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.
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
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.
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]
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
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
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
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. ...