United States District Court, D. New Jersey
August 4, 2005.
SHAKEEL DAWUD, Plaintiff,
MURRAY TALASNIK, et al., Defendants.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Plaintiff Shakeel Dawud, a.k.a. Terrance Harris, formerly
incarcerated at the Atlantic City Justice Facility, brought a
civil rights action pursuant to 42 U.S.C. § 1983 against various
defendants alleging the following claims: (1) failure to protect;
(2) denial of recreation and visitation privileges; (3) denial of
access to the law library; and (4) denial of transfer to another
facility. Subsequently, this Court issued an Opinion dismissing
all of Plaintiff's claims except the constitutional claim alleging that Defendants failed to protect Plaintiff from harm in
violation of the Eighth Amendment. Presently before the Court is
Defendants' motion for summary judgment seeking dismissal of the
remaining claim. For the reasons set forth below, the motion will
Plaintiff Shakeel Dawud is currently incarcerated at the
Riverfront State Prison in Camden, New Jersey serving two
concurrent sentences for assault, possession of a firearm and
heroin and cocaine possession with intent to distribute. (Def.
Br. at 4.) Previously, Plaintiff was incarcerated in the general
population at the Atlantic County Justice Facility ("ACJF").
(Compl. at 7.) On May 15, 2002, Mr. Dawud was asked by the
Atlantic City Prosecutor's Office to testify in a high profile
murder trial. (Def. Br. at 5.) The following day, Plaintiff
claims that his picture appeared on the front page of the
Atlantic City Press with details of his trial testimony
accompanying the picture. (Id.) Plaintiff alleges that on the
night of May 16, 2002, he fought another inmate after the inmate
read the Atlantic City Press article and concluded that Mr. Dawud
was a "snitch." (Pl. Opp. at 5.) Mr. Dawud was charged with
"disruptive behavior and/or activity" and "threats to other
inmates," according to the ACJF's "Notice of Assignment to High
Security Status." (Def. Ex. J.) The ACJF officials reassigned him to high security status on May 17, 2002, following the fight
due to his "fighting with another inmate, disrupt[ing] the
housing unit and endanger[ing] other inmates in the area."
In response, on May 20, 2002, Mr. Dawud wrote a note to the
Classification Committee admitting his role in the fight with
inmate Emory Chapman, who had exchanged words with him earlier
that day because Dawud "snitched" on his friends. (Def. Ex. L.)
He claimed that Chapman took a swing at him and missed, and that
he responded by defending himself and hitting back, ignoring the
directive of a sergeant that he stop, and rationalizing his
conduct as being "due to the built up pressure and stress as a
direct result of having to testify and relive a situation I try
and forget." (Id.) Dawud sought return to normal custody,
apologizing for his actions and stating he was "sincerely
On May 24, 2002, Plaintiff was transferred from Pod I, a
maximum security unit, to Pod G, a medium security unit. (Def.
Br. at 2.) Defendants maintain that Mr. Dawud was transferred as
a result of his requests to transfer from the high security pod.
(Def. Br. at 2.) Plaintiff alleges that Pod G was "one of the
most volatile housing units in the ACJF." (Pl. Opp. at 5.)
Shortly after Plaintiff's transfer, Plaintiff was again
involved in a fight with other inmates on May 24, 2002. (Def. Ex.
M.) Defendants maintain that Plaintiff grabbed a broom and began swinging it at the other inmates. (Id.) As a result, one
inmate picked up a chair and used it as a shield. (Id.)
Defendants assert that, according to official accounts of the
incident, Plaintiff was clearly the aggressor and instigator of
the incident. (Def. Br. at 2.) However, Mr. Dawud contends that
he was assaulted by several inmates and stabbed in the head with
an unknown object, resulting in an injury requiring several
stitches. (Pl. Opp. at 5.)
The incident report includes eyewitness statements from Officer
Voss and from the inmate dorm representative Richard Davis. (Def.
Ex. M.) According to Officer Voss, Mr. Dawud was being
transferred into the medium security unit in Pod G-Left when an
argument erupted and Dawud grabbed a broom in the day space and
started to swing it first at the inmate with whom he had argued,
and then at all inmates who were in the area near the sally port.
(Id.) One inmate used a chair as a shied against Dawud, who
swung and broke the broom into pieces retrieved by the officer.
(Id.) According to inmate representative Davis, it was Dawud
who picked up the broom, and said "I'll kick everyone's ass."
(Id.) The inmate with the chair started to back Dawud into the
sally port, and Dawud pushed back and re-entered the day space
(leaving the relative safety of the sally port and emerging back
into the fray that he had initiated), according to Officer Voss.
(Id. at 2.) Dawud was taken for medical treatment for bleeding on his head, was interviewed, and refused to give
information. (Id. at 1.) He was immediately placed into
protective custody status by Officers Ford and Krick. (Id.)
Just two days later, on May 26, 2002, Mr. Dawud again wrote to
the Classification Committee seeking to be moved out of
protective custody in Pod I and back into the general population
of Pod F. (Def. Ex. P.) This request for reassignment to the
general population was denied by Warden Merline, according to the
notation made thereon. (Id.) Even if Plaintiff's recent version
of the May 24th attack is accepted for purposes of this motion,
the precise happenings in this attack are not material. The
dispositive fact, which is not disputed, is that this transfer
was brought about at Plaintiff's own request and despite
Plaintiff's knowledge that the news article had been the source
of friction directed at him just eight days earlier.
On March 1, 2004, Plaintiff brought a civil rights action
pursuant to 42 U.S.C. § 1983. This Court subsequently dismissed
Mr. Dawud's Complaint, in part. The only surviving claim against
Defendants, Merline, Gregg and John Doe, is the allegation that
they failed to protect Plaintiff in violation of his
Eighth Amendment constitutional rights.*fn1 Defendants now move for summary judgment alleging that: (1) Plaintiff failed to prove a
constitutional violation regarding his failure to protect claim;
(2) Defendants cannot be held vicariously liable; (3) Defendants
are immune from Plaintiff's claim under qualified immunity; (4)
Plaintiff failed to exhaust administrative remedies; and (5)
Plaintiff failed to demonstrate an official policy regarding his
asserted constitutional claim. (Def. Br. at 4.) Each of
Defendants' arguments will be evaluated in turn.*fn2
II. STANDARD OF REVIEW
Summary judgment is appropriate when the materials of record
"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." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party." See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it
might affect the outcome of the suit under the applicable rule of
law. Id. Disputes over irrelevant or unnecessary facts will not
preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact,
the court must view the evidence in favor of the nonmoving party
by extending any reasonable favorable inference to that party; in
other words, "the nonmoving party's evidence `is to be believed,
and all justifiable inferences are to be drawn in [that party's]
favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting
Anderson, 477 U.S. at 255). The threshold inquiry is whether
there are "any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be
resolved in favor of either party." Anderson, 477 U.S. at 250.
The moving party always bears the initial burden of showing
that no genuine issue of material fact exists, regardless of
which party ultimately would have the burden of persuasion at
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). "[T]he burden on the moving party may be discharged by
`showing' that is, pointing out to the district court that
there is an absence of evidence to support the nonmoving party's
case." Celotex Corp., 477 U.S. at 325.
The nonmoving party "may not rest upon the mere allegations or
denials of" its pleading in order to show the existence of a
genuine issue. Fed.R.Civ.P. 56(e). Plaintiff must do more than rely only "upon bare assertions, conclusory allegations or
suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985),
cert. denied, 474 U.S. 1010 (1985) (citation omitted). Thus,
if the plaintiff's evidence is a mere scintilla or is "not
significantly probative," the court may grant summary judgment.
Anderson, 477 U.S. at 249-50.
A. Constitutional Violation
The Eighth Amendment to the United States Constitution,
applicable to individual states through the Fourteenth Amendment,
prohibits states from inflicting "cruel and unusual punishments"
on those convicted of crimes. Rhodes v. Chapman, 452 U.S. 337,
344-346 (1981). Cruel and unusual punishment is the "unnecessary
and wanton infliction of pain contrary to contemporary standards
of decency." Helling v. McKinney, 509 U.S. 25, 32 (1993). It is
well settled that "the treatment a prisoner receives in prison
and the conditions under which he is confined are subject to
scrutiny under the Eighth Amendment." Id. at 31.
In order to make out an Eighth Amendment claim, an inmate must
allege both an objective and subjective component. Wilson v.
Seiter, 501 U.S. 294, 298 (1991). The objective component
mandates that "only those deprivations denying `the minimal
civilized measure of life's necessities' . . . are sufficiently
grave to form the basis of an Eighth Amendment violation." Helling, 509 U.S. at 32 (quoting Rhodes, 452 U.S. at 346).
This component requires that the deprivation sustained by an
inmate be sufficiently serious, for only "extreme deprivations"
violate the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1,
Under the subjective component, an inmate must prove that a
prison official acted with deliberate indifference "to a
substantial risk of serious harm." Farmer v. Brennan,
511 U.S. 825, 828 (1994). A prison official acts with deliberate
indifference if "the official knows of and disregards an
excessive risk to inmate health or safety." Id. at 837. Thus, a
prison official must "both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference." Id.
However, negligent failure to protect an inmate from an attack
by another inmate does not justify liability under
42 U.S.C. § 1983. Davidson v. Cannon, 474 U.S. 344, 347-348 (1986). Indeed,
to be found liable under the Eighth Amendment, a prison official
must have a "sufficiently culpable state of mind." Farmer,
511 U.S. at 834 (quoting Wilson, 501 U.S. at 297). Whether a prison
official had the requisite state of mind is a question of fact
which can be established through inferences or because the risk
to an inmate was obvious. Id. at 842.
Here, Defendants argue that they were not subjectively aware of
a substantial risk of serious harm to Plaintiff because they were not aware of any additional request for protection made by
Plaintiff. (Def. Br. at 12.) In fact, the evidence shows that
Plaintiff consistently sought less restrictive housing and escort
services. On May 2, 2002 and May 18, 2002, Plaintiff requested
that he be removed from escort status. (Def. Ex. N; Def. Ex. O.)
Then, in a letter dated May 26, 2002, Mr. Dawud asked to be
removed from his current location in a maximum security pod.
(Def. Ex. P.) On June 16, 2002, Plaintiff again requested that he
be removed from the maximum security pod and noted that there
were "several units which [he could] be placed on with no
problems." (Def. Ex. Q.) Indeed, Mr. Dawud even stated that he
would sign a waiver stating that the ACJF would not be liable for
any problems that may occur as a result of his transfer and even
threatened litigation if his pod location did not change by a
specified date. (Id.)
Despite all of the above, Plaintiff contends that Defendants
were deliberately indifferent to a substantial risk of serious
harm to Plaintiff because they "willfully ignored" threats to his
safety. (Pl. Opp. at 12.) Furthermore, Plaintiff argues that
Defendants should have inferred that it was unsafe for Plaintiff
to be placed in the general inmate population due to his
testimony in the triple homicide trial. (Id.)
However, Plaintiff's allegations are insufficient to withstand
a motion for summary judgment. Mr. Dawud's requests for less restrictive housing and removal from escort status
indicate that he did not believe that his safety was threatened
and that he requested the transfer to the general population of
which he now complains. Furthermore, even if the Defendants were
negligent in transferring Plaintiff to a different pod or
removing him from escort status, as per his request, this is
insufficient to establish a claim of deliberate indifference
under the Eighth Amendment. Since Plaintiff has failed to provide
this Court with any evidence that Defendants knew of and
disregarded a risk of substantial harm to Plaintiff, Defendants'
motion for summary judgment will be granted.
B. Vicarious Liability
In order for a prisoner to state a claim under
42 U.S.C. § 1983, the prisoner must allege "specific conduct by state
officials which violates some constitutional right."
Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d Cir. 1970). Prison
officials holding supervisory positions may be held liable if
they have "direct responsibility for the actions of the employees
who engage in misconduct." Rizzo v. Goode, 423 U.S. 362,
375-376 (1976). Supervisory liability can be show in two ways,
"either `through allegations of personal direction or of actual
knowledge and acquiescence.'" Andrews v. City of Philadelphia,
895 F.2d 1469, 1478 (3d Cir. 1990). Here, Defendants argue that Plaintiff failed to provide any
evidence that Defendants Warden Merline or Captain Gregg were
directly involved in the alleged violation of Plaintiff's
constitutional rights. (Def. Br. at 14.) Plaintiff has not
specified any acts of Defendants, or submitted any documents,
which may indicate that Defendants Merline or Gregg knew of
Plaintiff's alleged complaints about his safety. (Id.) Further,
Plaintiff does not recall specific encounters or meetings with
Warden Merline regarding Plaintiff's safety concerns. (Id.)
Since Mr. Valerio has failed to provide this Court with evidence
of Defendants' direct involvement in any alleged acts which
violate his constitutional rights, Defendants' motion for summary
judgment will be granted.
C. Qualified Immunity
"Qualified immunity strikes a balance between compensating
those who have been injured by official conduct and protecting
government's ability to perform its traditional functions."
Wyatt v. Cole, 504 U.S. 158, 167 (1992). Courts recognize
qualified immunity for government officials when it is necessary
to "preserve their ability to serve the public good or to ensure
that talented candidates [are] not deterred . . . from entering
public service." Id. In short, qualified immunity acts to
safeguard the government and protect the public at large. Id. In determining whether a defendant is entitled to qualified
immunity, this Court must consider: (1) whether the plaintiff
alleged a constitutional violation; (2) whether the alleged
violated right was clearly established in existing law at the
time; and (3) whether the official knew or should have known that
the alleged action violated the plaintiff's constitutional
rights. Rouse v. Plantier, 182 F.3d 192, 196-197 (3d Cir.
1999). When a defendant asserts a defense of qualified immunity
on a motion for summary judgment, "the plaintiff bears the
initial burden of showing that the defendant's conduct violated
some clearly established statutory or constitutional right. Only
if the plaintiff bears this initial burden must the defendant
then demonstrate that no genuine issue of material fact remains."
Donahue v. Gavin, 280 F.3d 371, 378 (3d Cir. 2002).
Here, Plaintiff alleges that Defendants violated his
constitutional rights by failing to protect him. While Plaintiff
correctly asserts that inmates are afforded constitutional
protections while incarcerated, he fails to provide sufficient
evidence that Defendants acted in such a manner as to violate
these established rights. Plaintiff himself believed he was safe,
even after the May 16th publication of the news article, in the
general population. If follows that a reasonable officer in
Defendants' position under these circumstances could reasonably
believe that the decision to return Plaintiff to the general population on May 24th was not a violation of the duty to protect
from a known risk of harm. Since Plaintiff cannot merely rely on
conclusory allegations to withstand a motion for summary
judgment, Defendants' motion for summary judgment on the basis of
qualified immunity will be granted.
D. Administrative Remedies
Under, the Prison Litigation Reform Act ("PLRA") "no action
shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison or other correctional facility until
such administrative remedies as are available are exhausted."
42 U.S.C. § 1997e(a). Complaints that corrections officers failed to
protect an inmate from another prisoner involve "prison
conditions" within the meaning of PLRA because they "concern
everyday aspects of an inmate's life in prison." Brady v.
Attygala, 196 F. Supp. 2d 1016, 1019 (D. Cal 2002) (citing
Porter v. Nussle, 534 U.S. 516 (2002) ("The PLRA's exhaustion
requirement applies to all inmate suits about prison life.")).
The PLRA's exhaustion requirement 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, 534 U.S. at 532. Furthermore,
exhaustion of all administrative remedies is mandatory whether or
not the inmate believes such administrative remedies to be effective. Booth v. Churner, 206 F.3d 289, 300
(3d Cir. 2000). Specifically, in Massey v. Wheeler,
221 F.3d 1030, 1034 (7th Cir. 2000), a prisoner's assertions that there
are "no available administrative remedies" and, alternatively,
that "any administrative remedies that are claimed to exist are
in fact a sham" did not excuse prisoner from the statutory
Here, Defendants contend that Mr. Dawud received a handbook
upon arrival at the ACJF which stated that a "prisoner may file a
complaint regarding the conditions of his or her confinement and
may appeal any decision to the warden of the facility." (Def. Br.
at 19.) However, Defendants argue that Plaintiff did not file an
administrative complaint and therefore failed to comply with
PLRA's exhaustion requirement. (Id.) Plaintiff contends that
his "fervent and passionate letters throughout his stay in the
ACJF stand as an effective exhaustion of [the] administrative
remedies" available to him. (Pl. Opp. at 14.) Further, Mr. Dawud
contends that his "administrative efforts have gone unheeded" and
that the administrative process is "invariably flawed" and thus,
difficult for a inmate to prevail under the system. (Id.)
As noted supra, the statutory exhaustion requirement is
mandatory regardless of an inmate's belief as to the
effectiveness of the process. Furthermore, Plaintiff failed to provide this Court with any evidence of his attempts to avail
himself of the administrative process. Under Concepcion v.
Morton, 306 F.3d 1347 (3d Cir. 2002), the PLRA's exhaustion
requirement applies to grievance procedures in an inmate
handbook. According to the ACJF handbook, a prisoner may file a
complaint regarding the conditions of his or her confinement and
should appeal any decision directly to the warden of the
facility. (Def. Br. at 19.) Plaintiff's letters, dated May 26,
2002 and June 16, 2002, do not amount to grievances for purposes
of exhaustion because there is nothing in the letters that
accuses prison officials of failing to protect him from the May
24, 2002 retaliation. To the contrary, his letters asked the ACJF
to move him back into the general population because he saw no
danger in being transferred to a less secure pod. Even if such
letters were considered a grievance, Plaintiff acknowledged that
he did not file an appeal with the warden of the facility. (Def.
Ex. C 115:19-25; 116:1-2.) Since Mr. Dawud failed to properly
avail himself of the administrative process, his failure to
protect claim will be dismissed pursuant to 42 U.S.C. § 1997e(a).
E. Prison Policy
A municipality can only be liable under 42 U.S.C. § 1983 when
"the alleged constitutional transgression implements or executes
a policy, regulation or decision officially adopted by the governing body or informally adopted by custom." Beck v.
City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citing
Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658
(1978)). A government policy is made "when a `decisionmaker
possess[ing] final authority to establish municipal policy with
respect to the action' issues an official proclamation, policy or
edict." Id. (quoting Andrews, 895 F.2d at 1480). Conduct
constitutes custom "when, though not authorized by law, `such
practices of state officials [are] so permanent and well-settled'
as to virtually constitute law." Id. (quoting Andrews,
895 F.2d at 1480).
Here, Plaintiff fails to allege that a policy or custom of
Atlantic County caused or contributed to the alleged
constitutional violation. In fact, Atlantic County has adopted
policies and procedures that address inmate safety. Specifically,
Atlantic County has adopted a classification policy which places
inmates in housing based on an "objective classification system."
(Def. Ex. D.) Through this system, a custody level minimum,
medium or maximum is assigned to each inmate and the inmate is
then accordingly placed into an assigned area. (Id.) Under this
policy, classification and reclassification is an ongoing process
which can occur at various intervals during an inmate's
incarceration. (Id.) The goal of the classification system is
to "reduce conflicts among inmates and minimize management difficulties between inmates and
personnel in the facility." (Id.)
The classification policy at ACJF does not violate Mr.
Valerio's constitutional rights because it seeks to protect
inmates. Thus, Plaintiff failed to provide this Court with
evidence of a custom or policy that contributed to the alleged
constitutional violation. Since Mr. Valerio cannot withstand a
motion for summary judgment by merely relying on the asserted
allegations in his pleadings, Defendants' motion for summary
judgment will be granted.
For the reasons expressed in this Opinion, the motion for
summary judgement by Defendants Warden Merline and Captain Gregg
will be granted.