he has not been given a copy of that video in
discovery. Id. The parties should address any outstanding
discovery requests with Magistrate Judge Schneider.
13

exchange and called a Code 33, knowing that Defendant Ruggiero
had started the physical altercation and a Code 33 would cause
officers to respond to the scene.

He took no action to stop

Defendant Ruggiero from assaulting Plaintiff and introduced more
officers into the altercation by calling the Code 33.

The

evidence comes down to credibility determinations, which this
Court cannot make on summary judgment.

See Savage v. Judge, 644

F. Supp. 2d 550, 559 (E.D. Pa. 2009) (“It is not the function of
this Court to make credibility determinations or resolve factual
disputes when ruling on a motion for summary judgment.”).
Plaintiff has presented enough evidence to create a factual
issue as to whether Defendant LaFontaine had a reasonable
opportunity to intervene in the assault on Plaintiff but failed
to do so.
The Court denies summary judgment to Defendant LaFontaine
on the failure to intervene claim.
IV.

CONCLUSION
For the reasons set forth above, the Court denies summary

judgment.

Defendants may renew their motion within 45 days of

this order on failure to exhaust grounds only.
An appropriate Order follows.

Dated: April 14, 2020
At Camden, New Jersey

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

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