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September 29, 1998

LAVERNA WHITE, et al., On Behalf of Themselves and Others Similarly Situated, Plaintiffs,
WILLIAM H. FAUVER, et al., Defendants.

The opinion of the court was delivered by: ORLOFSKY

ORLOFSKY, District Judge:

 Plaintiffs have filed this civil rights class action *fn1" on behalf of all inmates at Bayside State Correctional Facility ("Bayside"), located in Leesburg, New Jersey, alleging that prison officials and guards engaged in a pattern of physical abuse, threats, and subjected plaintiffs to a series of unconstitutional living conditions, in retaliation for the July, 1997, murder of a prison guard allegedly committed by an inmate. Six of the defendants, William Fauver, Scott Faunce, Robert Ziegler, Edward Delbow, Luther Weldin, and Lance Meehan ("Moving Defendants"), have moved to partially dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). Moving Defendants' motion to dismiss also serves as an answer to Plaintiffs Delbueno and Scullions' use of excessive force allegations as they pertain to Defendants, Peachy, Keiser, Mitchell, and Veach, Jr., although Defendants, Peachy, Keiser, Mitchell, and Veach, Jr. already filed an answer, on January 15, 1998. Plaintiffs have cross-moved for leave to file a second amended complaint. Defendants have also moved to strike Plaintiffs' brief in opposition to Defendants' motion to dismiss. Because Plaintiffs' claims arise under 42 U.S.C. §§ 1983, 1985, 1988, and the Eighth Amendment of the United States Constitution, this Court has jurisdiction to hear this matter pursuant to 28 U.S.C. §§ 1331, 1343.

 This case presents a novel legal question of first impression in this Circuit, requiring this Court to divine the meaning of the exhaustion requirement embodied in the recently adopted Prison Litigation Reform Act ("PLRA"), specifically, 42 U.S.C. § 1997e(a). *fn2" Section 1997e(a) mandates that prisoners exhaust their available administrative remedies before they may file claims under 42 U.S.C. § 1983, or any other federal law. In particular, I must determine what Congress intended when it limited the scope of the exhaustion requirement to those civil actions "with respect to prison conditions," and required the exhaustion of only "such administrative remedies as are available."

 For the reasons set forth below, I will grant Plaintiffs' cross-motion for leave to file a second amended complaint, except with respect to proposed Count V. In addition, I will grant in part and deny in part the Moving Defendants' motion to partially dismiss the First and Second Amended Complaints for failure to state a claim upon which relief can be granted. Specifically, I will grant Moving Defendants' motion as to the allegations of unconstitutional prison conditions, contained in Count I of the First and Second Amended Complaints, and all of Count III of the First and Second Amended Complaints, except with respect to Plaintiff, Phillips. I will deny Moving Defendants' motion to dismiss as to all other Counts and allegations. I will also deny Defendants' motion to strike Plaintiffs' brief in opposition to Defendants' motion to dismiss.


 For the purposes of a motion to dismiss, I must accept as true the facts alleged by Plaintiffs and draw all reasonable inferences in their favor. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1391 (3d Cir. 1994). Unless otherwise noted, I look to the proposed Second Amended Complaint for the factual allegations relevant to these motions. See infra Part II.

 On July 30, 1997, Officer Fred Baker, a prison guard at Bayside, was murdered and a Bayside inmate was charged with the crime. See Second Am. Comp. at PP 98-100. Plaintiffs contend that, in response to, or in retaliation for that murder, Bayside guards and officials allegedly engaged in a pattern of conduct, which included threats, violence, and mistreatment directed against Plaintiffs and the class they seek to represent.

 On October 17, 1997, several inmates filed this action seeking damages and injunctive relief pursuant to 42 U.S.C. §§ 1981, 1983, 1985, 1988, and, in addition, sought an emergency temporary restraining order. On that same day, I held a telephonic hearing, during which I denied the request for a temporary restraining order, but, with the consent of the defendants, I allowed Plaintiffs to conduct limited discovery, permitting plaintiffs' counsel to interview inmates at Bayside.

 A case management conference was held on October 27, 1997, at which certain deadlines were established, including an October 31, 1997, deadline for Plaintiffs to file an amended complaint. After Plaintiffs' counsel completed the initial series of inmate interviews at Bayside, Plaintiffs filed their First Amended Complaint on October 31, 1997. On October 31, 1997, this Court held another telephone conference call, during which I permitted the Plaintiffs to conduct another week of inmate interviews. I also set December 15, 1997 as the date of the next conference call with counsel.

 During the December 15, conference call, I established January 15, 1998, as the deadline by which the defendants had to answer or otherwise move in response to the amended complaint. Consequently, on January 15, 1998, the Moving Defendants filed a motion to partially dismiss for failure to state a claim upon which relief can be granted and Defendants, Kaiser, Mitchell, Peachy, and Veach, filed an answer. Subsequently, Plaintiffs filed a brief in opposition to the motion to partially dismiss and cross-moved for leave to file a second amended complaint.

 In Plaintiffs' proposed Second Amended Complaint, various inmates allege that Bayside guards and officials, without any provocation, physically assaulted prisoners with black jacks, or by pushing the inmates' heads into walls or the ground. See, e.g., id. PP 6-7, 11, 15, 20-22, 25-30, 36, 42, 45, 49, 56, 62-63, 70, 71, 72, 73, 74, 75, 76-77. Some of these inmates were allegedly handcuffed and naked while they were assaulted. See, e.g., id. PP 7, 11, 14, 20-22, 63, 70. According to Plaintiffs, the guards then attempted to cover up these physical attacks by threatening inmates with further harm if they disclosed the details of the assaults to the prison medical staff. See, e.g., id. PP 74, 75, 77. In addition, the guards allegedly filed false disciplinary charges against the victims of the beatings to conceal the physical assaults, by implying that these inmates had instigated the violence. See, e.g., id. PP 9, 29, 39, 49, 59, 66. Inmates often received disciplinary sanctions as a result of the filing of these allegedly false disciplinary charges. See e.g., id. PP 9, 29.

 The Second Amended Complaint further alleges that Bayside guards and officials imposed intolerable, unconstitutional conditions upon Plaintiffs, such as serving rancid food and depriving inmates of showers, bedding, mattresses, and clothing. See id. P 106.

 Plaintiffs claim that Bayside guards and officials conspired "to maintain [an] atmosphere of terror and intimidation" by this campaign of violence and deprivation of basic human necessities. Id. P 123. The conspiracy allegedly "deprived plaintiff inmates of equal protection of the laws and equal privileges and immunities of the laws, by depriving them of the right to be free from cruel and unusual punishment, [and] the right to adequate medical care." Id. P 124.

 Plaintiffs also allege that in response to the filing of this law suit, Bayside guards and officials "communicated [further] threats of physical harm to members of the inmate population who have met with plaintiffs' counsel." Id. P 129. Plaintiffs contend that the Bayside guards and officials made such threats to dissuade the inmates from seeking access to the courts to redress their grievances. See id. PP 130-31.

 The named class plaintiffs in this action, Laverna White, Tony Bacon, Andrew Gordon, Jeffrey Nosal, James Delbueno, Kenneth Scullion, Mark Green, Jason Phillips, John Wilson, Tom Branigan, Frederick Brown, Adrian Torres, Alfonse Torres, Sergio Perez, Vermonie Pierce, Michael Shontz, James Golden III, Samuel Gomez, Daniel Blaze, and Carlos Martinez, *fn3" were all inmates at Bayside on July 30, 1997, and during the relevant time period following the murder of Officer Baker. See Second Am. Comp. at P 4. Among others, the Second Amended Complaint names William H. Fauver, Scott Faunce, Robert Ziegler, Edward Delbow, Luther Weldin and Lance Meehan as defendants in this action. These six defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. *fn4" Defendants, Kaiser, Mitchell, Peachy, and Veach, do not join in this motion to partially dismiss, because they filed an answer, on January 15, 1998. Because these defendants have already filed an answer, Moving Defendants' have filed a motion for partial dismissal.

 In response to Moving Defendants' motion to partially dismiss, Plaintiffs cross-moved for leave to file their Second Amended Complaint and relied, in part, upon that pleading to oppose the motion to dismiss. Moving Defendants oppose the filing of the Second Amended Complaint substantively and further object to Plaintiffs' reliance upon the Second Amended Complaint in opposition to the motion to dismiss, prior to obtaining the Court's permission to file it. *fn5"


 In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the Court may only dismiss a complaint if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988); Guyette v. Stauffer Chem. Co., 518 F. Supp. 521, 526 (D.N.J. 1981) (Debevoise, J.). While all well-pled allegations are accepted as true and reasonable inferences are drawn in the plaintiff's favor, see, e.g., Gomez v. Toledo, 446 U.S. 635, 636, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980), the Court may dismiss a complaint where, under any set of facts which could be shown consistent with the complaint, the plaintiff is not entitled to relief. Conley, 355 U.S. at 45-46; see also Neitzke v. Williams, 490 U.S. 319, 326-27, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989) (noting that this procedure "streamlines litigation by dispensing with needless discovery and factfinding").

 Having filed the First Amended Complaint prior to filing any responsive pleadings, Plaintiffs now require leave of court to file the Second Amended Complaint. See Fed. R. Civ. P. 15(a). Rule 15(a) instructs that "leave shall be freely given when justice so requires." See id.

In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be "freely given."

 Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); see In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997). Thus, Plaintiffs' motion for leave to file the Second Amended Complaint must be granted, unless Moving Defendants can demonstrate that it, too, fails to state a claim, making such an amendment futile. *fn6"

 "Amendment of the complaint is futile if the amendment will not cure the deficiency in the original complaint or if the amended complaint cannot withstand a renewed motion to dismiss." Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (citing Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.), cert. denied, 464 U.S. 937, 78 L. Ed. 2d 314, 104 S. Ct. 348 (1983)); see Jordan v. New Jersey Department of Corrections, 881 F. Supp. 947, 954 (D.N.J. 1995) (Rodriguez, J.). Because the same legal standard applies to the analysis of the motion to dismiss and the motion to amend, I will address the motion for leave to amend the complaint and the motion to dismiss together as if they were one motion to dismiss the Second Amended Complaint.


 The Moving Defendants contend that further amendment of Plaintiffs' First Amended Complaint would be futile. In support of their contention, Moving Defendants have advanced a series of grounds upon which they argue Plaintiffs fail to state a claim in either the First or Second Amended Complaints.

 A. Specificity

 Moving Defendants argue that Plaintiffs' factual allegations do not provide sufficient detail to "satisfy the factual specificity standard which requires allegations of the time of the unlawful conduct and the identity of the officials to which the conduct is attributable." Moving Defendants' Brief at 9-10. "Insofar as defendants challenge the complaint's lack of specificity, it must be borne in mind that the test for the sufficiency of a complaint under the Federal Rules of Civil Procedure is a liberal one." Guyette, 518 F. Supp. at 526. Furthermore, Plaintiffs must merely allege facts with sufficient specificity to provide "adequate notice to enable the defendants to frame an answer." Freedman v. City of Allentown, 853 F.2d 1111, 1114 (3d Cir. 1988). *fn7"

 The Second Amended Complaint satisfies this specificity requirement. It sets forth dates, times, detailed descriptions of particular incidents, and, frequently, the names of the prison guards involved in a given incident. For example, the Plaintiffs allege that, on July 30, 1997, at approximately 8 p.m., Special Operations Guard ("SOG"), Sergeant Schaeffer, entered Mark Green's cell "and pushed Green's head into the wall, splitting open his lip." Second Am. Compl. PP 19-20. The Second Amended Complaint further states that, on August 14, 1997, "Schaeffer rammed Green's head into a metal box on the wall twice" while transferring Green to administrative segregation. Id. P 22. At the same time, Correctional Officer ("CO") Moore "punched [Green] in the face and his head hit the wall," all this while "Green was naked and handcuffed." Id.

 Another example makes it clear that Plaintiffs have alleged more than sufficient detail to provide Moving Defendants with the requisite level of specificity. On August 30, 1997, several SOGs entered the cell of Jason Phillips (a.k.a. Andrew J. Phillips, II), because he had on boots and socks, despite an order from prison officials that all prisoners wear only slippers. One officer repeatedly told Phillips to apologize for the death of Officer Baker. After Phillips did not "say 'I'm sorry, Mr. Officer' loud enough, a second, larger SOG officer . . . hit plaintiff Phillips twice with his baton and punched him, again on the right side until Phillips fell down into a squat position." Second Am. Compl. P 25. Later that day, Phillips was handcuffed and "told to get on his knees. He was then hit with a black jack, kicked in his side and had his face pushed twice into a metal mesh cage (where weights were stored)." Id. P 27. After this beating, Phillips was returned to his cell, where he was left naked for about an hour. See id. P 28. He was then given underwear "but remained from July 31 to August 4, 1997 with just his underwear and a dirty sheet to sleep on, which was given to him by his cell-mate." Id. Phillips did not receive pants until August 4, and he did not get a mattress until August 8, 1997. See id.

 According to the Second Amended Complaint, the alleged abuse of Phillips did not end there. On August 5, 1997 Phillips was revisited by SOG officers, who "punched, kicked and hit [him] with a black jack and was told by one officer that if he did not plead guilty to [disciplinary] charges," the abuse would continue. Id. P 29. At the disciplinary hearing later that day, Phillips did plead guilty. See id. Nonetheless, upon returning Phillips to his cell after the hearing, "he was once again assaulted, kicked and hit with the baton. One of the officers got on his bed and poured orange juice on top of Phillip's head and back and told him that his new name was OJ." Id. P 30.

 Nonetheless, Moving Defendants argue that the Plaintiffs fail "to make any specific allegation against any named defendant." *fn8" Moving Defendants' Brief at 9. First, this is inaccurate in the context of the Second Amended Complaint, which repeatedly provides the names of prison guards. See, e.g., Second Am. Compl. PP 6, 11, 19-22, 45, 49, 56, 74. Second, Plaintiffs' inability to name specific guards as the perpetrators of the alleged beatings results from the fact that many of the inmates were beaten with their faces to the ground or wall. See, e.g., id. PP 41, 62. Assuming the truth of these allegations, surely, Plaintiffs' Second Amended Complaint cannot be dismissed because the perpetrators of the alleged assaults took steps to conceal their identities. Third, Moving Defendants possess information about which guards were on duty in particular units on particular days. Plaintiffs can only obtain this information through discovery. *fn9" Finally, even a pleading standard of heightened specificity does not require perfect specificity. Plaintiffs have supplied sufficient information to put the Moving Defendants on notice of the Plaintiffs' claims. With minimal investigation, Moving Defendants will likely be able to ascertain the names of those individuals who are alleged to have participated in the beatings described by the Plaintiffs in the Second Amended Complaint.

 B. Exhaustion of Administrative Remedies

 With respect to Plaintiff, Laverna White ("White"), the Moving Defendants argue that White failed to exhaust his administrative remedies in appealing his disciplinary sanctions, which were allegedly based on false charges. Moving Defendants further contend that, pursuant to the PLRA, this Court must dismiss the claims of false disciplinary charges, for failure to exhaust administrative remedies. Additionally, "district courts should enforce the exhaustion requirement sua sponte if not raised by the defendant." Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998). Sua sponte, this Court also notes that the PLRA arguably may apply to all of the claims made by all of the plaintiffs in the Second Amended Complaint.

 Upon closer examination, however, I conclude that the PLRA only applies to Plaintiffs' claims alleging unconstitutional prison conditions and threats of retaliation. Additionally, for the reasons set forth below, I conclude that the PLRA does not require exhaustion where the "available" administrative ...

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