SHAKER v. CORRECTIONAL CARE SOLUTIONS MEDICAL DEPARTMENT et al

Filing 52

OPINION filed. Signed by Judge Michael A. Shipp on 6/28/2013. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

AHMED SHAKER,
Plaintiff,

Civil Action No. 11-7275 (MAS) (DEA)

v.
CORRECTIONAL CARE SOLUTIONS
MEDICAL DEPARTMENT, et al.,

MEMORANDUM OPINION

Defendants.

SHIPP, District Judge

This matter comes before the Court upon Defendant Correctional Care Solutions'
(improperly pled as Correctional Care Solutions Medical Department and C.C.S. Medical
Advisor) ("Correctional Care") Motion to Dismiss or for Summary Judgment. (Def.'s Mot.,
ECF No. 30.) Plaintiff opposed the Motion. (Pl.'s Opp'n, ECF No. 31.) The Court conducted a
video status conference on May 23, 2013.

The Court has carefully considered the Parties'

submissions and arguments. For good cause shown, Correctional Care's Motion for Summary
Judgment is granted.
I.

BACKGROUND

Plaintiff is a federal inmate currently incarcerated at Monmouth County Correctional
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Center. (Second Amended Complaint ("Compl.") 4, ECF No. 21.) Plaintiff, a diabetic, asserts
that he is "not receiving correct amounts of insulin." (Id. at 5.) Plaintiff further asserts that his
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As certain pages of Plaintiffs submissions do not contain page numbers, Plaintiffs Second
Amended Complaint and attachments will be referenced by their ECF page numbers.

"diabetes is not controlled even by the lowest standards," he is "in a constant state of ketoacidosis" and his "right eye has been continueing [sic] bleeding and [his] vision where [sic] to
the point ofblindness." (Id. at 7.) Plaintiffs Second Amended Complaint asserts claims against
Correctional Care, Dr. Stuart Green, Dr. Mark Remmel and Freehold Otphalmology.

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Correctional Care seeks to dismiss Plaintiffs Second Amended Complaint for failure to
state a claim. Correctional Care alternatively moves for summary judgment? Defendant argues
that:
The Inmate Handbook for Monmouth County Correctional Facility clearly sets
forth the procedure and parameters for filing an administrative remedy .... The
Handbook states that a prisoner must complete form ADM-67 and submit the
form to the Program Captain within five days of the date of the occurrence of the
incident. The inmate would receive a response from the Program Captain
regarding the grievance. Should the inmate remain dissatisfied with the Program
Captain's response the inmate could file an appeal. The inmate was required to
submit a written request to the Warden regarding the nature of the grievance. The
Warden was required to respond to the request within five (5) days and the
Warden's decision was final. The Inmate Handbook clearly states that the
administrative process is to be utilized before looking to the judicial system for
relief. Plaintiff received a copy of the relevant Handbook and acknowledged
receipt of same with his signature .... Based on the evidence, Plaintiff has never
provided the administration of the prison with the opportunity to resolve
Plaintiffs complaints as is required under the law. Having not given the prison
officials any opportunity to address any perceived wrong, Plaintiff has failed to
exhaust the administrative remedies available to him as required by law.
(Def.'s Mot. at 20-21) (internal citations omitted).

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Dr. Remmel's motion for summary judgment for failure to provide an Affidavit of Merit is
currently pending before the Court and will be addressed in a separate decision.
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In its Motion to Dismiss, Correctional Care asserts several Bivens-related arguments.
Defendant did so because Plaintiffs Complaint alleged that the claims fell under Bivens.
(Plaintiff checked off the "Bivens" box on the Complaint form.) (Compl. 3.) However, during the

May 23, 2013 video status conference, counsel agreed that Plaintiffs claims would more
properly fall under § 1983. Since the Court here will focus on Plaintiffs failure to exhaust
administrative remedies, it need not reach Correctional Care's other arguments.
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Plaintiff opposed Defendant's motion, stating:
I am aware of the Prison Litigation Reform Act 42 U.S.C. 1997 and the need to
exhaust all administrative measures. Please let me assure the court my claim is
neither meritless, or frivolous. The PLRA does not say 'a prisoner must exhaust
all administrative remedies,' it clearly states 'a prisoner must exhaust all
administrative remedies available to him.' I contend that I did attempt
administrative remedies, and was also denied certain of those remedies therefore, they were not available to me. (I will later detail.)

I wrote a letter to the warden ofMCCI with my complaint as well as the Doctor at
CCS. The male nurse (who no one at CCS or MCCI will give me the name of)
stated clearly to me, if I complained, filed a grievance or even signed up for 'sick
call' again, I would be put into lock down jail solitary by the Corrections
Officer's Captain. They refused to give me his name. I am being operated on my
eyes by these same people. I am in fear of their punishment or disfigurement any
further on my eyesight. I submit they have made any other administrative
remedies un-available to me.
I also submit that my letter outlining these problems constitutes 'a fair notice
standard for determining exhaustive measures' to the defendant. ... I would be
happy to list who I complained to and sent letters to as described in Jones v. Bock
v. Overton (U.S. 2007) 127 S. Ct. 910, 549 U.S. 199 (U.S. 2007); 'If no written
grievance is available, the inmate must plead with specificity how and when he
exhausted the grievance procedures.' I cannot do this if CCS and MCCI continue
to hide the names of their staff and hide behind legal challenges while I have no
representation.
(Pl.'s Opp'n 2-4, 6.)
II.

LEGAL STANDARD AND ANALYSIS

Summary judgment is appropriate where the Court is satisfied that "there is no genuine
issue as to any material fact and ... the movant is entitled to judgment as a matter oflaw." Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine issue of material

fact exists only if the evidence is such that a reasonable jury could find for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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The Prison Litigation Reform Act ("PLRA") provides that:
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.
42 U.S.C. § 1997c(a).
In order to exhaust administrative remedies, a pnsoner must properly pursue all
administrative remedies to their end. See Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). To
determine whether a prisoner has exhausted administrative remedies, the Court must evaluate a
prisoner's compliance with the prison administrative regulations governing inmate grievances.
!d. at 226-27.

A prisoner must bring a grievance to the attention of the appropriate prison

official so that the facility has an opportunity to respond to the grievance. !d. at 227. As such, if
a prisoner has not pursued a grievance through each level of appeal available within the prison
system, he has not exhausted all administrative remedies. !d. at 232. The Third Circuit observed
in Nyhuis v. Reno, however, that an inmate may satisfy § 1997e(a) through substantial
compliance. 204 F.3d 65 (3d Cir. 2000). "Without embellishing- for the case law in the area
will have to develop - we note our understanding that compliance with the administrative remedy
scheme will be satisfactory if it is substantial." !d. at 77-8.
In the present case, the Monmouth County Correctional Facility Prison Inmate Handbook
provided the procedures that inmates were required to follow in order to bring complaints to the
attention of prison officials. Plaintiff concedes that he did not file an ADM-67 as required by the
facility. In addition, Plaintiff did not submit any document to the Program Captain. Plaintiff
asserts that he attempted but was denied certain administrative remedies. (Pl.'s Opp'n 2.) In
addition, he argues that he sent correspondence to the warden and that his "letter outlining these

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problems constitutes 'a fair notice standard for determining exhaustive measures' to the
defendant." (!d.) Plaintiffs arguments are unavailing.
Plaintiff in this case failed to exhaust the administrative process offered by Monmouth
County Correctional Center.

In addition, Plaintiff did not substantially comply with

administrative remedies. Plaintiff signed for receipt of the Handbook yet failed to follow its
explicit policies. Plaintiffs assertion that he did not follow the procedures due to fear is not
convincing. Rather, the Court finds the reasoning in DiGiovanni v. New Jersey persuasive. The
Di Giovanni court stated:

Plaintiffs claim that he did not completely exhaust his administrative remedies
prior to bringing the instant lawsuit because he was in fear of retaliation for doing
so is rejected. Exhaustion ... is mandatory. General fears of retaliation are not
an exception to the ... exhaustion requirement. The facts that Plaintiff filed the
instant lawsuit and admittedly filed various grievance forms related to other
complaints after the incident in question ... contradict Plaintiffs allegations of
fear.
No. 04-2060 (JAP), 2006 U.S. Dist. Lexis 61688, at *6-7 (D.N.J. Aug. 29, 2006) (internal
citations omitted), aff'd, 232 F. App'x 181, 182 (3d Cir. 2007). Here, the facts that Plaintiff filed
the instant lawsuit and filed correspondence to outside agencies and individuals contradict
Plaintiffs allegations of fear.
The Court is also not persuaded by Plaintiffs argument that his correspondence outlining
his problems constitutes fair notice. Notably, Plaintiff submitted correspondence regarding his
issues to agencies outside of the prison system. The motion papers reflect that on July 13, 2011,
Plaintiff submitted correspondence to the Federal Public Defender. 4 (Compl. 8.) On September
14, 2011, Plaintiff submitted correspondence to Attorney General Anne Milgram. (Compl. 10.)
In his correspondence, Plaintiff asked, "Can your office please get involved to help me in this

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On August 22, 2011, the Office of the Federal Public Defender advised Plaintiff that it is
prohibited from representing clients in civil matters.
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matter[?]" (Id.)

Plaintiffs submission of correspondence to the Federal Public Defender's

Office and to Attorney General Anne Milgram failed to provide the prison with the opportunity
to review and address Plaintiffs grievances. To find that this constitutes exhaustion, substantial
or otherwise, would frustrate the purpose of the administrative exhaustion requirement.
Moreover, Plaintiff conceded during the video status conference on May 23, 2013 that he did not
notify the appropriate prison officials regarding his grievances.
Therefore, because Plaintiff failed to comply with the exhaustion requirements under the
PLRA, and because there is no basis for excusing Plaintiffs failure, the Court finds that
Correctional Care is entitled to summary judgment.

III.

CONCLUSION
For the reasons set forth above, and for other good cause shown, it is hereby ordered that

Correctional Care's Motion for Summary Judgment for failure to exhaust administrative
remedies is granted. An order consistent with this opinion will be entered.

s/ Michael A. Shipp
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE

Dated: June 28, 2013

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