PALADINO v. NEWSOME et al

Filing 57

OPINION. Signed by Judge Anne E. Thompson on 6/27/2013. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Brian PALADINO,
Plaintiff,
Civ. No. 12-2021
v.
OPINION
K. NEWSOME, et al.,
Defendants.
THOMPSON, U.S.D.J.
I.

INTRODUCTION

This matter has come before the Court on the Motion to Dismiss and for Summary
Judgment filed by Defendants Warren, Crothers, Gerdes, Nellsen, Holder, and Lanigan
(collectively, “Defendants”). 1 (Docket Entry No. 45). Plaintiff Brian Paladino (“Plaintiff”)
opposes the motion. (Docket Entry Nos. 47, 53). The Court has decided the motion after
considering the parties’ written submissions and without oral argument, pursuant to Federal Rule
of Civil Procedure 78(b). For the following reasons, Defendants’ motion is granted in part and
denied in part.
II.

BACKGROUND

The Court assumes the parties’ familiarity with the underlying facts of this case and
recites briefly those facts relevant to the Court’s decision.
A. Factual Allegations
Plaintiff alleges that in October 2010, during a “break” from placement in a restraint
chair for his own protection, he was fed a sandwich and given a juice cup. (Docket Entry No. 1

1

As neither party has provided full names for each defendant, the Court refers to them solely by last name.
1

at ¶¶ 22-29; Docket Entry No. 3 at ¶¶ 25-32). He claims that when he tried to get a drink of
water from the sink, Sergeant Newsome (“Newsome”) and “John Doe” officers threw him to the
floor and beat him. (Id.). He alleges that on another occasion, Newsome and other “John Doe”
officers choked him, kicked him in the testicles, and put his head underwater to deprive him of
air. (Id.). He alleges that on this second occasion, he heard the officers state that they were
acting at the command of Sergeant Perkins (“Perkins”), Sergeant Antoinello (“Antoinello”),
Lieutenant Crothers (“Crothers”), and Lieutenant Gerdes (“Gerdes”). (Id.). Plaintiff alleges that
he suffered excruciating pain and injuries requiring twenty staples in his head. (Id.).
Plaintiff also alleges that he has been confined in administrative segregation since
November 2010. (Docket Entry No. 1 at ¶¶ 30-35). He alleges that during this time, he has had
outdoor exercise on only one occasion, (Docket Entry No. 3 at ¶ 55), despite the fact that
prisoners in administrative segregation are entitled to outdoor recreation in a small caged yard.
(Docket Entry No. 1 at ¶¶ 30-31). He claims this lack of exercise has caused him to suffer
migraine headaches, muscle cramps, and “lazy bones.” (Id. at ¶ 36, Docket Entry No. 3 at ¶ 54).
Plaintiff alleges that his conditions of confinement also include 24-hour lockdown, a 10minute shower three times a week, no contact visitation, no opportunity to earn good time
credits, an inability to attend religious services, an inability to participate in educational
programs, and the deprivation of other privileges ordinarily afforded the general prison
population. (Docket Entry No. 1 at ¶ 30). Plaintiff also alleges that from May 20, 2011 to
February 6, 2012, Officers White (“White”), Pinkston (“Pinkston”), and Impagliazzo
(“Impagliazzo”) regularly deprived Plaintiff of his meals. (Id. at ¶ 32). He also claims that
White and Pinkston refused to dispense hygiene supplies to him, including toilet paper and soap.
(Id.). Plaintiff alleges that on February 6, 2012, he was transferred to another unit and that, since
that date, Officers Ilardi (“Ilardi”), Maura (“Maura”), and Dominguez (“Dominguez”) have
2

refused to provide him cleaning supplies, which Plaintiff claims he needs because his cell is dirty
and moldy. (Id. at ¶ 33). He claims that when he has complained about the conditions of his
confinement, the officers to whom he complained have told him that they are acting on the
instructions of Administrator Warren (“Warren”), Assistant Superintendent Nellson (“Nellson”),
and Commissioner Lanigan (“Lanigan”). (Id. at ¶¶ 34, 35).
Plaintiff also alleges that from the time his appeals of his conviction became final in May
of 2011, he has been deprived of paralegal assistance and monthly legal supplies. (Id. at ¶¶ 3743). He alleges that in November 2011, Sergeant Perkins (“Perkins”) instructed White and
Pinkston to conduct a cell search and confiscate Plaintiff’s legal documents regarding his
conviction and criminal appeals. (Id. at ¶ 41). Plaintiff also claims that Pinkston confiscated
Plaintiff’s personal property on November 29, 2011. (Docket Entry No. 3 at ¶ 57).
Plaintiff also alleges that on January 3, 2012, Perkins confiscated Plaintiff’s prescription
eyeglasses and his dentures. (Docket Entry No. 1 at ¶ 42). He claims that he is suffering blurry
vision and headaches without his glasses. (Id.). He also alleges that he is experiencing pain and
difficulty eating without his dentures. (Id.).
Plaintiff alleges that on January 3, 2012, Sergeant Anderson (“Anderson”) and Officer
Holder (“Holder”) kicked and punched him in the head, causing a gash above the eye. (Docket
Entry No. 3 at ¶ 59). He also alleges that on February 5, 2012, “John Doe” officers maced him
with pepper spray and twisted his toe until it fractured. (Id.).
B. Procedural History
On April 4, 2012, Plaintiff filed a complaint, (Docket Entry No. 1), and then filed an
amended complaint (collectively, “Complaint”) on June 28, 2012, (Docket Entry No. 3). In the
Complaint, Plaintiff seeks relief for a number of constitutional violations. First, Plaintiff claims
that Defendants violated the Eighth Amendment by (1) using excessive force on two occasions
3

when Newsome and “John Doe” officers allegedly beat Plaintiff; (2) subjecting him to
substandard conditions of confinement by limiting him to three showers per week and depriving
him of meals, recreation, contact visitation, educational programs, hygiene supplies, cleaning
supplies, and the opportunity to earn good time credits; and (3) providing inadequate medical
care, particularly by taking from him and then denying him prescription eyeglasses and dentures.
(Id.). He also claims that Defendants violated the First Amendment by denying him access to
religious services. (Id.). He claims they also denied him access to the courts by failing to
provide him with adequate paralegal assistance in violation of his First Amendment and Due
Process rights. (Id.). He also claims that Defendants violated the Equal Protection Clause of the
Fourteenth Amendment by depriving him of meals, cleaning supplies, writing supplies, and
hygiene supplies that were provided to other similarly situated inmates. (Id.).
On August 13, 2012, this Court dismissed several of Plaintiff’s claims sua sponte under
28 U.S.C. §§ 1915(e)(2), 1915A. (Docket Entry Nos. 4, 5). A number of Plaintiff’s claims
survived, however, including his claims for (1) excessive force in violation of the Eighth
Amendment; (2) conditions of confinement in violation of the Eighth Amendment; (3)
inadequate medical treatment in violation of the Eighth Amendment; and (4) disparate treatment
in violation of the Equal Protection Clause of the Fourteenth Amendment. (See Docket Entry
No. 4).
On January 4, 2013, Defendants filed a motion to dismiss and for summary judgment as
to those remaining claims. (Docket Entry No. 45). Plaintiff responded on January 18, 2013,
opposing the motion on grounds that (1) Defendants were precluded from making a motion to
dismiss because the Court had already dismissed certain claims sua sponte; and (2) summary
judgment was premature because Plaintiff had not had the opportunity to conduct discovery.
(Docket Entry No. 47). As the Court found those arguments inadequate to address the issues
4

raised by Defendants in their motion, the Court provided Plaintiff with an additional opportunity
to respond to Defendants’ motion. (See Docket Entry No. 50). Specifically, the Court instructed
Plaintiff to submit any evidence, including documents, affidavits or declarations, that address
whether Plaintiff exhausted administrative remedies prior to initiating this lawsuit. (Id.).
Plaintiff submitted such materials on February 26, 2013. (Docket Entry No. 53). The Court now
considers the merits of Defendants’ motion.
III.

LEGAL STANDARD

Defendants seek relief under Federal Rules of Civil Procedure 12(b)(6) and 56. (See
Docket Entry No. 45).
A. Rule 12(b)(6) Standard
Federal Rule of Civil Procedure 8(a)(2) requires that pleadings contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Rule 8 “does not require
detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations
omitted). On a motion to dismiss for failure to state a claim, a “defendant bears the burden of
showing that no claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005).
When considering a Rule 12(b)(6) motion, a district court should conduct a three-part
analysis. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court must ‘take note
of the elements a plaintiff must plead to state a claim.’” Id. (quoting Iqbal, 556 U.S. at
675). Second, the court must accept as true all of a plaintiff’s well-pleaded factual allegations
and construe the complaint in the light most favorable to the plaintiff. Fowler v. UPMC
Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). But, the court should disregard any conclusory
allegations proffered in the complaint. Id. Finally, once the well-pleaded facts have been
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identified and the conclusory allegations ignored, a court must next determine whether the “facts
alleged in the complaint are sufficient to show that plaintiff has a ‘plausible claim for
relief.’” Id. at 211 (quoting Iqbal, 556 U.S. at 679). This requires more than a mere allegation
of an entitlement to relief. Id. “A complaint has to ‘show’ such an entitlement with its
facts.” Id. A claim is only plausible if the facts pleaded allow a court to reasonably infer that the
defendant is liable for the misconduct alleged. Id. at 210 (quoting Iqbal, 556 U.S. at 678). Facts
suggesting the “mere possibility of misconduct” fail to show that the plaintiff is entitled to
relief. Id. at 211 (quoting Iqbal, 556 U.S. at 679).
B. Rule 56 Standard
Summary judgment is appropriate if the record shows “that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding a motion for summary
judgment, a district court considers the facts drawn from “the pleadings, the discovery and
disclosure materials, and any affidavits” and must “view the inferences to be drawn from the
underlying facts in the light most favorable to the party opposing the motion.” FED. R. CIV. P.
56(c); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (internal quotations omitted).
In resolving a motion for summary judgment, the Court must determine “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, 477 U.S.
242, 251-52 (1986). More precisely, summary judgment should be granted if the evidence
available would not support a jury verdict in favor of the nonmoving party. Id. at 248-49. The
Court must grant summary judgment against any party “who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Properly applied, Rule 56 will
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“isolate and dispose of factually unsupported claims or defenses” before those issues come to
trial. Id. at 323-24.
IV.

ANALYSIS

Defendants seek relief under Federal Rules of Civil Procedure 12(b)(6) and 56. (Docket
Entry No. 45). They argue that (1) Plaintiff did not exhaust administrative remedies; (2)
Defendants Warren, Nellsen, and Lanigan are entitled to qualified immunity; (3) the claims
against Defendants Warren, Nellsen, and Lanigan are based on an impermissible theory of
respondeat superior liability; and (4) Plaintiff cannot make the requisite showing to warrant
punitive damages.
Before considering the merits of Defendants’ arguments, it is necessary to address several
preliminary matters concerning the proper standard of review. First, Plaintiff contends that
Defendants are precluded from bringing a Rule 12(b)(6) motion to dismiss because the Court
already reviewed Plaintiff’s complaint and dismissed a number of his claims sua sponte under 28
U.S.C. §§ 1915(e)(2), 1915A. (Docket Entry No. 47). The right of a defendant to bring a
motion to dismiss for failure to state a claim, however, is not foreclosed by a district court’s prior
finding, during sua sponte screening of a civil action filed by an in forma pauperis prisoner, that
the prisoner stated a claim. Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. Mar. 28,
2007) (citing cases). As such, the Court rejects Plaintiff’s argument that the Court’s prior sua
sponte dismissal of certain claims precludes the Court from now considering Defendants’
arguments under Rule 12(b)(6).
Additionally, the Court notes that, upon reviewing Defendants’ brief, it is unclear which
standard of review – Rule 12(b)(6) or Rule 56 – Defendants would have the Court apply to each
of their arguments. The Court, therefore, looks to Defendants’ brief to determine which
arguments they advance under each standard. First, the Court concludes that Defendants’
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argument concerning exhaustion of administrative remedies is properly considered under the
summary judgment standard. “Under FED. R. CIV. P. 12(d), if, on a motion under Rule 12(b)(6)
or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56.” Cerome v. Moshannon Valley
Corr. Cntr./Cornell Cos., Inc., No. 09-2070, 2010 WL 4948940, at *3 (3d Cir. 2010). As
Defendants rely on documents outside of the pleadings in arguing that Plaintiff failed to exhaust
administrative remedies, the Court interprets Defendants’ motion to be a motion for summary
judgment as to that issue.
The Court interprets Defendants’ other arguments, however, as arguments made under a
Rule 12(b)(6) motion to dismiss standard. In reaching this decision, the Court notes that Plaintiff
has had no opportunity for discovery, and it may be necessary for the parties to conduct some
discovery before addressing these arguments on summary judgment. 2 Furthermore, Defendants
advance no authority in support of treating their remaining arguments under a summary
judgment standard, and the Court notes that the sections of Defendants’ brief concerning
qualified immunity, respondeat superior, and punitive damages contain no citations to the
record. As Defendants, therefore, appear to advance these arguments based on the pleadings
alone, the Court treats these arguments as arguments raised under Rule 12(b)(6).
A. Motion for Summary Judgment
The Prison Litigation Reform Act (“PLRA”) requires prisoners asserting a claim under
42 U.S.C. § 1983 to first exhaust administrative remedies. 42 U.S.C. § 1997e. Specifically,

2

Qualified immunity questions should be decided at the earliest possible stage in the litigation; however, the issue
may be addressed in either a motion for dismiss or a motion for summary judgment. See Mitchell v. Twp. of
Willingboro Mun. Gov’t, No. 11-1664, 2012 WL 5989358, at *4, 12-13 (D.N.J. Nov. 28, 2012); see also CrawfordEl v. Britton, 523 U.S. 574, 593 n.14 (1998) (“[L]imited discovery may sometimes be necessary before the district
court can resolve a motion for summary judgment based on qualified immunity.”); Anderson v. Creighton, 483 U.S.
635, 637 (1987) (upholding a district court’s decision on the issue of qualified immunity before any discovery took
place).
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Section 1997e provides 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.” Id.
“The purpose of the exhaustion requirement is (1) to return control of the inmate
grievance process to prison administrators; (2) to encourage development of an administrative
record, and perhaps settlements, within the inmate grievance process; and (3) to reduce the
burden on the federal courts by erecting barriers to frivolous prisoner lawsuits.” Atum-Ra v.
Ortiz, No. 04-2711, 2006 WL 1675091, at *2 (D.N.J. June 14, 2006) (citing Spruill v. Gillis, 372
F.3d 218, 230 (3d Cir. 2004)). It applies to all prisoners in custody at the time they filed their
original complaint, Porter v. Nussle, 534 U.S. 516, 524 (2002), and it is mandatory for all
Section 1983 claims, Jones v. Bock, 127 S. Ct. 910, 918-19 (2007) (citing Porter, 534 U.S. at
524).
The Third Circuit has held that the exhaustion requirement applies to institutional
grievance procedures, even those not formally adopted by a state administrative agency.
Concepcion v. Morton, 306 F.3d 1347, 1347-49 (3d Cir. 2002). Therefore, to properly exhaust
administrative remedies, a prisoner must comply with any grievance procedures described in
inmate handbooks. Id. at 1347-48. The New Jersey State Prison Inmate Handbook “sets forth a
procedure for pursuing administrative remedies within the prison system which entails the filing
of [an Inmate Remedy System Form (“IRSF”)] and if necessary, subsequent appeal of an
unfavorable decision.” Di Giovanni v. New Jersey, No. 04-2060, 2006 WL 2524174, at *1
(D.N.J. Aug. 29, 2006).
The PLRA contains no futility exception that would excuse a failure to exhaust, Booth v.
Churner, 532 U.S. 731, 741 n.6 (2001); however, a prisoner need only exhaust those
administrative remedies “available” to him. 42 U.S.C. § 1997(e); Malouf v. Turner, 814 F. Supp.
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2d 454, 464 (D.N.J. Aug. 31, 2011) (citing Verbanik v. Harlow, 441 F. App’x 931, 933-34 (3d
Cir. 2011)). “To constitute an available administrative remedy, a grievance procedure must
enable the appropriate prison authorities to provide relief or to take action in response to a
prisoner’s grievance.” In re Bayside Prison Litig., No. 97-5127, 2008 WL 2387324, at *4
(D.N.J. May 19, 2008) (citing Booth, 532 U.S. at 736 n.4). An administrative remedy is not
available, however, if a prison official has misled or otherwise precluded the inmate from filing
or exhausting prison grievance procedures. Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003);
Brown v. Cook, 312 F.3d 109, 112 (3d Cir. 2002); Camp v. Brennan, 219 F.3d 279, 280-81 (3d
Cir. 2000); Oliver v. Moore, 145 F. App’x 731, 734-35 (3d Cir. 2005).
Here, the record reveals that Plaintiff did not exhaust administrative remedies as to all
claims. First, as a preliminary matter, although Plaintiff states that “[t]he record that was
submitted to the Court by defence (sic) is incomplete,” Plaintiff apparently does not contend that
any IRSFs are missing from the record. (Docket Entry No. 53, Attach. 1 at ¶ 26). Instead,
Plaintiff appears to take issue with the “linguistics” and lack of “checks and balances” in the
system. (Id.). As Plaintiff has not asserted that he submitted any IRSFs not included in the
submissions before the Court, the Court finds that the IRSFs submitted to the Court are a
complete set.
Having reviewed those IRSFs, it is clear that Plaintiff did not exhaust administrative
remedies for all claims. First, Plaintiff did not submit an IRSF concerning the alleged incidents
where (1) “John Doe” Defendants, Newsome, Perkins, Antoinello, Crothers, and Gerdes threw
Plaintiff to the floor and beat him; (2) Anderson and Holder kicked and punched him in the eye
on January 2, 2012; and (3) “John Doe” Defendants maced Plaintiff with pepper spray and
twisted his toe until it fractured. As such, Plaintiff failed to exhaust administrative remedies for

10

his Eighth Amendment excessive force claim and summary judgment for Defendants must,
therefore, be entered as to that claim.
Plaintiff also failed to exhaust administrative remedies for his Eighth Amendment claim
for inadequate medical treatment, in which he claims Defendants took his eyeglasses and
dentures. After reviewing each of the IRSFs submitted, the Court concludes that during the
relevant period, Plaintiff submitted four IRSFs regarding medical care. (See Docket Entry No.
45, Attach. 3, Ex. C at 83, 128, 138-39, 151). Only one actually pertains to the allegations
Plaintiff makes in this lawsuit, however. (Id. at 83). In that IRSF, Plaintiff wrote: “On February
5, 2012, I was escorted . . . on video camera. My glasses have been missing since. They were in
my pants pocket and were taken while video was being taken. Please view video, locate my
eyeglasses and return them to me ASAP.” (Id.). As this is the only IRSF Plaintiff apparently
submitted that concerns the medical care allegations in the Complaint, the Court finds that
Plaintiff did not exhaust administrative remedies as to that claim. Plaintiff simply did not place
the prison on notice of his claim of inadequate medical care. As such, summary judgment is
appropriate as to Plaintiff’s Eighth Amendment claim for inadequate medical treatment.
Finally, Plaintiff submitted numerous IRSFs regarding prison conditions, (Docket Entry
No. 45, Attach. 2, Ex. B at 34, 36-40, 53, 58, 63, 66, 68; Attach. 3, Ex. C at 86, 113, 114, 125,
126, 129, 130, 136, 152); however, the Court finds that he failed to exhaust administrative
remedies as to many of the conditions complained of in this lawsuit. To briefly recite Plaintiff’s
claims pertaining to the conditions of his confinement, he alleges that Defendants violated the
Eighth Amendment by (1) regularly depriving Plaintiff of meals; (2) subjecting him to a 24-hour
lockdown and providing him with exercise on only one occasion over a period of at least
eighteen months; (3) denying Plaintiff contact visitation rights; (4) denying him access to
educational programs; (5) depriving him of hygiene supplies; (6) depriving him of cleaning
11

supplies; and (7) permitting him to take only three showers per week. 3 Plaintiff also complains
that Defendants violated the Fourteenth Amendment Equal Protection Clause by (1) regularly
depriving him of meals; (2) depriving him of hygiene supplies; (3) depriving him of cleaning
supplies; and (4) depriving him of writing supplies. The Court finds, however, that Plaintiff
submitted no IRSFs complaining of his visitation rights, that he was permitted to take only three
showers per week, that he was denied access to educational programs, or that he was deprived of
cleaning supplies.
Additionally, the Court finds that Plaintiff did not submit IRSFs to support his claim of
regular meal deprivation. In his Complaint, Plaintiff claims he was “starved” of meals daily
from May 20, 2011 until February 6, 2012 and was “sometimes” deprived of his dinner “once or
twice a week.” (Docket Entry No. 1 at ¶ 32). Yet Plaintiff filed only two IRSFs complaining
that he did not receive adequate food. In the first IRSF, Plaintiff complains that his requests for
additional slices of bread (he was already receiving two) had been denied. (Docket Entry No.
45, Attach. 3 at 35). In the second dated January 12, 2012, Plaintiff complains that Pinkston
refused to give him breakfast or water on December 3, 2011, and also refused to give him lunch
on December 17, 2011. (Id. at 58). The Court simply cannot say that these IRSFs were
sufficient to place the prison on notice of the regular and ongoing meal deprivation alleged in the
Complaint. As such, to the extent Plaintiff’s claims rely on allegations of meal deprivation,
access to showers, no contact visitation and access to educational programs, or deprivation of
cleaning supplies, Defendants are entitled to summary judgment.

3

Plaintiff also complains that he is ineligible to earn good time credits; however, this is effectively a challenge to the
length of his confinement. Such a challenge must be brought in a petition for a writ of habeas corpus. Preiser v.
Rodriguez, 411 U.S. 475, 499 (1973) (“[A] § 1983 action is a proper remedy for a state prisoner who is making a
constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody.”). As such, to
the extent Plaintiff claims relief based on his inability to earn good time credits, this claim is dismissed.
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Plaintiff did, however, submit IRSFs complaining that he was not given adequate soap
and toilet paper, (id. at 37, 39, 40), and that he was denied adequate recreation or exercise, (id. at
126, 129). The Court also finds that Plaintiff submitted IRSFs concerning his alleged
deprivation of writing materials. (Id. at 54, 56, 57, 59, 80, 106, 108, 114, 125, 141, 149).
Therefore, the Court finds that Plaintiff submitted IRSFs to support his Eighth Amendment claim
to the extent it relies on his claims that he did not receive adequate hygiene supplies or exercise. 4
Additionally, the Court finds that Plaintiff submitted IRSFs to support his Fourteenth
Amendment claim to the extent it relies on his allegations that he was denied hygiene supplies
and writing supplies provided to similarly situated prisoners. 5
Although Plaintiff did in fact submit IRSFs for those two claims, Defendants contend that
Plaintiff nevertheless did not exhaust administrative remedies because he did not appeal the
prison’s resolution of those complaints. Plaintiff, however, contends that he did not receive
responses to many of the IRSFs he submitted 6 and that when he did receive a response, he
immediately appealed but never received a response to those appeals. 7 As a prisoner is only

4

Plaintiff apparently does not claim that the alleged deprivation of writing and legal materials is an Eighth
Amendment violation. (See Docket Entry No. 1 at 15).
5
Plaintiff apparently does not contend that his lack of exercise or recreation violates the Fourteenth Amendment.
(See Docket Entry No. 1 at 15).
6
Plaintiff states a number of times that he often did not receive responses to the IRSFs he filed. (See e.g., Docket
Entry No. 53 at 2-3 (“I write greavance (sic) (IRSF) all the time about the isolation and deprivation of sensory
stimuli and no responses or even an acknowledgment of the problem.”); Docket Entry No. 53, Attach. 1 at ¶¶ 6
(“[IRSFs] don’t get acknowledged, entered into the tracking system . . . and don’t get any response.”), 9 (denying
receiving a response to an August 17, 2011 IRSF concerning soap rations), 20 (denying receiving a response to a
February 15, 2012 IRSF concerning disciplinary charges); Docket Entry No. 53, Attach. 5 at ¶ 3(a) (“When I file
grievance forms requesting that I need items such as toothbrushes, shower shoes, towel, washcloth, toothpaste and
soap, I either don’t get a response or the reply insults my intelligence by saying that I have to purchase these items
from inmate commissary.”)). Several of Plaintiff’s IRSFs also attest to his difficulties in obtaining responses to
IRSFs and his mail in general. (Docket Entry No. 45, Attach. 3 at 70 (referencing “mail being withheld”); Docket
Entry No. 45, Attach. 4, at 84 (stating “You can’t tell me that nobody has written to me since September of 2011”
and stating that someone is “withholding” his mail), 91 (seeking to appeal “non-responsive replies to all the IRSF101 remedy forms I have been filing for legal assistance . . . .”); Docket Entry No. 53, Attach. 4 at 4 (“I’ve written
several times since February 6, 2012 and not received a response.”)).
7
Plaintiff states that when he did receive a response to his IRSFs, he immediately appealed but received no response
to those appeals. (See, e.g., Docket Entry No. 53, Attach. 1 at ¶¶ 8 (explaining that after receiving a response to an
April 20, 2012 IRSF “I the appealed asking why it took 3 months for a response and if I could have a phone call
debitted (sic) to my account . . . . This appeal like many others did not get a response.”), 10 (explaining that after
13

required to exhaust those administrative remedies available to him, the Court concludes that
Defendants have not met their burden of establishing that no genuine issue of material fact exists
as to whether Plaintiff exhausted administrative remedies for his Eighth Amendment claim
challenging the conditions of his confinement and his Fourteenth Amendment claim alleging
disparate treatment. See Jackson v. Gandy, 877 F. Supp. 2d 159, 179 (D.N.J. June 29, 2012)
(denying summary judgment because genuine issue of material fact existed as to whether
prisoner had exhausted administrative remedies). As such, summary judgment is denied as to
those claims.
B. Motion to Dismiss
Defendants move to dismiss Plaintiff’s remaining claims under Rule 12(b)(6), arguing
that (1) Defendants Warren, Nellsen, and Lanigan are entitled to qualified immunity; (2)
Plaintiff’s claims against Warren, Nellsen, and Lanigan impermissibly rely on a theory of
respondeat superior; and (3) Plaintiff cannot meet the requisite standard to recover punitive
damages.
1. Qualified Immunity
“The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan, 129 S. Ct. 808,
815 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity
balances two important interests – the need to hold public officials accountable when they
exercise power irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Id. Government officials are protected by
receiving a responses to IRSFs filed on August 29, 2011 “I immediately appealed [and] never received any response
to the appeal.”), 15 (explaining that Plaintiff appealed an IRSF regarding food tampering but “never received a
response”), 16 (explaining that Plaintiff “appealed immediately” the response to a November 30, 2012 IRSF
regarding a ripped sheet but has received “no response to date”); Docket Entry No. 53, Attach. 4 at 4).
14

qualified immunity “regardless of whether the government official’s error is a mistake of law, a
mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (quotations and
citations omitted). “Because qualified immunity is an immunity from suit rather than a mere
defense to liability,” immunity questions should be resolved “at the earliest possible stage in
litigation.” Id. (quotations and citations omitted).
When determining whether an official is entitled to qualified immunity, courts conduct a
two-step analysis. Saucier v. Katz, 533 U.S. 194, 200-01 (2001). “First, the court must consider
whether the facts alleged, taken in the light most favorable to the plaintiff, show that the officer’s
conduct violated a constitutional right.” Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (citing
Saucier, 533 U.S. at 201). “If the plaintiff fails to make out a constitutional violation, the
qualified immunity inquiry is at an end; the officer is entitled to immunity.” Bennett v. Murphy,
274 F.3d 133, 136 (3d Cir. 2002). “If, however, a violation could be made out on a favorable
view of the parties’ submissions, the next sequential step is to ask whether the right was clearly
established.” Kopec, 361 F.3d at 776 (quoting Saucier, 533 U.S. at 201) (quotations omitted).
“If it would not have been clear to a reasonable officer what the law required under the facts
alleged, then he is entitled to qualified immunity.” Id.
Before analyzing whether Defendants are entitled to qualified immunity in this case, the
Court notes that “[t]he Third Circuit has cautioned against dismissing a case based on qualified
immunity on a Rule 12(b)(6) motion because ‘it is generally unwise to venture into a qualified
immunity analysis at the pleading stage as it is necessary to develop the factual record in the vast
majority of cases.’” Mitchell v. Twp. of Willingboro Mun. Gov’t, No. 11-1664, 2012 WL
5989358, at *4 (D.N.J. Nov. 28, 2012) (citing Newland v. Reehorst, 328 F. App’x 788, 791 n.3
(3d Cir. 2009)). Bearing this in mind, the Court now turns to Defendants’ arguments to
determine whether qualified immunity is established on the face of the Complaint.
15

Defendants make a number of general arguments concerning qualified immunity that are
not specific to either of Plaintiff’s two remaining claims. First, Defendants argue that Warren,
Nellsen, and Lanigan are entitled to qualified immunity because they did not violate any
constitutional right as they had no personal involvement in the conduct complained of. (Docket
Entry No. 45 at 15). In light of the liberal pleading construction given to pro se pleadings, see
Haines v. Kerner, 404 U.S. 519, 520 (1972), however, the Court does not agree. Plaintiff has
alleged that the conduct he complains of, though carried out by various correctional officers, was
ordered by Warren, Nellsen, and Lanigan. As the Court sees little distinction between
Defendants ordering a subordinate to perform certain actions and Defendants performing those
actions themselves, the Court disagrees that Defendants Warren, Nellsen, are entitled to qualified
immunity on this basis. See Novellino v. New Jersey Dep’t of Corrs. Mountainview Youth Corr.
Facility, No. 10-4542, 2011 WL 3418201, at *4-5 (D.N.J. Aug. 3, 2011) (denying qualified
immunity where the defendants ordered others to engage in conduct in violation of the
constitution).
Additionally, Defendants argue that dismissal is appropriate because Plaintiff fails to
state a “specific time or date, or any inclination” that Defendants Warren, Nellsen, and Lanigan
ordered such conduct. (Docket Entry No. 45, Attach. 1 at 17). The Court, however, disagrees
that the omission of such facts constitutes a failure to state a claim under Rule 12(b)(6).
Additionally, the Court notes that Defendants bear the burden of showing that dismissal is
appropriate but have cited no authority to support their contention that Plaintiff must cite a date
or time that Warren, Nellsen, and Lanigan made such orders. Furthermore, the Court notes that
pro se complaints are construed liberally and held to “less stringent standards than formal
pleadings drafted by lawyers.” Estelle v. Gamble, 491 U.S. 97, 106 (1976). The Court,
therefore, finds this argument unavailing.
16

Having addressed Defendants’ more general arguments, the Court now turns to whether
Defendants Warren, Nellsen, and Lanigan are entitled to qualified immunity on Plaintiff’s Eighth
Amendment claim and then whether they are entitled to such immunity on Plaintiff’s Fourteenth
Amendment claim.
a.Eighth Amendment Claim
“[T]he treatment a prisoner receives in a prison and the conditions under which he is
confined are subject to [s]crutiny under the Eighth Amendment.” 8 Helling v. McKinney, 509
U.S. 25, 31 (1993). The Constitution mandates that prisoners be afforded “humane conditions of
confinement;” however, “[t]he Constitution does not mandate comfortable prisons.” Farmer v.
Brennan, 511 U.S. 825, 832-33 (1994) (internal citations omitted). “[P]rison officials must
ensure that inmates receive adequate food, clothing, shelter, and medical care and must ‘take
reasonable measures to guarantee the safety of inmates.’” Id. at 832 (quoting Hudson v. Palmer,
468 U.S. 517, 526-27 (1984)).
To establish an Eighth Amendment violation, “an inmate must allege both an objective
element-that the deprivation was sufficiently serious-and a subjective element-that a prison
official acted with a sufficiently culpable state of mind, i.e., deliberate indifference.” Nami v.
Fauver, 82 F.3d 63, 67 (3d Cir. 1996) (citing Wilson v. Seiter, 501 U.S. 294 (1991)). A
deprivation is “sufficiently serious” when it results in the denial of “the minimal civilized
measure of life’s necessities.” Fortune v. Hamberger, 379 F. App’x 116, 122 (3d Cir. 2010)
(citing Farmer, 511 U.S. at 834). “This requires an inmate to show that he is incarcerated under
conditions posing a substantial risk of harm . . . .” Id. (internal quotations omitted).
Furthermore, “[a] prison official demonstrates deliberate indifference if he knows of and

8

The Eighth Amendment applies to the states through the Fourteenth Amendment. See, e.g., Wilson v. Seiter, 501
U.S. 294, 296-97 (1991).
17

disregards an excessive risk to the inmate’s health or safety.” Ham v. Greer, 269 F. App’x 149,
151 (3d Cir. 2008) (citing Farmer, 511 U.S. at 834).
Plaintiff contends that the conditions of his confinement violate the Eighth Amendment.
Having concluded that Plaintiff failed to exhaust administrative remedies as to many of the
conditions of confinement complained of, Plaintiff’s Eighth Amendment claim now consists of
allegations of (1) 24-hour lockdown with only one instance of recreation since November 2010;
and (2) the denial of a portion of hygiene supplies, namely toilet paper and soap. Plaintiff also
contends that he suffers from migraine headaches, anxiety, depression, and muscle cramps as a
result of these deprivations. (Docket Entry No. 1 at ¶ 36; Docket Entry No. 3 at ¶ 54).
In light of the liberal pleading construction given to pro se pleadings, see Haines v.
Kerner, 404 U.S. 519, 520 (1972), the Court cannot agree with Defendants that Plaintiff has
failed to state an Eighth Amendment violation or that such a violation was not clearly established
for qualified immunity purposes. Although “[e]ven minimal provision of time for exercise and
recreation may satisfy constitutional requirements,” Gattis v. Phelps, 344 F. App’x 801, 805 (3d
Cir. 2009) (citing cases), here Plaintiff alleges a total deprivation of exercise for more than
eighteen months. “It is generally recognized that a total or near-total deprivation of exercise or
recreational opportunity, without penological justification, violates Eighth Amendment
guarantees.” See Patterson v. Mintzes, 717 F.2d 284, 289 (6th Cir. 1983); see Anderson v.
Coughlin, 757 F.2d 33, 35 (2d Cir. 1985) (“some opportunity for exercise must be afforded to
prisoners”); Ruiz v. Estelle, 679 F.2d 1115, 1152 (5th Cir. 1982) (“confinement of inmates for
long periods of time without opportunity for regular physical exercise constitutes cruel and
unusual punishment”); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (“denial of fresh air
and regular outdoor exercise and recreation constitutes cruel and unusual punishment”);
Campbell v. Cauthron, 623 F.2d 503, 506-07 (8th Cir. 1980); Campbell v. McGruder, 580 F.2d
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521, 545-46 (D.C. Cir.1978). The Third Circuit has also indicated that a prisoner’s allegations
are sufficient to state an Eighth Amendment violation where he claimed he was confined in
administrative segregation and denied access to daily exercise and educational programs for
approximately two years. Deen-Mitchell v. Lappin, No. 12-3795, 2013 WL 628568, at *3 (3d
Cir. 2013). As such, the Court cannot say that Plaintiff’s allegations are insufficient to state an
Eighth Amendment violation or that such a violation was not clearly established. Therefore, the
Court is not persuaded that Defendants Warren, Nellsen, and Lanigan are entitled to qualified
immunity regarding Plaintiff’s Eighth Amendment claim. 9
b.Fourteenth Amendment
Defendants also contend that Warren, Nellsen, and Lanigan are entitled to qualified
immunity on Plaintiff’s Fourteenth Amendment claim. “The Equal Protection Clause of the
Fourteenth Amendment requires that similarly situated individuals be treated alike.” Mann v.
Brenner, 375 F. App’x 232, 238 (3d Cir. 2010) (citing City of Cleburne v. Cleburne Living Ctr.,
472 U.S. 432, 439 (1985)). “An equal protection claim may be brought by a ‘class of one,’ an
individual claiming that he has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.” Id. (citing Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). “To state a claim under this theory, a plaintiff
must allege that (1) the defendant treated him differently from others similarly situated, (2) the
defendant did so intentionally, and (3) there was no rational basis for the difference in
treatment.” Leone v. Twp. of Deptford, 616 F. Supp. 2d 527, 535-36 (D.N.J. Apr. 29, 2009).
Construing the complaint liberally, the Court cannot say that Plaintiff has not adequately
alleged a constitutional violation under the Fourteenth Amendment and that such a violation was
9

Once again, the Court notes that Defendants have provided no authority for their argument that Plaintiff’s
allegations fail to state a constitutional violation and that such a violation is not clearly established. As Defendants
bear the burden of showing that dismissal is warranted, the Court is reluctant to dismiss Plaintiff’s claim in the
absence of such authority.
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not clearly established under existing law at the time of the alleged conduct. Plaintiff claims that
he was deprived of hygiene and writing supplies that were provided to similarly situated inmates.
Although Plaintiff does not provide examples of inmates who received supplies when Plaintiff
did not, the Court finds that such examples are not necessary to properly state a claim under Rule
8. M.G. v. Crisfield, No. 06-5099, 2009 WL 2920268, at *5 (D.N.J. Sept. 11, 2009) (citing
Phillips v. Cnty. of Alleghany, 515 F.3d 224, 243-244 (3d Cir. 2008)) (“The Third Circuit has
held that a plaintiff is not required to specifically identify the similarly situated persons.”); see
also DeMuria v. Hawkes, 328 F.3d 704, 707 (2d Cir. 2003). “To survive a motion to dismiss, the
complaint must merely contain sufficient allegations of the existence of similarly situated
individuals to nudge the claim across the line from conceivable to plausible.” Toll Bros., Inc. v.
Twp. of Moorestown, No. 10-4843, 2011 WL 2559507, at *6 (D.N.J. June 27, 2011) (citing
Mann, 375 F. App’x at 238-39). Furthermore, Defendants have offered no rational basis for the
allegedly disparate treatment. As such, Defendants have not shown that they are entitled to
qualified immunity on Plaintiff’s Fourteenth Amendment claim.
2. Respondeat Superior
Defendants also argue that all claims against Warren, Nellsen, and Lanigan must be
dismissed because they rely on an impermissible theory of respondeat superior. Local
government units and supervisors are not liable under Section 1983 solely on a theory of
respondeat superior. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8 (1985); Monell
v. New York City Dep’t of Social Servs., 436 U.S. 658, 690-91, 694 (1978) (municipal liability
attaches only “when execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts
injury” complained of); Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir.
2003). “A defendant in a civil rights action must have personal involvement in the alleged
20

wrongs, liability cannot be predicated solely on the operation of respondeat superior.” Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted). Personal involvement can
be shown through allegations of personal direction or of actual knowledge and acquiescence.”
Id.
As Section 1983 does not support liability on the theory of respondeat superior, to the
extent that any of Plaintiff’s claims rely on such a theory, these claims are dismissed. Plaintiff,
however, alleges that the conduct complained of was ordered by Warren, Nellsen, and Lanigan.
Therefore, the Court finds sufficient allegations of personal involvement in the pleadings and
concludes that Defendants’ argument regarding respondeat superior does not support dismissal
of the two remaining claims against Warren, Nellsen, and Lanigan.
3. Punitive Damages
Defendants also argue that Plaintiff’s claims for punitive damages should be dismissed
under Rule 12(b)(6). The PLRA does not prohibit prisoners from seeking punitive damages in §
1983 claims. Gattis, 344 F. App’x at 804 (citing Allah v. Al-Hafeez, 226 F.3d 247, 251-52 (3d
Cir. 2000)). Punitive damages are only awarded, however, if the defendant’s conduct is
particularly egregious. Smith v. Wade, 461 U.S. 30, 56 (1983). To recover punitive damages, a
state defendant’s conduct must have been “motivated by evil motive or intent” or it must have
“involve[d] reckless or callous indifference to the federally protected rights of others.” Id.
Here, Defendants have not shown that Plaintiff’s claims for punitive damages should be
dismissed under Rule 12(b)(6). First, Defendants offer no authority to support their contention
that dismissal of a claim for punitive damages is appropriate where, as here, Defendants
allegedly singled out Plaintiff for special treatment, taunted him, and deprived him of exercise
altogether for more than eighteen months. Furthermore, it is generally a question of fact as to
whether a defendant’s conduct was motivated by an evil motive or involves reckless
21

indifference. Coleman v. Rahija, 114 F.3d 778, 787 (3d Cir. 1997). Therefore, without
additional showing by Defendants that dismissal is warranted, the Court declines to dismiss
Plaintiff’s claims for punitive damages at this time.
V.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss and for Summary Judgment is
granted in part and denied in part. An appropriate order will follow.

/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.

Date:

June 27, 2013

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