WATKINS v. MERRIEL et al

Filing 76

OPINION filed. Signed by Judge Freda L. Wolfson on 9/29/2015. (kas, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JESSE WATKINS,

Civil Action No. 12-4851 (FLW)

Plaintiff,
v.
MARVIN MERRIEL, et al.,
Defendants.

OPINION

WOLFSON, United States District Judge:
I.

INTRODUCTION
This matter comes before the Court on Defendants’ motions to dismiss and for summary

judgment at to Plaintiff’s Section 1983 and state law claims arising from allegations that he fell
and injured himself when two correctional officers ordered him to get up from his wheelchair
and walk through a metal detector at New Jersey State Prison. Plaintiff also alleges that the
supervisor stationed at Booth 1-E refused to provide him with emergency medical treatment after
he fell; that one of the correctional officers began retaliating against him after he filed the instant
suit; and that the Commissioner of NJDOC failed to implement policies and training that would
have prevented the incident. Among other arguments, Defendants contend that Plaintiff failed to
exhaust his administrative remedies with respect to the conduct giving rise to his section 1983
claims. As explained in this Opinion, exhaustion of administrative remedies under the Prison
Litigation Reform Act (“PLRA”) is an issue of law to be decided by the Court even where there
are disputed issues of fact. Because the Court finds there are disputed issues of fact that preclude
summary judgment on the exhaustion issues, it will deny summary judgment on the exhaustion
issue and hold a hearing to determine whether Plaintiff sufficiently exhausted his administrative

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remedies. The Court will defer ruling on Defendants’ other arguments for dismissal and
summary judgment in light of its decision to hold a hearing to resolve Defendants’ exhaustion
defense(s).
II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY 1
The Court recounts only the facts necessary to Defendants’ exhaustion defense and

explains the relevant evidence in more detail in the appropriate analysis sections of the Opinion.
On December 4, 2011, the date of the incident in question, Plaintiff Jesse Watkins was
incarcerated at New Jersey State Prison (“NJSP”) in Trenton, New Jersey. (Declaration of Linda
Santoro (“Santoro Decl.”) at ¶ 2.) It is undisputed that Plaintiff was cleared to use a wheelchair
prior to that date. On July 14, 2011, Dr. Abu Ahsan authored a note for Plaintiff stating “level 1,
WC transport.” (See July 14, 2011 Referral Form, Lustberg Decl., Ex. S.) Dr. Ahsan also
authored a medical note on October 14, 2011, which stated that Plaintiff was “unable to stand or
walk without support due to medical condition.” (See October 14, 2011 Test Form, Lustberg
Decl., Ex. T.)
According to Plaintiff, Defendants Merriel and Logan, two correctional officers at NJSP,
ordered Plaintiff to “stand and walk” through the metal detector at the 1-E Booth, over his
objections, and despite the fact that he referenced a medical note. (See DSUMF ¶ 9; see also
Deposition of Wilbert Brown (“Brown Dep.”), Lustberg Decl., Ex. U at 29:16-31.) Defendant
Logan testified that both he and Defendant Merriel knew Plaintiff to use a wheelchair from past
experience, and that Plaintiff referenced his medical pass on the day of the incident. (See Dep. of
Gary Logan (Logan Dep.), Lustberg Decl., Ex. R at 32:3-33:17; 36:16-38:8.) Plaintiff has

1

Unless otherwise noted, the Court views the facts from the record in the light most favorable to
Plaintiff in light of the summary judgment standard.
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offered testimony to suggest that if he refused Merriel’s and Logan’s order, he faced potential
lockup. (See Logan Dep., Lustberg Decl., Ex. R at 43:25-44:11.) When Plaintiff attempted to
comply with the Defendants’ order, he fell into the metal detector. (See Deposition of Officer
Douglas Tubby (“Tubby Dep.”), Lustberg Decl., Ex. V at 27:20-28:1; 60:15-61:25.)
It is undisputed that Defendant Rokeach, Merriel’s and Logan’s supervisor, 2 was not
present at the 1-E Booth during the incident on December 4, 2011 (see Logan Dep., Lustberg
Decl., Ex. R at 51:23-52:6) and returned to the 1-E Booth after Plaintiff had fallen. (Pl. Dep. Tr.
64:12-21.) Plaintiff alleges, however, that Defendant Rokeach refused to call for emergency
medical treatment, known as a “Code 53.” (See Rokeach Dep. at 15:12-20.)
Finally, Plaintiff contends in his Amended Complaint, that “[s]ince [the filing of the
instant lawsuit on] August 3, 2012, Defendant Merriel has threatened and continues to threaten
[Plaintiff]. These threats are direct responses to [Plaintiff’s] Complaint.” (Am. Compl. at ¶ 50.)
Plaintiff also contends that “Defendant Merriel’s threats, which concern Mr. Watkins’ safety and
security, are retaliatory in nature and specifically designed to deter Mr. Watkins from exercising
his First Amendment rights.” (Id. at ¶ 51.)
a. Exhaustion of Administrative Remedies
NJSP has a formalized review process for use by inmates in making requests and
submitting grievances known as the Inmate Remedy Form System (“IRF System”). As
explained in the Declaration of James Dutch, the Department-wide Inmate Grievance
Coordinator for the NJDOC, “[t]he Inmate Grievance and Tracking Program utilizes a form
document, referred to as an Inmate Remedy System Form ("IRF"), which is the same form used

2

Defendants Rokeach, Merriel, and Logan are collectively referred to as the Officer Defendants
where appropriate.
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at each of the DOC's thirteen prisons.” 3 (Dutch Decl. at ¶ 7.)

It is undisputed that NJSP’s

Inmate Handbook outlines the process for submitting an IRF and appealing an adverse
determination. (See DSUMF at ¶ 17; Pl. RSUMF at ¶ 17.) It also appears undisputed that
Plaintiff was aware of the process for filing IRFs and had used the process to resolve grievances
before and after the incidents at issue here.
In his Declaration, Mr. Dutch acknowledges “[o]ther avenues through which inmates
may occasionally raise complaints, including letters to administrators, the Office of the
Commissioner, and the Ombudsman; or referral of an investigation to the Special Investigations
Division, which does not report to prison administration but directly to the DOC's Central Office
in Trenton.” (Dutch Decl. at ¶ 5.) Mr. Dutch states that these avenues “do not guarantee that
appropriate administration and staff at the particular prison are fully aware, or aware at all, of an
inmate’s grievance.” (Id.)
i. Exhaustion of Administrative Remedies for the December 4, 2011
Incident and the Acts of Retaliation by Defendant Merriel.
Plaintiff submitted an initial IRF, dated December 10, 2011, for the December 4, 2011
incident. 4 (See IRF from Jesse Watkins, dated Dec. 10, 2014, Lustberg Decl., Ex. B; DSUMF at
¶ 22.) Plaintiff filed his initial IRF concerning Defendant Merriel’s allegedly retaliatory conduct
on July 11, 2012. 5 (See IRF, dated July 11, 2012, Lustberg Decl., Ex. G.) Plaintiff did not

3

The Dutch Declaration further explains that “[t]his same form has previously been referred to
as an "Inmate Request System and Remedy Form"; however, despite having a slightly different
title, the form was otherwise identical in its function.” (Id.)
4

Another IRF regarding the December 4, 2011 incident, dated December 9, 2011, was prepared
by another inmate on Plaintiff’s behalf. (See IRF, dated Dec. 9, 2011, Lustberg Decl., Ex. C.)
The DOC responded to this IRF on February 13, 2012, stating: “Sir, Reports were written on this
‘incident’ and the reports do not reflect your account. Thank you.” (See Lustberg Decl., Ex. C.)
5

In December of 2013, Plaintiff also filed several IRFs regarding threats made by Defendant
Merrill against Plaintiff while he was attempting to attend church services. Two of these IRFs
(dated December 9, 2013 and December 29, 2013) reflect that Plaintiff appealed the initial
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receive a response to this initial IRF until approximately four months later on November 30,
2012, which stated: “These allegations cannot be verified.” (Id.)
The parties dispute whether Plaintiff appealed these initial IRF determinations.
Defendants have submitted copies of all IRFs submitted by Plaintiff and processed by the
Remedy Coordinator for the relevant incidents. Parts four and five of the December 10, 2011
IRF form and the July 11, 2012 form, which are designated for the inmate’s appeal and the
administrative decision on the appeal, are blank. (Lustberg Decl., Ex. C, G.) Defendants have
also submitted the Declaration of Linda Santoro that explains that the IRFs identified (and
presumably produced) by Defendants include properly submitted appeals by Plaintiff but do not
include any initial IRFs or appeals that were improperly submitted by Plaintiff. (See Declaration
of Linda Santoro (“Santoro Decl.”) at ¶ 16.)
Plaintiff contends that he submitted appeals of the relevant IRFs from which he received
a negative response from the NJDOC. 6 Plaintiff does not submit his own declaration to support
his position; instead, he attempts to support his contention through the Declaration of his
attorney, Daniel J. McGrady, Esq. (“McGrady Decl.”), which states as follows:
2.
Plaintiff maintains that he submitted appeals for each and
every Inmate Remedy System Form (“IRF”) as to which he
received a negative response from the Department of
Corrections (the “DOC”). This includes his December 10, 2011
determination and received a response to his appeal. (ECF No. 69-8, at 7, 16). Defendants
acknowledge that the December 9, 2013 and December 29, 2013 IRFs were properly exhausted
by Plaintiff, but dispute that these IRFs relate to the retaliation claims asserted against Defendant
Merrill in Plaintiff’s Amended Complaint. (ECF No. ¶¶ 23, 25.)
In his Amended Complaint, Plaintiff alleges that he filed his appeal of the December 10, 2011
IRF on January 9, 2012. (Am. Compl. at ¶ 37.) On or about March 21, 2012, the grievance
coordinator returned his grievance appeal because Plaintiff forgot to sign it and instructed him to
sign the appeal and refile it, which he did. (Id.) Plaintiff alleges that, as of the time he submitted
the Amended Complaint, he had not received a response to the grievance appeal of the December
10, 2011 IRF. (Id.) Plaintiff’s Amended Complaint was submitted for him by his attorneys and
is not verified or otherwise sworn under penalty of perjury. (See id.)
6

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IRF relating to the December 4, 2011 incident, as well his July 11,
2012 IRF relating to Defendant Merriel’s retaliatory conduct.
Since Plaintiff never received a response to his November 24,
2014 IRF, he obviously could not submit an appeal with respect to
this form. According to Plaintiff, the DOC did not return copies
of his appeals after he submitted them. In addition, Plaintiff
asserts that he was not permitted to make copies of his appeals
prior to submitting them. Therefore, Plaintiff does not have
copies of many of the appeals that he filed, including appeals
relating to his December 10, 2011 IRF and his July 11, 2012
IRF. 7
(Id. at ¶ 2.)
The Inmate Remedy Form System Process outlined in the Inmate Handbook states that
“[a]ppeals [of the initial IRF determination] “must be submitted using the yellow copy (copy
returned to you) of the original IRSF101 form you submitted.” (Inmate Handbook Excerpts,
Santoro Decl., Ex. B.) The appeal must be also submitted within ten days of the date the initial
response is returned to an inmate, and the Inmate Handbook states that “[a]ppeals submitted
outside of stated time frame will not be accepted or processed.” (See id.) In his Declaration, Mr.
Dutch acknowledges that “[o]n occasion, IRFs that are processed and filed by the prison's
RF/grievance coordinator are not returned to the inmate.” (Dutch, Decl. at ¶ 8.) In such an
instance, the Defendants contend that inmates are not precluded from submitting a follow-up
IRF. (See id.; see also Santoro Decl. at ¶ 13.)
Plaintiff has submitted an IRF, dated June 30, 2011, in which Plaintiff states that he has
“some concerns because I haven’t received (any) responses back from numerous[] complaints
since (April, May) . . . . I would really appreciate if I could finally receive a response because
I’m complying with procedures and still seem to be being neglected.” (IRF from Jesse Watkins,

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In his Declaration, counsel for Plaintiff “certif[ies] under penalty of perjury that the foregoing is
true and correct” but does not state that he has personal knowledge regarding the underlying facts
that form the basis for his declaration. (Id.).

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dated June 30, 2011, Lustberg Decl. at Ex. A.). Plaintiff has also submitted an undated
“Corrective Action Form” in which a prison official indicates (1) that the Remedy Coordinator
had recently retired, (2) that the prison official did not know whether the Coordinator had
rejected any of Plaintiff’s IRFs, and (2) that Plaintiff was free to resubmit them. (See Lustberg
Decl., Ex. P.) This Corrective Action Form also references a staff member forcing inmates out
of their wheelchairs. (Id.) Finally, Plaintiff has submitted an IRF dated November 24, 2014,
regarding alleged acts of harassment by Defendant Merriel. This IRF states that Plaintiff has
“submitted numerous remedies with no response, the most recent was in October.” (Lustberg
Decl., Ex. H.)
ii. Plaintiff’s Additional Efforts to Grieve the Incidents
Plaintiff also contends that in addition to filing appeals of all relevant IRFs, he also sent
letters to various individuals within and outside the NJDOC, including Defendant Lanigan. (Pl.
SSUMF at ¶ 19; Ltr. from Jesse Watkins, dated Dec. 6, 2011, Lustberg Decl., Ex. D.) In one
such letter to Defendant Lanigan, Plaintiff stated: “On 12/4/11, while on my way to protestant
church services I was victimized by the above officers[,]” i.e., Defendants Rokeach, Merriel, and
Logan. (Id.) Plaintiff also requested that the surveillance footage at 1-E Booth from December
4, 2011 be preserved, and noted that he intended to pursue litigation against these officers. (Id.)
On December 12, 2011, Plaintiff received a letter from Cindy Ford, Coordinator of Central
Office Correspondence Unit, Division of Operations regarding his request for evidence tapes that
advised Plaintiff that she had forwarded his correspondence to “the Special Investigations
Division for their review and any action deemed appropriate.” (See Ltr. from Cindy Ford to Jesse
Watkins, dated Dec. 12, 2011, Lustberg Decl., Ex. F.) Plaintiff contends that he received no
further response regarding the outcome of the review by the Special Investigations Division. (Pl.

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SSUMF at ¶ 19.) It is unclear whether any investigation was conducted by the Special
Investigations Division.
Plaintiff also wrote to Defendant Lanigan on April 24, 2013 regarding his allegations of
retaliation against Defendant Merriel. (See Lustberg Decl., Ex. K.) Plaintiff filed another IRF
concerning Defendant’s Merriel’s alleged retaliation on November 24, 2014 (see Lustberg Decl.,
Ex. H), but alleges that he did not receive a response. (See Grady Decl. at ¶ 2.) More than a year
later, on February 5, 2015, M. Alfonso, Chief Investigator of the Special Investigations Division
wrote to Plaintiff advising him that his “allegations of threats by custody staff have been
received and reviewed for appropriate action. A thorough investigation has been conducted.”
(Lustberg Decl., Ex. O.) The letter also informed him that “the Special Investigations Division
has concluded its investigation and finds your allegations to be unsubstantiated. No further
action is warranted at this time.” (Id.)
iii. Procedural History
Plaintiff’s original Complaint was docketed on August 3, 2012. (ECF No. 1.) That
Complaint alleged violations of the Eighth Amendment and intentional infliction of emotional
distress against the Officer Defendants arising out of the December 4, 2011 incident at the
security checkpoint. The Officer Defendants filed their Answer on June 7, 2013. (ECF No. 18.)
It is undisputed that the Officer Defendants raised exhaustion of administrative remedies as an
affirmative defense in their Answer. (Id., Answer at 8.) On October 10, 2013, the Court
appointed the law firm of Gibbons, P.C., to represent Plaintiff. (ECF No. 32.) Plaintiff, through
counsel, filed a motion to amend the Complaint on November 13, 2014. Defendants opposed the
motion, and Judge Bongiovanni granted the motion to amend in a written opinion on March 19,
2015. (ECF Nos. 48, 62-63.). The Amended Complaint restated the allegations against the
Officer Defendants from Plaintiff’s original Complaint, and added Eighth Amendment

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supervisory claims against Defendant Lanigan based on (1) his alleged knowledge of prior
instances of assaults involving Defendant Merriel at security checkpoints and (2) his failure to
implement a policy for dealing with wheelchair-bound inmates at security checkpoints. (ECF
No. 48-3, Am. Compl. at ¶ 43.) The Amended Complaint also added a First Amendment
retaliation claim against Defendant Merriel based on alleged threats he made against Plaintiff in
response to Plaintiff’s filing of the instant lawsuit. 8 (Id., Am. Compl. at ¶¶ 47-51.) Defendants
have since filed two dispositive motions: a motion to dismiss and for summary judgment as to
the claims pleaded in the Amended Complaint, and a motion for summary judgment as to the
claims pleaded in the Original Complaint. (ECF Nos. 67, 69.)
III.

DISCUSSION
a. Standard of Review
Because the Court addresses only Defendants’ motion for summary judgment as to its

exhaustion defense, the Court recites only the summary judgment standard of review. Summary
judgment is appropriate where the Court is satisfied that “there is no genuine issue as to any
material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is genuine only if
there is “a sufficient evidentiary basis on which a reasonable jury could find for the non-moving
party,” and it is material only if it has the ability to “affect the outcome of the suit under
governing law.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or
unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248.

8

The Amended Complaint also added state law claims for negligence and also sought injunctive
relief. (Id., Am. Compl. at ¶¶ 52-58.)
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“In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party's
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor .’” Marino
v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 447 U.S. at 255));
see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v.
Klem, 298 F.3d 271, 276–77 (3d Cir. 2002).
The burden of establishing that no “genuine issue” exists is on the party moving for
summary judgment. Celotex, 477 U.S. at 330. “A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.”
Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001). The non-moving party must
present “more than a scintilla of evidence showing that there is a genuine issue for trial.”
Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (quotations omitted). Under
Anderson, Plaintiffs' proffered evidence must be sufficient to meet the substantive evidentiary
standard the jury would have to use at trial. 477 U.S. at 255. To do so, the non-moving party
must “go beyond the pleadings and by her 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 (quotations omitted); see also Matsushita, 475 U.S. at
586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the merits
of a party's motion for summary judgment, the court's role is not to evaluate the evidence and
decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

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There can be “no genuine issue as to any material fact,” however, if a party 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 322–23. “[A]
complete failure of proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972
F.2d 53, 55 (3d Cir. 1992).
b. Exhaustion of Administrative Remedies
In relevant part, Defendants move for summary judgment on the basis of Plaintiff’s
failure to exhaust his administrative remedies with respect to (1) the December 4, 2011 incident,
(2) his allegations of retaliation by Defendant Merriel, (3) and the supervisory claims against
Defendant Lanigan. Plaintiff first contends through his counsel’s declaration that he filed
appeals of all relevant administrative remedy determinations to which he received a negative
determination from the NJDOC, including the December 10, 2011 IRF relating to the December
4, 2011 incident and the July 11, 2012 IRF regarding the alleged retaliation by Defendant
Merriel. Second, to the extent the Court finds that Plaintiff did not completely exhaust his
administrative remedies, he asks the Court to find that those remedies were unavailable to him
due to the NJDOC’s tardy and dismissive responses and lack of response in some instances.
Third, he contends that he followed alternate routes or parallel procedures for exhausting his
grievances that were accepted by NJDOC.
The PLRA provides that “‘[n]o action shall be brought with respect to prison conditions
... by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.’” Ball v. Famiglio, 726 F.3d 448, 456
(3d Cir. 2013) cert. denied, 134 S. Ct. 1547 (2014) (citing 42 U.S.C. § 1997e(a)). “[T]he

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PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether they allege excessive force or some
other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). There is no futility exception to the
exhaustion requirement. See Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000). “The PRLA does
not require exhaustion of all remedies. Rather, it requires exhaustion of such administrative
remedies ‘as are available.’” Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002) (citing 42 U.S.C.
§ 1997e(a)); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000)). “The availability of
administrative remedies to a prisoner is a question of law.” Mitchell v. Horn, 318 F.3d 523, 529
(3d Cir. 2003) (quoting Ray v. Kertes, 285 F.3d 287, 291 (3d Cir. 2002).
Failure to exhaust administrative remedies is an affirmative defense that defendants bear
the burden to plead and prove. 9 Jones v. Bock, 549 U.S. 199, 216 (2007); Mitchell v. Horn, 318
F.3d 523, 529 (3d Cir. 2003).

“Furthermore, the defendant must prove that the prisoner-

plaintiff failed to exhaust each of his claims. There is no “total exhaustion” rule permitting
dismissal of an entire action because of one unexhausted claim.” Small v. Camden Cnty., 728
F.3d 265, 269 (3d Cir. 2013) (citing Jones, 549 U.S. at 220–24.)

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Plaintiff suggests, without citation to any supporting law, that Defendants waived their
exhaustion defense, which was pleaded in their initial answer, by failing to bring a motion for
summary judgment in a more timely fashion. “The standard for affirmative defenses is that
‘[f]ailure to raise an affirmative defense by responsive pleading or by appropriate motion
generally results in the waiver of that defense.’” Drippe v. Gototweski, 434 F. App'x 79, 81 (3d
Cir. 2011) (citing Charpentier v. Godsil, 937 F.2d 859, 863 (3d Cir.1991) (emphasis added)).
Because the Officer Defendants raised the affirmative defense of exhaustion in their responsive
pleading, they are entitled to pursue this defense; at best, the Court could find that Defendants
waived the right to summary relief by filing a belated motion. See Drippe, 434 F. App'x at 81
(finding that failure to make timely dispositive motion based failure to exhaust administrative
remedies, if properly pleaded in the Complaint, does not amount to waiver of that defense but
could amount to waiver of right to summary relief on that defense). The Court declines to do so
here.
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In addition, “exhaustion is a question of law to be determined by a judge, even if that
determination requires the resolution of disputed facts. Small, 728 F.3d at 269 (citing Pavey v.
Conley, 544 F.3d 739, 740 (7th Cir. 2008) and Drippe v. Gototweski, 604 F.3d 778, 781 (3d Cir.
2011)). As such, “judges may resolve factual disputes relevant to the exhaustion issue without
the participation of a jury.” Id. at 271; see also Messa v. Goord, 652 F.3d 305, 308–09 (2d Cir.
2011); Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010); Pavey, 544 F.3d at 742; Bryant v.
Rich, 530 F.3d 1368, 1373–75 (11th Cir. 2008); Wyatt v. Terhune, 315 F.3d 1108, 1119–20 (9th
Cir. 2003)).
i. Exhaustion of Eighth Amendment Claims against Defendant Lanigan
The Court first addresses whether Plaintiff was required to separately exhaust his
administrative remedies with respect to his supervisory claims against Defendant Lanigan, as
alleged in the Amended Complaint. (ECF No. 67-1, Def. Br. at 13-14.) Defendants contend that
“Plaintiff did not . . . assert a complaint against Defendant Lanigan, whether based on improper
policy-making or otherwise, in any of his IRFs” (Id. at 13), and thus has failed to exhaust his
claims against Defendant Lanigan. Plaintiff argues that it is sufficient that Defendants were on
notice of the underlying incidents on which Plaintiffs bases his supervisory claims against
Defendant Lanigan, and that Plaintiff need not name Defendant Lanigan in his IRF to exhaust his
administrative remedies. (ECF No. 72, Pl. Br. at 13-15.)
To the extent Defendants contend that Plaintiff can only sue individuals he named in the
relevant IRFs, the Court disagrees. In Jones v. Bock, 549 U.S. 199 (2007) the Supreme Court
explained that proper exhaustion is “determined based on reference to the grievance regime of
the inmate’s facility.” 549 U.S. at 218 (“Compliance with prison grievance procedures, therefore,
is all that is required by the PLRA to ‘properly exhaust.’”). In Bock, the Court held that because
the Michigan Department of Corrections procedures “make no mention of naming particular

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officials, the Sixth Circuit's rule imposing such a prerequisite to proper exhaustion is
unwarranted. Id. at 218 (explaining that “the primary purpose of a grievance is to alert prison
officials to a problem, not to provide personal notice to a particular official that he may be
sued”); see also Espinal v. Goord, 554 F.3d 216 (2d Cir. 2009) (holding under Bock that a New
York state prisoner is not required to name responsible parties in a grievance in order to exhaust
administrative remedies because the grievance procedures contain no identification requirement).
In Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004), a decision that predates Bock, the Third Circuit
likewise held “that prison grievance procedures supply the yardstick” for determining what steps
are required for exhaustion. Id. at 231. Because “Pennsylvania requires that inmates identify
“persons who may have information that could be helpful in resolving the grievance,” the Court
in Spruill held that Plaintiff was required to identify such persons “if practicable.” Id. at 234; see
also Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007). The parties do not address the
Supreme Court’s decision in Bock or the Third Circuit precedent on this issue.
Here, Defendants have not pointed to any identification requirement in the NJDOC
regulations or Inmate Handbook requiring Plaintiff to identify Defendant Lanigan as a potential
Defendant in his IRF, and the Court has not found such a requirement. The Inmate Handbook
sections submitted by Defendants require an inmate to explain the “problem or concern” clearly
and limit his IRF to one such problem or concern. 10 (See Santoro Decl., Ex. B, Inmate
Handbook Excerpt at 95-98.); see also N.J.A.C. 10A:1-4.4(e). Defendants also have not
explained how it would have been “practicable” for Plaintiff to identify Defendant Lanigan as a

It is not clear whether Defendants also contend that Defendant Lanigan’s failure to implement
policies for searching wheelchair bound inmates is a separate “problem or concern” related to the
December 4, 2011 incident for which Plaintiff should have submitted a separate IRF. In any
event, Defendants have not provided any legal support for this argument.
10

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potential defendant at the time he filed his December 4, 2011 IRF, given that Plaintiff only
learned of the absence of such a policy during discovery in this litigation. Under Defendants’
view of exhaustion, a Plaintiff could never allege a policy or practice claim against a supervisor
unless that Plaintiff knew at the time of the incident that a deficient policy existed and/or could
identify the policy maker. Defendants point to no legal precedent to suggest that Plaintiff must
separately exhaust his supervisory claims against Defendants Lanigan. Instead, it appears to the
Court that the supervisory claims against Defendant Lanigan would be exhausted if Plaintiff
sufficiently exhausted the December 4, 2011 incident. As such, the Court denies summary
judgment on Defendants’ claim that Plaintiff failed to exhaust his administrative remedies with
respect to the supervisory claims against Defendant Lanigan and turns to whether Plaintiff
exhausted his administrative remedies with respect to the December 4, 2011 incident and the
alleged acts of retaliation by Defendant Merriel.
ii. Plaintiff’s Contention that He Appealed the Relevant IRFs
The Court next addresses Plaintiff’s argument that he appealed the December 10, 2011
IRF, related to the December 4, 2011 incident, and July 11, 2012 IRF, related to the alleged
retaliation by Defendant Merriel. As explained in the New Jersey Administrative Code, the
NJDOC Inmate Remedy Form (“IRF”) system is a two-step process that includes both (1) an
opportunity for the inmate to make a routine request or request an interview; and (2) an
opportunity to appeal the resulting decision or finding. See N.J.A.C. 10A:1-4.4(c). Pursuant to
N.J.A.C. 10A:1-4.4(d), “[t]he 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.”

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The parties dispute only whether Plaintiff appealed the relevant IRFs. Plaintiff contends
through the declaration of counsel that he did appeal all relevant negative administrative
determinations from the NJDOC, including the IFRs dated December 10, 2011 and July 12,
2012, but he is unable to produce copies of those appeals because Defendants did not provide
him with copies of the appeals when he submitted them and did not permit him to make copy of
the appeal. (McGrady Decl. at ¶¶ 2-3.) Defendants, in their reply brief, argue that the Court
should decline to consider the declaration of Plaintiff’s counsel because that declaration is
improper and not based on personal knowledge, as required by Fed. R. Civ. P. 56(c)(4). Even if
the Court considers the declaration, Defendants argue that it should be rejected as a self-serving
affidavit, which cannot be used to defeat summary judgment.
Defendants contend that the McGrady Declaration violates Rule 56(c)(4), which provides
that “[a]n affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” See Fed. R. Civ. P 56(c)(4). The Court
agrees with Defendants that the McGrady Declaration is deficient under Rule 56(c)(4) because it
is not based on personal knowledge but also finds that, pursuant to Rule 56(c)(2), the contents of
the McGrady Declaration could easily be offered through Plaintiff’s own testimony and thus
could be converted into admissible form for trial. See Rule 56(c)(2). 11 Rule 56(e)(1), as

11

“Rule 56(c)(2) was amended in 2010 to provide that “[a] party may object that the material
cited to support or dispute a fact cannot be presented in a form that would be admissible in
evidence.” Thus, “the objection [now] contemplated by the amended Rule is not that the
material ‘has not’ been submitted in admissible form, but that it ‘cannot’ be.” Paradoa v.
Philadelphia Hous. Auth., No. CIV.A. 13-6012, 2014 WL 2476595, at *6 (E.D. Pa. June 2,
2014). As such, a non-moving party’s evidence must only be convertible to admissible form at
trial in order to survive summary judgment. See Barr v. County of Clarion, 417 Fed. App'x 178,
180 n. 4 (3d Cir. 2011) (“hearsay statements can be considered on a motion for summary
- 16

amended, also provides that “[i]f a party fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as required by Rule 56(c), the court may, before
granting summary judgment “(1) give an opportunity to properly support or address the fact” or
“(4) issue any other appropriate order.” 12
Defendants next argue that even if the Court considers the declaration by Plaintiff’s
counsel, it should grant summary judgment because the content of the declaration, even if it had
been submitted by Plaintiff, does not create an issue of material fact and is self-serving and
conclusory. (ECF No. 75, Reply at 6-7.) Generally speaking, “[a] plaintiff is entitled to rely on
her own affidavit in opposition to summary judgment, which alone can be sufficient to defeat
summary judgment.” Bell v. Lockheed Martin Corp., No. CIV. 08-6292 RBK/AMD, 2014 WL
2920503, at *24 (D.N.J. June 27, 2014) (citing Gray v. York Newspapers, 957 F.2d 1070, 1080
(3d Cir.1992)); see also Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 251 (3d Cir. 2007)
(explaining that affidavit may not contradict prior testimony without plausible explanation).
Courts in this District have found issues of fact regarding the availability of administrative
remedies based solely on the prisoner’s contention (albeit supported by affidavit or declaration)
he filed an IRF or an appeal but the prison failed to respond. See Paladino v. Newsome, No.
CIV. 12-2021, 2013 WL 3270987, at *8 (D.N.J. June 27, 2013) (holding that defendants did not

judgment if they are capable of admission at trial”) (citing Shelton v. Univ. of Med. & Dentistry
of N.J., 223 F.3d 220, 223 n. 2 (3d Cir. 2000) (“this circuit” follows that rule)).
12

In addition, the 2010 Advisory Committee Notes regarding this rule explain that summary
judgment cannot be granted by default even if there is a complete failure to respond to the
motion, much less when an attempted response fails to comply with Rule 56(c) requirements.”
Federal Civil Judicial Procedure & Rules, 2010 Advisory Committee Notes to subsection 56(e),
at 255 (Thomson Reuters, 2014 Revised Ed.). The Notes further explain that “[b]efore deciding
on other possible action, subdivision (e)(1) recognizes that a court may afford an opportunity to
properly support or address the fact. In many circumstances this opportunity will be the court's
preferred first step.” Id.

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meet their burden of establishing that Plaintiff failed to exhaust administrative remedies for his
Eighth Amendment claim challenging the conditions of his confinement and his Fourteenth
Amendment claim alleging disparate treatment) (citing Jackson v. Gandy, 877 F.Supp.2d 159,
179 (D.N.J. June 29, 2012), on reconsideration in part on unrelated grounds, No. CIV. 12-2021,
2013 WL 5161144 (D.N.J. Sept. 12, 2013); Ortiz v. Hayman, CIV. 06-4730, 2008 WL 1319203,
at *4 (D.N.J. Apr. 10, 2008) (denying summary judgment where there was a dispute of fact
regarding whether Plaintiff actually filed an initial IRF); but see Miller v. Ricci, No. CIV. 110859, 2013 WL 1987255, at *2-3 (May 13, 2013) (granting summary judgment for failure to
exhaust where Plaintiff claimed he appealed the staff response to his grievances but there was no
other record evidence to support his contention and the production of 35 forms by Defendants
“militate[d] against a finding that the NJDOC misplaced or destroyed his purported appeal”),
aff’d, (3rd Circ. 13-2808) (Nov 01, 2013).
Unlike the facts in Miller v. Ricci, 2013 WL 1987255, at *2-3, there is at least some
record evidence suggesting that Plaintiff did not receive responses from prison officials related to
some IRFs he submitted. Notably, Plaintiff has submitted an undated “Corrective Action Form”
that reads as follows:
There are no IRSF forms in February indicating these issues,
however in April there is a complaint relating to staff forcing
inmates out of their wheelchairs, which I assume is relating to the
same staff member. The Remedy Coordinator has retired, so I am
not sure if he rejected either of these forms for any reason,
therefore should you wish to resubmit them (due to the yellow
copy not being attached I cannot accept these copies), I will accept
them. 13
(Lustberg Decl., Ex. P.) Notably, pursuant to the administrative regulations and the Inmate

13

In paragraph sixteen of his Supplemental Statement of Material Facts, Plaintiff indicates that
this Corrective Action Form was written in response to Plaintiff’s June 4, 2012 IRF.

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Handbook, an IRF must be “properly completed, legible, signed, and include[] clear and concise
statements,” and when it does not meet those requirements, the Inmate Remedy Form
Coordinator oversees the completion of a “IRSF-103 Staff Corrective Action Form” that is
“forwarded to the inmate.” N.J.A.C. 10A:1-4.8. The staff member also references “staff forcing
inmates out of their wheelchairs,” which suggests that the missing IRFs may have been related to
the December 4, 2011 incident.
Approximately six months prior to the December 4, 2011 incident, Plaintiff submitted an
IRF, dated June 30, 2011, regarding NJDOC’s failure to respond to initial IRFs related to other
incidents, stating “I have some concerns because I haven’t received (any) responses back from
numerous[] complaints since (April, May) . . . . I would really appreciate if I could finally
receive a response because I’m complying with procedures and still seem to be being neglected.”
(Lustberg Decl. at Ex. A.) Finally, Plaintiff has submitted an IRF dated November 24, 2014,
regarding alleged acts of harassment by Defendant Merriel. This IRF states that Defendant has
“submitted numerous remedies with no response, the most recent was in October.” (Lustberg
Decl., Ex. H.)
To support his argument, Plaintiff also calls attention to the fact that the IRF remedy
process explicitly requires an inmate to submit his appeal on the yellow copy returned to him by
the NJDOC in order to have the appeal processed. See N.J.A.C. 10A:1-4.6(b) (An
“Administrative Appeal” must be submitted by the inmate, utilizing the canary-colored IRSF-101, within 10 calendar days from the issuance of the decision or finding of the correctional
facility staff member to the “Routine Inmate Request” or “Interview Request.”). Thus, in a
situation like the one alleged by Plaintiff, where the NJDOC misplaces an inmate’s appeal and
the inmate was not permitted to make a copy, the inmate would have no “evidence” that he filed

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an appeal and would be forced to rely on his own testimony to that effect. 14
Based on the record, the Court finds that there are disputed issues of fact regarding
whether Plaintiff appealed the December 4, 2011 and July 11, 2012 IRFs and denies without
prejudice Defendants’ motion for summary judgment on this issue.
iii. Exhaustion through Parallel Procedures
In addition to appealing the relevant IRFs, Plaintiff also contends that he sufficiently
exhausted his administrative remedies for the December 4, 2011 incident and alleged retaliation
by Defendant Merriel through alternate or parallel procedures that were accepted by the NJDOC.
Defendants strenuously argue that exhaustion must be accomplished through the IRF process and
dispute the existence of any such parallel procedure. The Court next considers whether there are
issues of material fact that preclude summary judgment on this issue.
There “is no express federal law describing the procedural requirements with which
prisoners must comply in satisfying § 1997e(a)’s exhaustion requirement[;]” as such, the
procedures set out in a prison's administrative grievance program serve as the measure for
whether an inmate has exhausted his administrative remedies. Spruill v. Gillis, 372 F.3d 218,
231 (3d Cir. 2004). A procedurally faulty attempt at exhaustion, if accepted by the jail, however,
will satisfy the PLRA. Williams v. Beard, 482 F.3d 637, 640 (3d Cir. 2007).

14

To the extent Defendants suggest that Plaintiff was required to resubmit the relevant IRF
appeals or otherwise follow up when he allegedly did not receive a response from prison
officials, that argument has been addressed and rejected by the Third Circuit. In Small v.
Camden County, 728 F3d 265, 273 (3d Cir. 2013), the Third Circuit held that a remedy is
unavailable where the prison fails to respond to the inmate’s grievance. Id. (district court erred
in requiring inmate to file appeal of non-response by prison officials and finding the appeals
process unavailable where prison failed to respond to inmate’s initial grievance); see also Bond
v. Horne, 553 F. App’x 219, 222 (3d Cir. 2014) (appeals process unavailable where prison never
responded to inmate’s appeal or follow-up letter).

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Pursuant to N.J.A.C. 10A:1-4.4(d), the two-step process, i.e., IRF and appeal, must be
utilized and fully exhausted prior to an inmate filing any legal action regarding information
requests, issues, concerns, complaints, or problems.” Courts are not required, however, “to
blindly apply the written administrative exhaustion procedure without considering the reality of
the review process.” Smith v. Merline, 719 F. Supp. 2d 438, 445 (D.N.J. 2010). Thus, the Third
Circuit and courts in this District have recognized that an inmate may satisfy the exhaustion
requirement where he follows an accepted grievance procedure, even where that procedure
contradicts a written or formal policy. See Baez v. Fauver, 351 F. Appx. 679, 681–82 (3d Cir.
2009) (vacating and remanding decision of a district court, in part, because the court failed to
consider the existence of a parallel reporting procedure put in place at Bayside State Prison); see
also Smith v. Merline, 719 F.Supp.2d 438, 445–46 (D.N.J.2010); Jackson v. Gandy, 877 F. Supp.
2d 159, 178 (D.N.J. 2012); Jenkins v. Hayman, CIV. 09-4989, 2013 WL 3201326, at *8-9 (Jun.
24, 2013); see also Curtis v. Timberlake, 436 F.3d 709, 712 (7th Cir. 2005).
It is notable that prison authorities may also waive the exhaustion requirement if the
ultimate administrative authority fully examines the inmate's complaint on the merits, regardless
of whether the complaint complied with the prison grievance process. See McKinney v. Guthrie,
309 F. App’x. 586, 587 (3d Cir. 2009) (citing Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.
2000)); see also Bredbenner v. Malloy, 925 F. Supp. 2d 649, 658 (D. Del. 2013) (explaining
same). In Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000), the Third Circuit held that the
exhaustion requirement was satisfied where defendants informed the Court that the plaintiff’s
“allegations have been fully examined on the merits by the ultimate administrative authority and
have been found wanting.” Because the substantive determination was already made at the
highest level, the Court declined to find that the plaintiff must “jump through any further

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administrative hoops to get the same answer” and held that “judicial consideration is now open
to [plaintiff].” Id.
Here, questions of material fact exist as to whether Plaintiff’s claims of retaliation by
Defendant Merriel were adjudicated through a parallel procedure, i.e., an investigation by the
Special Investigations Division, and were fully examined on the merits at the highest level and
found to be wanting. In Jackson v. Gandy, 877 F.Supp.2d at 179, for instance, the District Court
denied summary judgment based on an exhaustion defense where the Plaintiff submitted
correspondence suggesting that he had informed the NJDOC’s Special Investigation Division of
his claims and the Division conducted an investigation of Plaintiff’s allegations. In denying
summary judgment, the Court explained that “Defendants’ motion does not adequately address
the role of the Special Investigations Division or whether the Special Investigation Division’s
role overlaps with the established grievance procedures.” Id. It is notable that both Baez and
Jackson, cited supra, dealt with an inmate’s claim that he has exhausted his administrative
remedies via an investigation by NJDOC’s Special Investigations Division. Plaintiff has
submitted a letter, dated February 5, 2015, from M. Alfonso, Chief Investigator of the Special
Investigations Division, which advised Plaintiff that his “allegations of threats by custody staff
have been received and reviewed for appropriate action. A thorough investigation has been
conducted.” (ECF No. 72-19.) The letter further explains that “other interviews were conducted
and there was no evidence found to substantiate [Plaintiff’s] allegations of threats by custody
staff members.” (Id.) The letter closes by informing Plaintiff that “the Special Investigations
Division has concluded its investigation and finds your allegations to be unsubstantiated. No

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further action is warranted at this time.” 15 (Id.) Although Defendants insist in their moving
briefs and the Declarations submitted by Ms. Santoro and Mr. Dutch that the NJDOC recognizes
the Inmate Remedy System as the only “formal” method through which an inmate may pursue a
grievance, the evidence submitted by Plaintiff suggests otherwise. As in Jackson, 877 F.Supp.2d
at 179, Defendants here do not address the role of the Special Investigations Division, or whether
the Special Investigations Division performs functions that overlap with the established
grievance procedure and there are issues of material fact as to whether Plaintiff’s allegations of
retaliation were fully examined on the merits. As such, Defendants have not met their burden to
establish that Plaintiff failed to exhaust his administrative remedies as to his retaliation claim.
The Court is less persuaded by Plaintiff’s argument that he sufficiently grieved the
December 4, 2011 incident by writing letters to various administrators within and outside the
NJDOC, including Defendant Lanigan. I note, however, that Plaintiff received a letter from
Cindy Ford, Coordinator of Central Office Correspondence Unit, Division of Operations, in
response to his letters, advising Plaintiff that she had forwarded his correspondence to “the
Special Investigations Division for their review and any action deemed appropriate” (See ECF
No. 72-10, Ltr. from Cindy Ford to Jesse Watkins, dated Dec. 12, 2011, Lustberg Decl., Ex. F.).
Plaintiff contends that he received no further response regarding the outcome of the review by
the Special Investigations Division. (Pl. CSUMF at ¶ 19.) Once again, it is not clear from the

15

The Special Investigations Division made this determination after Plaintiff sought leave to file
his Amended Complaint on November 13, 2014 but before the Court granted his motion to file
an amended/supplemental Complaint on March 19, 2015. (ECF Nos. 48, 62-63.).

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record how the role of the Special Investigation Division overlaps, if at all, with the formal
grievance procedure. 16
iv. The Court will Hold a Hearing to Resolve the Exhaustion Issues
For the reasons explained above, the Court denies summary judgment on Defendants’
exhaustion defense finding there are issues of fact as to whether Plaintiff (1) appealed the
relevant IRFs but never received a response from NJDOC and whether (2) Plaintiff exhausted his
administrative remedies through parallel procedures that were accepted in practice by the
NJDOC. Because the issue of whether Plaintiff exhausted his administrative remedies as to the
claims against Defendant Lanigan appears to be contingent on whether he exhausted the
December 4, 2011 incident, the Court also denies without prejudice Defendants’ motion for
summary judgment on this issue as well.
Although the Court denies summary judgment, it hereby advises the parties that it intends
to hold a hearing to resolve Defendants’ exhaustion defense(s). The Court finds support for this
procedure in Small, 728 F.3d at 271, where the Third Circuit, following other circuit courts to
have considered the issue, definitively held “that judges may resolve factual disputes relevant to
the exhaustion issue without the participation of a jury.” Id. In Small, the defendants had moved
for summary judgment, arguing among other things, that plaintiff failed to exhaust his
administrative remedies before filing suit. (Id. at 267.) The District Court denied the
defendants’ motion without prejudice and stated its intention to hold an evidentiary hearing on
the issue of exhaustion before reaching any of the other asserted bases for summary judgment.

16

On the summary judgment record, it appears that Plaintiff’s claim that he exhausted the
December 4, 2011 incident rises and falls largely on issues of credibility, i.e., whether he
appealed the IRF related to the December 4, 2011 incident and received no response.

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(Id. at 267-68.) After holding a two-day evidentiary hearing, the Court held that the plaintiff
failed to exhaust all but one of his claims. (Id.) The case subsequently settled and the plaintiff
appealed, arguing in part that he was entitled under the PLRA to have a jury decide the
exhaustion issue. (Id. at 269.) The Third Circuit disagreed, recognizing that “[t]hose of our sister
circuits to have considered the issue have held that a plaintiff in a lawsuit governed by the PLRA
is not entitled to a jury trial on the issue of exhaustion.” Id. at 270 (citations omitted). Before
turning to the question of whether the district court’s findings were clearly erroneous, the Court
squarely held that “the district court did not err in acting as the factfinder on the exhaustion
issue.” 17 Id. at 271 (reversing in part the district court’s finding that the plaintiff was required
to appeal a non-decision in order to exhaust his administrative remedies).
Because there are issues of fact on the issue of exhaustion that preclude summary
judgment here, the Court, noting the Third Circuit’s apparent approval of such a procedure, will
deny without prejudice Defendants’ motion for summary judgment and conduct an evidentiary
hearing to resolve the factual disputes regarding Plaintiff's exhaustion of his administrative
remedies. 18 Because a finding that Plaintiff failed to exhaust his administrative remedies with

17

The Court recognizes that in lieu of holding a hearing to resolve the threshold exhaustion
issues, other Courts in this District have denied summary judgment without prejudice with
respect to exhaustion and reached Defendants’ other summary judgment arguments. See, e.g.,
Jackson, 877 F. Supp. at 179-80 (granting in part and denying in part Defendants’ motion for
summary judgment). Jackson, however, was decided in 2012 and predates the Third Circuit’s
decision in Small, 728 F.3d at 271. In Jackson, the Court subsequently granted Defendants’
motion for a bifurcated trial concerning their exhaustion defense, and, after holding a two-day
trial, held that Plaintiff had exhausted all available administrative remedies. See Jackson v.
Gandy, No. CIV. 09-1141, 2014 WL 4827407, at *1-8 (D.N.J. Sept. 29, 2014). In light of Small,
the Court has decided to follow the procedure utilized by the District Court in that case.
18

In addition to its apparent approval of the procedure used by the District Court, the Third
Circuit cited approvingly to the Seventh Circuit’s procedure for resolving exhaustion issues early
in the litigation; that procedure instructs the District Court to hold a hearing prior to discovery or
with limited discovery on the issue of exhaustion. Id. at 271 n.5 (citing Pavey, 544 F.3d at 742).

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respect to some or all of his claims may moot the need to reach the other grounds for dismissal
and summary judgment raised by Defendants, the Court will defer ruling on Defendants’
remaining arguments for dismissal and summary judgment at this time. Should the Court
determine after the hearing that Plaintiff exhausted his administrative remedies with respect to
one or more of his claims for relief, the Court will reinstate Defendants motion to dismiss and for
summary judgment.
IV.

CONCLUSION
For the reasons expressed in the foregoing Opinion, the Court denies without prejudice

the Defendants’ motion for summary judgment on whether Plaintiff exhausted his administrative
remedies with respect to his section 1983 claims and will hold a hearing to resolve Defendants’
exhaustion defenses. That hearing will be held on October 27, 2015, at 10:00 a.m. The Court
will defer any ruling on Defendants’ remaining arguments for dismissal and summary judgment
until such time as it determines whether Plaintiff has exhausted some or all of his administrative
remedies. An appropriate Order follows.

_/s/ Freda L. Wolfson__________
Freda L. Wolfson, U.S.D.J.

Date: September 29, 2015

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