POTTER v. GLOVER et al
Filing
140
OPINION. Signed by Judge William J. Martini on 11/14/14. (gh, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ERIC POTTER,
Civil Action No. 09-4304 (WJM)
Plaintiff,
v.
OPINION
JAMES GLOVER, et al.,
Defendants.
APPEARANCES:
ERIC POTTER, #307554A
Southern State Correctional Facility
4295 Route 47
Delmont, NJ 08314
Plaintiff Pro Se
ALEX JOSEPH ZOWIN
Office of the Attorney General
P.O. Box 112
Trenton, NJ 08611
Attorney for Defendants Stokes and Shaw
MICHAEL JOHN LUNGA
23 Vreeland Road, Suite 250
Florham Park, NJ 07932
Attorney for Defendants Reddy and Godinsky
MARTINI, District Judge:
In this case, pro se Plaintiff Eric Potter claims that certain medical and administrative
officials at Northern State Prison (“NSP”) violated his rights under 42 U.S.C. § 1983. On
November 13, 2012, this Court denied motions to dismiss or, alternatively, for summary judgment,
and found that the Third Amended Complaint, as supplemented, adequately asserted that
Defendants Godinsky and Reddy were deliberately indifferent to Potter’s serious medical needs,
contrary to the Eighth Amendment, and that Defendants Stokes and Shaw were deliberately
indifferent to the risk that Potter would be imprisoned beyond the expiration of his term, contrary
to the Eighth and Fourteenth Amendments. See Moore v. Tartler, 986 F.2d 682, 686 (3d Cir.
1993); Sample v. Diecks, 885 F.2d 1099, 1108-1110 (3d Cir. 1989). Presently before the Court
are: (1) motion for summary judgment filed by Defendants Stokes and Shaw and (2) motion for
summary judgment filed by Defendants Reddy and Godinsky. Potter filed opposition to both
motions. For the reasons expressed below, and pursuant to Rule 78, this Court will dismiss the
official capacity claims against Defendants Stokes and Shaw and deny summary judgment on the
individual capacity claims against Stokes, Shaw, Reddy and Godinsky. This Court will also
appoint pro bono counsel to represent Potter, who is proceeding in forma pauperis.
II. SUMMARY JUDGMENT STANDARD
Rule 56(a) provides that a court “shall grant summary judgment if the movant shows that
there is no 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); see also Sulima v. Tobyhanna Army Depot, 602 F.3d 177,
184 (3d Cir. 2010) (“Summary judgment is appropriate if, viewing the record in the light most
favorable to the non-moving party, there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law.”) “An issue of material fact is ‘genuine’ if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Zavala v.
Wal Mart Stores Inc., 691 F.3d 527, 545 (3d Cir. 2012). The substantive law governing the
dispute will determine which facts are material, and only disputes over those facts “that might
affect the outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
2
A party moving for summary judgment must “identify[]each claim or defense - or the part
of each claim or defense - on which summary judgment is sought.” Fed. R. Civ. P. 56(a). To
carry its burden of production, the moving party must “show[] that there is no genuine dispute as to
any material fact.” Id. If the movant “fail[s] to show the absence of any disputed material fact .
. , the District Court err[s] in granting summary judgment.” Adickes v. S.H. Kress & Co., 398
U.S. 144, 148 (1970). 1 If the moving party has met its initial burden of production, then the
nonmoving party must “set out specific facts showing a genuine issue for trial.” Betts v. New
Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (quoting Fed. R. Civ. P. 56(e)(2)). “[I]n
ruling on a motion for summary judgment, ‘[t]he evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in his favor.’” Tolan v. Cotton, 134 S.Ct. 1861, 1863
(2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)); see also Aman v.
Cort Furniture Rental Corp., 85 F. 3d 1074, 1080-81 (3d Cir. 1996) (“[W]hen determining
whether the moving party has proven the absence of a genuine material issue of fact, the facts
asserted by the nonmoving party, if supported by affidavits or other evidentiary material, must be
regarded as true, and the inferences to be drawn from the underlying facts . . . must be viewed in
the light most favorable to the party opposing the motion.”) (citations and internal quotation marks
omitted).
1
See Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (“When the
nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on
summary judgment by showing that the nonmoving party’s evidence is insufficient to carry its
burden of persuasion at trial. . . . Thereafter, the nonmoving party creates a genuine issue of
material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial”).
3
III. DISCUSSION
A.
Deliberate Indifference to Medically Indicated Hepatitis-C Treatment
“Under the Eighth Amendment, prison officials, from the bottom up, may be liable if by act
or omission they display a deliberate indifference to a known risk of substantial harm to an
inmate’s health or safety.” Barkes v. First Correctional Medical, Inc., 766 F.3d 307 322 (3d Cir.
2014). A medical need is serious where it "has been diagnosed by a physician as requiring
treatment or is . . . so obvious that a lay person would easily recognize the necessity for a doctor's
attention." Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d 326, 347 (3d
Cir. 1987) (citations omitted). To establish deliberate indifference, a plaintiff-prisoner must show
that the defendant was subjectively aware of the unmet serious medical need and failed to
reasonably respond to that need. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Erickson v.
Pardus, 551 U.S. 89, 90 (2007). “[A]n Eighth Amendment claimant need not show that a prison
official acted or failed to act believing that harm actually would befall an inmate; it is enough that
the official acted or failed to act despite his knowledge of a substantial risk of serious harm.”
Barkes, 766 F.3d at 325 (quoting Farmer, 511 U.S. at 836). Deliberate indifference may be
shown by an official “intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed,” Estelle v. Gamble, 429 U.S. 97, 104-105 (1976),
and where “the prison official . . . prevents a prisoner from receiving needed or recommended
medical treatment.” Dykeman v. Ahsan, 560 F.App’x 129, 132 (3d Cir. 2014) (quoting Rouse v.
Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).
In this case, Doctors Reddy and Godinsky concede that they had determined that it was
medically appropriate to pursue Potter’s readiness for Hepatitis-C treatment and that on January
4
15, 2007, they ordered a psychiatric evaluation as a medically necessary prerequisite to Potter’s
treatment. 2 However, the parties dispute whether or not Potter asked medical officials to defer his
Hepatitis-C treatment based on his fear of side effects and a potential autoimmune disease.
Relying on Potter’s electronic medical record (but not on his own personal knowledge), Dr.
Godinsky states that “[d]uring his October 3, 2006 Hepatitis-C checkup office visit, Plaintiff
requested to defer his Hepatitis-C treatment, for fear of a possible autoimmune disease,” and that,
“[d]uring his August 17, 2007 Hepatitis-C checkup office visit, Plaintiff again requested to defer
his Hepatitis-C treatment, stating that he was afraid of possible side effects.” (ECF No. 117-2 at
2, 3.) But during his deposition, Potter repeatedly and unequivocally denied telling any medical
personnel at Northern State that he wanted to defer Hepatitis-C treatment for fear of autoimmune
disease, fear of side effects, or any other reason. 3 (ECF No. 115-5 at 17, 26.)
This factual dispute is material to deliberate indifference because, if Reddy and Godinsky’s
failure to obtain the psychiatric evaluation was due to Potter’s decision to defer treatment for
Hepatitis-C, then the failure was not due to Defendants’ deliberate indifference to Potter’s medical
needs. Because there is a material factual dispute concerning deliberate indifference, and because
a jury could find that, by failing for over two years to follow through with the order for a
2
In his affidavit, Dr. Godinsky avers that “[o]n January 9, 2006, Plaintiff was cleared for
Hepatitis-C treatment,” and “[o]n January 15, 2007 . . . a psych consult was ordered to evaluate for
hep c tx pre liver biopsy.” (ECF No. 117-2 at 2, 3.)
3
For example, in response to repeated questioning from counsel for Doctors Reddy and Godinsky
during Potter’s deposition as to the indication in the electronic medical records that Potter he
wanted to defer treatment, Potter stated, “[i]f it says I wanted to defer treatment, I never did.”
(ECF 115-5 at 26.) In addition, Potter states in his opposition: “At no time during the
plaintiff[’]s incarceration at Northern State Prison did the plaintiff refuse[], or sign[] a waiver of
treatment or ask[] to defer his treatment.” (ECF No. 118-3 at 3.)
5
psychiatric clearance for Hepatitis-C treatment, Defendants were deliberately indifferent to a
known risk to Potter’s health.
Defendants also seem to argue that there is no factual dispute as to their deliberate
indifference because Potter did not obtain the psychiatric evaluation himself. Potter responds that
he lacked the power to require medical officials to perform a psychiatric evaluation and that the
order for a medically necessary psychiatric screening had to be made by Doctors Reddy and
Godinsky, after determining that it was medically necessary.
(ECF No. 118-3 at 3.)
Specifically, in response to Defendants’ argument that Potter should have personally asked
Doctors Goldstein and Boseabout to clear him for Hepatitis-C treatment, Potter states that he saw
Dr. Goldstein with regard to being cleared for his full minimum status due to the classification
department’s directive that it was necessary. Potter is correct that “[a]n inmate must rely on
prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be
met.” Estelle, 429 U.S. at 103. This Court finds that, viewing the evidence in the light most
favorable to Potter, there are factual disputes as why Potter was not evaluated for two years after
Defendants ordered the evaluation, and whether the delay in obtaining the evaluation was due to
Defendants’ deliberate indifference to Plaintiff’s medical need for the evaluation as a prerequisite
to medically necessary treatment. Accordingly, this Court will deny the summary judgment
motion of Doctors Reddy and Godinsky. See Tolan, 134 S.Ct. 1861.
B.
Deliberate Indifference to Incarceration Beyond Potter’s Term
Defendants Stokes and Shaw seek summary judgment on Potter’s § 1983 claim that they
were deliberately indifferent to the risk that he would be incarcerated beyond the expiration of his
prison term. They claim in their brief that they are entitled to summary judgment because: (1)
6
the § 1983 damage claims against Shaw and Stokes in their official capacities are barred by the
Eleventh Amendment (Point Four, ECF No. 115-1); (2) Stokes and Shaw are entitled to qualified
immunity (Point Five, ECF No. 115-1); (3) Potter is barred from recovering compensatory
damages by 42 U.S.C. § 1997e(e) (Point Six, ECF No. 115-1); (4) Stokes and Shaw were not
deliberately indifferent to the risk that Potter would be incarcerated beyond his term (Points One,
Two, and Three, ECF No. 115-1; and (5) Stokes and Shaw are entitled to summary judgment on
Potter’s punitive damage claims (Point Seven, ECF No. 115-1).
(1) Official Capacity Claims against Stokes and Shaw
Defendants are correct that Potter’s § 1983 damage claims against them in their official
capacities are barred by the Eleventh Amendment and because state officials acting in their official
capacities are not persons under § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
& n.10 (1989); Estate of Lagano v. Bergen County Prosecutor’s Office,
F.3d
, 2014 WL
5155213 (3d Cir. Oct. 15, 2014); Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655, 660
(3d Cir. 1989). This Court will dismiss Potter’s “official capacity” claims against Stokes and
Shaw.
(2) Qualified Immunity
Stokes and Shaw argue that they are entitled to qualified immunity on Potter’s § 1983
claims against them in their individual capacities. They argue that, while the legal rules set forth
in Moore v. Tartler, 986 F.2d 682, 686 (3d Cir. 1993), and Sample v. Diecks, 885 F.2d 1099, 1110
(3d Cir. 1989), were “well-established,” (ECF No. 115-1 at 39), these decisions “would not have
placed State Defendants on notice that their actions in responding to Plaintiff’s three
[administrative remedy requests] regarding his maximum release date were unconstitutional.” Id.
7
As will be explained below, Stokes and Shaw’s qualified immunity defense fails because, as they
acknowledge, the law regarding the liability of an official for deliberate indifference to the risk that
an inmate would be incarcerated beyond the expiration of his term was clearly established at the
time of the events in question.
“Qualified immunity ‘gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions.’” Lane v. Franks, 134 S.Ct. 2369, 2381 (2014)
(quoting Ashcroft v. al-Kidd, 563 U.S.
,
, 131 S.Ct. 2074, 2085 (2011)). “A government
official sued under § 1983 is entitled to qualified immunity unless the official violated a statutory
or constitutional right that was clearly established at the time of the challenged conduct.” Carroll
v. Carman,
S.Ct.
, 2014 WL 5798628 *2 (Nov. 10, 2014). A right is “clearly established
only if its contours are sufficiently clear that ‘a reasonable official would understand that what he
is doing violates that right.’” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
For example, the Supreme Court recently held in Carroll that, where a court relied on only one
case for the proposition that the law was clearly established, but that case’s holding did not apply
because the case was factually distinguishable, the court erred in finding that defendants were not
entitled to qualified immunity. 4
In this case, Defendants’ acknowledge that, at the time of the events in question, Moore,
986 F.2d 682, and Sample, 885 F.2d 1099, were clearly established law. In Sample, the Third
Circuit noted that, “[w]here an official with a duty to investigate, check, or report is notified of a
4
“Marasco[, the case on which the court relied,] held that an unsuccessful ‘knock and talk’ at the
front door does not automatically allow officers to go onto other parts of the property. It did not
hold, however, that knocking on the front door is required before officers go onto other parts of the
property that are open to visitors. Thus, Marasco simply did not answer the question whether a
‘knock and talk’ must begin at the front door when visitors may also go to the back door.”
Carroll,
S.Ct.
, 2014 WL 5798628 at *3.
8
problem, the cost of his either rectifying the problem himself or reporting the problem to higher
authorities will not compete with other aspects of administering the penal system.” Sample, 885
F.2d at 1109. While a warden “does not exhibit deliberate indifference by failing to address a
sentence calculation problem brought to his attention when there are procedures in place calling
for others to pursue the matter . . . , if a prison official knows that, given his or her job description
or the role he or she has assumed in the administration of the prison, a sentence calculation
problem will not likely be resolved unless he or she addresses it or refers it to others, it is far more
likely that the requisite [deliberate indifference] will be present.” Id. at 1110. The Third Circuit
held in Sample that, “[t]o establish § 1983 liability in this context, a plaintiff must first demonstrate
that a prison official had knowledge of the prisoner’s problem and thus of the risk that unwarranted
punishment was being, or would be, inflicted. Second, the plaintiff must show that the official
either failed to act or took only ineffectual action under circumstances indicating that his or her
response to the problem was a product of deliberate indifference to the prisoner’s plight. Finally,
the plaintiff must demonstrate a causal connection between the official’s response to the problem
and the infliction of the unjustified detention.” Id.
There is no dispute in this case that Stokes and Shaw had knowledge of the risk of
unjustified detention because they responded to at least three of Potter’s administrative remedy
requests in which he complained about the miscalculation of his maximum date. According to
Potter, these officials responded to his grievances because they were involved in the classification
department and were responsible for such matters. Moreover, nothing before this Court indicates
that Stokes and Shaw referred Potter’s complaints to another official for investigation.
9
The relevant question for qualified immunity purposes is this: Could Stokes and Shaw
have reasonably believed, at the time they received between three and six grievances in which
Potter claimed that his release date had been miscalculated, that they could respond to those
grievances without conducting a thorough investigation or reporting the problem to an official who
was responsible for conducting such an investigation? Given that Sample was clearly established
law in 2009 and Defendants have not shown that the facts in Potter’s case are distinguishable from
those Sample, the answer to this question is no. Because Stokes and Shaw have not shown that
they are entitled to qualified immunity, this Court will deny summary judgment on that ground.
(3) 42 U.S.C. § 1997e(e)
In Point Six of their brief, Stokes and Shaw argue that Potter is barred from recovering
compensatory damages by 42 U.S.C. § 1997e(e). This argument fails because Potter was not
incarcerated or detained in any facility at the time he brought his original Complaint and § 1997e
does not apply to a case unless the plaintiff was a prisoner at the time he filed the complaint. See
Ahmed v. Dragovich, 297 F.3d 201, 210 & n. 10 (3d Cir. 2002) (observing that a prisoner who was
released at the time he filed his original complaint is not precluded by 42 U.S.C. § 1997e from
filing a § 1983 suit for incidents concerning prison conditions which occurred prior to his release);
see also Defreitas v. Montgomery County Correctional Facility, 525 F.App’x 170, 176 (3d Cir.
2013). Accordingly, Stokes and Shaw are not entitled to summary judgment on Potter’s § 1983
claims against them in their individual capacities on the basis of § 1997e.
(4) Deliberate Indifference to Risk of Incarceration Beyond Term
In Points One, Two, and Three of their brief, Stokes and Shaw argue that they were not
deliberately indifferent to the risk that Potter would be incarcerated beyond the expiration of his
10
term. This Court found in its prior Opinion that Potter’s amended complaint, as supplemented,
stated a deliberate indifference claim against Defendants Shaw and Stokes. Potter alleged that,
after the Appellate Division had vacated his consecutive seven-year sentence on July 31, 2007, his
aggregate sentence was reduced to seven years. On May 9, 2009, defendants Stokes and Shaw
responded to Potter=s remedy request by stating that his maximum date was August 20, 2009 (ECF
No. 72-4 at 8), and on June 23, 2009, in response to another administrative remedy request, Shaw
and Stokes responded that his maximum date was August 14, 2009 (ECF No. 72-4 at 10). Potter
asserted that on July 7, 2009, he submitted another administrative request in which he insisted that
the August 14, 2009, maximum date was incorrect, but he claimed that he received no response to
this request. (ECF No. 72-5 at 11). In finding that Potter stated a claim, this Court observed that
the “Face Sheet Report” attached to Potter’s papers (ECF No. 72-4 at 5) indicated that Potter’s
actual maximum date on his seven-year term was July 17, 2009, and that he was released on July
26, 2009 (ECF No. 72-4 at 5), whereas the AFace Sheet Report@ attached to the declaration of Frank
Pellegrino showed that Potter=s actual max date was July 26, 2009. (Dkt. 71-4 at 12.)
Despite this factual dispute in documents generated by the New Jersey Department of
Corrections regarding Potter’s maximum sentence date, Defendants Shaw and Spokes argue that
there is no factual dispute regarding Potter’s maximum date or the reasonableness of their
responses to Potter’s repeated claims that his maximum date was improperly calculated. Since
Defendants Stokes and Shaw did not file their own declarations, they have not explained how they
determined, in response to Potter’s grievances, that his maximum dates were August 20, 2009, and
August 14, 2009. Nor have they revealed what, if any, investigation they undertook before
responding to Potter’s grievances or denied that they were responsible for either conducting their
11
own investigation or reporting the matter to an official who was responsible for conducting an
investigation. To support their summary judgment motion, Shaw and Stokes submitted the
declarations of Karen Hughes, an Administrative Analyst; Frank Pellegrino, an Inmate Request
Coordinator; and the Deputy Attorney General assigned to the instant case. This Court will
outline the contents of these declarations to determine whether Stokes and Shaw have shown that
there is no genuine factual dispute and that they are entitled to judgment.
In his declaration, the Deputy Attorney General states that Exhibit A is a true and accurate
copy of the transcript of Potter’s deposition testimony on January 13, 2014, and that Exhibit B is a
true and accurate copy of Potter’s inmate credit account statements. (ECF No. 115-5 at 1-2.)
In his declaration, Frank Pellegrino states that a search of records showed that Potter filed
three administrative remedy requests regarding his release date; that Potter did not appeal the staff
responses; and that NSP has no record of Potter’s administrative remedies dated May 19, 2009,
July 7, 2009, or July 22-23, 2009. (ECF No. 115-4.) The relevancy of Pellegrino’s declaration is
unclear, as Defendants do not argue in their summary judgment motion that Potter failed to
exhaust available administrative remedies. In any event, since Potter resided in Neptune, New
Jersey, at the time he filed the original Complaint in this action, he was not a “prisoner” within 42
U.S.C. § 1997e(h) and the exhaustion requirement did not apply. See Ahmed v. Dragovich, 297
F.3d 201, 210 & n. 10 (3d Cir. 2002) (observing that a prisoner who was released at the time he
filed his original complaint is not precluded by 42 U.S.C. § 1997e from filing a § 1983 suit for
incidents concerning prison conditions which occurred prior to his release); see also Defreitas v.
Montgomery County Correctional Facility, 525 F.App’x 170, 176 (3d Cir. 2013).
12
Defendants’ summary judgment motion essentially relies on the declaration of Karen
Hughes. Hughes states that she is “familiar with the procedure for calculating inmates’ maximum
dates and ha[s] access to these records.” Notably, she does not aver that she is the person who
calculated Potter’s release date after the Appellate Division vacated a seven-year sentence, or that
she was, at the time of Potter’s incarceration in 2009, responsible for calculating release dates or
responding to inmates’ complaints regarding miscalculation of their release dates. Instead,
referring to five documents attached to her declaration, which she describes as “true and accurate
copies of Plaintiff’s Calculation Worksheets and Projected Max Date Worksheets,” Hughes
concludes that, in her view, Potter’s correct maximum term date was July 26, 2009, the date on
which he was released. (ECF No. 115-3.)
The first Calculation Worksheet is dated February 26, 2009. The “prepared by” name on
this document is illegible, but it indicates that, as of December 31, 2008, Potter’s actual maximum
date was September 14, 2009.
(ECF No. 115-3 at 45.)
The second document, labelled
“Projected Max Date Worksheet,” was prepared by the same person whose name is illegible on the
February 26, 2009, worksheet. (ECF No. 115-3 at 46.) This worksheet indicates that Potter’s
projected maximum expiration date was August 14, 2009. Id. The third document, also a
Calculation Worksheet, is dated March 18, 2009. (ECF No. 115-3 at 47.) This worksheet,
which appears to have been prepared by the same person who prepared the others, indicates that
Potter’s actual maximum date, as of January 31, 2009, was September 10, 2009. (ECF No. 115-3
at 47.) The fourth document, labelled Projected Max Date Worksheet, is dated March 18, 2009,
and appears to have been prepared by the same person. According to this document, Potter’s
projected maximum date was July 25, 2009. (ECF No. 115-3 at 48.) The fifth document, an
13
undated Calculation Worksheet, indicates that it was prepared by Janeene Brown and that Potter’s
actual maximum date was July 26, 2009. (ECF No. 115-3 at 49.)
Hughes expresses her belief that this undated Calculation Worksheet prepared by Janeene
Brown correctly calculated Potter’s maximum term date as July 26, 2009. Using the passive
voice, and without averring that she was involved in preparing this worksheet or determining
Potter’s release date in 2009, Hughes states:
When Plaintiff’s “projected max date” was reviewed for the final time, it was
discovered that the July 25, 2009 “projected max date” assumed that Plaintiff
would accrue 5.6 work credits in March 2009. However, Plaintiff actually accrued
only four work credits in March 2009 . . . . It was also discovered that the July 25,
2009 “projected max date” assumed that Plaintiff would accrue only 4.8 work
credits in July 2009. However, Plaintiff actually accrued 5 work credits in July
2009 . . . Therefore, the maximum date was changed from July 25, 2009 to a final
maximum date of July 26, 2009.
(ECF No. 115-3 at 5-6.)
Hughes also attempts to explain the discrepancy between the maximum date – July 17,
2009 - stated in Face Sheet attached to Potter’s prior submission (ECF No. 72-4 at 5) and her own
calculation of Potter’s release date as July 26, 2009. Hughes maintains that the Face Sheet
attached to Potter’s papers, which she claims was printed on March 2, 2010,
is incorrect as it reflects duplicate work and minimum credits for the month of June,
2009. This occurred because the six (6) work credits and three (3) minimum
credits that Plaintiff earned in June 2009, were manually posted on July 21, 2009, a
few days prior to the July 26, 2009 release. The computer program that posts the
work and minimum credits earned by an inmate runs on the fourth Friday of every
month, and automatically updates the previous month’s credits. Therefore, when
the computer program updated on July 24, 2009, it included the same six (6) work
credits and three (3) minimum credits that were manually posted on July 21, 2009,
duplicating the June 2009 credits. The erroneous credits were not caught prior to
Plaintiff’s release on July 26, 2009 because offenders are released based on manual
verification of the calculation, which advances work and minimum credits based on
the offenders’ custody status/job assignment. The duplicate manual credits were
not removed until June 6, 2011.
14
(ECF No. 115-3 at 6-7.)
However, a few paragraphs later, Hughes asserts that “[t]he duplication was discovered on
June 20, 2011 and removed.” (ECF No. 115-3 at 8.) Moreover, without providing a foundation
establishing personal knowledge, Hughes claims that Potter received no work credits for the
period from March 1, 2009, through March 11, 2009, because he “was not paid” for this time
period. Id.
In his opposition papers, Potter states that, during 2009, Defendant Shaw “worked in the
classification department at Northern State Prison and was assigned to respond to inmate
grievances filed by inmates who had concerns about their status or max dates,” and that Defendant
Stokes was at various times the chairperson of the classification routine meeting and he signed off
on the responses to Potter’s grievances concerning his release date. (ECF No. 120 at 8.) Potter
sets forth his own calculations of his release date, which are based on the maximum date of
September 29, 2009, set forth in the New Jersey State Parole Board’s Case Summary dated
September 4, 2008, which was “certified” on August 28, 2008, after the Appellate Division
reduced Potter’s aggregate sentence to seven years. (ECF Nos. 72-4 at 4, 120 at 29.) This
document shows that on September 4, 2009, the Parole Board determined that Potter became
eligible for parole on April 16, 2008, and that, as of August 1, 2008, his maximum date was
September 29, 2009. Id. Potter proceeds to deduct from this September 29, 2009, maximum
date, four work credits per month for the months of July 2008, August 2008, September 2008,
October 2008, November 2008, December 2008, January 2009, and February 2009, and comes up
a release date of August 28, 2009, as of the end of February 2009. (ECF No. 120 at 9.) It is
15
undisputed that Potter was awarded full minimum status on March 11, 2009, and that this
classification increased his monthly credits to from 4 to 9 days a month. Potter disputes Hughes’s
unsupported contention that he did not receive any work credits for the first 11 days in March
2009, and states that he in fact received 8 days of work and minimum custody credits for March
2009, which reduced his maximum date from August 28, 2009, to August 21, 2009. Id. at 10.
Potter then deducts 9 days per month of credit for April 2009, May 2009, and June 2009, 8 days for
July 2009, and two days of jail credits awarded in his judgment of conviction on Indictment No.
03-04-0646, and comes up with a maximum date of July 17, 2009 (the date reflected in the March
2010 Face Sheet). Potter avers that, after he filed six grievances concerning the miscalculation of
his maximum date, on Wednesday, July 22, 2009, he spoke with Ms. Elizabeth Cromer, the
Clinical Director of his therapeutic program, and informed her that his sentence had expired. 5 He
further avers:
Ms. Cromer told the plaintiff that she was scheduled to sit on the classification
committee[’]s meeting that was going to be scheduled for the next day with
administrator Frank Pedalino and that if the plaintiff filled out a grievance form and
hand[ed] it to her on Thursday morning that she would personally give it to Mr.
Pedalino. The plaintiff did fill out the grievance form and gave it to Ms. Cromer
that Thursday morning. On Friday July 24, 2009[,] the very next day[,] the
plaintiff was called to take exit photo which is usually done 2 weeks to 1 month
before an inmate is being released . . . [P]laintiff was told on Sunday July 26, 2009
at 4:00 P.M. that he was being released . . . The plaintiff was released at 9:00 P.M.
that Sunday evening walking down the highway carrying as much property as the
plaintiff could carry seeking a bus or a cab to Penn Station.
(ECF No. 120 at 12.)
In response to Hughes’s contention that the Face Sheet reflected double credits for June
2009, Potter notes that Defendants “have not produced any documents or provided any names of
[the person] who manually gave the plaintiff 9 additional credits for the month of June 2009[, and
5
Potter is correct that July 22, 2009, was a Wednesday.
16
they] also have not mentioned the fact that the plaintiff also received 8 credits for the month of July
2009.” (ECF No. 120 at 13.) In his brief opposing summary judgment, Potter convincingly
argues that, if Hughes is correct that officials awarded Potter nine duplicate days for June 2009,
and that this mistake was not recognized by officials until 2011, then it follows that “plaintiff was
released 9 days before his max date and that the plaintiff[’]s max date would not have been July 26,
2009, but rather August 4, 2009[,] 9 days later.” Id. at 19. He asserts that Eric Stokes and
Stephen Shaw, as an administrator with classification responsibilities and a senior Classification
Officer,
had the duty to respond and correct the plaintiff[’]s grievances concerning his max
date. Both defendants knew what the consequences would be if they did not take
any meaningful action or pass the matter on to someone else. The plaintiff was no
stranger to these defendants as the plaintiff ha[d] filed over 12 grievances
concerning his medical problems, full minimum status and max date. The
defendant Eric Stokes signed every grievance form [and] Shaw . . . reviewed
numerous grievances submitted by the plaintiff concerning his full minimum status
and his max date . . . The only measure that the defendant Stephen Shaw took was
to look into the computer and respond back to the plaintiff what date was in the
computer and that defendant Eric Stokes signed off on this response. These two
defendants have been in a lot of situations involving inmates that were held pas[t]
their max dates.
(ECF No. 12-0 at 19-20.)
Potter argues that this Court should deny Stokes and Shaw’s summary judgment motion
because he has shown that there is a genuine dispute of material fact and a jury could reach a
verdict in his favor on his Eighth and Fourteenth Amendment claim that he was incarcerated
beyond his maximum release date. Id.
In response to Potter, Stokes and Shaw’s attorney argues that Potter’s calculations are
incorrect because (1) Potter received duplicate work credits for the month of June 2009 (because
some unspecified person put the credits into the computer manually on July 21, 2009, and the
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computer automatically put in the same work credits on July 24, 2009); (2) Potter only earned four
work credits in March 2009, instead of the projected 5.6 days; and (3) although the Parole Board’s
calculation indicates that Potter’s maximum date, as of August 1, 2008, was September 29, 2009,
the Parole Board nevertheless included Potter’s work credits for August 2008 in determining that
his maximum date was September 29, 2009, as of August 1, 2009. (ECF No. 121 at 3.)
In determining whether Defendants have carried their burden of production, this Court
notes that Defendants have not provided an affidavit based on personal knowledge to support the
three grounds Defendants rely on to challenge Potter’s and the Face Sheet’s calculations that
Potter’s maximum date was July 17, 2009. Defendants have not produced an affidavit of the
person who allegedly gave Potter double credits for June 2009. Defendants have not produced an
affidavit based on personal knowledge to support their contention that Potter received fewer than
the projected work credits for March 2009, and they have not produced an affidavit based on
personal knowledge to support their contention that the Parole Board’s certified statement that
Potter’s maximum date was September 29, 2009, as of August 1, 2008, really meant that Potter’s
maximum date was September 29, 2009, as of September 1, 2008. Accordingly, it appears that
Defendants have not carried their burden of production and they have not shown the absence of a
factual dispute concerning the date on which Potter’s sentence expired.
Despite this factual dispute, Defendants argue that they are entitled to summary judgment
because there is no factual dispute regarding whether they were deliberately indifferent, i.e.,
whether they conducted a reasonable investigation in response to Potter’s several grievances
concerning the miscalculation of Potter’s maximum release date or whether their investigations
were inept. However, because Stokes and Shaw have not submitted their own affidavits, they
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have not explained what they did in order to respond to Potter’s grievances or shown that they
conducted any investigation concerning the calculation of Potter’s sentence or reported the matter
to someone who conducted an investigation. In other words, Defendants have not carried their
burden of production of showing that there is no genuine dispute as to whether they responded
reasonably to the risk that Potter would be incarcerated beyond the expiration of his sentence.
Accordingly, they have not carried their burden of production and are not entitled to summary
judgment. See Adickes, 398 U.S. at 148.
Moreover, even if Defendants had carried their burden of production, Potter has shown the
existence of factual disputes concerning the date on which his sentence expired and whether
Defendants Stokes and Shaw were deliberately indifferent to the risk that Potter would be
incarcerated after the expiration of his sentence.
This Court will, accordingly, deny their
summary judgment motion. See Tolan, 134 S.Ct. 1861.
(5) Punitive Damages
In Point Seven of their brief, Defendants seek summary judgment on Potter’s request for
punitive damages under § 1983, on the ground that there is no evidence that their conduct involved
reckless or callous indifference to Potter’s rights. Individual public officers are liable for punitive
damages under § 1983 for their misconduct on the same basis as other individual defendants. See
Smith v. Wade, 461 U.S. 30, 35 (1983). The decision to award punitive damages, however, is
generally a jury question. See Newport v. Fact Concerts, Inc., 453 U.S. 247, 269-70 (1981).
Malicious intent is not a prerequisite for the award of punitive damages under § 1983. Smith, 461
U.S. at 51. Rather, “a jury may be permitted to assess punitive damages in an action under § 1983
when the defendant’s conduct . . . involves reckless or callous indifference to the federally
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protected rights of others.” Id. at 56; see also Springer v. Henry, 435 F.3d 268, 281 (3d Cir. 2006)
(holding that a jury may award punitive damages where the defendant’s conduct violating
plaintiff’s constitutional rights is reckless or callous). “The focus is on the character of the
tortfeasor’s conduct – whether it is of the sort that calls for deterrence and punishment over and
above that provided by compensatory awards. If it is of such a character, then it is appropriate to
allow a jury to assess punitive damages.” Smith, 461 U.S. at 54.
As explained above, to establish deliberate indifference liability under § 1983 on Potter’s
Eighth Amendment claim, the jury must find that the defendant was subjectively reckless, i.e., that
the defendant “disregards a risk of harm of which he is aware.” Farmer, 511 U.S. at 837; see also
Kolstad v. American Dental Ass’n, 527 U.S. 526, 536 (1999). As Defendants Stokes and Shaw
have not established the absence of a factual issue concerning whether they responded to Potter’s
problem with reckless indifference, they have not carried their burden of showing that they are
entitled to summary judgment on the punitive damages claims under § 1983. See Adickes, 398
U.S. at 148.
C.
Appointment of Counsel
This Court notes that, once a court finds that an indigent party’s case has arguable merit, in
deciding to appoint counsel, the court should “consider a number of additional factors including:
(1) the plaintiff's ability to present his or her own case; (2) the difficulty of the particular legal
issues; (3) the degree to which factual investigation will be necessary and the ability of the plaintiff
to pursue investigation; (4) the plaintiff's capacity to retain counsel on his or her behalf; (5) the
extent to which a case is likely to turn on credibility determinations; and (6) whether the case will
require testimony from expert witnesses.” Cuevas v. United States, 422 F.App’x. 142, 145 (3d
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Cir. 2011) (citing Tabron v. Grace, 6 F.3d 147, 155-57 (3d Cir. 1993)). Given the fact that this
case will go to trial and will turn on credibility determinations, this Court finds that the
appointment of pro bono counsel for Potter, pursuant to 28 U.S.C. § 1915(e)(1), is in the interest of
justice.
III. CONCLUSION
This Court grants summary judgment on the official capacity claims, denies summary
judgment on the individual capacity claims, and appoints pro bono counsel for Plaintiff.
s/William J. Martin
WILLIAM J. MARTINI, U.S.D.J.
DATED:
November 14, 2014
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