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December 21, 2000


The opinion of the court was delivered by: Will Wolfson, United States Magistrate Judge.


In this prisoner civil rights litigation, defendants, Wihis Morton, Larry Cole, William Seilnow, George Phillips, James Gorman, and Robert Richter, have moved for summary judgment on all claims, pursuant to FED. R. Civ. P. 56(b). Defendants assert that judgment is appropriate because plaintiffs have failed to exhaust their administrative remedies and further, that their civil rights claims fail as a matter of law. The parties have consented to disposition of this case by a United States Magistrate Judge, pursuant to 28 U.S.C. § 636 (c). This Court, having reviewed the moving, opposition, and reply papers, as well as having heard oral argument from counsel on September 18, 2000, denies defendants' motion based upon exhaustion of administrative remedies, but grants in part and denies in part defendants' motion for summary judgment on plaintiffs' civil rights claims.

Factual Background

On August 6, 1998, plaintiffs Victor Concepcion ("Concepcion") and Anthony Ways ("Ways"),*fn1 inmates in the New Jersey State Prison ("NJSP"), commenced this action against various corrections officers and officials asserting that their civil rights, under 42 U.S.C. § 1983, were violated by these defendants through the exercise of excessive force during two separate incidents on August 18, 1997. Violations of the Fifth, Eighth, and Fourteenth Amendments are alleged. See Plaintiffs' Second Amended Complaint ¶¶ 11-26. In connection with this motion, each side has submitted a statement of uncontested facts, but the parties disagree on the pertinent facts surrounding the incidents which form the bases of plaintiffs' excessive force claims.*fn2

Concepcion Incident

According to the deposition testimony of Concepcion, on August 18, 1997, defendant Senior Corrections Officer Sellnow ("Sellnow") opened the cells on the second level of two tier, where Concepcion was housed, to permit the inmates to proceed to the cafeteria for morning breakfast (i.e. "morning mess"). See Concepcion Dep. Tr. 41-7 to 11, 43-17 to 22. After Concepcion exited his cell and as he saw Seilnow approach him in the narrow hallway, Concepcion turned to the side to enable Sellnow pass, but Sellnow "rammed his shoulder" into Concepcion's left shoulder. See Concepcion Dep. Tr. at 43-19 to 44-15. Concepcion asked Sellnow what the problem was and then simultaneously they began "swinging at each other right there." Concepcion Dep. Tr. 46-23 to 47-9. Concepcion has admitted to hitting Sellnow, which resulted in four stitches to his forehead, while Concepcion was not bleeding from the incident. Concepcion Dep. Tr. 48-20 to 22, 50-11 to 16; see Bird Aff., Exhibit 4, Sellnow Dep. Tr. 28-15 to 23.

Upon seeing the melee from a nearby desk, defendant Sergeant Cole ("Cole") called a "Code 33," which indicates that a fight has erupted. See Concepcion Dep. Tr. 50-17 to 23. Concepcion alleges that approximately 30 to 40 officers, lead by Cole, responded by running toward him and that he reacted by running the opposite way and then jumping from the second floor to the first floor, which is approximately a twelve-foot drop. See Concepcion Dep. Tr. 58-18 to 52-4, 52-25 to 53-21. Senior Corrections Officer Steven Gass ("Gass"), who was Sellnow's partner on that particular day, testified that he observed Sellnow fall backwards after Concepcion hit him, and that he saw Concepcion flee from the fight. See Bird Aff., Exhibit 6, Gass Dep. Tr. 14-2 to 4. Gass pursued Concepcion by jumping over the second floor railing. See Bird Aff., Exhibit 6, Gass Dep. Tr. 15-23 to 16-1. Gass further contends that Concepcion kept running on the first floor but that he cornered Concepcion "between the heater vent and the wall" on the first floor and was then able to restrain him. See Bird Aff., Exhibit 6, Gass Dep. Tr. 16-1 to 5.

Defendant Corrections Officer Phillips ("Phillips") also responded to the Code 33. See Bird Aff., Exhibit 7, Phillips Dep. Tr. 10-11 to 13. Upon seeing Sellnow's injuries, Phillips pursued Concepcion to the first floor. See Bird Aff., Exhibit 7. Phillips Dep. Tr. 10-20 to 11-5, 12-12 to 14. Several inmates were out of their cells at the time of pursuit because they were proceeding to morning mess. See Bird Aff., Exhibit 7, Phillips Dep. Tr. 12-17 to 20. Phillips helped restrain and handcuff Concepcion. See Bird Aff., Exhibit 7, Phillips Dep. Tr. 13-2 to 10. Concepcion contends that he was assaulted by Cole and Phillips after he was restrained; specifically, Concepcion alleges that Cole kicked him in his face, and that Phillips placed his night stick in between Concepcion's handcuffs and twisted, thereby cutting his skin and lifting Concepcion off of his feet, as well as "ramm[ing] his head into the cement wall." Concepcion Dep. Tr. 61-15 to 19, 64-4 to 65-7. Cole, Phillips, and two other officers subsequently escorted Concepcion to the medical clinic, and then to a detention cell on "one left." Concepcion Dep. Tr. 68-15 to 17, 73-16 to 21. Once in the detention cell, Concepcion claims that Phillips hit him on his "upper left forehead" with his night stick. Concepcion Dep. Tr. 78-18 to 24.

As a result of this incident, Concepcion was charged with violating N.J. ADMIN. CODE tit. 1OA, § 4-4.1(a).*002, Assaulting Any Person. See Knowles Aff. ¶ 4. A disciplinary hearing was held and on August 29, 1997, Concepcion was found guilty, and was thereby sanctioned to "15 days detention, 360 days loss of commutation time and 365 days administrative segregation." Knowles Aff. ¶ 4, Exhibit A. Concepcion appealed the ruling to Administrator Hendricks, who upheld the decision. See Concepcion Dep. Tr. 97-17 to 20. No further appeals were taken. See Concepcion Dep. Tr. 97-21 to 98-6.

Ways Incident

On August 18, 1997, following lunch, inmate Ways exited the prison cafeteria through the holding cage with approximately 30 other inmates waiting to go through the metal detector. See Ways Dep. Tr. 24-9 to 25. Inmates must pass through the metal detector into the center rotunda, and then move to their respective hallways (i.e. "wings"), which contain the prisoners' cells. See Ways Dep. Tr. 24-19 to 25. Ways has testified that approximately twenty to twenty-five inmates had exited from the holding cage through the metal detector before him, and that when he approached the rotunda he observed a commotion. See Ways Dep. Tr. 28-13 to 23. In Ways' own words, there was "commotion going on," "[p]eople was [sic] running, officers running, officers swinging sticks" all in the rotunda. Ways Dep. Tr. 26-17, 27-13 to 17. He further observed a male corrections officer and a female corrections officer down on the ground. See Ways Dep. Tr. 33-3 to 12. Ways asserts that as he attempted to negotiate through the melee to the six wing where he was housed, defendant Corrections Officer Richter ("Richter") approached him and punched him in the jaw. See Ways Dep. Tr. 37-1 to 16. According to Ways, he then reacted by pushing Richter's shoulder to block Richter's punch, which failed, and that consequently, Ways surrendered volitionally to Richter by dropping to the ground in a push-up position and was handcuffed. See Ways Dep. Tr. 37-9 to 17, 38-20 to 39-18. 40-11 to 20.

Once restrained, Ways was carried by defendant Corrections Officer Gorman ("Gorman"), Richter, and at least two other officers to the seven wing, where he was dropped face first, about three feet from the floor, and Richter kicked him once. See Ways Dep. Tr. 43-13 to 20, 45-18 to 46-15, 48-7 to 11. Ways alleges that he was treated for various injuries, including a fractured nose. See Ways Dep. Tr. 58-8 to 60-13.

Defendants assert that Ways attacked and broke the jaw of Officer Bleinstein, the female corrections officer who had fallen to the rotunda floor. See Defendants' Brief at 9 n.2. However, Ways denies that he struck Bleinstein, see Ways Dep. Tr. 74-1 to 18, despite the fact that he pled guilty in the New Jersey Superior Court to a charge of Criminal Aggravated Assault, N.J. STAT. ANN. § 2C: 12-1(b)(5) (West Supp. 1999), for the assault on Bleinstein. See Bird Aff., Exhibit 8, Ways' Face Sheet. Ways was also charged with three separate violations of N.J. ADMIN. CODE tit. 10A, § 4-4.1(a).*002, Assaulting Any Person, for his assault on Richter, Gorman, and Bleinstein. See Burton Aff. ¶¶ 4-5 Knowles Aff. ¶ 5 . A disciplinary hearing was held, and on August 26, 1997, a hearing officer found Ways guilty on all three charges. See Burton Aff. ¶¶ 4-5; Knowles Aff. ¶ 5. A disciplinary hearing was held, and on August 26, 1997, a hearing officer found Ways guilty on all three charges. See Burton Aff. ¶¶ 4-5; Knowles Aff. ¶ 5. He was thereby sanctioned to "30 days detention, 970 days loss of commutation time, 970 days administrative segregation, and 30 day loss of recreation privileges." See Burton Aff., Exhibits A, B; Knowles Aff, Exhibit B. Ways appealed the ruling to the prison administration, but the decision was upheld, see Ways Dep. Tr. 66-19 to 67-14, and similarly, his appeal to the Appellate Division of the New Jersey Superior Court was dismissed. See Ways Dep. Tr. 67-15 to 68-5.

Defendants have moved for summary judgment on the basis that Concepcion and Ways failed to avail themselves of the administrative remedy scheme set forth in the Inmate Handbook for the NJSP. See id. at 13. Plaintiffs oppose this motion by asserting that there are no administrative procedures or purported remedies for state prisoners to exhaust as evidenced by the failure of the New Jersey Department of Corrections ("NJDOC") to promulgate such an administrative procedure or remedy in the New Jersey Administrative Code. See Plaintiffs' Brief at 1. Defendants argue in the alternative, that if the Court finds in favor of the plaintiffs on the exhaustion issue, nonetheless summary judgment on plaintiffs' excessive force claims is warranted. See Defendants' Brief at 24-32.


A. Summary Judgement Standard

A court may enter summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED R. CIV. P. 56(c); Brooks v. Kyler 204 F.3d 102, 105 n.5 (3d Cir. 2000) (citing FED R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 305 (3d Cir. 1999) (citations omitted). Once the moving party has satisfied this initial burden, the opposing party must establish that a genuine issue exists by supplying "specific facts which demonstrate that there exists a genuine issue for trial." Orson, 79 F.3d at 1366.

Not every issue of fact will be sufficient to defeat a motion for summary judgment; issues of fact are genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). Further, the nonmoving party cannot rest upon mere allegations; he must present actual evidence that creates a genuine issue of material fact. See FED R. CIV. P. 56(e); Anderson, 477 U.S. at 249 (citing First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968). The Court must draw all reasonable inferences in the nonmoving party's favor, and must accept the party's evidence when considering the merits of the summary judgment motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).

In deciding a motion for summary judgment, it is not the Court's role to make findings of fact, but to analyze the facts presented and determine if a reasonable jury could return a verdict for the nonmoving party. See Brooks, 204 F.3d at 105 n.5 (citing Anderson, 477 U.S. at 249); Big Apple BMW v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). With this framework in mind, the Court shall analyze the facts of this case.

B. Exhaustion of Available Administrative Remedies

Defendants argue that summary judgment should be entered in their favor because plaintiffs did not exhaust administrative remedies that were available to them at NJSP, as required by the Prison Litigation Reform Act, ("PLRA"), 42 U.S.C. § 1997e(a) (Supp. 2000). In that regard, defendants maintain that the Inmate Handbook for NJSP provides an administrative remedy which was available for plaintiffs' excessive force complaints. A copy of page 46 of the Handbook, entitled "Administrative Remedy," is attached to the affidavit of Deputy Attorney General Stephen Bird. See Bird Aff., Exhibit 5. The Handbook states that submission of an Administrative Remedy Form to the Administrator's Office "give[s] the inmate population a way to bring complaints, problems, suggestions, etc. to the attention of the Administration of New Jersey State Prison to solve or possibly put into use." See id.

The process begins by the inmate submitting an"Administrative Remedy Form" to the Administrator's Office. See id. Upon receipt, the Department Head writes a response on the form; this response is signed by the Primary Level Supervisor and the Department Head; and the response is finally reviewed and signed by the Intermediate Level Supervisor as the Administrator's designee. See id. The inmate complaint form with the administrative response is then placed in the inmate's Classification folder and the prisoner is given a copy. See id. No administrative appeal is permitted. See id.

Defendants assert that the superintendent's remedy procedure at NJSP is authorized by regulations promulgated by the NJDOC, entitled "Inmate Orientation and Handbook, " N.J. ADMIN. CODE tit. 10A, § 8-1.1 to 3.6. These regulations authorize the superintendent to designate a staff person to develop the Handbook for the prison. N.J. ADMIN. CODE tit. 10A, § 8-3.1. The Handbook must explain the philosophy of the correctional facility, and include a description of the reception process, classification process, inmate correspondence, visits, telephone calls, inmate accounts, legal services, business activities, ombudsman, work opportunities, counseling opportunities, educational and religious services, substance abuse treatment, medical and dental care, clothing, recreation, hygiene, personal property, housekeeping, name change procedures, community release programs, video conferencing, and parole/expiration of sentence issues. N.J. ADMIN. CODE tit. 10A, § 8-3.5.*fn3 However, the regulations do not authorize a superintendent to establish an administrative grievance procedure.*fn4 Nor do the NJDOC regulations contain an administrative grievance procedure applicable to state inmates or specifically, to inmate excessive force complaints. Indeed, plaintiffs correctly point out in their brief that the NJDOC regulations expressly require county jails to adopt "written inmate grievance procedure[s] . . . which shall include at least one level of appeal," N.J. ...

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