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August 4, 2005.

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 be granted.


  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." (Id.)

  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 remorseful." (Id.)

  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


  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 ...

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