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Giovanni v. New Jersey

August 29, 2006

RE: DI GIOVANNI
v.
NEW JERSEY



The opinion of the court was delivered by: Joel A. Pisano, U.S.D.J.

CHAMBERS OF JOEL A. PISANO JUDGE

LETTER OPINION

ORIGINAL TO BE FILED WITH THE CLERK OF THE COURT

Dear Parties:

Plaintiff, Marco Vincent Di Giovanni, brought the instant lawsuit pursuant to 42 U.S.C. § 1983 on May 3, 2004 against numerous defendants. Plaintiff alleges that on or about May 2 2002, defendants assaulted him and retaliated against him for filing a grievance against one of the corrections officers at the prison where he is currently serving a thirty-year sentence for murder. Subsequent to the assault, Plaintiff claims that he was intentionally detained and was not provided with adequate medical treatment.

On July 14, 2002, the Court issued an opinion and order allowing Plaintiff's section 1983 claims seeking damages for excessive force, failure to intervene, and retaliation to proceed against defendants Lieutenant Donald Dudich, Sergeant Kevin Newsom, and Senior Corrections Officer Jason Smith (collectively, "Defendants"). The Court dismissed all other claims and all other defendants from the case.*fn1

Defendants have moved for summary judgment pursuant to Fed. R. Civ. P. 56. They argue that Plaintiff's complaint must be dismissed because he failed to properly and completely exhaust his administrative remedies prior to bringing the instant section 1983 lawsuit in federal court. See Prison Litigation Reform Action ("PLRA"), 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."); see also Woodford v. Ngo, 126 S.Ct. 2378, 2388-91 (2006) (holding that section 1997e(a) requires proper exhaustion of administrative remedies).

Plaintiff argues in opposition that on May 20, 2006, he submitted a remedy form to prison officials complaining of the May 2, 2002 incident involving Defendants. The remedy form, submitted by Plaintiff, indicates that a prison staff member responded to Plaintiff's complaint as follows:

[t]his matter was investigated at such time that you were cited for t002 (assaulting any person) in May 2002. This incident will not be reinvestigated at the Institutional Level.

See Remedy Form (May 20, 2006). Plaintiff appealed this response on or about June 22, 2006 stating that the prison's response did not address the relief he sought because the May 2, 2002 incident was not "independently or adequately investigated." Plaintiff's appeal was denied on or about June 26, 2006 because "the matter has been addressed."

The following facts are material and undisputed:

(1) the exhaustion requirement of section 1997e(a) is applicable to the instant case;

(2) the New Jersey State Prison Inmate Handbook sets forth a procedure for pursuing administrative remedies within the prison system which entails the filing of a remedy form and if necessary, subsequent appeal of an unfavorable decision. See Smith Affidavit, Exhibit B; Concepcion v. Morton, 306 F.3d 1347, 1355 (3d Cir. 2002) (holding that the ...


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