United States District Court, D. New Jersey
August 15, 2005.
THOMAS J. JONES, Plaintiff,
CORRECTIONS OFFICER M. SWAIN, CORRECTIONS OFFICER R. HICKS, SERGEANT DAVIS and MICHAEL MURPHY, Defendants.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
This matter comes before the Court on separate Motions for
Summary Judgment filed by Michael Murphy, the former Health
Services Administrator at the Camden County Correctional Facility
("CCCF"), and Corrections Officer M. Swain, Corrections Officer
R. Hicks and Sergeant Davis ("CCCF Defendants"). Plaintiff's
Complaint alleges civil rights violations pursuant to
42 U.S.C. § 1983. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.
For the reasons discussed herein, the Court grants both Motions
for Summary Judgment.*fn1 I. BACKGROUND
Plaintiff's allegations arise out of an altercation with CCCF
Corrections Officers on September 22, 2003, and his medical
treatment at CCCF following that incident. Plaintiff, a former
pretrial detainee at CCCF, alleges that on that date, Defendant
Swain insisted that Plaintiff eat from a breakfast tray that bore
another person's name. Compl. at 6; Plaintiff's Pretrial
Memorandum ("Pl. Pretrial Mem.") at 1. When Swain opened the door
to his cell, Plaintiff stepped out to show him that the tray
given to him was not his tray, and refused to get back in his
cell when Swain ordered that he do so. Compl. at 6. After
Plaintiff requested that Swain call the Sergeant, Swain allegedly
tried to grab Plaintiff, then aimed his mace at Plaintiff's face.
Id. Plaintiff then ran from Swain, and hit Swain with the
breakfast tray as he was running from him. Id.
Plaintiff ran through a gate to the sally port, locking the
gate behind him as he passed through. Once in the sally port,
Defendant Hicks threw Plaintiff to the ground and held him there
until someone opened the door for Swain in response to Swain's
request to "let me get him." Id. Sergeant Davis observed Hicks
holding Plaintiff down and handing him over to Swain. Id. Once
Swain had control of Plaintiff, he allegedly bumped him up
against the walls of the hallway and a steel corner off a doorway
while escorting him down the hall. Id. The incident left
Plaintiff unconscious, and with a cut above his eye that required
Plaintiff alleges that once he awoke, Swain escorted him to
Sergeant Davis' office. Id. Sergeant Davis then escorted
Plaintiff to the CCCF medical area, where he was cleaned up and
sent to Our Lady of Lourdes Medical Center for treatment. Id.
There, Plaintiff received stitches on his eye. Id. After
returning from the emergency room at Our Lady of Lourdes,
Plaintiff was kept in the medical area at CCCF for "several days," where he was
treated with antibiotics and analgesics. Affidavit of Michael
Murphy, R.N. ("Murphy Aff.") ¶ 5. Plaintiff was then transferred
to solitary confinement for 30 days based on the incident with
Swain. Compl. at 7.
Plaintiff asserts that despite repeated requests to the medical
department, the medical Director, and medical runners who pass
medicine to inmates, he was not taken out of solitary confinement
to have his stitches removed. Compl. at 7; Dep. Of Thomas J.
Jones, Exh. A to Murphy Motion for Summary Judgment at
71:1-73:15. Plaintiff's medical chart reflects that a nurse was
directed to remove his sutures on September 28, 2003. Murphy Aff.
¶ 6. Plaintiff's chart further notes that he refused treatment.
Id. The chart does not reflect that Plaintiff made any further
complaints about the wound or that he sought any additional
treatment. Id. ¶¶ 7-8. Murphy never met, saw or treated
Plaintiff during the time he was the Health Services
Administrator at CCCF, and received no grievance forms relating
to Plaintiff's medical care or treatment. Murphy Aff. ¶¶ 3-4.
Plaintiff contends that as a result of the September 22, 2003
incident, he sustained injuries including head trauma, eye
laceration, eye swelling, facial muscle damage, twisted right
knee ligaments, post traumatic emotional distress, temporary
double vision, neck pains, and serious headaches. Compl. at 11.
II. PROCEDURAL HISTORY
Plaintiff filed the instant Complaint on December 10, 2003,
naming as Defendants Warden David Owens, CCCF Medical Department,
Camden County Department of Corrections, Deputy Warden Berry and
Scibel Associates as Defendants, in addition to Swain, Hicks,
Davis and Murphy. By Order dated May 27, 2004, the Court sua
sponte dismissed Defendants Warden Owens, CCCF Medical Department, Camden County Department of
Corrections, Deputy Warden Berry and Scibel Associates. See
Jones v. Owens, et al., No. 03-5850 (D.N.J. May 27, 2004).
Plaintiff's remaining claims are that Swain and Hicks used
excessive force against him; that Hicks and Davis failed to
intervene and protect him from Swain; and that Murphy failed to
provide him with adequate medical treatment.
A. Summary Judgment Standard
Summary judgment is appropriate where there is no genuine issue
as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue of
material fact is one that will permit a reasonable jury to return
a verdict for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). To show that a genuine issue of
material fact exists, the nonmoving party may not rest upon mere
allegations, but must present actual evidence in support thereof.
Id. at 249 (citing First Nat'l Bank of Arizona v. Cities Svc.
Co., 391 U.S. 253, 290 (1968)). In evaluating the evidence, the
Court must "`view the inferences to be drawn from the underlying
facts in the light most favorable to the [nonmoving] party.'"
Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (quoting
Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir. 1999)).
The pleadings of pro se plaintiffs are to be construed
liberally. Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004)
(citing Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003)).
Thus, the Court will "apply the applicable law, irrespective of
whether the pro se litigant has mentioned it by name."
Dluhos, 321 F.3d at 369 (3d Cir. 2003) (citing Higgins v.
Beyer, 293 F.3d 683, 688 (3d Cir. 2002)).*fn2 However, even though pro
se pleadings are entitled to liberal construction, the Plaintiff
must still set forth facts sufficient to survive summary
judgment. Kaiser v. Bailey, 2003 WL 21500339 at * 3 (D.N.J.
July 1, 2003).
B. Exhaustion of Administrative Remedies
Murphy and the CCCF Defendants argue that Plaintiff's claims
must be dismissed because he did not exhaust all available
administrative remedies prior to filing a civil complaint, as
required by the Prison Litigation Reform Act,
42 U.S.C. § 1997e(a). The PLRA provides:
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
42 U.S.C. § 1997e(a).
A prisoner is required to exhaust all available administrative
remedies prior to filing a complaint, even if the administrative
process does not provide for the type of relief Plaintiff,
desires, such as money damages. Porter v. Nussle, 534 U.S. 516
524 (2002); Lodato v. Ortiz, 314 F. Supp. 2d 379
(D.N.J. 2004) (citations omitted). The exhaustion requirement
applies to a grievance procedure in an inmate handbook that is
not formally adopted by a state administrative agency.
Concepcion v. Morton, 306 F.3d 1347
, 1348-1349 (3d Cir. 2002).
The PLRA, and its exhaustion requirement, applies with equal
force to pretrial detainees. See 42 U.S.C. § 1997e(h) (defining
"prisoner" as "any person incarcerated or detained in any
facility who is accused of, convicted of, sentenced for, or adjudicated
delinquent for, violations of criminal law or the terms and
conditions of parole, probation, pretrial release, or
diversionary program"). Defendants argue that Plaintiff has not
complied with the PLRA's exhaustion requirement because CCCF had
administrative procedures available to all inmates throughout
Plaintiff's period of incarceration. Each inmate receives a copy
of an inmate handbook detailing the required administrative
procedures upon intake. Murphy Brief at Exh. C; CCCF Brief at
Plaintiff asserts in his Pretrial Memorandum that he filed
grievances pertaining to the incidents of September 22, 2003, and
the failure of CCCF medical personnel to remove his stitches in
five days, as directed. Pl. Pretrial Mem. at 4-5. Plaintiff also
testified in his deposition that he filed multiple grievances
with Murphy about the medical personnel's failure to remove his
stitches. Deposition of Thomas J. Jones, at 71:1-73:15, attached
as Exh. A to Murphy's Motion for Summary Judgment.
Neither Motion provides the Court with a factual basis upon
which the Court can grant summary judgment for Plaintiff's
failure to exhaust administrative remedies. Both Murphy and the
CCCF Defendants have failed to submit sworn statements from any
prison employee indicating that each inmate receives a copy of
the handbook. Moreover, both sets of the Defendants have
submitted a copy of the Inmate Handbook that was "Revised April
28, 2004." The Court therefore has no basis for determining that
Jones did in fact receive a copy of an Inmate Handbook in 2003,
or at any other time, or what the Inmate Handbook stated at the
time Plaintiff was a resident at CCCF. Additionally, although
Defendant Murphy has submitted an affidavit in this action
indicating that he received no grievance forms from Mr. Jones
relating to medical care or treatment, Murphy Aff. at ¶ 4, the CCCF
Defendants have failed to submit a sworn statement from the
appropriate personnel at CCCF to indicate that Plaintiff never
filed any grievances with regard to his claims of excessive
force. As such, the Court cannot grant Defendants' Motions for
Summary Judgment based upon Plaintiff's failure to exhaust
administrative remedies, and thus turns to the merits of
Plaintiff's constitutional claims.
B. Excessive Force
Plaintiff was a pretrial detainee at the time of the September
22, 2003 incident that forms the basis of his Complaint.
Plaintiff's claim that Officers Swain and Hicks*fn3 used
excessive force against him is therefore considered under the Due
Process Clause of the Fourteenth Amendments for which
42 U.S.C. § 1983 provides a remedy.*fn4 Fuentes v. Wagner,
206 F.3d 335, 341-2 (3d Cir. 2000) (citing Bell v. Wolfish, 441 U.S. 520 (1979)). Under the
Fourteenth Amendment, "the proper inquiry is whether [the
conditions or restrictions of pretrial detention] amount to
punishment of the detainee." Bell, 441 U.S. at 535. However,
the Third Circuit has held that "the Eighth Amendment cruel and
unusual punishments standards found in Whitley v. Albers,
475 U.S. 312 (1986), and Hudson v. McMillian, 503 U.S. 1 (1992),
apply to a pretrial detainee's excessive force claim arising in
the context of a prison disturbance," as opposed to the standards
set forth in Bell, which are more appropriately applied to
claims of improper conditions or restrictions. Fuentes,
206 F.3d at 347 (internal citations omitted). The Circuit reasoned
that there are no logical or practical distinctions between a
prison disturbance involving pretrial detainees, convicted but
unsentenced inmates, and sentenced inmates. Id. at 347-48.
To determine whether a correctional officer has used excessive
force in violation of Eighth Amendment standards, courts look to
several factors including: (1) "the need for the application of
force"; (2) "the relationship between the need and the amount of
force that was used"; (3) "the extent of the injury inflicted";
(4) "the extent of the threat to the safety of staff and inmates,
as reasonably perceived by responsible officials on the basis of
facts known to them"; and (5) "any efforts made to temper the
severity of the response." Id. (quoting Whitley,
475 U.S. at 321).
In Hudson, the Supreme Court distilled these factors into a
two-part test, containing subjective and objective components,
which a plaintiff must satisfy in order to establish an excessive
force claim. First, a plaintiff must establish that the
defendants acted with a "sufficiently culpable state of mind."
Hudson, 503 U.S. at 8 (citing Wilson v. Seiter, 501 U.S. 294,
298 (1991)). Culpability turns on a subjective determination of
"`whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause
harm.'" Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Hudson, 503 U.S. at 7
(1992)). Summary judgment in favor of a defendant is not
appropriate if "it appears that the evidence, viewed in the light
most favorable to the plaintiff, will support a reliable
inference of wantonness in the infliction of pain." Id.,
quoting Whitley, 475 U.S. at 322. Plaintiff must then establish
that the alleged wrongdoing was objectively `harmful enough' to
establish a constitutional violation. Hudson, 503 U.S. at 8.
Excluded from constitutional recognition are "de minimis uses
of physical force, provided that the use of force is not of a
sort `repugnant to the conscience of mankind.'" Id. at 9
(quoting Whitley, 475 U.S. at 327) (internal quotation
The subjective portion of the excessive force inquiry requires
an evaluation of the circumstances presented to prison officials,
who "should be accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to
maintain institutional security." Hudson, 503 U.S. at 7
(quoting Whitley, 475 U.S. at 321-22). Courts are to exercise
"the appropriate hesitancy to critique in hindsight decisions
necessarily made in haste, under pressure, and frequently without
the luxury of a second chance." Whitley, 475 U.S. at 320.
Plaintiff has failed to set forth facts to survive summary
judgment on his excessive force claim. Plaintiff alleges that at
the time that he was turned over to Swain, he had "voluntarily
surrendered while standing in the sally port area" and already
had been subdued. Plaintiff's Pretrial Memorandum at 3. However,
no evidence has been presented to the Court indicating that Swain
was acting in a manner other than to preserve internal order and
discipline when Swain was escorting Jones down the hall after he
had been held down by Hicks. Jones concedes in his pleadings that
in the short period of time preceding the incident, he refused
Swain's order to return to his cell; threw his tray at Swain; and attempted to run away and improperly lock
Swain out of the sally port. The Court is not in possession of
any evidence indicating that Plaintiff was already fully
restrained and not resisting Swain as he escorted Plaintiff down
the hall; Plaintiff may not rely solely upon his allegations in
order to avoid summary judgment. The Court therefore finds that
summary judgment is appropriate, as Plaintiff has failed to set
forth facts to support a "reliable inference of wantonness in the
infliction of pain."
Moreover, in objectively assessing Plaintiff's injuries,
Plaintiff has failed to set forth facts indicating that Swain's
use of force was greater than de minimis, or was of a sort
"repugnant to the conscience of mankind," as is necessary to
demonstrate a constitutional violation. Not "every malevolent
touch by a prison guard gives rise to a federal cause of action."
Hudson, 503 U.S. at 9 (citing Johnson v. Glick,
481 F.2d 1028, 1033 (2d Cir. 1973)). A plaintiff's de minimis injuries
do not alone refute a plaintiff's excessive force claim; however,
"the degree of [plaintiff's] resulting injury [can be] highly
relevant to the determination of the unreasonableness of the
force used." Thomas v. Ferguson, 361 F. Supp. 2d 435, 438
(D.N.J. 2004) (quoting Brooks, 204 F.3d at 108).
Here, Plaintiff alleges that he suffered a concussion and a cut
above his eye requiring stitches. The Court concludes that the
force applied in this instance was de minimis.*fn5 See,
e.g., id. at 442 (allegation that corrections officers'
actions resulted in Plaintiff sustaining a cut and swelling on
his right cheek bone, a small laceration on the bridge of his
nose, and cuts and swelling around his eyes found to be de
minimis); Smith v. Hulick, 1998 WL 84019, at *3 (E.D.Pa.
Feb.25, 1998) (finding that prisoner's injuries, including abrasions to his eye and
elbow, a cut inside his mouth, bloody lip, and sore shoulder,
were de minimis); Colon v. Wert, 1997 WL 137172, at *1-*3
(E.D.Pa. Mar. 21, 1997) (allegation that corrections officer
slammed a cell door into the prisoner's chest, aggravating a
pre-existing back and neck injury, found de minimis). In
addition, Plaintiff has not set forth any facts indicating that,
although his injuries were de minimis, Swain's behavior was of
the malicious and sadistic character to offend contemporary
standards of decency, and thus constitute a constitutional
violation. Compare Hudson, 503 U.S. at 4 (holding that a
demonstration of greater than minor injury was not required where
Plaintiff testified that after he was placed in handcuffs and
shackles, one corrections officer punched him in the mouth, eyes,
chest, and stomach; the other Officer held the inmate in place
and punched him from behind; and the supervisor watched the
beating and told the officers "not to have too much fun.")
With respect to Hicks, Plaintiff has similarly failed to set
forth facts demonstrating that his actions were wanton, or that
his actions offended contemporary standards of decency or caused
greater than de minimis injury. Rather, Plaintiff's claims
suggest that Hicks was appropriately subduing him, as the first
officer to reach Plaintiff when he was attempting to escape from
Swain. The Court thus finds that Plaintiff has failed to come
forward with evidence to survive summary judgment on his
excessive force claims against Hicks and Swain.
C. Duty to Intervene
Plaintiff also claims that Davis and Hicks were negligent in
turning him over to Swain to allegedly "retaliate" against him
and to protect him from Swain's alleged use of excessive force.
Compl. at 8, ¶¶ 2, 3. "It is widely recognized that all law
enforcement officials have an affirmative duty to intervene to
protect the constitutional rights of citizens from infringement
by other law enforcement officers in their presence." Anderson v. Branen,
17 F.3d 552, 557 (2d Cir. 1994) (citations omitted). A corrections
officer who fails to intervene can be liable for an Eighth
Amendment violation under § 1983 if he had a reasonable
opportunity to intervene in a beating and refused to do so.
Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). However,
an officer is only liable if there is a "realistic and reasonable
opportunity to intervene." Id. There is no evidence in the
record that Davis and Hicks actually observed Swain injuring
Plaintiff, and failed to intervene.*fn6 The Court therefore
grants summary judgment to Swain and Hicks on Plaintiff's claim
that they failed to intervene and prevent the use of excessive
force by Swain. D. Adequacy of Medical Care
The Court construes Plaintiff's claims against Murphy for
failure to promptly remove his stitches as being brought against
Murphy in his individual capacity.*fn7 Murphy "never met,
saw or treated the plaintiff in this suit, Thomas Jones, during
the time [he] was the administrator." Murphy Aff. at ¶ 3.
A defendant in a civil rights action must have
personal involvement in the alleged wrongs; liability
cannot be predicated solely on the operation of
respondeat superior. Personal involvement can be
shown through allegations of personal direction or of
actual knowledge and acquiescence. Allegations of
participation or actual knowledge and acquiescence,
however, must be made with appropriate particularity.
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
Plaintiff has not set forth facts demonstrating Murphy's
personal involvement in or any actual knowledge of any
unconstitutional act. Indeed, Plaintiff stated during his
deposition that Michael Murphy was named in this lawsuit because
he "was told that he was the director and the head of the medical
department there at CCCF." Plaintiff's claim that Murphy failed
to "provide me adequate medical attention," Compl. at 9, is therefore in the nature of
respondeat superior, which does not give rise to liability
under § 1983.
For the reasons stated above, the Court will grant the Motions
for Summary Judgment of the CCCF Defendants and Defendant Murphy.
An appropriate Order will follow.