SMITH v. HAYMAN et al
Filing
96
OPINION. Signed by Judge Peter G. Sheridan on 3/30/2012. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES R. SMITH,
Plaintiff,
v.
GEORGE W. HAYMAN, et al.,
Defendants.
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Civil Action No. 09-2602 (PGS)
OPINION
APPEARANCES:
JAMES R. SMITH, Plaintiff pro se
423443
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey, 08625-0861
CRAIG J. SMITH, ESQ.
MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP
1617 John F. Kennedy Blvd., Suite 1500
6981 North Park Drive
Philadelphia, PA 19103-1815
Counsel for Defendants, Dr. Flora DeFilippo, Dr. Marina
Moshkovich, and Ms. Keasha Baldwin
EMILY ANNE SAMUELS, ESQ.
OFFICE OF THE N.J. ATTORNEY GENERAL
DIVISION OF LAW
R.J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, New Jersey 08625
Counsel for Michelle Ricci
SHERIDAN, District Judge
THIS MATTER comes before the Court on the motions of
defendants, Dr. Flora DeFilippo,1 Dr. Marina Moshkovich, and Ms.
Keasha Baldwin (Docket entry no. 83) and Administrator Michelle
Ricci (Docket entry no. 85) for summary judgment pursuant to
Fed.R.Civ.P. 56.
motions.
Plaintiff filed oppositions to defendants’
(Docket entry nos. 86 and 87).
briefs, respectively.
Defendants filed reply
(Docket entry nos. 88 and 90).
This
matter is being considered on the papers pursuant to Fed.R.Civ.P.
78.
For the reasons set forth below, defendants’ motions will be
granted.
I.
A.
BACKGROUND
Procedural History
On or about May 29, 2009, plaintiff, James R. Smith
(“Smith”), filed a civil rights Complaint, pursuant to 42 U.S.C.
§ 1983, against numerous defendants: George W. Hayman, Commission
of the New Jersey Department of Corrections (“NJDOC”); Michelle
Ricci, Administrator of the New Jersey State Prison (“NJSP”); Dr.
Rusty Reeves; Dr. Jordan Lieberman; Dr. Flora DeFilippo; Dr. Ray
1
At the time defendants submitted their motion for summary
judgment, this Court had not yet ruled on Dr. DeFilippo’s thenpending motion for judgment on the pleadings. (Docket entry no.
68). On January 19, 2012, this Court issued an Opinion and Order
(Docket entry nos. 92 and 93) granting Dr. DeFilippo’s motion and
ordered that this action be dismissed with prejudice, in its
entirety, as to Dr. DeFilippo. Consequently, because Dr.
DeFilippo has been terminated as a defendant in this action,
defendants’ present motion for summary judgment will be
considered as on behalf of Dr. Moshkovich and Ms. Baldwin.
2
Baum; Dr. Marina Moshkovich; Ms. Keasha Baldwin, Clinical Social
Worker; and John/Jane Doe defendants #1-20.
Caption, ¶¶ 15-23).
(Complaint,
The Complaint asserted claims of
retaliation, failure to protect, infringement of his right to
privacy, denial of medical care and treatment, and denial of
equal protection.
In an Opinion and Order entered on February
19, 2010, the Honorable Freda L. Wolfson, U.S.D.J., dismissed
plaintiff’s claims asserting denial of medical care and equal
protection, but allowed the remaining three claims to proceed.
(Docket entry nos. 4 and 5).
On June 30, 2010, defendant Hayman
was dismissed from this action.
(Docket entry no. 28).
By
letter Order entered on February 17, 2011, defendants Reeves,
Lieberman and Baum were voluntarily dismissed from this action.
(Docket entry no. 61).
On January 19, 2012, this Court issued an
Opinion and Order granting the motion for judgment on the
pleadings, filed by defendant Dr. DeFilippo, and dismissed with
prejudice the Complaint as to Dr. DeFilippo.
The remaining
defendants are Administrator Ricci, Dr. Moshkovich and Keasha
Baldwin.
In his Complaint, Smith alleged that he suffers from a
Gender-Identity Disorder (“GID”).
He claimed that he is a male-
to-female transgender individual, born biologically male but
allegedly psychologically and emotionally female.
In dismissing
the denial of medical care claim, Judge Wolfson found that Smith
3
failed to cite an actual medical or psychiatric/psychological
diagnosis.
In fact, the prison psychiatrist, defendant Dr. Baum,
stated in a report that Smith did not meet the two major criteria
for a diagnosis of GID.
Smith had been evaluated by
psychiatrists, psychologists and social workers at the New Jersey
Department of Corrections (“NJDOC”).
There was no recommendation
for hormone treatment or surgery, nor was there any confirming
diagnosis of GID.
Further, Smith was not undergoing hormone
therapy or other type of treatment for GID that was disrupted by
defendants.
He did not arrive in the prison system having
started hormone therapy or other treatment for GID.
Indeed, he
failed to cite any previous medical/psychological diagnosis of
GID.
Smith also admitted that defendants offered counseling and
alternative treatments to address his transgender concerns, which
he has refused for alleged privacy concerns, although he also
admitted that the doctors and counselors made efforts to ensure
private sessions within the confines of his unit.
Smith further
admitted that defendants have suggested medications to reduce his
alleged desires to be female, which Smith also has declined.
Accordingly, Judge Wolfson dismissed the denial of medical care
claim because there was no demonstrated deliberate indifference
to deny treatment for GID where no prior therapy was alleged,
citing Wolfe v. Horn, 130 F. Supp.2d 648, 652 (E.D. Pa. 2001).
4
Shortly thereafter, Smith filed a motion for a preliminary
injunction to enjoin defendants, Dr. Moshkovich and others from
deleting medical health diagnoses from his electronic medical
record (“EMR”) and to have the Court impose sanctions against
defendant for deleting a medical diagnosis from his EMR in
violation of law.
(Docket entry no. 35).
In particular, Smith
attached a March 4, 2010 EMR and a July 29, 2010 EMR, noting that
several entries on the March EMR were not included on the July
EMR, namely, hx (history) of post traumatic stress disorder;
major depressive disorder, recur, full remis; hx of polysubstance
dependence; dysthymic disorder; paraphilia (arousal to forcible
sex); and “? of gender identity disorder.”
(Id., Motion at
Exhibit 3).
In an Opinion and Order filed on February 23, 2011, Judge
Wolfson denied Smith’s motion for a preliminary injunction
because it failed to satisfy the first two factors necessary for
issuance of preliminary injunctive relief.
and 63).
(Docket entry nos. 62
Namely, the Court found that Smith could not
demonstrate a likelihood of success on the merits.
In
particular, the Court found no actual deletions of a reference to
GID because no diagnosis of GID has ever been made with respect
to Smith.
Moreover, the “deletions” alleged by Smith were not
actual deletions of medical information from Smith’s medical
records.
Rather, the March 2010 EMR references current problems
5
existing at that time that were not existing current problems in
July 2010.
Further, none of those current problems in the March
2010 pertained to any diagnosis.
Thus, the Court concluded that
Smith had little to no likelihood of success on this claim, as he
could not show any merit to his accusation that information in
his medical records were deleted or destroyed, or that the
information concerning his “current problems” in March 2010 are
unavailable for purposes of obtaining evidence pertinent to his
pending case.
Indeed, both EMRs, made part of the record by
Smith, plainly demonstrated that diagnosis information in Smith’s
medical records had not been deleted.
Finally, the Court noted
that there was no evidence to show that defendants, in
particular, Dr. Moshkovich, did anything in violation of the law
or of plaintiff’s constitutional rights that would warrant
injunctive relief.
Namely, Smith provided no evidence of any
kind that information in his medical records were deleted by Dr.
Moshkovich or others.
(February 23, 2011 Opinion, Docket entry
no. 62 at pp. 5-6).
The Court also found that Smith failed to support a claim of
irreparable harm based on the fact that there was no indication
that Smith’s medical records had been compromised in any way by
defendants or that the medical records needed to prove his case
were no longer available.
The Court observed that Smith had
undermined his own argument by producing medical records which
6
clearly showed that no medical diagnoses have been deleted, as
alleged.
Instead, the EMRs simply referenced the list of current
problems existing in March 2010 that were not existing as current
problems in July 2010.
Thus, the Court concluded that there was
no indication that Smith’s future treatment would be imperiled
because no diagnoses have been deleted from Smith’s medical
records.
(Id. at pp. 6-7).
On August 11, 2011 and September 9, 2011, the remaining
defendants filed their respective motions for summary judgment.
(Docket entry nos. 83 and 85).
In their motion, defendants
Moshkovich and Baldwin, argue that they are entitled to summary
judgment because (1) Smith failed to exhaust his administrative
remedies as required by statute; (2) defendants are entitled to
qualified immunity; (3) the claims raised by plaintiff have been
previously litigated
in state court and are thus barred under
the doctrine of issue preclusion; and (4) plaintiff waived his
privacy claim when he publicized his GID claims through multiple
legal proceedings that were covered by television and newspapers.
In defendant Ricci’s motion, she contends that summary
judgment should be granted because (1) Smith failed to exhaust
his administrative remedies with respect to his privacy claim;
(2) the doctrine of issue preclusion bars these claims which have
been previously litigated in state court; (3) plaintiff has only
a limited right to privacy in prison; (4) plaintiff’s retaliation
7
claim fails to show that he was engaged in a constitutionallyprotected activity and that he was not subject to an adverse
action; (5) all claims against defendant in her official capacity
are barred by the Eleventh Amendment; and (6) defendant is
entitled to qualified immunity on plaintiff’s claims against her
in her individual capacity.
Plaintiff filed opposition to defendants’ motions.
entry nos. 86 and 87).
thereafter.
B.
(Docket
Defendants filed reply briefs shortly
(Docket entry nos. 88 and 90).
Statement of Facts
The following material facts are taken from the defendants’
Statement of Material Facts in Support of Motion for Summary
Judgment, submitted pursuant to Local Civil Rule 56.1.
(Docket
entry nos. 83-1 and 85-3).
Smith has been confined at NJSP since October 3, 2001, as a
result of his conviction on two counts of first degree
kidnapping, four counts of aggravated sexual assault and numerous
other offenses.
He is sentenced to serve 105 years in prison,
with an 85½-year parole disqualifier pursuant to the No Early
Release Act.
(September 8, 2004 Judgment of Conviction, attached
as Exhibit B to Affidavit of Craig J. Smith).
In imposing such a
lengthy sentence, the Honorable Carmen H. Alvarez, J.S.C. found
that Smith was a compulsive and repetitive offender, having an
extensive juvenile record for sexual offenses, and further stated
8
that “defendant is not in control of any of his impulses.
He is
a highly dangerous sexual predator, most likely a sociopath who
feels no genuine remorse for the damaged human lives he leaves
behind.”
(Id.).
In affirming Smith’s conviction and sentence, the Superior
Court of New Jersey, Appellate Division recited the facts of the
case as follows:
On August 5, 2002, [redacted] and her friend, [redacted],
both age seventeen, went to Ocean City, New Jersey with
[redacted]’s family. On August 7, around 12:30 a.m.,
[redacted] and [redacted] took a walk on the boardwalk,
where defendant approached them from behind and told them he
had a knife. Defendant grabbed their collars and impelled
them to an isolated area on the beach.
Displaying a four to six inch serrated blade with a mahogany
handle, defendant led the teenagers to a “no swimming” sign
located near the water; a stone jetty was located on one
side and a wooden pier on the other. [redacted] testified
that she and [redacted] believed defendant would hurt them
if they did not do what they were told, “because of the
knife.” Defendant ordered [redacted] to remove his shirt.
Defendant cut it with a pocket knife he had in his
possession, and used pieces of the shirt to tie [redacted]’s
hands to the sign. Defendant instructed [redacted] to
remove [redacted]’s shorts; defendant cut the shorts and
used them to gag [redacted] and tie his feet to the sign.
Defendant “told [redacted] to put [her] hand down
[redacted]’s shorts and touch his penis and testicles and to
perform oral sex on him.” [redacted] complied.
Later, leaving [redacted] tied to the sign, defendant, while
holding [redacted]’s wrist in one hand and a knife in the
other, walked [redacted] back to the boardwalk, and then to
defendant’s car. Before they left the beach, defendant told
[redacted] that “if he got out and told police, that either
he or one of his friends would come and find him and kill
him.” Undeterred, [redacted] got loose, returned to the
motel where his family was staying, and called the police.
[redacted] provided a description of the suspect to police,
9
describing him as a “[h]ispanic male, roughly five nine,
five ten, medium build, darkish-colored hair, dark eyes.”
Defendant drove [redacted] from Ocean City to a secluded
wooded area in Cape May County. [redacted] estimated that
she was in the car twenty minutes to half an hour before
defendant stopped in an alcove on a dirt road. For the next
hour and a half to two hours, defendant performed oral sex
on [redacted] and raped her anally and vaginally.
When he finished, defendant drove her further down the dirt
road to another, smaller alcove, located in Cumberland
County, where he again raped her. Afterward, he had her
kneel behind the car. He put a towel around her neck and
pulled up on the towel from behind, twisting the two ends
together. Defendant told [redacted] that he had to kill her
because otherwise he would get caught by the police. After
[redacted] told defendant that if he let her go she would
not implicate defendant to the police, he cut the towel into
pieces and used it to gag [redacted] and tie her to a tree.
Before he left her in the woods in that condition, defendant
told [redacted] he would call the police and let them know
where to find her body.
After defendant drove away, [redacted] untied herself and
walked back to the road, which took her an hour and a half.
At approximately 9:00 a.m., a passing motorist gave her a
ride. She appeared “disheveled,” and had a look of
“desperation.”
The driver flagged down a Delaware River and Bay Authority
(DRBA) police vehicle, driven by DRBA Patrolman Kenneth
Sheeky, who testified that when he saw [redacted], she had
“puffy eyes,” was crying and shaking, had redness around the
base of her neck, and was clutching pieces of blue and whit
cloth. Sheeky drove [redacted] to the state police barracks
in Port Norris, where [redacted] described the person who
abducted and raped her as “five foot eleven, about 190
pounds, 23-years old, brown hair, brown eyes, large round
glasses and a mustache.” [redacted] also supplied a
description of and the license plate number of defendant’s
car.
[redacted] told Lynn Rybicki, a nurse at the hospital where
[redacted] was taken by the police, that the suspect had
raped her anally and vaginally. On examination, Rybicki
observed swelling in [redacted] vaginal and anus areas.
Defendant’s semen was found in [redacted].
10
Detective David Fletcher from the Ocean City Police
Department investigated the crimes. A license plate search
matched the plate number provided by [redacted] with a car
registered to defendant at a Vineland address. On August 9,
Fletcher, along with two investigators, went to that
address, where Fletcher observed a car in the driveway that
fit the description [redacted] gave of the suspect’s car;
its license plate contained the number [redacted] had
provided. After a search warrant was obtained, two knives
were found in the residence. Subsequently, [redacted] and
[redacted] each identified defendant out of a photographic
line-up.
. . .
On January , 2002,2 while defendant was incarcerated,
[redacted]’s father received a letter in the mail addressed
to his daughter, although their address was unlisted. It
contained a pornographic picture. It read:
Hey, bitch. It took me awhile. But I and my lovely
companions have tracked you down and have your address.
See, you can run, but you can’t hide from the
gingerbread man. No matter where you go in this world,
I will track you down and as of right now, your every
move is being carefully watched. So is [redacted].
And as soon as you take that fateful step, bang, you’re
fucking dead. Remember, I have friends in the lowest
and highest of places that is [sic] willing to kill for
me because of the pain you caused me. You’re nothing
but a little slut. You wanted to get fucked, then you
ran like a little bitch. I should have killed you
myself when I started, but I figure I let you ... live.
Big mistake. If I knew you got loose, I would have run
over you with my car, over and over and over until you
were unrecognizable. Remember, don’t ever fuck with a
truck driver or his friends. Yes, I’m out to kill you
and you will be killed. I won’t rest until you’re
dead. Then will I be completely happy with what I did
to you. Even if you go on the witness protection
program, that won’t help you. I have the means and the
friends necessary to find you. Nothing will stop me or
2
In 2001, Smith had been convicted and sentenced in
accordance with the guilty plea for the above-mentioned offenses.
He was sentenced to forty years in prison with a 3-year period of
parole ineligibility.
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get in my way of killing you. As long as I’m a live,
you won’t and you won’t be alive too much longer,
bitch. Here’s a picture of us. You’ll love it, slut.
Love, The Killer, The Gingerbread Man.
After [redacted] read the letter, her father turned it over
to the prosecutor’s office. After comparing the letter to
handwriting samples from defendant, a forensic document
examiner opined that the letter was written by defendant.
Based upon the letter, defendant was again indicted in Cape
May County, on February 26, 2002, charged with one count of
third-degree terroristic threats ... .Subsequently, the
prosecutor successfully moved to vacate defendant’s previous
plea agreement and sentence, and have the two indictments
consolidated. ...
(October 5, 2004 Appellate Division Opinion, Ex. C to Smith
Decl.).
Plaintiff Smith admitted that when he was interviewed at the
Adult Diagnostic and Treatment Center for sentencing purposes, he
told a psychologist that he had thrown a teacher out of a second
story window.
(April 8, 2011 Deposition of Plaintiff (“Smith
Dep.”) 31:21-32:22, Ex. A).
Smith also admitted telling the
psychologist that he does not like talking to women about his
problems.
(Smith Dep., 32:5-10, Ex. A).
Defendants Dr. Moshkovich and Social Worker Baldwin are
women employed by the University of Medicine and Dentistry of New
Jersey (“UMDNJ”) to provide treatment to inmates at the NJSP
pursuant to a contract between UMDNJ and the NJDOC.
Dr.
Moshkovich is a psychiatrist who met with Smith periodically to
provide mental health treatment services from December 2007 to
August 6, 2009.
She has not provided any treatment or other
12
mental health services to Smith since August 6, 2009.
(Declaration of Marina Moshkovich, M.D. at Ex. E).
Ms. Baldwin was assigned to provide social work services to
Smith beginning in December 2007 to January 2009, at which time
she was reassigned and no longer was involved with treatment of
or social work services to Smith.
In fact, Ms. Baldwin no longer
works at NJSP and is not employed by UMDNJ at this time.
(Declaration of Keasha Baldwin, Ex. F).
While providing mental health treatment and social work
services to the inmates at NJSP, neither Dr. Moshkovich or Ms.
Baldwin had any control over the physical facilities provided by
the NJDOC for meeting with inmates and they were subject to the
safety and security directions by NJDOC custody personnel, over
whom they had no control.
Decl., Ex. F).
(Moshkovich Decl., Ex. E and Baldwin
Since Smith filed this action, he has not been
treated by either Dr. Moshkovich or Ms. Baldwin, and there is no
prospect that they will treat him in the future. (Smith Dep.
47:17-25, Ex. A).
The contract between UMDNJ and NJDOC for the provision of
health and social services was dated November 1, 2004, and became
effective January 1, 2005.
It was a two year term contract,
which was extended for another two-year term from its original
December 31, 2006 expiration date to December 31, 2008.
was extended for 18 months through June 30, 2010.
Declaration, Ex. G).
It again
(Dickert
Of pertinence here, Section 3.1.12 of the
13
Agreement between UMDNJ and the NJDOC, titled “General
NJDOC/UMDNJ Support” provided:
a.
b.
NJDOC will provide UMDNJ with office space, facilities
as designated by NJDOC to perform its obligations and
duties under the Agreement...
NJDOC will provide the appropriate level of security as
determined by the Facility Administrator for all areas.
(Dickert Decl., Ex. G).
Smith testified at his deposition in this matter that he
understood when he signed his February 8, 2002 mental health
treatment plan prepared by Dr. Jeff Mandell, that there would be
a team involved in his mental health care, which would include
psychiatry, nursing, psychology and social work, and that at the
very least, a social worker, psychiatrist and psychologist would
read and sign his mental health treatment plans.
11:1-10, Ex. A).
(Smith Dep.
The only mental health meetings that Smith
alleges violated his privacy rights were meetings with Ms.
Baldwin and Dr. Moshkovich, both of whom are women.
(Smith Dep.,
41:15-22, Ex. A).
No interview room was available for Ms. Baldwin’s use with
plaintiff in housing unit 3A.
Although an interview room existed
on housing unit 3A, Ms. Baldwin was not allowed by NJDOC
officials to use it with Smith for security and safety reasons
because the room’s security devices were not operational.
(Baldwin Decl., Ex. F).
Further, as a female clinician, Ms.
Baldwin was not permitted by NJDOC custody officials to meet with
14
Smith alone behind a closed door without a security cage, nor
would Ms. Baldwin have felt safe doing so.
(Id.).
Ms. Baldwin addressed the lack of a safe interview room with
her supervisor, Dr. DeFilippo, who asked the NJDOC to remedy the
situation.
No functional, safe interview was ever made available
for Ms. Baldwin’s use with Smith.
Consequently, she met
individually with each inmate for whom she provided social
services on housing unit 3 at a table, alone, outside the cells,
which had solid steel doors with non-opening glass windows.
The
conversations at these interviews were conducted quietly and were
paused if anyone passed within earshot.
A corrections officer
was visible and available to provide security and prompt response
if necessary.
In this way, both the inmate’s privacy concern and
the facility’s security concerns were protected.
(Id.).
Smith testified that Ms. Baldwin never conducted any
interviews with him through his cell door and that they always
met at the table outside the cells on housing unit 3A.
Dep. 49:20-23, Ex. A).
(Smith
He first met with Ms. Baldwin at that
location on December 13, 2007.
Smith confirms that it was he
who voluntarily raised the subject of GID for the first time.
(Smith Dep. 48:18-49:10, Ex. A).
Smith never asked Ms. Baldwin to meet with him at another
location; nor did he advise her that he would not meet with her
for privacy reasons.
Smith also did not ever tell Ms. Baldwin
that he refused to discuss his GID concerns at that location for
15
privacy reasons.
(Baldwin Decl., Ex. F).
Smith testified that
he continued to meet with Ms. Baldwin approximately once every
two weeks thereafter at the same location.
(Smith Dep. 49:11-15,
Ex. A).
Ms. Baldwin states that she never discussed or disseminated
Smith’s mental health information in public or with any person
outside of Smith’s mental health treatment team.
(Baldwin Decl.,
Ex. F).
On January 4, 2008, Smith wrote a letter to Dr. DeFilippo,
which referred to his December 2007 meeting with Ms. Baldwin.
The letter discussed Smith’s GID issues and made requests for
treatment, women’s clothing and amenities, but it did not raise
any privacy concerns.
Ex. A).
(Smith Dep. 18:15-20; 50:12-51:9; 19:2-6,
The January 4, 2008 letter was attached with Smith’s
February 13, 2008 Inmate Remedy System Form, bate stamped DOC
111-116 and attached as Ex. H.
(Smith Dep. 18:15-20, Ex. A).
Dr. Moshkovich first met with Smith on December 17, 2007, to
discuss the GID issues Smith previously had raised with Ms.
Baldwin.
The meeting was conducted at the table outside Smith’s
cell on housing unit 3A, the same location as used for his
meeting with Ms. Baldwin.
No functional, safe interview room was
made available for Dr. Moshkovich’s use with Smith in housing
unit 3A, and Dr. Moshkovich would not meet with Smith in any
unsafe location.
(Moshkovich Decl., Ex. E).
The conversations
at these interviews were conducted quietly and were paused if
16
anyone passed within earshot.
A corrections officer was visible
and available to provide security and prompt response if
necessary.
Dr. Moshkovich asked the corrections officer to stay
back from the table and make sure he could not hear the
conversations.
(Id.).
At his deposition in this matter, Smith confirmed the
conduct of the interviews with Dr. Moshkovich.
He testified that
the doctors would give the housing unit officer a list of the
inmates that were to be interviewed, and the unit officers would
let the inmates out, one at a time, to meet with the doctors.
(Smith Dep. 43:1-16), Ex. A).
Smith testified that when he came
out of his cell to meet with Dr. Moshkovich, all of the other
inmates in his housing unit were locked in their cells, except
for inmate workers who were sweeping and mopping.
Smith
personally told these inmates to move away to the end of the hall
and the inmates complied.
A).
(Smith Dep. 43:1-44:3; 44:13-24, Ex.
Smith admitted that when the corrections officer got close
to the table, Dr. Moshkovich asked him first if he could hear,
and when the officer responded no, Dr. Moshkovich still asked him
to step away.
(Smith Dep. 44:13-18, Ex. A).
Smith agreed to sit
at the table with Dr. Moshkovich, did not say to her that he did
not want to meet there, nor did he refuse to proceed with the
interview.
(Smith Dep. 44:25-46:4, Ex. A).
At the December 17, 2007 meeting with Dr. Moshkovich, Smith
did not mention any GID issues with her, he did not raise any
17
privacy concerns , and he did not object to the location of the
meeting.
(Moshkovich Decl., Ex. E).
The next time they met, on
February 12, 2008, Smith again did not discuss any GID issues
that he had previously raised with Ms. Baldwin.
He also did not
complain about privacy concerns or the location of the meeting.
He was, however, rude and uncooperative.
(Id.).
Dr. Moshkovich attempted to speak with Smith again on March
12, 2008, but he was locked in his single occupancy cell due to a
prison lockdown, and she agreed she would not speak with him
through the cell door.
She arranged to have a meeting with Smith
at the table outside his cell on April 9, 2008.
The April 9,
2008 meeting was the first time Smith spoke to Dr. Moshkovich
about his claims of GID.
(Id.).
Smith never asked Dr. Moshkovich to meet with him at another
location than the table outside his cell on housing unit 3A.
There was no other safe location available to Moshkovich to meet
with Smith.
Further, Dr. Moshkovich is not aware of any legal
authority that requires her to meet with Smith out of sight and
immediate response of a corrections officer without a security
cage, nor would she agree to do so.
(Id.).
Smith testified that he has no recollection of asking either
Ms. Baldwin or Dr. Moshkovich to meet with him behind a closed
door at the D.B. School in NJSP.
(Smith Dep. 57:1-10, Ex. A).
He never filled out an Inmate Remedy System Form or a medical
request form asking to be seen by them in the D.B. School at
18
NJSP.
(Smith Dep. 23:9-18, Ex. A).
The D.B. School at NJSP did
not have any interview rooms equipped with security cages.
Dr.
DeFilippo stated that she would not have asked her female
clinicians to use an interview room at the D.B. School to
interview Smith outside the presence of a corrections officer,
for safety reasons.
She further stated that she was not aware of
any female clinician who used the D.B. School to conduct
interviews with Smith.
(DeFilippo Declaration, Ex. D).
Dr. DeFilippo sent NJSP administrators several memoranda
requesting that safe interview rooms be provided.
These
memoranda were dated July 10, 2008 and December 9, 2009,
addressed to Administrator Ricci; and February 17, 2010,
addressed to Assistant Superintendent Drumm.
Both Dr. Moshkovich and Ms. Baldwin state that they took
every reasonable precaution to preserve Smith’s privacy under the
circumstances.
F).
(Moshkovich Decl., Ex. E and Baldwin Decl., Ex.
Dr. DeFilippo states that there was no policy or practice to
violate plaintiff’s privacy rights.
(DeFilippo Decl., Ex. D).
The Complaint acknowledges that Smith has never been
diagnosed with GID.
An Office of the NJSP Administrator
Memorandum dated January 21, 2009 informed Smith that a NJSP
psychiatrist, Dr. Baum, had determined that Smith did not meet
the diagnostic criteria for GID.
(Complaint at ¶¶ 49-52).
Likewise, on February 4, 2009, Dr. Reeves and Dr. Lieberman
advised Smith that there was no record indicating that he had
19
GID.
(Compl., ¶¶ 57-58).
Dr. Moshkovich made an initial
notation on Smith’s mental health record of a provisional
diagnosis of “sex identity disorder,” which was added to his
Problem List as a question following her first discussion with
Smith about GID on April 9, 2008.
Dr. Moshkovich states that her
intention in noting this provisional diagnosis was to foster
discussion of the new issue with other members of Smith’s mental
health treatment team.
(Moshkovich Decl., Ex. E).
After
evaluations of Smith by members of his mental health treatment
team, it was the consensus of the team that a diagnosis of GID
was ruled out.
(DeFilippo Decl., Ex. D; Moshkovich Decl., Ex. E;
and Baldwin Decl., Ex. F).
Smith has testified in this matter that he knows about the
NJSP grievance procedure because he has been confined at NJSP for
more than ten years.
(Smith Dep. 67:12-20, Ex. A).
He admits to
have “some legal education in research and documents
preparation,” and has held a prison job at NJSP as an Inmate
Paralegal.
(Defendants’ Affidavit of Craig J. Smith at Ex. “I”).
In an Inmate Remedy System Form (“IRSF”), dated February 13,
2008, which attached Smith’s January 4, 2008 letter addressed to
Dr. DeFilippo, Smith made a request for GID therapy in Part One
of the form.
(Smith Dep. 18:8-23, Ex. A; Document bate stamped
DOC 111-116, Ex. H).
The only complaint or issue raised in Part
One is a request for GID treatment; there is no reference to a
privacy problem.
(Id.).
20
Part Two of the IRSF contains no reference to a privacy
issue.
(DOC 115, Ex. H).
Part Three of the IRSF under the
heading “Staff Response Area” states: “IM has refused to discuss
this with treating psychiatrist.
He must talk w/her - based on
evaluation we will recommend an appropriate course of action.”
Part Three of the IRSF does not contain any reference to a
privacy issue being raised by Smith.
(DOC 115, Ex. H).
Part
Four of the IRSF is Smith’s handwritten reply, or administrative
appeal, to the Staff’s response to his Part One request for GID
treatment.
It is dated February 26, 2008.
The administrative
appeal states: “I/M Smith is unable to speak to said psychiatrist
due to lack of privacy and confidentiality, in part because 1)
the unit officer sits nearby (at hearing distances); 2) the unit
microphones being “on”; and 3) she wants the I/M Smith to discuss
[her] issue out in the wide open of the unit.
and confidentiality to freely speak.”
A).
Would like privacy
(Smith Dep. 22:6-22, Ex.
This was the first time Smith raised a privacy issue for
administrative remedy.
(Smith Dep. 22:23-23:4, Ex. A).
There
are no records of any other administrative remedy by Smith on the
issue of privacy concerns, and Smith admits in his deposition
that he has no recollection of any other IRSF prepared by him
with regard to a privacy problem.
(Smith Dep. 23:5-8, Ex. A).
Smith admits that he never filed an IRSF regarding a claim
of alleged retaliation by defendant Ricci.
Ex. A).
(Smith Dep. 68:3-6,
Smith admits that he never filed an IRSF regarding a
21
claim that Ricci allegedly failed to protect him.
68:14-20, Ex. A).
(Smith Dep.
Smith admits that he never filed an IRSF
complaining about his transfer from a “single lock” cell to a
“double lock” cell.
(Smith Dep. 68:7-10, Ex. A).
On February 25, 2009, Smith filed an Appeal of Final
Administrative Decision in the Superior Court of New Jersey,
Appellate Division.
Smith raised the following issues in his
appeal: “The Respondents has [sic] Failed to Provide the
Appellant with Private and Confidential Meetings with Members of
the Mental Health Department and Respondents Continues [sic] to
Violate the Appellant’s Rights to Privacy in Violation of the New
Jersey Administrative Code 10A:16-4.4; N.J.S.A. 45:14B-28;
Article I, Paragraphs 1 and 21 of the New Jersey Constitution;
the Ninth3 and Fourteenth Amendments of the United States
Constitution and its State and Federal Precedents.”
DOC APP DIV
1007-108, Ex. J).
The Appellate Division issued a decision and opinion on
August 27, 2010, which reads in pertinent part:
Appellant argues treatment for GID is necessary “to
alleviate [the] discomfort of being trapped in a body that
doesn’t belong to [appellant].” Yet, appellant has never
been diagnosed with GID and there is no evidence in this
record to support appellant’s contention that he suffers
from the mental health disorder. Moreover, appellant
resists the medical professionals’ request to discuss these
feelings and engage in therapy designed to consider whether
he experiences the symptoms of GID, because of an
overwhelming concern that someone might be listening.
3
It would appear that Smith intended to cite to the Eighth
Amendment and not the Ninth Amendment.
22
First, an observation. These contentions were not raised in
the administrative proceedings from which the appeal is
filed. Generally, we reject considerations of matters not
raised below, except those that present a question of
constitutional dimension or public import that requires
resolution without initial consideration by the trial judge.
Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).
We will briefly address appellant’s claims.
First, notwithstanding the lack of such a diagnosis,
appellant claims his privacy was breached when Dr.
Moshkovich discussed her evaluation with her supervisors,
suggesting she revealed his male-to-female GID. Appellant
then leaps to the assumption these supervising physicians
told the Housing Unit Officers, in violation of N.J.A.C.
10A:16-4.4 and with disregard of constitutional protections
shielding disclosure of medical diagnoses.
Prison inmates do not shed all fundamental protections of
the Constitution at the prison gates. See Turner v. Safley,
482 U.S. 78, 95, 107 S.Ct. 2254, 2265, 96 L.Ed.2d 64, 83
(1987). Rather, inmates “retain[] those [constitutional]
rights that are not inconsistent with [their] status as []
prisoner[s] or with the legitimate penological objectives of
the corrections system.” Pell v. Procunier, 417 U.S. 817,
822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495, 501 (1974). With
regard to an inmate’s right to keep confidential previously
undisclosed medical information, it follows that impingement
on that right would be permitted only to the extent a prison
official’s actions were “reasonably related to legitimate
penological interests.” Ibid.
This record is devoid of facts supporting appellant’s
contentions that a gratuitous disclosure occurred. Dr.
Moshkovich acknowledged she discussed appellant’s GID
disclosure with her supervisors when discussing her
evaluation and treatment. Such discourse among the unit
psychiatrists is necessary to devise an appropriate course
of treatment for an inmate. This record reflects several
doctors were involved in appellant’s mental health care.
These discussions can hardly be characterized as a breach of
appellant’s constitutional right to privacy. Likewise,
nothing shows the doctors then revealed the transgender
identity issue to the Housing Unit Officers. The claims are
nothing more than mere speculation and supposition and are
rejected.
Appellant next suggests breaches of his Eighth Amendment
right to be free of cruel and unusual punishment occurred
when the requests for provision of GID treatment, hormone
23
therapy, feminine clothing and related amenities were
denied. We completely reject the suggestion that because
the mental health professionals were told by appellant of
the experienced GID symptoms, the disorder is manifest.
The denial of GID treatment was based on psychological and
psychiatric evaluations and appellant’s prison record
evincing appellant lacked female gender identification.
Nothing in the pre-sentence report supports his contention
he was living “as a woman.” His inmate photograph shows he
has had a long-standing mustache. Prior mental health
therapy was for post-traumatic stress disorder and
depression, not GID.
We reiterate that appellant, now age thirty-three, has never
been diagnosed with GID. The prison psychiatric staff has
evaluated appellant on several occasions and concluded there
is insufficient evidence to establish the criteria to
support a GID diagnosis. The DOC continues to provide
mental health treatment and encouraged appellant to discuss
feelings that will aid in future care. Its failure to
accept appellant’s self-diagnosis is neither arbitrary nor
capricious and is not of constitutional dimension.
Appellant’s remaining arguments lack sufficient merit to
warrant discussion in a written opinion. R. 2:113(e)(1)(E).
(August 27, 2010 Appellate Division Opinion, Ex. K).
Smith filed a petition for certification with the New Jersey
Supreme Court, presenting the following questions for review:
1.
2.
Does Appellant Have A Constitutional Right To Privacy
and Confidentiality When Discussing His Mental Health
Needs With Members Of The Mental Health Department?
Does The Appellant Have A Constitutional Right To Be
Provided With Private And Confidential Meetings With
Members Of The Mental Health Department Pursuant To The
New Jersey State Prison Internal Management Procedures
And Policies?
(Smith Dep. 30:3-24, Ex. A; Ex. L).
Smith argued that these issues were issues of first
impression.
(Smith Dep. 31:4-8, Ex. A).
24
The New Jersey Supreme
Court denied certification on March 31, 2011.
(Smith Dep. 25:9-
24, Ex. A).
On February 13, 2008, Smith filed an IRSF demanding GID
treatment.
This IRSF contained a copy of Smith’s January 4, 2008
letter to Dr. DeFilippo in which he disclosed to Dr. DeFilippo
his claim to have GID.
The IRSF was received by the Inmate
Remedy System Coordinator who was not part of Smith’s mental
health team; nor was anyone else in the NJSP Administrator’s
Office who saw Smith’s February 13, 2008 IRSF.
On April 25, 2008, Smith filed his first appeal in the
Appellate Division regarding his claim to have GID and his
request for treatment.
On July 16, 2008, Smith filed an application in the Superior
Court of New Jersey, Law Division, Mercer County, Docket No. MERL-1830-08, seeking to change his name to “Amanda Raquel Smith.”
In that application, Smith stated that he wishes to assume the
name of “Amanda Raquel” because he is emotionally and
psychologically a female and considers himself a female.
In
support of his name change application, Smith notified staff in
the NJSP Business Office of his application so that a check could
be issued to the newspaper to advertise the hearing to change his
name.
Smith placed a newspaper advertisement to inform the
public of the hearing on his application to change his name to
“Amanda Raquel Smith.”
On January 29, 2009, the state court
denied Smith’s application for a name change.
25
On January 26, 2009, Smith filed another IRSF with the NJSP
Administration seeking hormonal treatments for GID and asking to
receive women’s clothing and amenities.
On February 25, 2009,
Smith filed his second appeal of an NJSP Administrative Decision
with the Superior Court of New Jersey, Appellate Division.
In
his appeal, Smith wrote that he prefers to be called by the
feminine name of “Amanda Raquel Smith.”
He also included a copy
of his January 4, 2008 letter to Dr. DeFilippo, which is signed
as “Amanda Raquel Smith,” and which contained his demand for
female hormone therapy and women’s clothing and amenities,
including sanitary napkins and women’s underwear.
The appeal
also contained his mental health treatment plan dated June 4,
2008, the December 5, 2008 complete psychiatric evaluation of his
GID claim and handwritten questions to Dr. Moshkovich that
included graphic references to anal masturbation and castration
among other topics.
On January 6, 2011, Smith wrote to defense counsel in this
action advising that on August 30, 2010, both the CBS 3 News and
its sister station Eyewitness News on CW aired television
broadcast segments about Smith’s lawsuit to become a female.
The
letter also informed defense counsel that the newspapers, “The
Press of Atlantic City” and “The Star Ledger,” published
newspaper articles sometime between August 27, 2010 and September
4, 2010, concerning his lawsuit.
26
(Ex. M).
II.
A.
DISCUSSION
Standard for Summary Judgment
A party seeking summary judgment must “show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir.
1996); Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219, n. 3
(3d Cir. 1988), cert. denied, 490 U.S. 1098 (1989); Hersh v.
Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986).
The
threshold inquiry is whether “there are any genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986)(noting that no issue for trial exists unless there is
sufficient evidence favoring the nonmoving party for a jury to
return a verdict in its favor).
In deciding whether triable
issues of fact exist, the Court must view the underlying facts
and draw all reasonable inferences in favor of the non-moving
party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Pennsylvania Coal Ass’n v. Babbitt, 63
F.3d 231, 236 (3d Cir. 1995); Hancock Indus. v. Schaeffer, 811
F.2d 225, 231 (3d Cir. 1987).
Rule 56(e) of the Federal Rules of Civil Procedure provides,
in relevant part:
27
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon
the mere allegations or denials of the adverse party’s
pleading, but the adverse party’s response, by affidavits or
as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial. If
the adverse party does not so respond, summary judgment, if
appropriate, shall be entered against the adverse party.
Fed.R.Civ.P. 56(e).
The rule does not increase or decrease a
party’s ultimate burden of proof on a claim.
Rather, “the
determination of whether a given factual dispute requires
submission to a jury must be guided by the substantive
evidentiary standards that apply to the case.”
Anderson, 477
U.S. at 255.
Under the Rule, a movant must be awarded summary judgment on
all properly supported issues identified in its motion, except
those for which the nonmoving party has provided evidence to show
that a question of material fact remains.
at 324.
See Celotex, 477 U.S.
Put another way, once the moving party has properly
supported its showing of no triable issue of fact and of an
entitlement to judgment as a matter of law, for example, with
affidavits, which may be “supplemented ... by depositions,
answers to interrogatories, or further affidavits,” id. at 322 n.
3, “its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita, 475
U.S. at 586 (citations omitted); see also Anderson, 477 U.S. at
247–48 (stating that “[b]y its very terms, this standard provides
that the mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
28
motion for summary judgment; the requirement is that there be no
genuine issue of material fact.”).
What the nonmoving party must do is “go beyond the pleadings
and by [its] own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific
facts showing that there is a genuine issue for trial.’”
Celotex, 477 U.S. at 324; see also Lujan v. National Wildlife
Fed’n, 497 U.S. 871, 888 (1990)(stating that “[t]he object of
[Rule 56(e)] is not to replace conclusory allegations of the
complaint ... with conclusory allegations of an affidavit.”);
Anderson, 477 U.S. at 249; Big Apple BMW, Inc. v. BMW of N. Am.,
Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied,507 U.S.
912 (1993)(stating that “[t]o raise a genuine issue of material
fact, ... the opponent need not match, item for item, each piece
of evidence proffered by the movant,” but must “exceed[ ] the
‘mere scintilla’ threshold and ... offer[ ] a genuine issue of
material fact.”).
The Local Civil Rules supplement the Federal Rules of Civil
Procedure and provide that “each side shall furnish a statement
which sets forth material facts as to which there exists or does
not exist a genuine issue.”
L. Civ. R. 56.1.
“Where possible, a
single joint Rule 56.1 statement is favored.”
Allyn Z. Lite, New
Jersey Federal Practice Rules 192 (2006 ed.) (citations omitted).
“Where a joint statement is not prepared, then, under the rule,
‘facts submitted in the statement of material facts which remain
uncontested by the opposing party are deemed admitted.’”
29
Id. at
193 (citations omitted).
However, “the parties’ statements
pursuant to Local Rule 56.1 “cannot bind the Court if other
evidence establishes that the stipulated facts are in error.”
Id. (citation omitted).
B.
Failure to Exhaust Administrative Remedies
Defendants first argue that Smith failed to properly exhaust
his administrative remedies with respect to his breach of privacy
claim.
Smith counters that the privacy issue was raised by him
on February 26, 2008, when he wrote in Part Four of the IRSF, in
response to the Staff member’s response: “IM Smith is unable to
speak to said psychiatrist due to lack of privacy and
confidentiality, in part because 1) the unit officer sits nearby
(at hearing distances); 2) the unit microphones being “on”; and
3) she went to IM Smith to discuss [her] issues out in the wide
open of the unit.
Would like privacy and confidentiality to
freely speak.”
In accordance with N.J.A.C. 10A:8-1.1 to 10A:8-3.6, the NJSP
has adopted Inmate Handbooks in 2001 and 2007, that set forth the
rights and privileges of its inmates at NJSP.
The Inmate
Handbook also sets forth the inmate grievance procedure at NJSP,
which includes the procedures for inmates to submit a complaint,
problem or suggestion to the attention of the administration at
NJSP.
The Inmate Handbook is available to inmates when they go
to the NJSP law library.
In particular, N.J.A.C. 10a:1-4.1 establishes a
comprehensive Inmate Remedy System in which inmates may formally
30
communicate with correctional facility staff to request
information, and present issues, concerns, grievances, complaints
or problems to the correctional facility staff.
N.J.A.C. 10A:1-
4.4(e) provides an Inmate Remedy System Form (“IRSF”) “must be
complete, legible and include a clear and concise statement
summarizing the request.”
N.J.A.C. 10A:1-4.5(d) provides that an inmate “shall choose
either a ‘Routine Inmate Request’ or an ‘Interview Request’ to
fully exhaust the initial step of the Inmate Remedy System prior
to submitting an Administrative Appeal.”
An inmate may appeal a
response after he has exhausted the initial step of the Inmate
Remedy System.
N.J.A.C. 10A:1-4.6(a).
Defendants specifically
refer to N.J.A.C., 10A:1-4.4(d), which provides: “The
comprehensive Inmate Remedy System to include a ‘Routine Inmate
Request’ and/or ‘Interview Request,’ and an ‘Administrative
Appeal’ must be utilized and fully exhausted prior to an inmate
filing any legal action regarding information requests, issues,
concerns, complaints, or problems.”
The relevant statute, 42 U.S.C. § 1997e(a), provides:
No action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.
The 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
31
some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2002)
(citation omitted).
See also Daniels v. Rosenberger, 386 Fed.
Appx. 27, 29 (3d Cir. 2010)(“[u]nder the Prison[ ] Litigation
Reform Act, a prisoner must exhaust available administrative
remedies before bringing suit concerning prison
conditions”)(citing 42 U.S.C. § 1997e(a)).
mandatory.
Exhaustion is
A prisoner must exhaust all available administrative
remedies even where the relief sought, such as monetary damages,
cannot be granted through the administrative process.
Booth v.
Churner, 532 U.S. 731 (2001).
Section 1997e(a) requires “proper exhaustion,” as that term
is used in administrative law.
90–93 (2006).
Woodford v. Ngo, 548 U.S. 81,
“Proper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules.”
90–91.
Id. at
Compliance with the prison grievance procedures is all
that is required for “proper exhaustion.”
“The level of detail
necessary in a grievance to comply with the grievance procedures
will vary from system to system and claim to claim, but it is the
prison’s requirements ... that define the boundaries of proper
exhaustion.”4
Jones v. Bock, 549 U.S. 199, 218 (2007)(holding
4
In Concepcion v. Morton, 306 F.3d 1347 (3d Cir. 2002),
the Third Circuit addressed the issue of whether the grievance
procedure in an inmate handbook promulgated by a NJDOC state
prison, but not formally adopted by the State Department of
Corrections, constituted an administrative remedy for purposes of
Section 1997e(a) of the PLRA. Though the grievance procedure at
issue was deemed a “relatively informal [one] ... established by
the prison administrators of the NJSP and published in the
Department of Corrections Inmate Handbook[,]” the process was
considered an “administrative remedy” within the meaning of the
32
exhaustion was not per se inadequate simply because the
individual later sued was not named in grievance, where prison
policy did not require prisoner to identify particular
responsible party); see Spruill v. Gillis, 372 F.3d 218, 231 (3d
Cir. 2004)(prison grievance procedures supply yardstick for
determining required steps for exhaustion).
The exhaustion requirement includes a procedural default
component.
See id. at 230.
A court may consider extrinsic
materials for determining whether a procedural default should be
excused.
See Williams v. Beard, 482 F.3d 637 (3d Cir. 2007).
Exhaustion is a requirement even where the prisoner seeks a
remedy that the administrative grievance process does not or
cannot provide, such as monetary damages.
85.
Woodford, 548 U.S. at
The Third Circuit came to the same conclusion several years
earlier when it found that no “futility exception” exists which
would excuse a failure to exhaust remedies even when the remedy
PLRA for several reasons. Id. at 1352–54. First, it gave
inmates the opportunity to inform prison administration about any
complaints. Second, it provided for written responses to
inmates. Third, the written responses were subject to review by
supervisors. Fourth, final resolutions required signatures by
multiple administrative parties. Id. at 1354. Important in the
Third Circuit’s calculus was the fact that the grievance
procedure at issue furthered an important goal of the PLRA:
providing a forum through which inmates could potentially resolve
their disputes, thereby reducing the quantity of prisoner
litigation. Id. at 1354–55. Furthermore, “[f]or cases ultimately
brought to court, the remedy form submitted by the inmate and the
written response provided by the prison administration could
facilitate adjudication by clarifying the contours of the
controversy.” Id. at 1354–55 (citing Porter, 534 U.S. at 525).
Whether or not an administrative remedy is formally adopted by a
State Department of Corrections is “irrelevant to these
rationales for exhaustion.” Id. at 1354.
33
sought is unavailable.
Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir.
2000).
As recognized by the Supreme Court, the PLRA serves multiple
purposes.
“Beyond doubt, Congress enacted § 1997e(a) to reduce
the quantity and improve the quality of prisoner suits[.]”
Porter v. Nussle, 534 U.S. at 524.
The PLRA affords corrections
officials with “time and [an] opportunity to address complaints
internally before allowing the initiation of a federal case.”
Id. at 525.
By providing this opportunity to administratively
remedy an inmate grievance, it may be possible to “obviat[e] the
need for litigation.”
U.S. at 737).
Id. at 525 (citing Booth v. Churner, 532
In other cases, the administrative review process
may serve to “filter out some frivolous claims [.]”
U.S. at 737.
Booth, 532
Importantly, the PLRA applies not only to “prison
conditions” as per the plain text of the statute, but also to
“occurrences” affecting prisoners and “prison life” in general.
Porter, 534 U.S. at 521, 532.
The undisputed facts in this case demonstrate that Smith did
in fact raise his privacy claim in his IRSF, at Part Four of the
form.
This issue was addressed by the Appellate Division on
plaintiff’s administrative appeal.
Consequently, this Court
finds that dismissal of this action for failure to fully exhaust
administrative remedies is not appropriate because the goal of
this requirement has been met.
The NJSP officials had the time
and opportunity to address plaintiff’s complaint internally
before Smith filed this federal action.
34
Therefore, summary
judgment is not appropriate in favor of the defendants on this
ground.
C.
Issue Preclusion
Defendants next contend that they are entitled to summary
judgment on the basis of issue preclusion or collateral estoppel
because the violation of privacy claim has been previously
litigated in the Superior Court of New Jersey, Appellate
Division.
Collateral estoppel or issue preclusion prevents parties or
their privies from re-litigating an issue if a court possessing
personal and subject matter jurisdiction has already delivered a
valid, final judgment on the merits.
F.3d 192, 198–99 (3d Cir. 1999).
Witkowski v. Welch, 173
The purpose of the collateral
estoppel doctrine is to promote judicial consistency, encourage
reliance on court decisions, and protect defendants from being
forced to repeatedly relitigate the same issues in multiple
lawsuits.
Allen v. McCurry, 449 U.S. 90, 94 (1980).
See also
Swineford v. Snyder County, Pennsylvania, 15 F.3d 1258, 1266 (3d
Cir. 1994)(the intent of issue preclusion is that “a losing
litigant deserves no rematch after a defeat fairly suffered, in
adversarial proceedings, on an issue identical in substance to
the one he subsequently seeks to raise.”).
The standard requirements for collateral estoppel, or issue
preclusion, as set forth by the Third Circuit, include: (1) the
identical issue was previously adjudicated; (2) the issue was
35
actually litigated;5 (3) the previous determination was necessary
to the decision; and (4) the party being precluded from
relitigating the issue was fully represented in the prior action.
Szehinskyj v. Att’y Gen. of U.S., 432 F.3d 253, 255 (3d Cir.
2005)(citing Henglein v. Colt Indus. Operating Corp., 260 F.3d
201, 209 (3d Cir. 2001), cert. denied, 535 U.S. 955 (2002); and
Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir. 1995), cert.
denied, 516 U.S. 914 (1995))(citation omitted).
See also
Witkowski, 173 F.3d at 199; Iseley v. Talabar, 232 Fed. Appx. 120
(3d Cir. 2007)(addressing the four factors as (1) the issue
sought to be precluded is the same as that involved in the prior
action; (2) the prior action resulted in a final judgment on the
merits; (3) the party against whom collateral estoppel is
asserted was a party to the prior action; and (4) the party
against whom collateral estoppel is asserted had a full and fair
opportunity to litigate the issue in the prior action).
The undisputed facts show that the very same privacy claim
was raised by Smith in his administrative appeal before the
Superior Court of New Jersey, Appellate Division.
In that
action, the Appellate Division held that:
the record is devoid of facts supporting appellant’s
contentions that a gratuitous disclosure occurred. Dr.
Moshkovich acknowledged she discussed appellant’s GID
disclosure with her supervisors when discussing her
evaluation and treatment. Such discourse among the unit
psychiatrists is necessary to devise an appropriate course
5
“Actually litigated” means properly raised in an earlier
lawsuit, submitted to the court for a determination, and
determined. Black’s Law Dictionary (9th ed. 2009).
36
of treatment for an inmate. This record reflects several
doctors were involved in appellant’s mental health care.
These discussions can hardly be characterized as a breach of
appellant’s constitutional right to privacy. Likewise,
nothing shows the doctors then revealed the transgender
identity issue to the Housing Unit Officers. The claims are
nothing more than mere speculation and supposition and are
rejected.
(August 27, 2010 Appellate Division Opinion at ex. K).
Smith’s prior action in the Appellate Division resulted in a
final judgment on the merits against Smith and the New Jersey
Supreme Court declined to grant certification.
Moreover, Smith
had a full and fair opportunity to litigate the violation of
privacy claim he raised in state court.
Consequently, he is
barred by the doctrine of collateral estoppel from relitigating
the identical claim in this action.
Smith wrongly asserts in his opposition that defendants fail
to satisfy several of the factors for collateral estoppel to
apply.
Namely, he asserts that defendants have not demonstrated
that the party against whom collateral estoppel is asserted was a
party to the prior action or that the party against whom
collateral estoppel is asserted had a full and fair opportunity
to litigate the issue in the prior action.
Docket entry no. 86 at pg. 11).
(Plaintiff’s Repl,
Smith argues that his appeal was
against the NJDOC and not the individual defendants now remaining
in this action.
Defendants correctly address plaintiff’s error in their
reply brief.
Quite simply, Smith misapprehends these elements of
collateral estoppel as it is the plaintiff, Smith himself,
37
against whom the doctrine is asserted and he was most certainly a
party to the Appellate Division action and had a full and fair
opportunity to litigate this issue in that prior action.
Therefore, this Court finds that the doctrine of collateral
estoppel applies in this case, and the defendants, Moshkovich,
Baldwin and Ricci, are entitled to summary judgment on the
violation of privacy claim on the basis of issue preclusion.
As
the violation of privacy claim is the only claim asserted against
defendants, Moshkovich and Baldwin, the Complaint will be
dismissed with prejudice in its entirety as against these two
defendants.
D.
No Constitutional Violation with Respect to Privacy Claim
Defendant Ricci also asserts that she is entitled to summary
judgment on plaintiff’s violation of privacy claim because
plaintiff has only a limited right to privacy in prison.
The Supreme Court has held that prison inmates do not shed
all fundamental protections of the Constitution at the prison
gates. Wolff v. McDonnell, 418 U.S. 539, 555 (1974).
Inmates
retain those rights that are not inconsistent with their status
as prisoners or with the legitimate penological objectives of the
corrections system.
Pell v. Procunier, 417 U.S. 817, 822 (1974).
Specifically, an inmate's constitutional right may be
curtailed by a policy or regulation that is shown to be
“reasonably related to legitimate penological interests.”
v. Safley, 482 U.S. 78, 89 (1987).
Turner
Courts must respect the
administrative concerns underlying a prison regulation, without
38
requiring proof that the regulation is the least restrictive
means of addressing those concerns.
In determining whether a
particular restriction is justified by correctional goals, a
court analyzes four factors under the Turner analysis as follows:
[Turner] directs courts to assess the overall reasonableness
of such regulations by weighing four factors. First, there
must be a valid, rational connection between the prison
regulation and the legitimate governmental interest put
forward to justify it, and this connection must not be so
remote as to render the policy arbitrary or irrational.
Second, a court must consider whether inmates retain
alternative means of exercising the circumscribed right.
Third, a court must take into account the costs that
accommodating the right would impose on other inmates,
guards, and prison resources generally. And fourth, a court
must consider whether there are alternatives to the
regulation that fully accommodate the prisoner's rights at
de minimis cost to valid penological interests.
DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000)(en banc)(internal
quotations omitted).
In context of Smith’s privacy claim in this case, the
Supreme Court of the United States has recognized that there
exists in the United States Constitution a right to privacy
protecting “the individual interest in avoiding the disclosure of
personal matters.”
Whalen v. Roe, 429 U.S. 589, 599 (1977).
See
also Doe v. Delie, 257 F.3d 309, 315 (3d Cir. 2001); Doe v. City
of New York, 15 F.3d 264, 267 (2d Cir. 1994).
Thus, while
prisoners are divested of many significant constitutional rights
as a result of their status, their limited right of privacy has
been extended to cover medical information regarding inmates.
See Doe v. Delie, 257 F.3d at 317; Powell v. Shriver, 175 F.3d
107, 112-13 (2d Cir. 1999).
This narrow constitutional right
39
applies in the case of an unusual medical condition which, if
disclosed unnecessarily, would likely expose the inmate to
ridicule, discrimination, or even potential violence and harm,
particularly when word of the condition is likely to spread
through “humor or gossip[ .]”
Powell, 175 F.3d at 112.
Transsexualism or transgender disorder, such as Smith’s alleged
condition here, has been found to be a sufficient condition to
trigger this qualified right of privacy.
See Powell, 175 F.3d at
112-13.
However, the United States Court of Appeals for the Third
Circuit recognized in Doe v. Delie that this limited
constitutional right to privacy “is subject to substantial
restrictions and limitations in order for correctional officials
to achieve legitimate correctional goals and maintain
institutional security.”
Doe v. Delie, 257 F.3d at 317.
Any
policy or regulation that curtails such right must be “reasonably
related to legitimate penological interests,” as set forth in
Turner, 482 U.S. at 89.
In Powell, the court noted that it was not difficult to
imagine the circumstances under which disclosure of an inmate’s
HIV-positive status would further legitimate penological
interests, such as prevention of contagion.
However, the court
found it harder to think of circumstances in which disclosure of
an inmate’s transgender condition, which is not contagious, would
serve a legitimate penological purpose.
40
Given the sexually-
charged atmosphere of most prisons, such disclosure might lead to
inmate-on-inmate violence.
Powell, 175 F.3d at 112-13.
Here, Smith relies on Hunnicutt v. Armstrong, 152 F. App’x
34 (2d Cir. 2005)(unpublished decision), vacating in part, 305 F.
Supp.2d 175, 187-188 (D. Conn. 2004), in opposition to
defendant’s motions for summary judgment.
In Hunnicutt, the
United States Court of Appeals for the Second Circuit held that
Hunnicutt adequately alleged federal constitutional and state law
right to privacy claims, based on his allegations that defendants
violated privileged communications by discussing plaintiff’s
mental health issues on the tier in the presence of other
inmates, and allowing non-health staff access to plaintiff’s
confidential health information.
Hunnicutt, 152 F. App’x at 35.
The problem with Smith’s argument, however, is that there is
no evidence to support his allegation that any of the defendants,
Dr. Moshkovich, Ms. Baldwin or Administrator Ricci divulged
plaintiff’s GID claim improperly.
This finding was made by the
Appellate Division as set forth above.
At most, Moshkovich and
Baldwin discussed plaintiff’s alleged GID with his mental health
team only.
There is absolutely no evidence that these defendants
improperly disclosed plaintiff’s GID to non-medical staff.
See
Allah v. Hayman, et al., 2010 U.S. Dist. LEXIS 26476 (D.N.J.
March 22, 2010)(finding that an inmate’s right to privacy in
prison is limited to instances when private medical information
41
was improperly disclosed).6
Moreover, the evidence shows that
every precaution was made to balance Smith’s privacy concerns
with the prison’s legitimate penological objectives in providing
safety and security to inmates and staff.
See Doe v. Delie, 257
F.3d at 317.
Moreover, Smith himself disclosed this private medical
information within NJSP in several manners.
He filed an
application in state court to have his name changed to a feminine
name.
To facilitate this application, Smith had to notify non-
medical staff in the NJSP Business Office to issue a check to the
newspaper to advertise his name change.
Smith even admitted that
he had asked other inmates at NJSP to call him “Amanda.”
Dep. 55:14-20, Ex. A).
(Smith
Smith has requested not only treatment
and hormone therapy for GID, but also has asked for women’s
clothing and amenities, including sanitary napkins.
Thus,
Smith’s protests that his privacy has been violated by these
6
In Allah, Judge Thompson reasoned: “While disclosing the
results of a routine test may violate the Fourteenth Amendment,
merely conducting that test in a public setting does not result
in the disclosure of any confidential information. Furthermore,
the fact that various prison personnel may have asked Plaintiff
about medical information in a public setting does not of itself
violate any confidentiality. Plaintiff apparently refused to
discuss his medical conditions in public, as was his right.
Defendants would only have violated Plaintiff's privacy rights if
they disclosed confidential information. There are no
allegations of such disclosure.” Allah, 2010 U.S. Dist. LEXIS
26476 at *12-13.
42
defendants is inconsistent with his own voluntary actions and
efforts to publicize his gender identity issue.7
Therefore, this Court concludes that Smith has not
demonstrated a violation of his privacy rights of constitutional
dimension, and accordingly, the defendants, Moshkovich, Baldwin
and Ricci are entitled to summary judgment on this claim.
E.
Retaliation Claim
Defendant Ricci also argues that Smith has failed to make
the requisite showing to support his claim of unconstitutional
retaliation.
Specifically, Smith has alleged that Ricci violated
his rights by changing his housing assignment in retaliation for
filing grievances.
“Retaliation for the exercise of constitutionally protected
rights is itself a violation of rights secured by the
Constitution ... .”
Cir. 1990).
White v. Napoleon, 897 F.2d 103, 111-12 (3d
To prevail on a retaliation claim, plaintiff must
demonstrate that (1) he engaged in a constitutionally-protected
activity; (2) he suffered, at the hands of a state actor, adverse
7
This Court finds the parties’ arguments concerning waiver
of privacy by Smith due to his disclosure to television media and
newspapers after this matter had been in litigation to be
irrelevant in its determination. As rightly pointed out by
plaintiff in his opposition brief, this occurred well after this
lawsuit was filed. Moreover, plaintiff states that he did not
disclose his case to the public media, and states that the false
information contained in their segments and articles supports the
fact that he did not disclose his case to the media. Finally,
because plaintiff voluntarily disclosed his GID issue well before
these media events occurred, the Court finds any media disclosure
to be unnecessary and superfluous in its determination on this
issue.
43
action “sufficient to deter a person of ordinary firmness from
exercising his [constitutional] rights;” and (3) the protected
activity was a substantial or motivating factor in the state
actor’s decision to take adverse action.
Rauser v. Horn, 241
F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229
F.3d 220, 225 (3d Cir. 2000)).
See also Anderson v. Davila, 125
F.3d 148, 160 (3d Cir. 1997) (citing Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)); Thaddeus-X v.
Blatter, 175 F.3d 378, 386-99 (6th Cir. 1999), cited with
approval in Allah, 229 F.3d at 225.
As to the first factor, there is no dispute that the filing
of grievances is a constitutionally protected activity.
See
Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d cir. 1981).
As to
the second factor, “a prisoner-plaintiff satisfies [the “adverse
action”] requirement by demonstrating that the action ‘was
sufficient to deter a person of ordinary firmness from exercising
his [constitutional] rights.’” Rauser v. Horn, 241 F.3d 330, 333
(3d Cir. 2001)(quoting Allah v. Seiverling, 229 F.3d at 225).
Determination of this second factor is a fact-sensitive analysis.
Allah, supra.
Finally, as to the third factor, plaintiff has the initial
burden of showing that his conduct “was ‘a substantial or
motivating factor’” in the adverse action.
Rauser, 241 F.3d at
333 (importing a burden-shifting framework into the prisonerretaliation context for proof of a “causal link between exercise
of [an inmate’s] constitutional rights and the adverse action
44
taken against him”).
To establish this requisite causal
connection for a First Amendment retaliation claim, the plaintiff
must prove one of two things: “(1) an unusually suggestive
proximity between the protected activity and the allegedly
retaliatory action; or (2) a pattern of antagonism coupled with
timing to establish a causal link.”
DeFranco v. Wolfe, 387 Fed.
Appx. 147, 154 (3d Cir., July 14, 2010)(citing Lauren W. Ex rel.
Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).
If
neither of these showings is made, then plaintiff must show that,
from the evidence in the record as a whole, the trier of fact
should infer causation.
Id.
The burden then shifts to the defendant, who must “prove by
a preponderance of the evidence that it would have taken the same
... action even in the absence of the protected activity.”
Rauser, 241 F.3d at 334.
This is a “deferential standard” meant
to take into account “that the task of prison administration is
difficult, and that courts should afford deference to decisions
made by prison officials ... who possess the necessary
expertise.”
Id.
“[R]easons reasonably related to a legitimate
penological interest” are a sufficient basis for defendants to
have taken the action against the inmate.
Id., 241 F.3d at 334
(citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
Maintaining
prison safety and security is a fundamental, legitimate
penological interest.
See, e.g., Jones v. Brown, 461 F.3d 353,
361-62 (3d Cir. 2006).
45
In this case, defendant Ricci first argues that as an
inmate, Smith does not have a protected liberty interest in
obtaining or retaining a particular housing assignment.
See
Meachum v. Fano, 427 U.S. 215, 224-25 (1976)(holding that the due
process clause does not protect an inmate from transfer from one
institution to another, even where the degree of confinement in
one prison may be different from that in another).
Sandin v. Connor, 515 U.S. 472, 479 (1995).
See also
Thus, Smith cannot
show that Ricci subjected him to any adverse action, the second
factor to prove retaliation.
Because Smith has no protected
constitutional right to a housing assignment, he cannot claim
“adverse action” when his housing assignment was changed.
Smith also has not shown the third factor, namely, that his
filing of grievances and complaints was the substantial or
motivating factor that caused defendant to take any alleged
adverse action against plaintiff.
Defendant has demonstrated
that Smith’s move from a single cell to double cell was simply
the result of the operational requirements of NJSP.
Declaration at ¶ 12).
(Hutton
Further, Smith has not shown that he was
deterred in any way from filing grievances or pursuing this
protected constitutional activity.
In fact, as the record shows,
Smith continued to use correspondence, grievance forms and court
complaints to address his issues and concerns.
He has not shown
that his access to courts was chilled in any way.
Smith also has
not alleged any harm or injury as a result of his transfer to a
double cell.
Thus, the single purported action by Ricci in
46
changing plaintiff’s housing assignment fails to demonstrate
sufficiently adverse action against plaintiff in violation of his
constitutional rights.
See
Burgos v. Canino, 358 F. App’x 302,
307 (3d Cir. 2009)(urinalysis, harassment, threats, temporary
inconveniences, and denial of recreation did not rise to the
level of adverse action against prisoner); Walker v. Bowersox,
526 F.3d 1186, 1190 (8th Cir. 2008)(“the two incidents when Knarr
directed others to give Walker an alternative meal, although
purportedly retaliatory, were not sufficiently severe to amount
to a constitutional violation”); Gill v. Tuttle, 93 F. App’x 301,
303–04 (2d Cir. 2004)(to establish retaliation claim, inmate must
allege adverse action that imposes a substantial impact on
inmate).
See also Potter v. Fraser, 2011 WL 2446642, *8 (D.N.J.
June 13, 2011)(finding that plaintiff’s allegations that certain
defendants searched his cell on two occasions, threw his t-shirt
in the garbage, and confiscated his commissary purchases, in
retaliation for filing grievances, were not sufficiently adverse
actions).
Accordingly, summary judgment will be granted in favor of
defendant Ricci with respect to the retaliation claim.
F.
Official Capacity Claim
Next, defendant Ricci argues that plaintiff’s claims against
her in her official capacity must be dismissed because such
claims are barred by the Eleventh Amendment and because the
defendant, in her official capacity is not a “person” subject to
suit under 42 U.S.C. § 1983.
47
The Eleventh Amendment to the United States Constitution
provides that, “The Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by citizens of
another State, or by Citizens or Subjects of any Foreign State.”
As a general proposition, a suit by private parties seeking to
impose liability which must be paid from public funds in a state
treasury is barred from federal court by the Eleventh Amendment,
unless Eleventh Amendment immunity is waived by the state itself
or by federal statute.
651, 663 (1974).
See, e.g., Edelman v. Jordan, 415 U.S.
The Eleventh Amendment protects states and
their agencies and departments from suit in federal court
regardless of the type of relief sought.
Pennhurst State School
and Hospital v. Halderman, 465 U.S. 89, 100 (1984).
Thus, based
on the doctrine of sovereign immunity, states cannot be sued in
federal court, unless Congress has abrogated that immunity or the
State has waived it.
Will v. Mich. Dep’t of State Police, 491
U.S. 58, 66 (1989).
Similarly, absent consent by a state, the Eleventh Amendment
bars federal court suits for money damages against state officers
in their official capacities.
159, 169 (1985).
See Kentucky v. Graham, 473 U.S.
This immunity extends to state agents or
officials when the “action is in essence one for the recovery of
money from the state, the state is the real, substantial party in
interest and is entitled to sovereign immunity from suit even
though individual officials are nominal defendants.”
48
Regents of
the Univ. of Cal. v. Doe, 519 U.S. 425, 431 (1997).
Section 1983
does not override a state’s Eleventh Amendment immunity.
v. Jordan, 440 U.S. 332 (1979).
Quern
Therefore, “[a]s a matter of
law, suits against individuals acting in their official
capacities are barred by the Eleventh Amendment.”
Taylor, 604 F. Supp.2d 692, 699 (D. Del.
2009).
Holland v.
See also Davis
v. New York, 316 F.3d 93, 101 (2d Cir. 2002).
Here, to the extent that Smith alleges that defendant Ricci
was acting in her official capacity, his claims against defendant
would essentially be against the state.
Further, there is no
indication here that either abrogation or waiver is applicable to
Smith’s claims.
Therefore, sovereign immunity works to bar the
federal claims in this suit against defendant Ricci in her
official capacity.
Title 28 U.S.C. § 1915(e)(2)(B)(iii) requires
this Court to dismiss the claims if they “seek[ ] monetary relief
from a defendant who is immune from such relief.”
Beyond sovereign immunity, the § 1983 Complaint is invalid
against Ricci because defendant, in her official capacity, is not
a “person” under § 1983.
See Quern v. Jordan, 440 U.S. 332, 345
(1979)(“[A] state is not a ‘person’ for purposes of 42 U.S.C. §
1983.”); Hafer v. Melo, 502 U.S. 21, 25 (1991)(“Suits against
state officials in their official capacity ... should be treated
as suits against the state.”).
See Hussein v. New Jersey, Civil
No. 09-1291 (JBS), 2010 WL 376609, at *4 (Jan. 26, 2010)
(dismissing a Section 1983 claim against the State of New Jersey
49
and Corzine as the state and state officials in their official
capacities are not persons for Section 1983 purposes).
Therefore, the Court will grant defendant Ricci’s motion for
summary judgment on this ground, and accordingly dismiss the
Complaint against defendant Ricci in her official capacity.
I.
Remaining Arguments
Because this Court has determined that defendants are
entitled to summary judgment with respect to plaintiff’s
remaining claims in his Complaint, there is no need to address
defendants’ arguments concerning qualified immunity or punitive
damages.
50
III.
CONCLUSION
Therefore, for the reasons set forth above, the motion by
defendants, Dr. Moshkovich, Ms. Baldwin and Administrator Ricci,
for summary judgment, pursuant to Fed.R.Civ.P. 56, will be
granted, and the Complaint will be dismissed with prejudice, in
its entirety, with respect to these defendants.
An appropriate
order follows.
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.
March 30, 2012
51
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