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RIVERA v. WHITMAN
August 17, 2001
PETER JOE RIVERA, PLAINTIFF,
CHRISTINE TODD WHITMAN, JACK TERHUNE, DONALD E. LEWIS, M. SCHILLING, SGT. KERSHAW, S.C.O. PEREZ, STANLEY NUNN, SGT. WARREN, S.C.O. SHARP, S.C.O. MCCONNELLY, T. LOPEZ, JAMES F. BARBO, S.C.O. SCHWENK, S.C.O. WASICK, DEFENDANTS.
The opinion of the court was delivered by: Irenas, District Judge:
Presently before the Court is Defendants' Motion for Summary Judgment
of Plaintiff Peter Joe Rivera's § 1983 action. This Court has
jurisdiction over this matter pursuant to 28 U.S.C. § 1331, 1343.
For the reasons set forth below, Plaintiffs' suit is dismissed without
Peter Joe Rivera ("Plaintiff") is an inmate presently incarcerated at
Northern State Prison in Newark, New Jersey. He brought this action
pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional
rights. Plaintiff named seventeen defendants in this action, including
Christine Todd Whitman, then-Governor of New Jersey; Jack Terhune,
the New Jersey Department of Corrections; Donald E.
Lewis, Administrator of Riverfront State Prison ("RSP"); W. Stanley
Nunn, Administrator of Southwoods State Prison ("Southwoods"); James F.
Barbo, Administrator of Northern State Prison ("NSP"); Correctional
Medical Services; three RSP corrections officers, Lieutenant M.
Schillig, Sergeant Kershaw and Officer Perez; two Southwoods corrections
officers, Sergeant Warren and Officer Sharp; three NSP corrections
officers, Lieutenant T. Lopez and Officers Schwenk and Wasik; S.
Larkins, a disciplinary hearing officer at NSP; and Chief Hearing Officer
McNeil of the New Jersey Department of Corrections. (Compl. 5-5k). The
claims against defendants Whitman, Larkins, McNeil, and Correctional
Medical Services, Inc., have already been dismissed. (See Orders
3/25/99, 6/22/99, 2/8/00).
Plaintiff asserts that on May 27, 1998, while he was incarcerated at
RSP, he was assaulted by defendants Perez and Kershaw, while Lieutenant
Schillig witnessed the incident but refused to intervene. (Compl.
6(c)-(e)). Defendants counter that, in preparing to escort Plaintiff to
TCC, they merely used necessary force after Plaintiff resisted being
handcuffed. (Defs.' Mot. Summ. J. Ex B. at ¶ 3). Plaintiff alleges
that he sustained cuts and bruises all over his body during the assault.
(Compl. at 6(c)). He claims that once he was in the detention unit, the
corrections officers there called the medical staff to care for his
injuries. (Id. at 6(f)). Rivera maintains that, after thirty minutes, a
nurse arrived and interviewed him through the detention cell's soundproof
door. (Id.). He states that the nurse would not treat his injuries, but
told him to wait until he was released from the detention area. (Id.).
Plaintiff alleges that the medical staff knew he had serious injuries but
refused to treat him in retaliation for a lawsuit plaintiff had
previously filed against an RSP physician. (Id. at 6(g)). Defendants
maintain that Plaintiff had only minor superficial abrasions. (Defs.'
Mot. Summ. J. Ex. C at D001).
Plaintiff was transferred to Southwoods in June of 1998. (Compl.
6(i)). He claims that many items of his personal property were lost
during the transfer and that property he sent to his family never
arrived. (Id. at 6(j)). Plaintiff also complains about the conditions
of his confinement after his transfer. (Id. at 6(i)-6(j)). Defendants
claim this complaint was resolved by a member of the warden's staff.
(Defs.' Mot. Summ. J. Ex. D at ¶ 2). Plaintiff next asserts that, on
July 31, 1998, Defendants Sergeant Warren and Officer Sharp along with a
group of other officers beat him as he was leaving the dining hall.
(Compl. 6(k)). Defendants counter that they confronted Plaintiff after
he was observed to have bulges in his front pockets, and restrained him
after he assaulted Warren, one of the confronting officers. (Defs.'
Mot. Summ. J. Ex. E at D004-D007). Plaintiff further alleges that medical
personnel again refused to provide treatment following the incident.
(Compl. 6(h)). Again, Defendants claim he suffered only minor
abrasions. (Defs.' Mot. Summ. J. Ex. C. at D002).
Plaintiff was transferred to NSP on or about August 2, 1998. (Compl.
6(m)-(n)). He claims that the transporting officer, McConnelly,
terrorized him throughout the trip to NSP. (Id. at 6(m)). He also
alleges that he was denied a meal when he arrived and was denied a
sanitary cell as well as clothes and cleaning supplies. (Id. at
6(n)-(o)). Plaintiff further maintains that he was abused by Wasik and
Schwenk once they learned that he had assaulted Warren at Southwoods.
(Id. at 6(p)-(v)). Plaintiff also included various complaints about the
law library services at NSP. (Id. at 6(r)-(s)).
Plaintiff contends that, during his disciplinary hearing on August 3,
1998, vis a vis his assault on Warren, he was denied his right to
cross-examine witnesses and that the hearing officer overlooked
evidence. (Compl. 6(x)-(y)). Plaintiff was found guilty on the
disciplinary charges, a decision upheld on appeal. (Defs.' Mot. Summ. J.
On March 25, 1999, Plaintiff filed the instant action pursuant to
§ 1983 alleging violations of his constitutional rights under the
First, Eighth, and Fourteenth Amendments. On June 29, 2001, Defendants
filed this Motion for Summary Judgment.
"[S]ummary judgment is proper `if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting Fed.R.Civ.P. 56(c)).
In deciding a motion for summary judgment, the Court must construe the
facts and inferences in a light most favorable to the non-moving party.
Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.
1986). The role of the court is not "to weigh the evidence and determine
the truth of the matter, but to determine whether there is a genuine
issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
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