MUSLIM v. D'ILIO et al
Filing
70
OPINION filed. Signed by Judge Peter G. Sheridan on 9/21/2018. (mmh)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ALQUAN MUSLIM
Plaintiff,
Civil Action No:
V.
15-cv-05796 (PGS)(DEA)
STEPHEN D’ILIO, et a!.
Defendants.
This matter comes before the Court on several motions filed by Plaintiff, namely a motion
for reconsideration, a motion to appeal Magistrate Arpert’s order, a motion for appointment of
counsel (ECF Nos. 55, 54, & 55), as well as Defendants’ motion for summary judgment. (ECF
No. 56)1.
Plaintiff, a prisoner in New Jersey State Prison (“NJSP”), filed a complaint alleging several
violations of the Eighth Amendment for unconstitutional conditions of confinement and denial of
medical care. Compi., ECF No. 1. Plaintiff alleged that he was confined to the administrative
segregation unit for 90 days as the result of a disciplinary infraction. Id. ¶6. He began experiencing
shortness of breath, dizziness, and chest pains as the result of his congenital heart condition. Ibid.
He filed an administrative remedy complaint on February 10, 2014 asking to be moved to an airconditioned unit to help his medical conditions. Ibid. Administrator D’Ilio did not answer the
request, but Major D’Amico denied the request. Ibid. Plaintiff appealed, and Associate
The Court held oral argument on these motions on June 27, 2018, at which time Plaintiff
appeared by telephone. (ECF No. 68).
1
Administrator Campos denied the appeal. Ibid. Plaintiff was released from administrative
segregation on March 21, 2014. Id.
¶ 7.
After being released from administrative segregation, Plaintiff was placed into a general
population cell with a constantly running and leaking toilet. Ibid. The leaking waste and smell
prevented and/or interfered with Plaintiff’s ability to sleep, and he alleges Administrator D’Jlio
knew about the broken toilet before Plaintiff was placed into that cell. Ibid. Plaintiff filed an inmate
remedy form (“IRF”) about the conditions of the cell. He spoke with Lieutenant Kennedy about
needing an air-conditioned unit because of his medical condition, and Lieutenant Kennedy told
Plaintiff he would make sure Plaintiff was placed into an air-conditioned cell as soon as one was
available. Id.
¶ 8.
Despite same, as air-conditioned cells became available Lieutenant Kennedy put
other prisoners into those cells instead. Ibid.
The Court granted Plaintiffs in forma pauperis application on August 17, 2015 and
permitted the complaint to proceed on May 9, 2016. (ECF Nos. 2 & 4). On July 1, 2016, Plaintiff
moved for leave to file a supplemental complaint. (ECF No. 14). Magistrate Judge Arpert denied
the motion as Plaintiff had not included a proposed amended complaint. (ECF No. 14). Defendants
filed a motion to dismiss on July 12, 2016, (ECF No. 17), and Plaintiff filed another motion for
leave to file a supplemental complaint on July 21, 2016. (ECF No. 19). The Court conducted oral
argument on September 26, 2016 and granted the motion to dismiss and motion for leave to file
an amended complaint. (ECF No. 25). The Court directed Plaintiff to file his amended complaint
within 30 days. (ECF No. 25).
Plaintiff complied with the Court’s order and filed his amended complaint on October 24,
2016. (Amended Compi., ECF No. 30). In the amended complaint, Plaintiff argued the conditions
in his cells were unconstitutional because there was no hot water, the toilet was too small to use,
2
the sink ran continuously, the cell lacked proper ventilation, there was excessive heat in the
summer months, and there were frequent rodent infestations. Amended Compi.
¶
5 (a)-(f). He
alleged that he began experiencing shortness of breath on December 21, 2015 and eventually
passed out. Id.
¶ 5(g). He was surrounded by nurses and officers when he woke up and could not
estimate the period of time he had been unconscious. Ibid. The nurses performed an EKG and
called 911 because he may have had a heart attack. Ibid. When Plaintiff returned to the prison, the
medical department ordered that Plaintiff be placed on flat-tier only. Ibid.
Plaintiff’s new cell was near a generator that constantly smelled of gas. Id.
¶ 5(h). The
smell caused Plaintiff to experience breathing problems and chest pains for which he had to be
taken to the prison hospital. Ibid. Plaintiff made several requests to be moved to a different location
that housed prisoners with medical problems. Ibid. According to Plaintiff, a cardiologist and ear,
nose, and throat doctor recommended that he be placed in a consistently air-conditioned or
ventilated environment. Ibid.
Plaintiff was then placed into administrative segregation for 95 days. Id.
¶ 6. Upon his
return, he discovered his cell had been searched twice within the past five days. He also found that
his radio was broken, and his clothes and legal papers were on the floor. Ibid. He also states that
he was kept in administrative segregation for three days more than his disciplinary sanctions and
was never given a reason why. Id.
¶ 7. Plaintiff states that although he is presently housed in an
air-conditioned unit, he is sharing what was designed as a single-inmate cell with another inmate.
Id.
¶ 8. He asserts this reduces the air circulation.
Ibid. He argues the defendants deliberately
imposed these conditions on him to cause him physical and mental harm. Ibid.
Plaintiff’s Motions
3
The Court first reviews Plaintiff’s motions providing a pertinent timeline. On October 4,
2017, the Honorable Douglas E. Arpert, granted Plaintiff’s motion to compel discovery a second
time and extended all deadlines in the April 7, 2017 Scheduling Order by 60-Days. (ECF No. 47).
Accordingly, Defendants’ dispositive motions were due no later than January 8, 2018. On
November 3, 2017, Plaintiff filed a motion for entry of default arguing that Defendants had not
complied with Judge Arpert’s October 4, 2017 Order. Plaintiff avers that he received his first set
of documents from Defendant on November 6, 2017. (ECF 52, P1. Motion for Reconsid., ¶3).
Plaintiff allegedly sent two requests to the Court to Order Defendants to comply with the Court
Order
—
the requests are not on the docket. (ECF No.
¶ 4-5).
On January 30, 2018, Defendants
submitted a letter in opposition to Plaintiffs motion for default and requested a 45-day extension
in which to file a dispositive motion. On February 6, 2018, Judge Arpert issued an order granting
Defendant’s request to deem Plaintiffs motion for default moot. (ECF No. 50). On February 9,
Judge Arpert issued an order granting Defendants’ request for a 45-day extension to file dispositive
motions. Defendants filed a motion for summary judgment on March 9, 2018.
1.
Motion for Reconsideration
As best the Court can tell, Plaintiff is bringing a motion for reconsideration with regards to
Order ECF No. 50 issued by Judge Arpert on February 6, 2018, which deemed Plaintiffs motion
for Default judgment moot. As the Court understands it, Plaintiff filed the motion (ECF No. 47)
asking the Court to assess fees against Defendants in the amount of $50 dollars per day for failure
to comply with the October 4, 2017 Order which mandated that Defendants should provide
answers to Plaintiffs interrogatories. In the order, Judge Arpert notes that Defendants stated in a
letter from January 30, 2018 that they had produced all answers to interrogatories and responses
to Plaintiffs notice to produce on November 2, 2017 as per the Court’s previous order on October
4
4, 2017. Plaintiff also objects to Defendants’ request for a 45-day extension to file a motion for
summary judgment granted by ECF No. 51. Plaintiff reasons that Defendants have yet to answer
the original Complaint. However, the docket shows that Defendants filed an answer to the
Amended complaint on February 17, 2017 (ECF No. 40) after receiving a 30-day extension from
the Court. (ECF No. 37).
Motions for reconsideration are governed by Fed. R. Civ. P. 59(e) and L. Civ. R. 7.1(i).
The “extraordinary remedy” of reconsideration is “to be granted sparingly.” A. K Stamping Co.,
Inc., v. Instrument Specialties Co., Inc., 106 F. Supp. 2d 627, 662 (D.N.J. 2000) (quoting NL
Indus., Inc., v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996)). The Rule “does
not contemplate a Court looking to matters which were not originally presented.” Damiano v. Sony
Music Entertainment, Inc., 975 F. Supp. 623, 634 (D.N.J. 1996) (quoting Florham Park Chevron,
Inc., v. Chevron USA., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988)). The Third Circuit has held
that the “purpose of a motion for reconsideration is to correct manifest errors of law or fact or to
present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985),
cert. denied, 476 U.S. 1171 (1986). “Reconsideration motions, however, may not be used to
relitigate old matters, nor to raise arguments or present evidence that could have been raised prior
to the entry ofjudgment.” NL Indus., Inc., 935 F. Supp. at 516; See Wright, Miller & Kane, Fed.
Practice and Procedure: Civil 2d 2810.1. To prevail on a motion for reconsideration, the movant
must show: “(1) an intervening change in the controlling law; (2) the availability of new evidence
that was not available when the court.
.
.
[rendered the judgment in question]; or (3) the need to
correct a clear error of law or fact or to prevent manifest injustice.” US. ex rel. Shumann v.
Astrazeneca Pharm. L.P., 769 F.3d 837, 848-49 (3d Cir. 2014) (citing Max’s Seafood Cafe ex rel.
Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). The standard of review involved in
5
a motion for reconsideration is high and relief is to be granted sparingly. United States v. Jones,
158 F.R.D. 309, 314 (D.N.J. 1994). “The Court will grant a motion for reconsideration only where
its prior decision has overlooked a factual or legal issue that may alter the disposition of the matter.
The word ‘overlooked’ is the operative term in the Rule.” Andreyko v. Sunrise Sr. Living, Inc., 993
F. Supp. 2d 475, 478 (D.N.J. 2014) (internal citations and quotation marks omitted). Mere
disagreement with the Court’s decision is not a basis for reconsideration. United States v.
Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999).
Plaintiff has failed to show that he met any of the above-mentioned circumstances that
would warrant reconsideration of the Court’s prior decision in Order ECF No. 50 and 51. Thus
the motion is DENIED.
2.
Appeal of Majistrate Decision
Plaintiff’s motion to appeal the Magistrate decision is based on the same issues discussed
in the motion for reconsideration. Plaintiff filed a letter on February 26, 2018 (ECF No. 54)
moving to appeal Magistrate Arpert’s decision to grant a 45-day extension from the original due
date of dispositive motions to Defendants so that they might file a motion for summary
judgment.
Plaintiff argues that he objected when Defendants filed a request for an extension, but
Judge Arpert granted the extension notwithstanding his objection. Plaintiffs argument in this
appeal is conclusory and unsupported, and it is one within Judge Arpert’s discretion.
The motion is DENIED.
3.
Motion to Appoint Counsel
6
Plaintiff filed a motion to appoint pro bono counsel. (ECF No. 55). The reasons for this
motion are similar as previously stated. In his application, Plaintiff mentions that he has been
litigating this case with the help of paralegals at the New Jersey State Prison. He states that he is
on several medications which cause memory loss, drowsiness, and other side effects. He lists the
following medications:
a) Diltiazern 300 mq once a day.
b) Carvedilol 25 mq (coreg) twice a day.
c) Clonidine 0.3 mg twice a day.
d) Terazosin 10 mq once a day.
e) Atorvastation 20 mg one a day.
t Ranexa 1000 mg twice a day.
g) Aspirin 1 mg once a day.
h) Nitro 0.3
i) Tylenols
He is unable to afford counsel and supports that the issues involved in this case are complex and
will require significant research and investigation.
Federal law allows for a court, at its discretion, to appoint an attorney to represent any
person unable to afford counsel. 28 U.S.C.
498 (3d Cir. 2002) (holding that
§
§
1915; see also Montgomery v. Pinchak, 294 F.3d 492,
1915 affords the district courts “broad discretion” to determine
whether the appointment of counsel in civil litigation is appropriate). The appointment of counsel
pursuant to
§
1915 may be made at any point in the litigation and may be made by the district court
sua sponte. Tabron v. Grace, 6 F.3d 147, 156 (3d Cir. 1993). Indigent civil litigants have no
statutory right to court-appointed counsel. Ibid.
7
When deciding whether to appoint pro bono counsel, courts must initially decide whether
a plaintiffs claim has “some merit in fact and law.” Owens v. Armstrong, 171 F. Supp. 3d 316,
339 (D.N.J. 2016) (quoting Tabron, 6 F.3d at 155). The United States Court of Appeals for the
Third Circuit has offered a non-exhaustive list of considerations that the district court may consider
when deciding whether to appointpro bono counsel, including “(1) the plaintiffs ability to present
[his] own case; (2) the complexity of the legal issues; [and] (3) the degree to which factual
investigation will be necessary and the ability of the plaintiff to pursue such investigation.” Ibid.
The court may also consider “(4) the amount the case will turn on credibility determinations; (5)
whether the case will require the testimony of expert witnesses; and (6) whether the plaintiff can
attain and afford counsel on his own behalf.” Ibid. A single factor is not determinative. Ibid.
First, the Court examines the threshold Tabron factor: does Plaintiffs claim have some
merit in fact and law? 6 F.3d at 155. For the purposes of evaluating this factor, the Court assumes
“solely for purposes of this [request]” that Plaintiffs case has “some arguable merit in fact and
law.” Montgomery, 294 F.3d at 499. Next, the Court analyzes the additional Tabron factors. The
first additional factor examines whether the plaintiff has the ability to present his case. Tabron, 6
F.3d at 156. The Third Circuit has noted that courts should consider such factors as the plaintiffs
literacy, education, work experience, and prior litigation experience. Ibid. The plaintiffs ability to
present his own case is perhaps the most significant Tabron factor. Pinchak, 294 F.3d at 501. This
case was originally filed in 2015. Plaintiff was able to proceed pro se for years up to now, through
discovery and motions. Plaintiff has demonstrated the ability to proceed on his own.
The second Tabron factor examines the complexity of the legal issues presented. If the law
on a given issue is not clear, this factor will typically support the appointment of pro bono counsel.
Tabron, 6 F.3d at 156. Here, the legal issues and factual circumstances surrounding Plaintiffs
8
claims do not appear unusually complex. The Third Circuit has noted that the deliberate
indifference standard used to analyze Eighth Amendment claims is not a complex legal issue.
Parham v. Johnson, 126 F.3d 454, 459 (3d Cir. 1997). As such, “a lay person, like [the plaintiffprisoner], should be able to comprehend what he has to prove.” Ibid. This is an action brought
under 42 U.S.C. 1983, where Plaintiff complains about the conditions he was subject to at the
prison. Discovery in this motion has been concluded.
Third, the Court considers the degree of factual investigation necessary and the ability of
the Plaintiff to pursue such investigation. Tabron, 6 F.3d at 156. Prisoners are limited in their
investigatory ability and it “may be difficult for indigent plaintiffs to understand complex
discovery rules.” Montgomery v. Pinchak, 294 F.3d at 503. Here, although Plaintiff has limited
resources as a prisoner, he has been able to collect various materials and seek the help of a paralegal
to move this case along for years.
The fourth Tabron factor addresses credibility determinations. 6 F.3d at 156. If a case
appears to be “solely a swearing contest” relying on “credibility determinations,” this factor will
weigh in favor of appointing pro bono counsel. Woodham v. Sayre Borough Police Dep ‘t., 191 F.
App’x 111, 116 (3d Cir. 2006) (emphasis added). At this point, it does not appear that this matter
will be “solely a swearing contest” because Plaintiff has thousands of pages of medical records to
support his claims. Thus, this factor weighs against the appointment of counsel.
Fifth, the Court considers whether the case will require the testimony of an expert witness.
Tabron, 6 F.3d at 156. Some of Plaintiffs claims will require testimony as to causation. This factor
weighs in favor of appointing counsel.
Finally, the Court considers whether the plaintiff can retain and afford counsel. Tabron, 6
F.3d at 156-57. This factor is presumptively fulfilled when a plaintiff is granted permission to
9
proceed in forma pauperis. Woodham, 191 F.App’x at 116. Plaintiff is proceeding in forma
pauperis in this matter. However, indigency, absent satisfaction of other Tabron factors, does not
itself warrant the appointment of counsel. See Christy v. Robinson, 216 F. Supp. 2d 398, 410
(D.N.J. 2002).
The Tabron factors weigh against appointing counsel, and Plaintiffs motion is DENIED.
Defendants’ Motion for Summary Judgment
Under the Federal Rules of Civil Procedure, “[slummary judgment is appropriate only if
‘the movant shows that there is no genuine issue as to any material fact and the movant is entitled
to judgment as a matter of law.’ In making that determination, a court must view the evidence ‘in
the light most favorable to the opposing party.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)
(quoting Fed. R. Civ. P. 56(a); Adickes v. S.H Kress & Co., 398 U.S. 144, 157 (1970)). A
“genuine” dispute of “material” fact exists where a reasonable jury’s review of the evidence could
result in “a verdict for the non-moving party” or where such fact might otherwise affect the
disposition of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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 Corp.
V.
Catrett, 477 U.S. 317, 322 (1986). Properly applied,
Rule 56 will “isolate and dispose of factually unsupported claims or defenses” before those issues
come to trial. Id. at 323—24.
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment
cannot rest on mere allegations and instead must present actual evidence that creates a genuine
10
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier
Express, Inc., 54 F.3d 1125, 1130—31 (3d Cir. 1995). “[U]nsupported allegations.
.
.
and pleadings
are insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654,
657 (3d Cir. 1990).
Although pro se pleadings are “liberally construed” and “held to less stringent standards
than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks and citation omitted), “a pro se plaintiff is not exempt from his burden of
providing some affirmative evidence, i.e. not just mere allegations, to establish a prima facie case,
and to show that there is a genuine dispute for trial.” Niblack v. Murray, No. 12—69 10, 2016 WL
4086775, at *2 (D.N.J. July 29, 2016) (emphasis in original) (citing Barnett v. N.J Transit Corp.,
573 F. App’x 239, 243 (3d Cir. 2014)).
1.
Deliberate Indifference to Medical Needs
Defendants assert Plaintiff cannot show they were deliberately indifferent to his medical
needs because “Plaintiff received consistent medical care for his heart condition, which did not
include any order that Plaintiff required an air conditioned or single cell.” (ECF No. 56-1 at 10).
In order to succeed on a claim of a violation of the Eighth Amendment right to adequate
medical care, a convicted and sentenced inmate must prove: (1) a serious medical need; and (2)
behavior on the part of prison officials that constitutes deliberate indifference to that need. See
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Natale v. Camden Cnly. Corr. Facility, 318 F.3d 575,
582 (3d Cir. 2003). There does not appear to be a dispute that Plaintiff’s heart condition is a serious
medical need.
“Deliberate indifference is a ‘subjective standard of liability consistent with recklessness
as that term is defined in criminal law.” Natale, 318 F.3d at 582 (quoting Nicini v. Morra, 212
11
F.3d 798, 811 (3d Cir. 2000)). Deliberate indifference has been found in “situations where there
was ‘objective evidence that [a] plaintiff had serious need for medical care,’ and prison officials
ignored that evidence.” Ibid. (quoting Nicini, 212 F.3d at 815 n. 14). To find a prison official liable
for violating the Eighth Amendment, there must be some evidence that they were aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists, and
.
draw the inference.” Ibid. (internal quotation marks omitted). The Third Circuit has also found
deliberate indifference “where the prison official (1) knows of a prisoner’s need for medical
treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on
a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical
treatment.” Parkell v. Danberg, 833 F.3d 313, 337 (3d Cir. 2016) (quoting Rouse v. Plantier, 182
F.3d 192, 197 (3d Cir. 1999)).
Generally, however, “[c]orrectional defendant-administrators who are not themselves
physicians cannot ‘be considered deliberately indifferent simply because they failed to respond
directly to the medical complaints of a prisoner who was already being treated by the prison
doctor.” Davis v. Norwood, 614 F. App’x 602, 605 (3d Cir. 2015) (quoting Durmer v. O’Carroll,
991 F.2d 64, 69 (3d Cir. 1993)). See also Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)
“[A]bsent a reason to believe (or actual knowledge) that prison doctors or their assistants are
mistreating (or not treating) a prisoner, a non-medical prison official
.
.
.
will not be chargeable
with the Eighth Amendment scienter requirement of deliberate indifference.” Spruill, 372 F.3d at
236.
There is a factual question as to whether Defendants were deliberately indifferent to
Plaintiff’s medical needs due to their failure to place him in an air-conditioned cell prior to August
31, 2016. See Defendants’ Statement of Facts (“DSOF”) (ECF No. 56-3)
12
¶
13 (asserting Plaintiff
was transferred to an air-conditioned cell on August 31, 2016). Defendants argue Plaintiff’s
medical records include orders for elevator passes, lower bunks, and no work, but do not include
placement in air-conditioned cells or in single-inmate cell. (DSOF
¶J
2123).2 Dr. Hesham
Soliman, the Managing Physician of the New Jersey Department of Corrections, likewise certified
the medical orders do not contain orders for air conditioning or single-inmate placement.
(“Soliman Cert.” ECF No. 56-2 at 77
¶J 6-7).
Plaintiff certified Defendants have final control over the housing assignments at NJSP.
Plaintiffs Responsive Statement of Facts (“PRSOF”) (ECF No. 63 at 29
¶
21). He submitted a
cardiology consultation report from Dr. DeStefano and signed by Dr. Abu Ahsan on June 23, 2014.
(Exhibit B, ECF No. 63 at 38). One of the recommendations reads: “Due to nose bleeds, the patient
needs a constant environment and preferably air conditioner.” Ibid. An E.N.T. consultation report
signed by Nurse Donique Ivery on August 11, 2014 has “Please have the patient place [sic] in a
ventilator area if possible” as one of its recommendations. (Exhibit C, ECF No. 63 at 39). Plaintiff
has therefore provided two pieces of evidence indicating medical professionals recommended
ventilated, air-conditioned conditions as early as June 2014 to alleviate his health conditions. There
is therefore a factual question as to whether Defendants prevented Plaintiff “from receiving needed
or recommended medical treatment.” Parkell, 833 F.3d at 337. Defendants’ motion is denied on
this claim.3
2
Defendants did not provide Plaintiffs actual medical records as part of their summary
judgment motion “in the interest of brevity” as Plaintiffs records total over 1000 pages. See
DSOF ¶ 20 n. 1. In response to the Court’s questions over the documents provided by Plaintiff,
Defendants offered to produce the actual records. The Court considers the summary judgment
record closed as it was Defendants’ responsibility to produce the evidence necessary to show it is
entitled to judgment as a matter of law.
Plaintiff has produced no evidence that a medical professional recommended he be placed in a
single-inmate cell. His deliberate indifference claim at trial is therefore limited to his claim that
13
2.
Conditions of Confinement
Defendants further argue they are entitled to summary judgment on Plaintiffs conditions
of confinement claims based on the following allegedly unconstitutional conditions: (1) lack of air
conditioning; (2) being placed in a two-man cell; (3) having a broken toilet; (4) lack of hot water;
and (5) rodent and insect infestation.
“The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit
inhumane ones and it is now settled that ‘the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth Amendment.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349
(1981); Helling v. McKinney, 509 U.S. 25, 31(1993)). “The Eighth Amendment imposes duties
on prison officials to ‘provide humane conditions of confinement’ and ‘ensure that inmates receive
adequate food, clothing, shelter, and medical care.” Barndt v. Wenerowicz, 698 F. App’x 673,
676—77 (3d Cir. 2017) (quoting Farmer, 511 U.S. at 832). “To establish an Eighth Amendment
conditions of confinement claim, [Plaintiff] must show that (1) the deprivation alleged was
objectively, ‘sufficiently serious’ such that the prison officials’ acts or omissions resulted in the
denial of ‘the minimal civilized measure of life’s necessities’; and (2) that the prison officials
exhibited a ‘deliberate indifference’ to his health and safety.” Id. at 677 (quoting Farmer, 511 U.S.
at 834). “The knowledge element of deliberate indifference is subjective, not objective knowledge,
meaning that the official must actually be aware of the existence of the excessive risk; it is not
sufficient that the official should have been aware.” Beers-Capitol v. Whetzel, 256 F.3d 120, 133
(3d Cir. 2001). “In actions challenging a large number of prison conditions, a district court
Defendants failed to follow the recommendation to place him in an air-conditioned and/or
ventilated cell.
14
.
.
must inquire whether the challenged conditions alone or in combination violate eighth amendment
standards, recognizing that the totality of the conditions may deprive inmates of the minimal
civilized measure of life’s necessities.” Peterkin
V.
Jeffes, 855 F.2d 1021, 1024 (3d Cir. 1988)
(internal quotation marks omitted).
A. Lack of Air Conditioning
Defendants argue that lack of air conditioning is not a constitutional violation and that the
issue is now moot because Plaintiff has been moved to a unit with air conditioning by his own
admission in his amended complaint. (DSOF
¶
13-14, 17).
“[I]t is well settled that exposing prisoners to extreme temperatures without adequate
ventilation may violate the Eighth Amendment.” Walker v. Schult, 717 F.3d 119, 126 (2d Cir.
2013). See also Chandler v. Crosby, 379 F.3d 1278, 1294 (11th Cir. 2004) (“[T]he Eighth
Amendment applies to prisoner claims of inadequate cooling and ventilation.”). Plaintiff argues
Defendants have long been aware of the conditions in the West Compound because there have
been other civil lawsuits about the conditions, including a state class action lawsuit. Plaintiff
submitted IRFs stating that the lack of air conditioning made it hard to breathe. (See ECF No. 562 at 26-3 1). Another inmate, Rajhn Kalim, submitted an affidavit in support of Plaintiff’s claims
of the conditions. Kalim states he lived in the West Compound with Plaintiff in 2014, and there
was “excessive heat on unit in summer” and that Plaintiff was taken to medical twice “due to
breathing problems he was having on said unit!” (Exhibit F, ECF No. 63
¶ 3,23). The two medical
reports previously mentioned recommend placement in ventilated and/or air-conditioned units.
(See Exhibit B, ECF No. 63 at 38 (“Due to nose bleeds, the patient needs a constant environment
and preferably air conditioner.”); Exhibit C, ECF No. 63 at 39 (“Please have the patient place [sic]
in a ventilator area if possible”)). Construing the evidence in Plaintiffs favor on summary
15
judgment, there is a question as to whether Defendants ignored medical opinions that the
environment was harmful to Plaintiff’s health.4 Summary judgment is denied due to this factual
question.
B. Placement in a Double-Cell
Plaintiff further alleged it was unconstitutional for him to be placed in a double-cell, even
one with air conditioning, because having another person in the cell made it difficult to breathe.
Defendants argue that Plaintiff has no right to specific housing assignment and this Court lacks
the authority to review placement as it is a final agency decision that should be brought before the
New Jersey Superior Court, Appellate Division.
The Supreme Court has held “that an examination of a state statute or regulation should
not be conducted unless the challenged restraint on freedom ‘imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Allah v. Seiverling, 229
F.3d 220, 223 (3d Cir. 2000) (quoting Sandin v. Connor, 515 U.S. 472, 480 (1995)). Plaintiff
alleges that being in a two-man cell caused inadequate air circulation and that Lieutenant Kennedy
“knowing Plaintiff’s condition deliberately assigned Plaintiff to a two man cell to further frustrate
Plaintiff physically and mentally harm [sic].” Amended Compi.
¶
8. This Court has the authority
to review claims that overcrowding in a cell caused inhumane conditions of confinement. See, e.g.,
Rhodes v. Chapman, 452 U.S. 337, 348—50 (1981) (holding double-celling by itself did not violate
Eighth Amendment).
Other than Plaintiff’s unsupported allegations and speculation, there is nothing in the
record that indicates another person in the air-conditioned cell reduces the air flow to a level that
would impact Plaintiffs breathing, and Plaintiff appears to concede this point. See PRSOF
Plaintiff will still have to prove causation at trial.
16
¶ 23
(“Plaintiff did not assert that there were orders from medical professionals requiring his placement
in a single-man cell.”). Plaintiff’s October 20, 2015 IRF only indicates that a doctor recommended
a “constant environment of air condition or ventilator.” (ECF No. 56-2 at 33). His electronic
inquiries also indicate a medical recommendation of ventilation, but not for a single-person cell.
(See ECF No. 56-2 at 27, 37-38, 40, 42, 44-45). See also Soliman Cert.
¶7
(“There are no orders
for a single cell.”).
C. Broken Toilet and Sink
Plaintiff also alleged the sink and toilet in his cell were broken to the point of being
unsanitary in violation of the Eighth Amendment. “Sanitation is one of the basic human needs
recognized by eighth amendment cases.” Peterkin v. Jeffes, 855 F.2d 1021, 1027—28 (3d Cir.
1988). “[H]uman waste has been considered particularly offensive so that courts have been
especially cautious about condoning conditions that include an inmate’s proximity to [it].”
McBride v. Deer, 240 F.3d 1287, 1292 (10th Cir. 2001) (internal quotation marks omitted)
(alteration in original). Plaintiff alleged in his original complaint that the toilet in his West
Compound cell ran constantly and leaked all over the floor. Compi.
¶ 7.
He also states the stench
was unbearable. Ibid. According to the IRF, he was moved from the cell on March 25, 2014, the
same day he originally filed his IRE about the toilet. (ECF No. 56-2 at 27). This is supported by
the Progress Notes Report which indicates Plaintiff moved from NJSP-WEST-2-LEFT-2-TIERCELL 092 to NJSP-WEST-2-LEFT-2-FLATS-CELL 06 on March 25, 2014. (ECF No. 56-2 at
19). The fact that he was moved from the location after prison officials were alerted to the problem
does not support a finding of deliberate indifference to Plaintiff’s conditions of confinement.
Lieutenant Kennedy denied knowing of any work order for the toilet in Cell 092 before Plaintiff
was placed in that cell. (Kennedy Interrogatories, ECF No. 56-2 at 56
17
¶
12). Plaintiff states:
“Plaintiff was moved on the same day he filed the IRF; however, because Plaintiff had been
complaining for five days and was only moved to a different cell after the cell flooded as a result
of the broken toilet.” (ECF No. 63 at 19). He states the new cell also had a broken toilet, and the
grievance he filed was denied as duplicative. (Exhibit A, ECF No. 63 at 3 6-37).
Plaintiff also alleged in his Amended Complaint that his toilet was too small. “Plaintiff
could not defecate and urinate at the same time. Instead, he had to choose between positioning the
penis over the bowel [sici to urinate, or rest the genitalia on the seat over the edge of the bowel
[sic] to defecate.” Amended Compl.
¶ 5(b). Administrator D’Ilio indicated the toilets are 20 inches
wide, 16.75 inches deep, with the opening diameter of 9.75 inches. (D’Ilio Interrogatories
¶ 24).
These allegations, while undoubtedly unpleasant, do not seem to rise to the objectively serious
deprivation required by the Eighth Amendment, nor is there any evidence that Defendants were
deliberately indifferent to the conditions.
D. Lack of Hot Water
Plaintiff also asserts the lack of hot water inside his cells is a violation of the Eighth
Amendment. Defendants argue there is no hot water inside the cells to which Plaintiff is assigned
as a security matter, and the lack of hot water does not rise to the level of an Eighth Amendment
violation as inmates are able to get hot water from other sources.
Other courts have found “adequate hot water as a reasonable condition of confinement.
That is particularly true when inadequate hot water is combined with other factors affecting health
and safety.” Grohs v. Yatauro, 984 F. Supp. 2d 273, 285 (D.N.J. 2013). “In contrast, courts have
denied claims based on inadequate hot water because that condition was not combined with
additional, significant conditions.” Vanaman v. Robinson, No. 18-1003, 2018 WL 1073370, at *2
(D.N.J. Feb. 27, 2018) (citing cases). See also Watkins v. Johnson, 375 F. Supp. 1005, 1010-11
18
(E.D. Pa. 1974) (conditions of segregated confinement, including a cell with no hot water, did not
violate the Eighth Amendment).
Here, Plaintiff alleges that “water temperatures were so cold in the winter that washing
hands and face were painful for Plaintiff.” Amended Compl.
¶ 5(a).
Plaintiff does not allege any
other harm from the lack of hot water aside from discomfort in the winter when washing his hands
and face.
Lieutenant Kennedy and Administrator D’Ilio admit that only cold water is available in the
cells in 7-wing. Kennedy Interrogatories
¶ 24; D’Ilio Interrogatories ¶ 25.
They state hot water is
available to inmates housed in 7-wing outside of their cell. Ibid. The response to Plaintiffs March
25, 2014 IRF told him that inmates can get hot water from the “cambro water dispenser and
stinger.” (ECF No. 56-2 at 31); DSOF
¶ 8.
Plaintiff does not appear to contest that fact but states
that access to the cambros are limited to times when inmate runners are available. “The hours hot
water is available via runners is 6:30 am to 10:30 am; 11:30 am to 1:00pm; 2:30 pm to 3:30 pm;
4:30 pm to 6:30 pm; and 7:30 pm to 8:45 pm. After 8:45 pm, no hot water is available to inmates
housed in the West Compound.” PRSOF 7. Construing the facts in Plaintiffs favor, hot water is
available to inmates via inmate runner at certain times during the day. Based on these facts,
Plaintiffs claim is insufficient to find an Eighth Amendment violation.
E. Totality of the Circumstances
“In actions challenging a large number of prison conditions, a district court.
.
.
must inquire
whether the challenged conditions alone or in combination violate eighth amendment standards,
recognizing that the totality of the conditions may deprive inmates of the minimal civilized
measure of lifes necessities.” Peterkin v. Jeffes, 855 F.2d 1021, 1024 (3d Cir. 1988) (internal
quotation marks omitted). Considering all the alleged conditions, a reasonable jury could not find
19
in favor of Plaintiff on the record before the Court apart from his claims regarding air conditioning
and ventilation. Plaintiff has provided enough evidence to survive summary judgment on his
claims that Defendants violated the Eighth Amendment by failing to house him in an air
conditioned or ventilated cell prior to 2016. Specifically, Plaintiff has provided two medical reports
indicating a medical need for air conditioning or ventilation in his cell as early as 2014.
Plaintiffs Eighth Amendment claim will proceed to the jury solely on his claims regarding
air conditioning and ventilation.5
3. Failure to Exhaust Administrative Remedies
Defendants assert they are entitled to summary judgment on Plaintiffs claim that the
conditions of confinement violate the Eighth Amendment due to rodent and insect infestations
because Plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform
Act (“PLRA”) of 1995.
The PLRA “mandates that an inmate exhaust ‘such administrative remedies as are
available’ before bringing suit to challenge prison conditions.” Ross v. Blake, 136 5. Ct. 1850,
1854—55 (2016) (quoting 42 U.S.C.
§ 1997e(a)). “[T]hat language is ‘mandatory’: An inmate
‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent
exhaustion of available administrative remedies.” Id. at 1856 (citing Woodford v. Ngo, 548 U.S.
81, 85 (2007)). “There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). This
includes constitutional claims, Woodford, 548 U.S. at 91 n.2, and “applies to all inmate suits about
prison life, whether they involve general circumstances or particular episodes, and whether they
Defendants did not raise qualified immunity as a defense in their papers. The Court therefore
declines to consider its application.
20
allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
Exhaustion must be proper, meaning “prisoners must ‘complete the administrative review process
in accordance with the applicable procedural rules,’ rules that are defined not by the PLRA, but by
the prison grievance process itself.” Jones, 549 U.S. at 218 (quoting Woodford, 548 U.S. at 88).
“A prisoner must exhaust these remedies ‘in the literal sense[;]’ no further avenues in the prison’s
grievance process should be available.” Smith v. Lagana, 574 F. App’x 130, 131 (3d Cir. 2014)
(quoting Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004)).
District courts can decide whether plaintiffs exhausted their administrative remedies
without a jury even if there are disputed facts. See Small v. Camden Cly., 728 F.3d 265, 270 (3d
Cir. 2013) (“[I]t is of no consequence that here, as is often the case, there are disputed facts that
must be resolved in order to determine whether the claims were exhausted.”). The Court informed
the parties of its intent to resolve the exhaustion issue and gave them an opportunity to provide
further information. (ECF No. 60). See Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018)
(requiring district courts to provide parties notice and an opportunity to respond before deciding
factual issues such as exhaustion). The parties submitted supplemental materials.
“Failure to exhaust administrative remedies is an affirmative defense that must be pled
and proven by the defendant.” Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). NJSP’s
exhaustion procedure follows the standard NJDOC procedure codified at New Jersey
Administrative Code
§
1OA:1-4.4. “The comprehensive Inmate Remedy System, includes an
‘Inmate Inquiry Form,’ and/or ‘Inmate Grievance Form,’ and an ‘Administrative Appeal,’ which
must be utilized and fully exhausted prior to an inmate filing any legal action regarding information
requests, issues, concerns, and/or complaints.” N.J.
ADMIN. CODE
§ 1 OA: 1-4.4(d). “The decision
or finding of the Administrator or designee to the ‘Administrative Appeal’ is the final level of
21
review and decision or finding of the New Jersey Department of Corrections.” N.J. ADMIN. CODE
§
IOA:1-4.6(d).
Defendants submit as evidence what purports to be copies of all IRFs filed by Plaintiff
between February 10, 2014 and July 29, 2017. See DSOF
¶
18. Defendants argue that since none
of these IRFs allege rodent infestations, Plaintiff failed to exhaust his administrative remedies on
this claim. DSOF
¶
19. See also Exhibit B. Plaintiff states he first raised his claims of rodent and
insect infestations in his supplemental complaint and exhausted this claim in 2015. (ECF No. 64
at 1-2). He offers two forms as evidence that he exhausted: an IRF dated March 25, 2014 and an
inquiry form dated December 5, 2015. (ECF No. 64 at 4-5). Plaintiff did not argue in his
supplemental materials or at oral argument that he submitted documents that have not been
presented to the Court, nor does he argue that the administrative process was unavailable to him.
The Court therefore concludes an evidentiary hearing is not necessary to further decide the
exhaustion issue.
The Court finds that Plaintiff failed to exhaust his administrative remedies on the issue of
the rodent infestation. Plaintiffs March 25 IRF does not mention rodents at all, and the December
5, 2015 inquiry form does not comply with the exhaustion requirements because it does not follow
the proper protocols.6 Plaintiff did not file a formal IRF regarding the rodent infestation and obtain
a final decision from the NJSP administration. Plaintiffs arguments that he did not have to pursue
further administrative remedies because he was satisfied with the result of the informal request do
not justify his failure to exhaust.
6
A memorandum to the inmate population from the administrator indicates the purpose of the
inmate inquiry form is to “make routine inquiries and obtain information” whereas the grievance
form (the IRF) is intended as the “internal administrative means for the resolution of complaints
associated with the conditions of an inmate’s confinement.” (ECF No. 66 at 7) (emphasis in
original).
22
“An inmate has no obligation to appeal from a grant of relief, or a partial grant that satisfies
him, in order to exhaust his administrative remedies. Nor is it the prisoner’s responsibility to ensure
that prison officials actually provide the relief that they have promised.” Harvey v. Jordan, 605
F.3d 681, 685 (9th Cir. 2010). In Harvey, an inmate filed a grievance requesting a disciplinary
hearing on an outstanding disciplinary charge and a copy of a videotape to use in the hearing. In
response, prison officials promised to provide both the hearing and to let him view the videotape
before the hearing. Ibid. The inmate did not receive a copy of the tape, and when he appealed the
original decision it was denied as untimely. Ibid. The Ninth Circuit reversed the district court’s
dismissal of his
§ 1983 due process claim for failure to exhaust, concluding “[o]nce the prison
officials purported to grant relief with which he was satisfied, his exhaustion obligation ended.”
Ibid. See also Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004) (“A prisoner who has not
received promised relief is not required to file a new grievance where doing so may result in a
never-ending cycle of exhaustion.”).
Plaintiffs case is distinguishable from Harvey and Abney. This is not a case in which
defendants agreed to give Plaintiff his requested relief and failed to deliver on that promise or
failed to implement the favorable grievance responses. See Abney, 380 F.3d at 669 (holding
plaintiff was not required to appeal rulings that promised he would receive footwear when
defendants never in fact provided footwear). A comparable situation would be if Defendants said
they would place traps or call an exterminator but ultimately failed to do so. Here, Plaintiff told
defendants his toilet was leaking, and Defendants specifically told Plaintiff to “submit a remedy
to Maintenance for any electrical or plumbing issues.” (ECF No. 64 at 5). In other words, Plaintiff
was informed that he would have to use the administrative remedy system for further relief.
Plaintiff did not do so despite having an available remedy system.
23
The Court finds that Plaintiff failed to exhaust his administrative remedies on his claims of
rodent infestation. Defendants are therefore entitled to summary judgment.
F. Administrative Segregation
Although Defendants do not address Plaintiffs claim that he was kept in administrative
segregation longer than his period of punishment in their summary judgment motion, the Court
may address it under 28 U.S.C.
§
1915 even though Defendants failed to address it in their
summary judgment motion. See 28 U.S.C.
§
1915(e)(2)(B)(ii) (noting that the court “shall dismiss
the case at any time if the court determines that the action or appeal fails to state a claim on which
relief may be granted” (emphasis added)).
Plaintiff has no Due Process claim considering Sandin v. Connor, 515 U.S. 472, 480
(1995). “Procedural due process rights are triggered by deprivation of a legally cognizable liberty
interest. For a prisoner, such a deprivation occurs when the prison ‘imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Huertas v. Sec’y
Pennsylvania Dep’t ofCorr., 533 F. App’x 64,66 (3d Cir. 2013) (quoting Sandin, 515 U.S. at 484).
“Sandin instructs that placement in administrative confinement will generally not create a liberty
interest.” Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000) (citing GrfJmn v. Vaughn, 112 F.3d
703, 706 (3d Cir. 1997)). Nor does Plaintiff have an Eighth Amendment claim based on alleged
overstay in administrative segregation. The Seventh Circuit affirmed dismissal of a prisoner’s
claim that keeping him in disciplinary segregation and out of general population violated the
Eighth Amendment because “to succeed on an Eighth Amendment claim, [plaintiff] must
demonstrate that being excluded from the general prison population deprives him of the minimal
civilized measure of life’s necessities, such as adequate food, clothing, shelter, or medical care.”
Hernandez v. Hanks, 65 F. App’x 72, 74 (7th Cir. 2003) (internal quotation marks and citations
24
omitted). The court of appeals held plaintiff failed to state a claim because he did not allege “that
he is being deprived of anything beyond the privilege of being in the general population.
.
.
.“
Ibid.
This was so even though plaintiff was held in segregation beyond his original release date. The
court also held plaintiff could not “establish a due process violation without demonstrating that he
has a liberty interest in returning to the general prison population after completing his segregation
sanction, whatever its length. The length of disciplinary segregation does not implicate a federally
protected liberty interest even if the period extends for the entire term of incarceration.” Id. at 74.
Plaintiff alleges for the first time in his opposition papers that keeping him in administrative
segregation for an additional three days was retaliatory. Amended Compl
¶ 7. See also (ECF No.
63 at 24). To state a First Amendment retaliation claim, Plaintiff must plead facts suggesting: (1)
he engaged in constitutionally protected conduct; (2) an adverse action was taken against him by
prison officials sufficient to deter him from exercising his constitutional rights; and (3) there was
a causal link between the exercise of his constitutional rights and the adverse action taken against
him. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). There are no facts supporting Plaintiffs
allegations on the second and third factors. Nothing suggests a temporal link between any alleged
grievances filed by Plaintiff and his alleged overstay in administrative segregation.
This claim is dismissed. 28 U.S.C.
§ 1915(e)(2)(B)(ii).
Conclusion
For the reasons stated above, Plaintiffs motions for reconsideration, appeal of the
magistrate judge’s decision, and for the appointment of counsel are denied. Summary judgment is
denied as to Plaintiffs denial of medical care claim and conditions of confinement claim based on
failure to transfer Plaintiff to an air conditioned or ventilated cell prior to 2016. These claims shall
proceed to trial. Plaintiffs claim based on an alleged overstay in administrative segregation is
25
dismissed. 28 U.S.C.
§
1915(e)(2)(B)(ii). Defendants are awarded summary judgment on all other
claims.
An appropriate order follows.
DATED:
,2018
PETER G. SHERIDAN
United States District Judge
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?