BRYANT v. VESSELL et al

Filing 45

OPINION. Signed by Susan D. Wigenton on 7/6/11. (jd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PONTELL BRYANT,
Plaintiff,
v.
SGT. W. VESSELL, S/C.O. HOFF, S/C.O.
VIRUET, S/C.O. BOUREY, S/C.O.
CHRISTOPHER, S/C.O. WILKERSON,
STEVEN ZAHODNICK, S. SPRICH, D.
LOPEZ, VERONICA NENDZE,
Defendants.

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Civil Action No. 09-5337 (SDW) (MCA)

OPINION

July 6, 2011

WIGENTON, District Judge.
Before the Court are Defendants Sgt. W. Vessell (“Vessell”), S/C.O. Hoff (“Hoff”),
S/C.O. Viruet (“Viruet”), S/C.O. Bourey (“Bourey”), S/C.O. Christopher (“Christopher”), Steven
Zahodnick (“Zahodnick”), S. Sprich (“Sprich”), D. Lopez (“Lopez”)1 (“collectively Extraction
Defendants”), S/C.O. Wilkerson (“Wilkerson”), and Veronica Nendze‟s (“Nendze”) (collectively
“Defendants”) Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56(c) and/or Motion
for Judgment on the Pleadings pursuant to Fed. R. Civ. P. 12(c) (“Motion”).2 This Court has
jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367(a). Venue is proper
pursuant to 28 U.S.C. §1391(b)(1) and (2). The Motion is decided without oral argument
pursuant to Fed. R. Civ. P. 78. For the reasons stated below, this Court grants Defendants‟
Motion.

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Defendants Vessell and Lopez are sometimes referred to as Vessel and Lopes in the record.
This Motion is unopposed as Plaintiff has not filed an Opposition Brief.

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FACTUAL AND PROCEDURAL HISTORY
On July 10, 2009, Plaintiff Pontell Bryant (“Plaintiff” or “Bryant”), who was then an
inmate at East Jersey State Prison (“EJSP”),3 was charged with a disciplinary infraction for
allegedly threatening Defendant Wilkerson. (Calderon Decl. Ex. A at SID0002, SID0027.)
Therefore, he was required to move to another cell for pre-hearing detention. (Id. at SID0002.)
Vessell ordered Plaintiff to step out of his cell. (Id.) However, Bryant refused to come out of his
cell; hence, the EJSP administration approved a forced cell extraction. (Id.)
The extraction team was led by Vessell and included Defendants Sprich, Viruet, Hoff,
Zahodnick, Bourey, Christopher, and Lopez. (Id. at SID0003.) The cell extraction was recorded
and the DVD was entered into evidence. (See Calderon Decl. Ex. A.) The DVD recording
shows that Plaintiff refused to comply with Vessell‟s orders to step out of his cell and submit to
handcuffing. Plaintiff covered the window of his cell in violation of prison rules, barricaded his
cell door with his mattress, and soaked the floor in his cell with a slippery substance. (Id.) After
Bryant refused to comply with Vessell‟s orders, a burst of pepper spray was administered
through an opening in his cell door. When Plaintiff still refused to comply, the extraction team
entered his cell to handcuff and shackle him. (Id.) The DVD recording shows that Plaintiff was
extremely combative, uncooperative, and resistant when the extraction team entered his cell. It
took the extraction team about three minutes to subdue Bryant and secure him with restraints.
(Id. at SID0003.) Plaintiff also yelled expletives at the team and threatened to spit on them. As a
result, an anti-spitting mask was placed over Bryant‟s head. (Id.) Even after Plaintiff was
secured, he continued to be uncooperative and yelled statements like “this is far from over” and
“I‟ve been planning this since day one.” (Calderon Decl. Ex. A.) Vessell advised Bryant that his

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Plaintiff is currently incarcerated at Bayside State Prison. (Defs.‟ Statement of Facts ¶ 1.)

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handcuffs would be removed if he cooperated; however, Bryant responded that there would be
“round two” if his handcuffs were removed and that he would “come out swinging.” (Id.)
Immediately after Bryant‟s decontamination shower, he was taken for a medical
examination. The video explicitly shows Plaintiff stating that he “refuses medical attention.”
(Id.) Nonetheless, Nendze examined Plaintiff. (Pelzer Decl. Ex. C. at DOC0018.) Nendze
noted that Bryant‟s “vital signs were within normal limits.” (Id.) She also lifted Plaintiff‟s shirt
and performed a physical examination of his back, chest, and abdomen. (Calderon Decl. Ex. A.)
Her examination revealed that Bryant had a laceration on his outer left eye and a small cut on his
left middle finger. (Pelzer Decl. Ex. C. at DOC0018.) Nendze treated Plaintiff‟s wounds.
(Calderon Decl. Ex. A.)
Bryant received three prison disciplinary charges as a result of his actions on that day:
*.005 (threatening), *.306 (conduct which disrupts), and *.012 (throwing bodily fluids), which
was later amended to a *.002 charge (assault). (Pelzer Decl. Ex. C at DOC0001-DOC0005,
DOC00026-DOC0030.) Plaintiff alleges that the extraction team punched and kicked him, hit
him in the eye with handcuffs, and placed him in tight restraints. (Am. Compl. ¶¶ 12-13.)
Subsequently, Plaintiff, proceeding pro se, filed this action alleging a violation of 42
U.S.C. § 1983 for failure to provide medical care and use of excessive force in violation of the
Eighth Amendment, retaliation, being subjected to unconstitutional procedural hearings, and
negligence. (Id. ¶¶ 20-26.)

STANDARD OF REVIEW
a. Summary Judgment Standard
Summary judgment is appropriate “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.
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56(a). The “mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
A fact is only “material” for purposes of a summary judgment motion if a dispute over that fact
“might affect the outcome of the suit under the governing law.” Id. at 248. A dispute about a
material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. The dispute is not genuine if it merely involves “some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986).
The moving party must show that if the evidentiary material of record were reduced to
admissible evidence in court, it would be insufficient to permit the non-moving party to carry its
burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party
meets its initial burden, the burden then shifts to the non-movant who must set forth specific
facts showing a genuine issue for trial and may not rest upon the mere allegations, speculation,
unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d
Cir. 2001). “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the non-moving
party‟s evidence „is to be believed and all justifiable inferences are to be drawn in his favor.‟”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at
255).
The nonmoving party “must present more than just „bare assertions, conclusory
allegations or suspicions‟ to show the existence of a genuine issue.” Podobnik v. U.S. Postal
Service., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the

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nonmoving party is required to “point to concrete evidence in the record which supports each
essential element of its case.” Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284,
286 (D.N.J. 2004). If the nonmoving party “fails to make a showing sufficient to establish the
existence of an element essential to that party‟s case, and on which . . . [it has] the burden of
proof,” then the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S.
at 322-23.

DISCUSSION
a. Section 1983 Claims
Section 1983 creates a federal remedy for individuals who have been deprived by state
officials of their constitutional rights and privileges. See generally Gonzaga Univ. v. Doe, 536
U.S. 273 (2002). The statute provides in relevant part that “[e]very person, who under color of
any statute, ordinance, regulation . . . subjects, or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured . . . .” 42 U.S.C. § 1983. Section 1983
does not “[b]y itself . . . create any rights, but provides a remedy for violations of those rights
created by the Constitution or federal law.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902,
906-07 (3d Cir. 1997) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To recover
under § 1983, the Plaintiff must “allege the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged deprivation was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Defendants argue that
Plaintiff has no viable claim because: (1) he has failed to exhaust his administrative remedies
under the Prison Litigation Reform Act of 1995 (“PLRA”); (2) he has failed to demonstrate that
his Eighth Amendment rights were violated; (3) he has failed to demonstrate that Defendants

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retaliated against him; (4) he was not subjected to unconstitutional hearings; (5) he has failed to
comply with the notice requirement of the New Jersey Tort Claims Act (“NJTCA”), N.J. Stat.
Ann. §59:1-1 et seq. (West 2011); and (6) he has failed to establish a claim of negligence.
i. The PLRA’s Exhaustion Requirement
The PLRA states that “[n]o action shall be brought with respect to prison conditions
under section . . . [1983 of this title], or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Therefore, if a prisoner has not properly exhausted the
available administrative remedies, a federal court must dismiss the case. Woodford v. Ngo, 548
U.S. 81 (2006). “[T]he PLRA‟s exhaustion requirement applies to all inmate suits about prison
life, whether they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Grievance
procedures in inmate handbooks are administrative procedures that must be exhausted prior to
the filing of a suit. Concepcion v. Morton, 306 F.3d 1347, 1348-49 (3d Cir. 2002). The
administrative process must be followed to completion before suit may be brought in federal
court; a prisoner does not exhaust administrative remedies until a grievance is fully pursued
through each level of appeal available in the prison‟s system. Spruill v. Gillis, 372 F.3d 218, 222
(3d Cir. 2004); Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000).
The PLRA‟s exhaustion requirement applies to Bryant because he was incarcerated at the
time of the filing of this Complaint. Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir.
2001). EJSP‟s grievance procedure requires a prisoner to complete and submit an “Inmate
Request System and Remedy Form.” (Farrell Decl. Ex. A. at 46.) After that form is submitted, a
staff response is provided within thirty (30) days of the form‟s submission.
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(Id. at 47.)

Thereafter, the inmate may appeal to the prison administration within ten (10) days of the
inmate‟s receipt of the staff response. (Id.)
Bryant filed five inmate remedy forms regarding the July 10, 2009 incident. (Farrell
Decl. Ex. B. at IRFS0001-IRFS0005.) Two of those forms specifically concerned Defendants‟
alleged refusal to provide medical care and use of excessive force. (Farrell Decl. Ex. B. at
IRFS0001 and IRFS0002.) Defendants argue that Plaintiff failed to exhaust his administrative
remedies because he filed his appeal of the remedy form on July 18, 2010, more than ten days
after he received the staff responses.

(See Postelnik Decl. Ex. A, Bryant Dep. 59:9-12.)

Nevertheless, Plaintiff asserts that he actually filed the appeal on July 18, 2009, and that he
mistakenly put down the wrong date. (Id. at 61:2-3.) Bryant‟s version of the facts is inconsistent
with the record. The staff responses for Plaintiff‟s remedy forms concerning the failure to
provide medical care and use of excessive force were dated July 28, 2009 and July 22, 2009.
(Farrell Decl. Ex. B. at IRFS0001 and IRFS0002.) Therefore, according to Plaintiff‟s version of
the facts, he filed his appeal, at least, four days before he received the staff responses. Plaintiff
could not have possibly appealed the staff responses before he received them. Hence, Bryant has
failed to establish that his administrative appeal was timely. As a result, he did not exhaust his
administrative remedies.
In any event, even if Plaintiff filed his administrative appeal on time, he still does not
have a viable Eighth Amendment claim.

ii. Eighth Amendment Violation
1. Excessive Force Claim
Plaintiff alleges that the Extraction Defendants violated his Eighth Amendment rights by
using excessive force against him during the forced extraction. Furthermore, Bryant argues that
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Nendez denied him medical care. “The Eighth Amendment, which applies to the states by virtue
of the Fourteenth Amendment, prohibits” punishments that are “cruel and unusual.” Jackson v.
Danberg, 594 F.3d 210, 216 (3d Cir. 2010). An Eighth Amendment claim includes an objective
component, whether the deprivation of a basic human need is sufficiently serious, and a
subjective component, whether the officials acted with a sufficiently culpable state of mind.
Wilson v. Seiter, 501 U.S. 294, 298 (1991). The objective component is “contextual and
responsive to „contemporary standards of decency.‟” Hudson v. McMillian, 503 U.S. 1, 8 (1992)
(quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). The subjective component “follows from
the principle that „only the unnecessary and wanton infliction of pain implicates the Eighth
Amendment.‟” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson, 501 U.S. at 297).
“What is necessary to establish an „unnecessary and wanton infliction of pain,‟ . . . varies
according to the nature of the alleged constitutional violation.” Hudson, 503 U.S. at 5 (quoting
Whitley v. Albers, 475 U.S. 312, 320 (1986)).
Where the claim against a prison official is one of excessive use of force in violation of
the Eighth Amendment, the core inquiry as to the subjective component is “whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Hudson, 503 U.S. at 6-7. “When prison officials maliciously and sadistically use
force to cause harm, contemporary standards of decency always are violated.” Id. at 9. In such
cases, a prisoner may prevail on an Eighth Amendment claim even in the absence of a
“significant injury.” Id. However, not “every malevolent touch by a prison guard” is actionable
because “[t]he Eighth Amendment‟s prohibition of „cruel and unusual‟ punishment necessarily
excludes from constitutional recognition de minimis uses of physical force.” Id. at 9-10.

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To determine whether force was used in “good-faith” or “maliciously and sadistically,”
courts have identified several factors, including:
(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 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 the facts known to them”; and (5) “any
efforts made to temper the severity of a forceful response.”
Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley, 475 U.S. at 321).
Plaintiff‟s excessive force claim lacks merit because he has failed to establish that the
Extraction Defendants inappropriately applied force, or that their use of force was not in good
faith. The DVD recording of the extraction clearly shows that Plaintiff failed to comply with
Vessell‟s orders to step out of his cell and that Plaintiff was resistant and uncooperative. Bryant
threatened physical violence against the extraction team and threatened to spit on them. The
Extraction Defendants did not use any force against Plaintiff after he was subdued and he was
immediately taken for a decontamination shower and a medical examination. Plaintiff maintains
that he was placed in “tight restraints.” The recording shows that Vessell advised Bryant that he
would loosen his restraints if Bryant cooperated. However, Plaintiff repeatedly stated that he
would not cooperate and that there would be “round two” if he was uncuffed. (Calderon Decl.
Ex. A.) Therefore, he was restrained because he refused to cooperate and he posed a threat to the
extraction team.
The record demonstrates that the Extraction Defendants did not, at any point, attempt to
maliciously or sadistically injure Bryant. Plaintiff has not offered any evidence to contradict the
recording of the cell extraction, which shows that the extraction team used only the amount of
force necessary to diffuse the threat caused by Bryant‟s refusal to comply with simple orders.

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Defendants‟ actions were a proper and good faith use of force “to maintain or restore discipline”
and do not constitute an unnecessary and wanton infliction of pain. Whitley, 475 U.S. at 320-21.

2. Medical Care Claim
Similarly, Bryant‟s claim that Defendant Nendze failed to provide him with proper
medical care has no basis. To prevail on a claim for failure to provide medical care under the
Eighth Amendment, Bryant must establish that Nendze was deliberately indifferent to his serious
medical needs. Estelle, 429 U.S. at 104. A “deliberate indifference” exists when the prison
official: “(1) knows of a prisoner‟s need for medical treatment but intentionally refuses to
provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents
a prisoner from receiving needed or recommended medical treatment.” Rouse v. Plantier, 182
F.3d 192, 197 (3d Cir. 1999). Here, Plaintiff has failed to establish that Nendze was deliberately
indifferent. Plaintiff was taken for medical examination immediately after his contamination
shower. The recording shows that although Plaintiff refused medical care, Nendez checked his
vital signs, performed a physical examination, and cleaned the wounds on Plaintiff‟s eye and
finger. (Calderon Decl. Ex. A.)
Nonetheless, Plaintiff alleges that he had “a gash” and bruises on his stomach and legs
that Nendez did not treat. But Bryant has not established that Nendez knew of the wounds on his
stomach or legs. Nendez lifted Plaintiff‟s shirt when he was brought in and she performed a
physical examination of his chest, abdomen, and back. There was no blood or wound on
Plaintiff‟s abdomen. Additionally, Bryant did not complain to Nendez that he had an injury on
his abdomen or legs. Hence, Plaintiff has failed to show that Nendez was aware of his wounds.
In fact, Plaintiff admits that Nendez treated the wounds that were visible at the time he was
brought in. (Postelnik Decl. Ex. A, Bryant Dep. 45:10-14.) Moreover, Plaintiff asserts that
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when he eventually complained about the injuries on his abdomen and legs, he was promptly
examined and treated by another nurse. (Id. at 43:3-7; 46:12-21.) Therefore, no genuine issue of
material fact exists and Defendant was not deliberately indifferent to Plaintiff‟s medical needs.

iii. Retaliation
“Section 1983 imposes liability for retaliatory conduct by prison officials if the conduct
was motivated „in substantial part by a desire to punish [the] individual for the exercise of a
constitutional right.‟” Jerry v. Beard, 2011 U.S. App. LEXIS 5861, *7 (3d Cir. Mar. 22, 2011)
(quoting Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000)). To establish a § 1983 retaliation
claim, the plaintiff must prove that (1) “the conduct which led to the alleged retaliation was
constitutionally protected,” (2) “he suffered some „adverse action‟ at the hands of the prison
officials,” and (3) there is “a causal link between the exercise of his constitutional rights and the
adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (citations
omitted).
Plaintiff alleges that Wilkerson retaliated against him because he told Wilkerson he
would report him and write him up. (Postelnik Decl. Ex. A, Bryant Dep. 31:4-5.) Bryant
maintains that because he told Wilkerson he would report him, the Extraction Defendants used
excessive force against him. Plaintiff‟s claim, however, lacks merit because he specifically
admits that Wilkerson was not involved in the forced extraction. (Id. at 24:18-19.) Additionally,
it was Plaintiff‟s refusal to obey orders that led to the use of force against him. Furthermore, the
Extraction Defendants assert that they had no knowledge of any grievance or lawsuit filed by
Bryant. (Calderon Decl. Ex. A at SID0004-SID0006.) Therefore, he has failed to establish that
Wilkerson retaliated against him.

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iv. Unconstitutional Hearings
Bryant maintains that Defendants subjected him to false disciplinary charges and
unconstitutional procedural hearings “to justify the unprovoked „excessive force.‟” (Am. Compl.
¶ 17.) In Wolff v. McDonnell, the Supreme Court set forth the minimal procedural requirements
for a prison disciplinary hearing. 418 U.S. 539, 563-71 (1974). The prisoner must receive “(1)
written notice of the charges and no less than 24 hours to marshal the facts and prepare a defense
for an appearance at the disciplinary hearing; (2) a written statement by the fact finder as to the
evidence relied on and the reasons for the disciplinary action; and (3) an opportunity „to call
witnesses and present documentary evidence in his defense.‟” Armstead v. Mee, 2011 U.S. Dist.
LEXIS 50677, *17 n.4 (D.N.J. May 9, 2011) (quoting Wolff, 418 U.S. at 563-71).
Plaintiff was given adequate notice about the charges against him and the factual basis for
the disciplinary action. (Pelzer Decl. Ex. C at DOC0001-DOC0005, DOC00026-DOC0030.)
Furthermore, Plaintiff‟s request to call witnesses was granted, he appeared at the hearing, had the
opportunity to defend himself, and was provided the assistance of an inmate counsel substitute.
(Id. at DOC0002-DOC0005.) Therefore, Bryant has not established a claim of false disciplinary
charges.

b. Negligence
Bryant alleges that Defendants breached their duty of care to him by “arbitrarily
subject[ing him] to excessive force[,] retaliation, and unconstitutional procedur[al] hearings.”
(Am. Compl. ¶ 23.) Pursuant to the NJTCA, no claim shall be filed against a public entity or a
public employee for injury to the person unless the claimant files a notice of claim within ninety
days of the accrual of the cause of action. N.J. Stat. Ann. § 59:8-3. The notice requirement is a
precondition to filing a suit and “[a] claimant‟s failure to satisfy this precondition mandates
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dismissal.” Michaels v. New Jersey, 955 F. Supp. 315, 329 (D.N.J. 1996). Here, Plaintiff has
admitted that he did not file the requisite notice of claim. (Postelnik Decl. Ex. A, Bryant Dep.
54:3-6.) Therefore, he cannot pursue a cause of action for negligence against Defendants.
Additionally, Bryant has no basis to assert a negligence claim against Defendants as this Court
has concluded that Defendants did not subject Plaintiff to excessive force, retaliation, or
unconstitutional procedural hearings.

CONCLUSION
For the above stated reasons, Defendants‟ Motion is GRANTED.

SO ORDERED.
s/ Susan D. Wigenton
Susan D. Wigenton, U.S.D.J.

cc: Madeline Cox Arleo, U.S.M.J.

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