WASHINGTON v. ELLIS et al

Filing 86

MEMORANDUM filed. Signed by Judge Peter G. Sheridan on 09/18/2019. (jmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RANDY WASHINGTON,
:

Plaintiff,

Civ. No. 17-7243 (PGS-TJB)

V.

MEMORANDUM

CHARLES ELLIS, et al.,

Defendants.

PETER G. SHERIDAN, U.S.D.J.
This matter comes before the Court on a motion for summary judgment filed by
Defendants Charles Ellis, Timothy Friel, and Tamaine Grier. (ECF No. 40). Plaintiff Randy
Washington opposes the motion. (ECF No. 64). For the following reasons, the motion is denied.
I.
Petitioner is currently incarcerated in New Jersey State Prison (“NJSP”), Trenton, New
Jersey. According to the amended complaint, Plaintiff hit his attorney in the Mercer County
Courthouse on June 29, 2017. (ECF No. 38 at 6). He waited to be handcuffed but was instead
tackled by law enforcement officers. He alleges they slammed him onto the ground, breaking a
bone in his hand. (Id.). He was taken out of the courtroom in handcuffs and thrown up against
the wall. One of the sheriffs kept tightening the handcuffs and “twisting and jerking [his] hand
up to [his] back” in order to inflict pain on Plaintiff in retaliation for assaulting his public
defender. (Id.). Plaintiff states this was caught on the courthouse cameras. (Id.).

Upon arriving back at the Mercer County Correctional Center (“MCCC”), Plaintiff asked
to go to the hospital and was told to wait for Sergeant Friel. (Id. at 7). When Sergeant Friel
arrived, Plaintiff told Sergeant Friel that he needed to go to the hospital for his injured hand.
(id). Sergeant Friel took Plaintiff to the nurse but told Plaintiff that they did “not send inmates to
the hospital anymore we can give you ice.” (Id.). When Plaintiff tried to tell Sergeant Friel that
ice would not help because his hand was broken, Sergeant Friel told Plaintiff that he was
refusing medical care and took Plaintiff back to his cell. (Id.).
Plaintiff asked Sergeant Grier to take him to the hospital, but she said that Sergeant Friel
had said Plaintiff refused medical care. (Id at 8). Plaintiff clarified that he only refused the ice
and wanted treatment for his broken hand. (Id.). Sergeant Grier took Plaintiff back to the nurse
for ice. When Plaintiff tried to ask the nurse for help, Sergeant Grier interrupted and indicated
that Plaintiff “was not going to the Hospital.” (Id.). Plaintiff did not receive any pain medication
for his hand. (Id.).
Plaintiff alleges Warden Charles Ellis knew all about his injury and the failure to provide
medical attention but did nothing. He states the deputy warden told him in Ellis’ presence to get
an x-ray on June 30, 2017. (Id. at 9). An x-ray taken of Plaintiffs hand on July 6, 2017
confirmed it was broken.
Plaintiff filed his original complaint on September 19, 2017. (ECF No. 1). The Court
originally denied his informa pauperis application and administratively terminated the
complaint. (ECF No. 2). Plaintiff submitted a new application, which the Court granted. (ECF
Nos. 7 & 8). It screened his complaint under 28 U.S.C.

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1915 and proceeded it in part. (ECF

No. 11). Plaintiff filed his amended complaint with leave of court on December 26, 2018. (ECF
No. 38).

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Defendants Charles Ellis, Timothy Friel, and Tamaine Grier now move for summary
judgment on the grounds that Plaintiff failed to exhaust his administrative remedies before filing
suit. (ECF No. 40). The Court issued a Paladino notice informing the parties that it may resolve
factual issues regarding exhaustion as part of the summary judgment motion on March 18, 2019.
(ECF No. 54). The order also permitted the parties to submit any additional evidence.
The matter is now ripe for decision.
II.

Under the Federal Rules of Civil Procedure, “[s]ummary 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, 572 U.S. 650,
656-57 (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).
III.

The sole issue before the Court is whether Defendants are entitled to judgment as a
matter of law based on their argument that Plaintiff failed to exhaust his administrative remedies
before filing this lawsuit. Under the Prison Litigation Reform Act, (“PLRA”), prisoners must
exhaust ‘such administrative remedies as are available’ before bringing suit to challenge prison

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conditions.” Ross v. Blake, 136 S. Ct. 1850, 1854—55 (2016) (quoting 42 U.S.C.

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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 Woodfordv. 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 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)).
“Failure to exhaust is an affirmative defense the defendant must plead and prove; it is not
a pleading requirement for the prisoner-plaintiff.” Small v. Camden Cty., 728 F.3d 265, 268 (3d
Cir. 2013). A district court may decide whether plaintiffs exhausted their administrative remedies
without a jury even if there are disputed facts after providing notice to the parties and an
opportunity to submit further evidence. Paladino v. Newsome, 885 F.3d 203, 211 (3d Cir. 2018);
Small, 728 F.3d at 270. The Court issued a notice and order providing the parties additional time
to submit materials on March 18, 2019. (ECF No. 54). Plaintiff submitted additional materials.

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(See, e.g., ECF Nos. 66, 75, 76). Defendants responded to Plaintiffs materials but did not

submitted any additional materials of their own. (ECF Nos. 67,74).
Both parties have submitted copies of grievances wherein Plaintiff alleges he was denied
medical treatment for his hand. (ECF No. 40-2 at 14-16; ECF No. 75). For example, Plaintiff
wrote in a grievance filed on August 22, 2017:
On 6-29-17 I come in from the courthouse at 5 or 6 pm my hand was broken. I ask
Sgt. T. Friel I need to go to the Hospital. Sgt. Friel take me to see the nurse Rita. I
told Her I need to go to Hospital. Sgt. Griel said we don’t do that anymore. We can
give you Ice. I said what is ice gonna do for a broken hand. He said to the nurse He
refuse Yeah Ice. [sic]. Sgt. Grier I need to go to the Hospital. She said they said I
refuse I told her Ice my hand is broken.
On 8-17-17 I said to Sgt. Friel you gonna be the fall guy I’m suing the Jail for not
taking me to the Hospital. He then said Did not say we don’t take inmates I said I
don’t think we take inmate no more to Hospital. He just [not] did want me to go
cause of what Happen or Lt. Zegarski Lt. Lyszczak.
(ECF No. 75 at 2). Each section is competed by a prison official. (Id.). Warden Ellis issued the
final response on September 1, 2017: “See above response from Medical.” (Id.). Plaintiff filed
another grievance in late August 2017 directed to Deputy Warden Oliver. (ECF No. 40-2 at 16).
Warden Ellis’ September 1 l 2017 response is illegible. (id). Another grievance dated
September 13, 2017 asked Warden Ellis about the lack of medical care and failure to take
Plaintiff to the hospital (Id. at 15). Warden Ellis’ response is illegible. (Id.).
Warden Ellis certified that “[t]he grievance process at MCCC has both internal and
external components.” (ECF No. 40-2 at 3

¶ 7).

The Court concludes that Plaintiff completed the

internal grievances regarding the claims alleged in the complaint; the question is whether
Petitioner was required to appeal Warden Ellis’ decision.
According to Warden Ellis’ certification, “[i]mates who have availed themselves of the
institutional procedures and who are still unstratified are directed to appeal their issue to the

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County Administration and/or the State.” (Id.

¶ 8) (emphasis added).

However, under the

“Grievance Procedure” heading in the MCCC Handbook it states “[i]n cases where you have
used these institutional procedures and you are dissatisfied with the decision, you may then
address your problem directly to the Director of Public Safety.” (ECF No. 40-2 at 6) (emphasis
added). “We expect that you will be able to resolve your problem through Department channels.
However, if you want to pursue the issue further, you may contact your attorney or the Office of
the Inmate Advocacy.” (Id.) (emphasis added). This language is ambiguous and does not clearly
indicate that inmates must take these additional steps in order to have their administrative
remedies considered exhausted.
Primarily, the Handbook’s language appears to be permissive rather than mandatory. The
remedy form itself appears to indicate that the grievance is considered resolved at Step Four,
which is completed by the Deputy Warden. (ECF No. 40-2 at 8 (“The canary copy is to be
forwarded to the Hearing/Grievance Officer to file in the inmate’s records/classification file at
the resolution of the grievance at Step One through Step Four.”) (emphasis added)). Defendants
have offered no evidence regarding whether inmates are given additional instructions on the
alleged requirement to escalate Warden Ellis’ response to the County and State before filing suit
in federal court.
Secondly, there is no language in the Handbook that requires inmates to go first to the
Director of Public Safety and then escalate the Director’s response to the Office of the Inmate
Advocacy (Id. at 6). The offices are presented as two separate options for further review, not as
steps to follow for exhaustion. Moreover, the choice given to inmates to contact an attorney in
lieu of the Office of the Inmate Advocacy suggests that step is not required.

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Finally, it would be impossible for Plaintiff to write to the Office of the Inmate Advocacy
as that office was abolished in 1994. Public Advocate Restructuring Act of 1994, 1994 NJ Sess.
Law Serv. Ch. 58 (ASSEMBLY 15) (West). Its litigation responsibilities that were pending at
the time were assumed by the Office of the Public Defender, N.J.S.A.

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2A:158A-7(n), but there

is no evidence in the record or in the statutory text that the Public Defender assumed the Inmate
Advocate’s ability to resolve prison administration disputes. “[T]he exhaustion requirement
hinges on the ‘availab[ilityj’ of administrative remedies: An inmate, that is, must exhaust
available remedies, but need not exhaust unavailable ones.” Ross v. Blake, 136 S. Ct. 1850, 1858
(2016) (quoting 42 U.S.C.

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1997e(a)) (alteration in original). Inmates cannot be expected to

direct complaints to a state office that has been defunct for twenty-five years.
The Court reads the Handbook as requiring inmates to complete the internal prison
procedures. It then gives them the option of addressing their concerns with Mercer County or the
State if they are unsatisfied with the warden’s response, but those steps are not required by the
Handbook in order to exhaust administrative remedies. The Court finds that Plaintiff exhausted
all the available remedies at MCCC before filing his federal lawsuit. Defendants are not entitled
to judgment as a matter of law on their exhaustion argument.
V.

For the reasons stated above, Defendants’ summary judgment motion is denied. An
appropriate order follows.

DATED:
PETER G. SHERIDAN
United States District Judge

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