BURKE v. POWELL et al

Filing 93

OPINION. Signed by Chief Judge Renee Marie Bumb on 5/18/2023. (mag)

[Docket No. 66]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ANTHONY BURKE,
Plaintiff,
Civil No. 20-1013 (RMB/SAK)
v.
JOHN POWELL, et al.,

OPINION

Defendants.
APPEARANCES
Clifford Paul Yannone, Esq.
Starkey Kelly Kenneally Cunningham & Turnbach
Two Hooper Avenue
Toms River, New Jersey 08753
On behalf of Plaintiff Anthony Burke
Eric Intriago, Esq.
Office of the Attorney General for the State of New Jersey
25 Market Street
Trenton, New Jersey 08625
On behalf of Defendants John Powell, Wilbert Gaskill, Joshua Hand, and Scott Abele
RENÉE MARIE BUMB, Chief United States District Judge
This matter comes before the Court upon the filing of a Motion for Summary
Judgment by Defendants Bayside State Prison (“BSP”) Administrator John Powell,
BSP Corrections Sergeant Wilbert Gaskill, and BSP Corrections Officers Joshua Hand
and Scott Abele (collectively, “BSP Defendants”). [Defs.’ Mot. Summ. J., Docket
No. 66 (“MSJ”); Defs.’ Br. Supp. Mot. Summ. J., Docket No. 66-1 (“Defs.’ Br.”);

Defs.’ Statement of Material Facts, Docket No. 66-2 (“Defs.’ SOMF”).] On August
22, 2022, Plaintiff Anthony Burke (“Plaintiff”) opposed, [Pl.’s Opp’n to MSJ, Docket
No. 77 (“Pl.’s Opp’n”); Pl.’s Responsive Statement of Material Facts, Docket No. 772 (“Pl.’s RSOMF”); Pl.’s Suppl. Statement of Material Facts, Docket No. 77-3 (“Pl.’s
SSOMF”)], and the BSP Defendants filed a Reply Brief on August 31, 2022, [Defs.’
Reply Br. to Pl.’s Opp’n, Docket No. 83 (“Defs.’ Reply Br.”); Def.’s Responsive
Statement of Material Facts to Pl.’s SSOMF, Docket No. 83-1 (“Defs.’ RSOMF”)].
On January 24, 2023, the Court heard oral argument as to the BSP Defendants’
Motion. [Docket No. 85.] As a result of that hearing, supplemental briefing was
ordered, and all claims asserted against Defendants Powell and Gaskill were
dismissed. [Docket No. 86.] Officers Hand and Abele are the only BSP Defendants
who remain in this action. [Id.] On February 14, 2023, Plaintiff filed his Supplemental
Brief, [Docket No. 89 (“Pl.’s Suppl. Br.”)], and the remaining BSP Defendants
responded on February 27, 2023, [Docket No. 92 (“Defs.’ Suppl. Br.”)]. Having been
fully briefed, this matter is now ripe for adjudication. For the reasons that follow, the
Court will GRANT the BSP Defendants’ Motion for Summary Judgment, DISMISS
all of Plaintiff’s claims against the remaining BSP Defendants, and CLOSE this case.
I.

BACKGROUND
Between November 20, 2017 and February 26, 2018, Plaintiff was incarcerated

at BSP in Leesburg, New Jersey. [Defs.’ SOMF ¶ 2.] At some point, he began working
as an informant for the Special Investigations Division (“SID”) of the New Jersey
2

Department of Corrections and was assigned to work in the BSP kitchen, [id. ¶¶ 3–4],
which involved, aside from culinary duties, reporting on illegal activities, such as the
smuggling of contraband by BSP officers, [Pl.’s SSOMF ¶ 2]. During his time working
at the BSP kitchen, Plaintiff would meet with SID investigators periodically to provide
information, including before and after his shifts. [Defs.’ SOMF ¶ 7.]
While the parties do not agree that the BSP kitchen is a “relatively large area
with many inmates working in food preparation,” [compare Defs.’ SOMF ¶ 5, with Pl.’s
RSOMF ¶ 5], it is clear that there is a central room, separate side office, supplies
chamber, and podium from which officers can supervise inmates, [Defs.’ SOMF ¶ 6].
On February 24, 2018, Plaintiff was working alone in the “pots and pans area” of the
BSP kitchen. [Pl.’s SSOMF ¶ 8.] BSP Corrections Officers Hand and Abele were
stationed at the officers’ podium that day. [Defs.’ SOMF ¶ 9.] At approximately 7:44
a.m., as recorded by video surveillance, Defendants Sahib Hall and Jerry Jones, two
other inmates who were working in the BSP kitchen, approached Plaintiff, and
Defendant Jones struck Plaintiff on the face, causing Plaintiff to fall to the ground. [Id.
¶¶ 11–13.] Defendant Hall stood by as “back up” and threatened Plaintiff. [Pl.’s
SSOMF ¶ 13.] Officers Hand and Abele contend that they did not witness the assault
because a desk and trashcan obstructed their line of sight, 1 [Defs.’ SOMF ¶¶ 14–16;
Defs.’ RSOMF ¶ 18], but they were looking in the direction of the “pots and pans area”
when the attack occurred. [Pl.’s SSOMF ¶¶ 18–19.] Officer Abele can be seen on
1

Plaintiff suggests that the trashcan was at waist level and did not obstruct their
line of sight. [Pl.’s RSOMF ¶ 16.]
3

camera smiling and/or laughing. [Id. ¶ 22.] The incident lasted for about five (5)
seconds, though Plaintiff contends that Jones and Hall threatened Plaintiff until he
was ultimately removed from the BSP Kitchen several minutes later. [Defs.’ SOMF ¶
18; Pl.’s RSMOF ¶ 18.]
The parties dispute whether Officers Hand and Abele were aware, prior to the
incident, that Plaintiff served as an SID informant, [compare Defs.’ SOMF ¶ 34, and
Defs.’ RSOMF ¶¶ 3–7, with Pl.’s RSOMF ¶¶ 31, 34–36, 38, 41, 48, and Pl.’s SSOMF
¶¶ 3–7], and they dispute whether Officers Hand and Abele called Plaintiff a “snitch”
and disclosed Plaintiff’s status as an informant to other kitchen inmates, [compare
Defs.’ SOMF ¶¶ 31, 33–36, and Defs.’ RSOMF ¶¶ 4–7, with Pl.’s RSOMF ¶¶ 31, 33–
36, and Pl.’s SSOMF ¶¶ 4–7]. Additionally, the parties disagree about whether Officers
Hand and Abele directed (a) Defendant Jones to attack Plaintiff and (b) Defendant
Hall to stand-by as Jones’ “back up.” [Compare Pl.’s SSOMF ¶¶ 11, 12, 48–54, with
Defs.’ RSOMF ¶¶ 11, 12, 48–54.] Plaintiff states that he had witnessed officers assault
inmates at BSP prior to February 24, 2018, [Pl.’s SSOMF ¶ 83], but apparently never
because they were SID informants, [Defs.’ RSOMF ¶ 83]. Defendant Jones, who was
never ultimately served in this action, stated in a recorded interview that Officers Hand
and Abele told him to “put hands on [Plaintiff]” because he served as an informant,
that he had seen officers assault inmates at BSP before, and that he attacked Plaintiff
because he was afraid of retaliation for noncompliance. [Pl.’s SSOMF ¶¶ 49, 51; id. ¶
84 (stating “that’s how Bayside operates” and “they don’t play fair”).] He also states

4

that Officers Hand and Abele witnessed the assault. [Id. ¶ 50.] Defendant Hall
apparently stated that he did not want to return to BSP following the February incident
out of fear that he would be “set up.” [Id. ¶ 85.]
Immediately after the attack, Plaintiff approached Officers Hand and Abele and
requested to leave the BSP kitchen to return to his housing unit and to visit the
infirmary. [Defs.’ SOMF ¶ 19; Pl.’s SSOMF ¶ 23.] Officers Hand and Abele contend
that Plaintiff stated that he slipped and fell, and they apparently advised Plaintiff that
an accident report was required before he could leave for the infirmary. [Defs.’ SOMF
¶¶ 19–20.] They state that Officer Abele called Sergeant Gaskill, his supervisor, to
request that he bring an accident report to the BSP kitchen because they did not have
a blank form on hand. [Id. ¶ 21.] Plaintiff claims that he did not tell Officers Hand
and Abele that he slipped and fell; rather, he asked to be sent to the infirmary. [Id. ¶
19; Pl.’s RSMOF ¶ 19.] At 7:59 a.m., Officer Abele contacted Sergeant Gaskill, who
arrived at the BSP kitchen ten minutes later, without an accident report. [Pl.’s SSOMF
¶¶ 30, 34; Defs.’ SOMF ¶ 22.]
When he arrived, Sergeant Gaskill took Plaintiff into the side office and asked
him what had occurred; Plaintiff then reported that he had slipped and fallen. [Pl.’s
SSOMF ¶¶ 35–36; Defs.’ SOMF ¶ 22.] Nevertheless, Sergeant Gaskill and Officer
Abele performed a “knuckle check” of three (3) unidentified incarcerated persons (they
cannot recall their identities) to determine whether there was a physical altercation.
[Defs.’ SOMF ¶ 23; Pl.’s SSOMF ¶ 37.] The knuckle check did not yield any results,
so Sergeant Gaskill and Plaintiff departed the BSP kitchen for the medical unit at 8:11
5

a.m. [Defs.’ SOMF ¶ 26; Pl.’s SSOMF ¶ 38.] There, Plaintiff told a nurse that he had
slipped, fallen, and hit his face. [Defs.’ SOMF ¶ 27; Pl.’s SSOMF ¶ 39.]
After escorting Plaintiff to the medical unit, Sergeant Gaskill returned to the
BSP kitchen with an accident report for Officer Hand to complete, [Defs.’ SOMF ¶ 24;
Pl.’s SSOMF ¶ 40], though the report was never located and presumed to be lost,
[Defs.’ SOMF ¶ 25]. Plaintiff claims that it was never created. [Pl.’s RSOMF ¶ 25;
Pl.’s SSOMF ¶ 41.]
Prior to the incident, on February 16, 2018, Plaintiff was treated for chronic,
non-radiating back pain. [Defs.’ SOMF ¶ 28.] On February 26, 2018, after the
incident, Plaintiff was examined and “denied injuries and had no complaints at the
time of the exam.” [Id. ¶ 29.] He was examined again on March 3, 2018 and indicated
that he fell and “hurt [his] left shoulder and [his] neck” but did not indicate that he
suffered from any back pain. [Id. ¶ 30.] Plaintiff suggests that the injuries he sustained
were caused as a result of the February incident and necessitated surgery and other
treatment, [Pl.’s SSOMF ¶¶ 74–82], and the BSP Defendants contend that Plaintiff’s
backpain preexisted prior to the incident, [Defs.’ RSOMF ¶¶ 74–82].
On January 29, 2020, Plaintiff initiated this action against Defendants Powell,
Hand, Abele, and Jones alleging violations of his constitutional rights pursuant to 42
U.S.C. § 1983 and liability for related state law claims. [Compl., Docket No. 1.] On
February 13, 2021, Plaintiff filed an Amended Complaint, adding Hall and Gaskill as
Defendants. [Am. Compl., Docket No. 25.] In the Amended Complaint, Plaintiff
asserts claims of excessive force, cruel and unusual punishment, failure to intervene,
6

state-created danger, and failure to protect against Officers Hand and Abele and claims
of assault and battery, negligence, intentional and negligent infliction of emotional
distress against Jones, Hall, and Officers Hand and Abele. [Id.] He further asserts a
violation of the New Jersey Civil Rights Act (“NJCRA”), N.J.S.A. § 10:6–1, et seq.,
against Officers Hand and Abele. [Id.] Pursuant to the Court’s January 24, 2023
Order, all claims against Defendants Powell and Gaskill were dismissed, so they are
not mentioned here. [Docket No. 86.]
Officers Hand and Abele filed an Answer on April 8, 2021. [Docket No. 34.]
Plaintiff completed service of process at Sahib Hall’s residence, but Defendant Hall
never filed an answer or otherwise submitted an appearance. [See generally Docket.]
On Plaintiff’s Motion, an entry of default was entered on September 30, 2021 as to
Defendant Hall. [Docket No. 52.] On April 28, 2020, Plaintiff notified the Court that
he had been unable to locate and serve Defendant Jones. [Docket No. 9-1.] As of the
date of this Opinion, Plaintiff has not been able to locate and serve Defendant Jones.
II.

JURISDICTION
This Court exercises subject matter jurisdiction over Plaintiff’s constitutional

claims under 42 U.S.C. § 1983 pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3); however,
as explained below, see infra Sections IV.E., IV.F., the Court declines to exercise
supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367(c)(3).
III.

LEGAL STANDARD
Summary judgment shall be granted if “the movant shows that there is no

7

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is “material” only if it might impact the “outcome of the suit under the
governing law.” Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 261 (3d Cir.
2012). A dispute is “genuine” if the evidence would allow a reasonable jury to find
for the nonmoving party. Id.
In deciding whether there is a disputed issue of material fact, the Court must
view all inferences, doubts, and issues of credibility in favor of the non-moving party.
See Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The movant has the initial
burden of showing through the pleadings, depositions, answers to interrogatories,
admissions on file, and any affidavits “that the non-movant has failed to establish one
or more essential elements of its case.” Connection Training Servs. v. City of Phila., 358
F. App’x 315, 318 (3d Cir. 2009). “If the moving party meets its burden, the burden
then shifts to the non-movant to establish that summary judgment is
inappropriate.” Id.
In the face of a properly supported motion for summary judgment, the
non-movant’s burden is rigorous. The non-movant “must point to concrete evidence
in the record”; mere allegations, conclusions, conjecture, and speculation will not
defeat summary judgment. Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995);
accord Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (noting that “speculation
and conjecture may not defeat a motion for summary judgment”) (citing Acumed LLC
v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir. 2009)).
8

IV.

DISCUSSION
The BSP Defendants argue that they are entitled to summary judgment because

Plaintiff has not adduced sufficient evidence to establish that Officers Hand and Abele
violated Plaintiff’s constitutional rights or are otherwise liable for any of the claims
asserted against them.

[Defs.’ Br. 8–36.]

They advance a number of different

arguments, including that Plaintiff has failed to meet the elements of each of his claims
and that the BSP Defendants are entitled to sovereign and/or qualified immunity. [Id.]
Plaintiff opposes, arguing that the BSP Defendants are not entitled to immunity under
either theory and that he has adduced sufficient evidence to meet the elements of each
claim. [Pl.’s Opp’n 8–38.] He also asserts that the audio recording and handwritten
notes of Defendant Jerry Jones are admissible evidence as statements against interest
pursuant to Federal Rule of Evidence 804(b)(3) and should be considered in support
of his claims. [Id. at 34–38.] Because genuine factual disputes exist, Plaintiff contends
that summary judgment must be precluded. [Id.]
Before addressing Plaintiff’s claims with specificity, the Court first considers as
a preliminary matter the evidentiary question presented—whether Defendant Jones’
statements can be construed as statements against interest under the eponymous
hearsay exception. The Court considers the question presented first because Plaintiff’s
claims are supported almost entirely by his own testimony and Jones’ hearsay
statements. If Jones’ statements are not capable of being admissible at trial, then they
should not be considered for the purpose of deciding the instant motion. See Fraternal
Order of Police v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016) (“The rule in this
9

circuit is that hearsay statements can be considered on a motion for summary
judgment if they are capable of being admissible at trial.”) (cleaned up) (emphasis
removed) (citations omitted). The Court’s duty, in ruling on the BSP Defendants’
Motion for Summary Judgment, is to determine “if the out-of-court statements
Plaintiff[] [is] relying on [are] admissible at trial.” See id.
Accordingly, in its January 24, 2023 Order, the Court directed the parties to
submit supplemental briefing regarding the following issues:
(a) why inmate Jerry Jones should be considered ‘unavailable’
pursuant to Fed. R. Evid. 804(a); (b) assuming Jones is unavailable,
why Jones’ statements should be construed as statements against
interest pursuant to Fed. R. Evid 804(b)(3); and (c) assuming that
Jones’ statements are excluded by the rule prohibiting hearsay, what
evidence remains in support of Plaintiff’s claims asserted against
Officers Hand and Abele.
[Docket No. 8, at 2, ¶ 3.] Thus, the Court first addresses whether the interview
recording and handwritten notes of Defendant Jones should be construed as
statements against interest before turning to Plaintiff’s claims.
A.

Jerry Jones’ Hearsay Statements.

Under the rule prohibiting hearsay, a statement that a declarant does not make
while testifying in court and which a party offers for the truth of the matter asserted is
not admissible unless a federal statute, the Federal Rules of Evidence, or a rule
prescribed by the United States Supreme Court provides otherwise. FED. R. EVID.
802; see also FED. R. EVID 801. Under certain conditions, a hearsay statement
otherwise barred by Rule 802 can be admissible where the declarant is “unavailable.”
FED. R. EVID. 804. While there are several circumstances in which a declarant will be
10

considered “unavailable,” under Rule 804(a)(5), a declarant is unavailable if the
declarant “is absent from the trial or hearing and the statement’s proponent has not been
able, by process or other reasonable means, to procure: . . . (B) the declarant’s attendance
or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).” FED.
R. EVID. 804(a)(5) (emphases added). 2
The proponent of the statement bears the burden of proving the unavailability
of the declarant. Kirk v. Raymark Indus., Inc., 61 F.3d 147, 165 (3d Cir. 1995) (citations
omitted). “If a witness cannot be found, process obviously cannot be effective. The
proponent of the hearsay statement must, however, establish that the witness cannot
be found.” 2 MCCORMICK ON EVID. § 253 (8th ed. 2022). In civil cases, deciding
whether efforts have been sufficient to locate a declarant is generally within the sound
discretion of the court. See id. § 253 n.34 (citing cases). A proponent’s unsuccessful
efforts to locate a declarant will be considered insufficient unless the proponent (1)
“fashioned a multifaceted approach to locate the declarant” and (2) “implemented
each of these investigate methods more than once,” unless futile. See Rodriguez v.
Hayman, 2013 WL 1222644, at *2 (D.N.J. 2013) (Kugler, J.) (construing cases in
numerous circuits to ascertain a party’s burden to demonstrate the unavailability of a
declarant due to absence). As the Hayman court explained, “the touchstones of
2

The Court intentionally omits the text of Rule 804(a)(5)(A), as Plaintiff seeks
to introduce Defendant Jones’ statement pursuant to the exception set forth in Rule
804(b)(3). (A) only applies where a proponent offers a statement under Rules 804(b)(1)
or (6) and mandates that the proponent prove that he was unable to procure the
declarant’s attendance, not the declarant’s attendance or testimony like in (B). See
FED. R. EVID. 804(a)(5)(A), (B).
11

‘reasonable means’ under Rule 804(a)(5) are variation and repetition.” Id. “[O]ne
unsuccessful attempt to serve a subpoena, one visit to a last known residence, and one
set of phone calls to various relatives, taken together, were not enough under the
circumstances to establish [the declarant’s] unavailability under the meaning of
Federal Rule of Evidence 804(a)(5)(B).” Id. at *3. While a proponent’s search need
not be exhaustive to be reasonable, it should be appropriately thorough in proportion
to the importance of the evidence to be introduced. Cf., e.g., Carpenter v. Dizio, 506 F.
Supp. 1117, 1123 (E.D. Pa. 1981) (finding proponent employed reasonable means to
locate “key figure” (an eyewitness) in proponent’s case where his attorney sent
numerous letters to the declarant’s last known address over the course of a year,
attempted to call the declarant, personally visited the last known address and
questioned a neighbor as to his whereabouts, and visited the declarant’s former place
of employment).
In the instant case, Plaintiff argues that he employed reasonable means to locate
and serve Jones, a named Defendant in this action. [Pl.’s Suppl. Br. 3–5.] On
February 4, 2020, Plaintiff engaged Guaranteed Subpoena Service LLC to serve
process on Jones.

[Certification of Clifford P. Yannone ¶ 3, Docket No. 89-1

(“Yannone Certif.”).]

At that time, Plaintiff believed Jones was an inmate at

Northern State Prison in Newark, New Jersey. [Id.] Service was attempted on
February 6, 2020, but Jones had apparently been paroled. [Id.] Thereafter, Plaintiff

12

submitted several “skip trace” searches 3 to Spartan Detective Agency, Inc.—on March
13 and 26, 2020, April 17, 2020, February 24, 2021, March 19, 2021, and on or around
February 8, 2023. [Id. ¶¶ 3, 4, 6, 8, 11–13.] But each failed to locate Jones. [Id.]
Additionally, Plaintiff used a search engine (i.e., PROMIS/Gavel Public Access) to
gather additional identifying information about Jones, and he engaged a private
investigator. [Id. ¶¶ 5, 7.] However, the investigator’s own search apparently resulted
in over 40 hits for “Jerry Jones” in New Jersey, which Plaintiff contends, without
explanation, was too numerous to be useful. [Id. ¶ 5; Pl.’s Suppl. Br. 4.] Finally, in
June 2020, Plaintiff apparently “had information to believe [that] Jones was located at
the Kintock Group in Newark,” but after requesting that Guaranteed Subpoena
Service execute service of process on Jones, it was discovered that the Kintock Group
no longer existed at the address of record. [Yannone Certif. ¶ 10.] No follow-up
investigation was pursued. Plaintiff submits that the foregoing actions establish that
Jones should be considered “unavailable.” [Pl.’s Suppl. Br. 5.]
While the Court recognizes that Plaintiff attempted to locate Defendant Jones,
it concludes that Plaintiff’s efforts were not sufficient to demonstrate “reasonable
means” to procure Jones’ attendance and/or testimony in this action. First, Plaintiff
did not employ a “variety of tactics” or fashion a “multifaceted approach” to locate
Jones. See Hayman, 2013 WL 1222644, at *2. Unlike the proponent in Carpenter who
3

A “skip trace” search is a process of locating a person’s whereabouts using
various informational inputs, such as name, Social Security number, and date of birth,
and by consulting property records, social media accounts, criminal history, travel
records, tax and financial records, and other publicly and privately available sources.
13

visited and called the declarant’s last known address and questioned a neighbor about
the declarant’s whereabouts, 506 F. Supp. at 1123, Plaintiff here principally relied on
submitting several “skip trace” searches to the same third party, Spartan Detective
Agency, who repeatedly could not locate Defendant Jones. Each report indicated that
Spartan Detective Agency needed additional information about Jones, such as his
prior addresses and Social Security number, and ultimately, Spartan Detective Agency
was not able to locate Jones. Plaintiff does not appear to have contacted another skip
tracer, but rather exclusively relied on Spartan Detective Agency.

Under the

circumstances, the Court concludes that such reliance was unreasonable. Parolees do
not simply disappear. Plaintiff could have contacted Jones’ parole officer, worked
with the Department of Corrections to gather additional information about Jones’
prior life, or located and questioned family members or neighbors. He also could have
contacted law enforcement or published notices in publicly available sources, such as
periodicals. Furthermore, he could have exercised additional diligence to locate the
Kintock Group, as it presumably only changed addresses and likely had additional
information about Defendant Jones’ whereabouts. 4 In sum, it is clear to the Court that
Plaintiff should have employed more varied and thorough investigative methods to
locate Jones, especially because he appears to be the linchpin of Plaintiff’s case.
The Court forms the foregoing conclusion notwithstanding Plaintiff’s

4

The Kintock Group appears to remain in business, generally and in New
Jersey
in
particular.
See
Locations,
THE
KINTOCK
GRP.,
https://www.kintock.org/locations (last visited May 18, 2023).
14

engagement of a private investigator to locate Defendant Jones. Under appropriate
circumstances, a private investigation can be a valuable tool as part of a “multifaceted
approach” to locate a witness or to discover information that can be useful for the
purpose of doing so. See, e.g., Creamer v. Gen. Teamsters Local Union 326, 560 F. Supp.
495, 499 (D. Del. 1983) (describing multiple steps taken by proponent to demonstrate
inability to procure witness for trial, including contacting investigators at the U.S.
Department of Labor); Young v. Wolfe, 2017 WL 985634, at *6–7 (C.D. Cal. Mar. 14,
2017) (same, including searching Board of Parole Hearing’s website, hiring an
investigator, and attempting to contact witness’ mother). Here, however, Plaintiff
engaged an investigator who identified 41 different hits for “Jerry Jones” in New
Jersey but does not appear to have offered any additional analysis or work product.
[Yannone Certif. ¶ 5, Exs. F, G.] Plaintiff indicates that his search results were too
numerous to be useful. [See Pl.’s Suppl. Br. 4.] First, the Court fails to understand
why 41 results were too numerous to be useful or why he could not winnow the results
based on other identifying information gathered about Defendant Jones. Second,
Plaintiff does not appear to have submitted any follow-up requests to the investigator,
and the Court is not provided any basis to conclude that the investigator’s search was
comprehensive like the attorney’s search in Carpenter. Third, Plaintiff did not use the
search results his private investigator generated to inform or assist his skip tracer or his
process server, nor did Plaintiff even attempt to contact any of the persons listed on his
investigator’s report to confirm whether any was Defendant Jones. Again, for such a
critical witness, Plaintiff should have employed a more thorough investigation with
15

the information identified to locate Jones. A blanket statement that the investigator’s
results were too numerous to be useful is insufficient. Courts expect a proponent to
follow through on efforts to locate a declarant. See, e.g., Colon v. Porliar, 2012 WL
3241466, at *2 (N.D.N.Y. Aug. 7, 2012) (concluding that witnesses were not
unavailable for the purposes of Rule 804 where plaintiff indicated that process server
unsuccessfully searched a New York State Department of Corrections database and
sent FOIA requests to the New York State Division of Parole, which remained
pending).
Accordingly, the Court concludes that Plaintiff has not demonstrated that he
exercised sufficient diligence—“reasonable means”—to serve Defendant Jones and
procure his attendance or testimony in this action. As a result, the Court finds that
Defendant Jones is not “unavailable” within the meaning of Federal Rule of Evidence
804(a). Still, assuming arguendo that the Court could conclude that Defendant Jones
is “unavailable” within the meaning of Rule 804(a), it would nevertheless find that his
recorded audio statements and handwritten notes are not statements against interest.
Defendant Jones’ assertions, properly construed, are not contrary to his proprietary,
pecuniary, or penal interest.
Statements against interest by an unavailable declarant are excepted from the
rule prohibiting hearsay. Rule 804 defines a statement against interest as follows:
A statement that:
(A) a reasonable person in the declarant’s position would have made
only if the person believed it to be true because, when made, it was
so contrary to the declarant’s proprietary or pecuniary interest or
16

had so great a tendency to invalidate the declarant’s claim against
someone else or to expose the declarant to civil or criminal
liability; and
(B) is supported by corroborating circumstances that clearly indicate
its trustworthiness, if it is offered in a criminal case as one that
tends to expose the declarant to criminal liability.
FED. R. EVID. 804(b)(3). To determine whether a statement is made contrary to the
declarant’s interest, courts must view the statement “in context” and “in light of all the
surrounding circumstances.” Williamson v. United States, 512 U.S. 594, 603–04 (1994).
Where a statement implicates another person, courts should examine the
circumstances to determine whether the statement is “self-inculpatory or self-serving.”
United States v. Moses, 148 F.3d 277, 280 (3d Cir. 1998). Moreover, courts should be
attentive to the scope of the “statement”: only singular self-incriminatory statements
are covered by Rule 804(b)(3), rather than an entire narrative that may “mix falsehood
with truth.” Williamson, 512 U.S. at 599–600 (explaining that the rule supports a
narrower reading of “statement” as “a single declaration or remark,” rather than “a
report or narrative”); id. at 600–01 (“[T]he most faithful reading of Rule 804(b)(3) is
that it does not allow admission of non-self-inculpatory statements, even if they are
made withing a broader narrative that is generally self-inculpatory.”); see also generally
2 MCCORMICK ON EVID. § 319 (8th ed. 2022). Where a statement admitting guilt or
implicating another person is given in custody, it may be unreliable and fail to qualify
under the exception because it is motivated by a “desire to curry favor with the
authorities.” FED. R. EVID. 804 cmt.; see also United States v. Boyce, 849 F.2d 833, 836
(3d Cir. 1988).
17

Here, Jones’ recorded interview and handwritten notes cannot be construed as
statements against interest. First, the “statement” proffered by Plaintiff is, properly
construed, a series of assertions Jones made to SID investigators while in custody five
(5) days after he attacked Plaintiff. Thus, this narrative explanation of the incident
that Jones provided cannot be construed as either entirely self-inculpatory or non-selfinculpatory. See Williamson, 512 U.S. at 599–600. The statements must be considered
individually, but in context.
Second, given the surrounding circumstances, the material statements cannot
be construed as self-inculpatory. See id. at 601. The incident was captured on
surveillance footage, so investigators already knew that Jones struck Plaintiff. While
questioned by SID investigators, Jones stated that (1) Officers Hand and Abele
directed him to strike Plaintiff, (2) Officers Hand and Abele witnessed the assault, and
(3) Jones complied because he feared retaliation and had previously seen BSP officers
assault inmates. [Pl.’s SSOMF ¶¶ 48–54.] He impliedly asserts that Officers Hand
and Abele were aware that Plaintiff was an SID informant prior to the date of the
incident.

He further identified Plaintiff by writing the word “Rock” next to a

photograph of Plaintiff, a moniker inmates used to refer to Plaintiff, and “Back up”
next to a photograph of Sahib Hall. [Id. ¶¶ 52–53.] Each of these assertions are
justifications of Jones’ actions, and they divert blame to Officers Hand and Abele.
Even though Jones acknowledged in the interview that he struck Plaintiff (confirming
the footage of the incident), his additional remarks could be used to establish a defense
that he acted under duress, as he feared retaliation. In this way, they are self-serving
18

assertions (not statements against interest) that should not be introduced as evidence
without the traditional safeguards, such as cross examination.
With the foregoing evidentiary issue addressed, the Court proceeds to consider
Plaintiff’s claims individually, though the Court observes before doing so that all of
Plaintiff’s claims are premised on his own testimony and Defendant Jones’ hearsay
statements, which the Court hereby excludes. Thus, the factual issues that Plaintiff
highlights in his submissions do not reflect genuine disputes of material fact that
precludes summary judgment.
B.

Excessive Force Claim.

In the Amended Complaint, Plaintiff asserts that Officers Hand and Abele
applied excessive force in violation of the Fourth and Fourteenth Amendments of the
Constitution, for which Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. [Am.
Compl. (Count I).] While Plaintiff sets forth his excessive force allegations as a claim
under the Fourth and Fourteenth Amendments, in their submissions the parties cite to
cases that address excessive force claims in the prison context as Eighth Amendment
violations, not Fourth and Fourteenth Amendment violations. Having reviewed the
authorities cited by the parties, the Court addresses Plaintiff’s excessive force claim as
if it were set forth in the context of the Eighth Amendment’s protection against cruel
and unusual punishment. See Young v. Martin, 801 F.3d 172, 177 (3d Cir. 2015)
(explaining that the Cruel and Unusual Punishment Clause of the Eighth Amendment
has been interpreted “to bar prison officials from using excessive force against
inmates” and “to impose affirmative duties on prison officials to ‘provide humane
19

conditions of confinement’”) (first citing Hudson v. McMillian, 503 U.S. 1, 6–7 (1992),
then quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)).
To state a cause of action under § 1983, a plaintiff must prove that the defendant
(1) acted under color of state law, and (2) deprived the plaintiff of a federal right.
Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citing Gomez v. Toledo,
446 U.S. 635, 640 (1980)); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.
1995). To establish that a prison official inflicted excessive force in violation of the
Cruel and Unusual Punishment Clause of the Eighth Amendment, the inquiry is
“whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6–7
(1992); see also Whitley v. Albers, 475 U.S. 312, 318–19 (1986) (discussing the meaning
of the Cruel and Unusual Punishment Clause).
Courts consider the following factors to determine whether a correctional officer
used excessive force in violation of the Eighth Amendment: “(1) the need for the
application of force; (2) the relationship between the need and the amount of force that
was used; (3) the extent of the injury inflicted; (4) the extent of the threat to the safety
of staff and inmates, as reasonably perceived by responsible officials on the basis of
facts known to them; and (5) any efforts made to temper the severity of the forceful
response.” Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir. 2002) (quoting Brooks v. Kyler,
204 F.3d 102, 106 (3d Cir. 2000)).
Here, in support of their Motion for Summary Judgment, the BSP Defendants
first argue that Officers Hand and Abele cannot be liable for excessive force because
20

they, personally, did not use force against Plaintiff. [Defs.’ Br. 10.] It is undisputed
that Defendant Jones struck Plaintiff, and Plaintiff himself concedes that Officers
Hand and Abele “did not physically hit” him. [Defs.’ SOMF ¶ 33; Pl.’s RSOMF ¶ .]
Rather, Plaintiff alleges that Officers Hand and Abele directed Defendant Jones to
assault Plaintiff. [Pl.’s SSOMF ¶ 10.] While the Court rejects the BSP Defendants’
argument that Officers Hand and Abele must have personally used physical force to
be liable under an excessive force claim, as they can be liable for directing a third party
to use such force, see Baker v. Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995) (“In
order to render Armstrong personally liable under section 1983, the Bakers must show
that he participated in violating their rights, or that he directed others to violate them, or
that he, as the person in charge of the raid, had knowledge of and acquiesced in his
subordinates’ violations.”) (emphasis added), the Court nevertheless finds that there is
no genuine dispute that Officers Hand and Abele directed Defendant Jones to attack
Plaintiff. The only evidence in support of that assertion is the hearsay testimony of
Defendant Jones. [See Pl.’s SSOMF ¶¶ 48–54.] Plaintiff’s own testimony merely
reproduces Jones’ out-of-court assertion that Officers Hand and Abele instructed him
to assault Plaintiff, which this Court will not allow as discussed above. Without
Defendant’s Jones’ presence in this litigation, there is no competent evidence to
controvert the testimony of Officers Hand and Abele, who both deny Plaintiff’s
allegation. [Defs.’ SOMF ¶¶ 31–32, 34–36.] Therefore, Plaintiff cannot establish that
Officers Hand and Abele used force, albeit through Defendant Jones, “maliciously and
sadistically to cause harm.” See Hudson, 503 U.S. at 6–7; Smith, 293 F.3d at 649.
21

Accordingly, summary judgment is warranted as to Plaintiff’s excessive force claim. 5
See Celotex, 477 U.S. at 323–24 (“a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts immaterial.”).
C.

Cruel and Unusual Punishment Claim.

Next, the Court addresses Plaintiff’s claim that Officers Hand and Abele
inflicted cruel and unusual punishment in violation of the Eighth Amendment and for
which Plaintiff seeks relief pursuant to § 1983. [Am. Compl. (Count II).] Plaintiff
alleges that Officers Hand and Abele were aware that Plaintiff had met with SID before
his kitchen shifts, that they were aware he had met with SID the day before the
February 24, 2018 incident, and that they called him a “snitch” in front of other
inmates. [Pl.’s Supp. Br. 27.] Plaintiff further claims that Officers Hand and Abele
exhibited deliberate indifference to a serious risk of harm to Plaintiff by disclosing his
status as an SID informant, watching Defendant Jones assault Plaintiff at their
direction, and failing to remove Plaintiff from the kitchen, a “dangerous situation,” for
the next 27 minutes thereafter. [Id. at 27–28.]
To prevail on a claim under the Cruel and Unusual Punishment Clause, an
inmate must show that (1) he suffered a “sufficiently serious” harm and (2) that the
prison official was deliberately indifferent to the inmate’s health or safety. Farmer v.

5

Because the Court concludes that Plaintiff has failed to adduce sufficient
evidence to set forth a prima facie case as to his excessive force claim, the Court need
not address the BSP Defendants’ argument that Officers Hand and Abele are entitled
to qualified immunity on each of Plaintiff’s claims under 42 U.S.C. § 1983. [See Defs.’
Br. 34–36.]
22

Brennan, 511 U.S. 825, 834 (1994). Where a claim is based on the prison official’s
failure to prevent harm, “the inmate must show that he is incarcerated under
conditions posing a substantial risk of harm.” Id. The “deliberate indifference”
standard under Farmer is subjective, meaning that the prison official “must actually
have known or been aware of the excessive risk to inmate safety.” Beers-Capitol v.
Whetzel, 256 F.3d 120, 125, 133 (3d Cir. 2001).
Here, summary judgment must be granted as to Plaintiff’s cruel and unusual
punishment claim because Plaintiff has not adduced sufficient evidence to establish
that Officers Hand and Abele were deliberately indifferent to an excessive risk of harm
to Plaintiff. While Plaintiff alleges that Officers Hand and Abele told other inmates
that Plaintiff was a “snitch,” Plaintiff concedes that he never personally witnessed
them doing so, [Defs.’ SOMF ¶ 31], and Officers Hand and Abele dispute that they
ever did so as well, [id. ¶¶ 34–36]. Aside from the hearsay statements of Defendant
Jones, there is no record evidence to support the allegation that Officers Hand and
Abele told other inmates Plaintiff was a “snitch.” Plaintiff’s cites to no competent
evidence to support the assertion. [See Pl.’s RSOMF ¶¶ 34–36 (citing Intriago Decl.,
Docket No. 66-3, Exs. AB (Pl.’s Dep.), AI (Def. Jerry Jones Interview), AM (Pl.
Interview), D (SID Rep.); Yannone Decl., Docket No. 78, Exs. A (John Kline SID
Dep.), E (BSP Informant Log)).] Though the acknowledgment of Officer Abele that
he was aware Plaintiff met with SID the day before the incident is perhaps some
evidence that Officer Abele actually knew he was an informant prior to February 24,
2018, the evidence does not establish culpable conduct, i.e., that Officer Abele told
23

other inmates that he was a “snitch,” thereby demonstrating awareness of an excessive
risk to Plaintiff’s safety. See Beers-Capitol, 256 F.3d at 125, 133. There is no record
evidence to suggest that either Officer Hand or Officer Abele directed anyone to attack
Plaintiff or told other inmates that Plaintiff was an SID informant. Without competent
evidence to support the proposition that Officers Hand and Abele disclosed Plaintiff’s
status as an informant (and thereby created an excessive risk that Plaintiff would be
harmed), Plaintiff cannot support his claim that they were deliberately indifferent to a
risk of harm to his safety.
Moreover, Plaintiff has failed to adduce sufficient evidence to support his theory
that Officers Hand and Abele were deliberately indifferent to his safety by failing to
remove him from the kitchen after the incident occurred. Even if the Court were to
determine that the factual dispute regarding whether Officers Hand and Abele
witnessed the five-second assault is genuine, the Court nevertheless concludes that
Plaintiff has not shown that Officers Hand and Abele created an excessive risk to
Plaintiff’s safety by failing to segregate him from Defendants Jones and Hall when
Plaintiff approached the officers’ podium requesting to be sent to the infirmary.
Plaintiff has not adduced any evidence to demonstrate that he was subjected to an
excessive risk to his safety while in the presence of the Officers; he only asserts that an
excessive risk persisted. As a result, he cannot establish that Officers Hand and Abele
violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. See
Farmer, 511 U.S. at 834. Accordingly, Plaintiff’s claim fails, and summary judgment

24

is warranted. 6 See Celotex, 477 U.S. at 323–24.
D.

Failure to Intervene, State-Created Danger, and Failure to Protect
Claims.

Plaintiff also argues that Officers Hand and Abele violated his Fourth and
Fourteenth Amendment rights by failing to intervene in the assault on Plaintiff by
Defendants Jones and Hall, for which he contends they are liable pursuant to § 1983.7
[Am. Compl. (Count III).] Relatedly, Plaintiff asserts that Officers Hand and Abele
are liable pursuant to § 1983 for a state-created danger—disclosing his status as an SID
informant—which resulted in the February 24, 2018 incident, [id. (Count V)], and he
claims that Officers Hand and Abele violated his constitutional rights by failing to
protect him from the assault, [id. (Count VI)]. Though pled as independent claims,
they are all premised on the same theory: Officers Hand and Abele told inmates
Plaintiff was a “snitch,” they witnessed Defendants Jones and Hall attack Plaintiff,
and they failed to intervene and protect Plaintiff—both before the incident occurred
and afterwards, when Plaintiff approached them to seek medical care. Based on the
undisputed facts of record, Plaintiff’s claims must fail.
“[A] corrections officer’s failure to intervene in a beating can be the basis of

6

As before, the Court need not address the BSP Defendants’ argument that
Officers Hand and Abele are entitled to qualified immunity. See supra note 5.
7
Again, the Court assumes that Plaintiff is mistaken and meant to plead an
Eighth Amendment violation as to his failure to intervene and failure to protect claims,
as he cites to only Eighth Amendment cases in support. [See Pl.’s Opp’n 14–16, 20–
26; Pl.’s Supp. Br. 28–35.] As the below analysis makes clear, such claims ordinarily
proceed under the Eighth Amendment, not the Fourth Amendment, in the prisoner
litigation context.
25

liability for an Eighth Amendment violation under § 1983 if the corrections officer had
a reasonable opportunity to intervene and simply refused to do so.” Smith, 293 F.3d
at 650. For a corrections officer to have a realistic and reasonable opportunity to
intervene where an inmate is attacked, the beating must occur within the officer’s
presence or be within his knowledge, and the officer must have had sufficient time to
intervene. See id. at 651 (citing cases). A “momentary” incident, brief by its very
nature, provides no reasonable opportunity for a corrections officer to intervene. See
El v. City of Pittsburgh, 975 F.3d 327, 335 (3d Cir. 2020) (granting summary judgment
as to failure to intervene claim where use of force occurred “within a matter of roughly
five seconds,” which was not sufficient time for the officer to intervene even when
stood next to the victim) (citing Ricks v. Shover, 891 F.3d 468, 479 (3d Cir. 2018)).
In support of his failure to intervene claim, Plaintiff argues that Officers Hand
and Abele had a reasonable opportunity to intervene during the incident because they
allegedly witnessed the attack with a clear line of sight, and they chose to remain at
the officers’ podium, smiling and laughing. [Pl.’s Supp. Br. 29.] They also submit that
the incident took place over the course of 27 minutes because Plaintiff was not
separated from his attackers immediately after approaching Officers Hand and Abele.
[Id. at 30.] Even if this Court were to conclude that the factual dispute regarding the
Officers’ contemporaneous perception of the incident is genuine, see also supra Section
IV.C., the Court cannot find that they had a reasonable opportunity to intervene. It is
undisputed that the use of force lasted all of five (5) seconds, [Defs.’ SOMF ¶¶ 17, 18],
and Officers Hand and Abele were not within a close distance of Plaintiff in any case,
26

[see id. ¶ 19]. Plaintiff also did not report that he had been attacked. [Id. ¶¶ 19, 20; Pl.’s
RSOMF ¶ 19.] Accordingly, based on the undisputed facts, the use of force by
Defendant Jones was momentary, and there was not sufficient time for Officers Hand
and Abele to intervene. See El, 975 F.3d at 335–36 (“Given the speed with which the
incident ended, no reasonable jury could conclude that [the officer] had a realistic and
reasonable opportunity to intervene.”). Nor was there anything for them to intervene
in after Plaintiff approached the officers’ podium. See id. at 336 (rejecting argument
that incident lasted about twenty minutes, not five seconds, because the “question is
not whether [the officer] had an opportunity to intervene in the ‘entire incident,’ but
in [the other officer’s] use of force, which lasted about five seconds”). Therefore,
Plaintiff’s failure to intervene claim fails.
Plaintiff’s state-created danger claim also must fail. Under the state-created
danger exception to the general rule that the Due Process Clause of the Fourteenth
Amendment does not impose an affirmative duty upon the state to protect citizens,
“liability may attach where the state acts to create or enhance a danger that deprives the
plaintiff of his or her Fourteenth Amendment right to substantive due process.”
Stanford v. Stiles, 456 F.3d 298, 304 (3d Cir. 2006) (per curiam) (citing Kneipp v. Tedder,
95 F.3d 1199, 1205 (3d Cir. 1996), and Brown v. Pa. Dep’t of Health Emergency Med. Servs.
Training Inst., 318 F.3d 473, 478 (3d Cir. 2003)). To prevail, a plaintiff must prove the
following elements:
(1)

the harm ultimately caused was foreseeable and fairly
direct;
27

(2)
(3)

(4)

a state actor acted with a degree of culpability that shocks
the conscience;
a relationship between the state and the plaintiff existed
such that the plaintiff was a foreseeable victim of the
defendant’s acts, or a member of a discrete class of persons
subjected to the potential harm brought about by the state’s
actions, as opposed to a member of the public in general;
and
a state actor affirmatively used his or her authority in a way
that created a danger to the citizen or that rendered the
citizen more vulnerable to danger than had the state not
acted at all.

Id. at 304–05 (citations omitted).
Here, Plaintiff’s state-created danger claim fails because he has not adduced
sufficient evidence to establish that Defendant Jones’ assault was foreseeable or that
Officers Hand and Abele acted in any way to create a danger for Plaintiff, much less
act in such a way that “shocks the conscience.” This is, at minimum, because Plaintiff
has not established by competent evidence that Officers Hand and Abele disclosed his
status as an SID informant. Accordingly, no reasonable jury could conclude that
Officers Hand and Abele caused the assault on Plaintiff, that the assault was
reasonably foreseeable, or that the Officers’ action or inaction “shocks the
conscience.”

See Stanford, 456 F.3d at 310–12 (explaining that a school grief

counselor’s failure to report a student’s suicidal ideations was not shocking given
context of student’s written note, and that student’s death was not reasonably
foreseeable or caused by counselor’s inaction).
Finally, Plaintiff’s failure to protect claim is duplicative of his other claims and
must be dismissed as a result. He contends that Officers Hand and Abele knew that
28

Plaintiff was an SID informant, that they disclosed this status to other inmates, that
they witnessed Defendant Jones’ assault, and that they failed to protect Plaintiff. [Pl.’s
Supp. Br. 34.] He argues that this conduct demonstrates the Officers’ “deliberate
indifference” to an “excessive risk” to his safety. [Id. at 34–35.] But this claim is in no
way meaningfully different from his cruel and unusual punishment / conditions of
confinement claim, nor his failure to intervene / state-created danger claims.
Accordingly, summary judgment is warranted, and his failure to protect claim must
be dismissed. See Janowski v. City of N. Wildwood, 259 F. Supp. 3d 113, 132 (D.N.J.
2017) (dismissing counts as duplicative where they were premised on the same
allegations and underlying facts as other claims).
In sum, for the foregoing reasons, summary judgment is warranted as to
Plaintiff’s failure to intervene, state-created danger, and failure to protect claims. 8
E.

State Law Claims.

Next, the Court addresses Plaintiff’s state law claims.

In the Amended

Complaint, Plaintiff asserts claims for assault and battery, negligence, negligent
infliction of emotional distress, and intentional infliction of emotional distress. [Am.
Compl. (Counts VII–X).] He also asserts a claim under the NJCRA, N.J. Stat. Ann.
§ 10:6–1, et seq. [Id. (Count XI).] Because the Court has concluded that Plaintiff’s
federal constitutional claims must be dismissed and because such claims are the sole
basis for the Court’s exercise of federal question jurisdiction over this matter, the Court
8

Again, the Court need not address the BSP Defendants’ argument that Officers
Hand and Abele are entitled to qualified immunity. See supra note 5.
29

will decline to exercise supplemental jurisdiction over Plaintiff’s state law claims. See
28 U.S.C. § 1367(c)(3) (providing that district courts may decline to exercise
supplemental jurisdiction over related state law claims where “the district court has
dismissed all claims over which it has original jurisdiction”); Doe v. Mercy Cath. Med.
Ctr., 850 F.3d 545, 567 (3d Cir. 2017) (citing Elkadrawy v. Vanguard Grp., Inc., 584 F.3d
169, 174 (3d Cir. 2009)). Thus, the Court dismisses Plaintiff’s state law claims for lack
on jurisdictional grounds.
F.

Claims Against the John Doe Defendants, Jones, and Hall.

“The case law is clear that ‘[f]ictitious parties must eventually be dismissed, if
discovery yields no identities[.]’” Hindes v. F.D.I.C., 137 F.3d 148, 155 (3d Cir. 1998)
(quoting Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 37 (E.D. Pa. 1990)). The discovery
period has expired, and it has been over two years since Plaintiff filed his amended
complaint. The Court will grant summary judgment as to all claims asserted against the
John Doe Defendants. Therefore, it is appropriate, at this time, to dismiss the claims
against the John Doe Defendants pursuant to Federal Rule of Civil Procedure 21. See
Blakeslee v. Clinton Cnty., 336 F. App’x 248, 250–51 (3d Cir. 2009) (explaining that
district court may, at any time, add or drop a party on just terms).
Additionally, the Court concludes that Plaintiff has abandoned his claims
against Defendants Jones and Hall. As recounted above, see supra Section IV.A,
Plaintiff failed to serve Defendant Jones, and while an entry of default was entered
against Defendant Hall on September 30, 2021, Plaintiff has taken no further action to

30

prosecute his claims against Hall. In any case, because the Court will grant summary
judgment in favor of the BSP Defendants as to Plaintiff’s federal constitutional claims,
the Court declines to exercise supplemental jurisdiction over Plaintiff’s state law claims
asserted against Defendants Jones and Hall. See 28 U.S.C. § 1367(c)(3); see also supra
Section IV.E. Therefore, the Court will dismiss such claims.
V.

CONCLUSION
For the foregoing reasons, the BSP Defendants’ Motion for Summary Judgment

will be GRANTED. An accompanying Order shall issue on today’s date.

May 18, 2023
Date

s/Renée Marie Bumb
RENÉE MARIE BUMB
Chief United States District Judge

31