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Pontell Bryant v. Sgt. W. Vessell

July 6, 2011


The opinion of the court was delivered by: Wigenton, District Judge.


Before the Court are Defendants Sgt. W. Vessell ("Vessell"), S/C.O. Hoff ("Hoff"), S/C.O. Viruet ("Viruet"), S/C.O. Bourey ("Bourey"), S/C.O. Christopher ("Christopher"), Steven Zahodnick ("Zahodnick"), S. Sprich ("Sprich"), D. Lopez ("Lopez")*fn1 ("collectively Extraction Defendants"), S/C.O. Wilkerson ("Wilkerson"), and Veronica Nendze‟s ("Nendze") (collectively "Defendants") Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56(c) and/or Motion for Judgment on the Pleadings pursuant to Fed. R. Civ. P. 12(c) ("Motion").*fn2 This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367(a). Venue is proper pursuant to 28 U.S.C. §1391(b)(1) and (2). The Motion is decided without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons stated below, this Court grants Defendants‟ Motion.


On July 10, 2009, Plaintiff Pontell Bryant ("Plaintiff" or "Bryant"), who was then an inmate at East Jersey State Prison ("EJSP"),*fn3 was charged with a disciplinary infraction for allegedly threatening Defendant Wilkerson. (Calderon Decl. Ex. A at SID0002, SID0027.) Therefore, he was required to move to another cell for pre-hearing detention. (Id. at SID0002.) Vessell ordered Plaintiff to step out of his cell. (Id.) However, Bryant refused to come out of his cell; hence, the EJSP administration approved a forced cell extraction. (Id.)

The extraction team was led by Vessell and included Defendants Sprich, Viruet, Hoff, Zahodnick, Bourey, Christopher, and Lopez. (Id. at SID0003.) The cell extraction was recorded and the DVD was entered into evidence. (See Calderon Decl. Ex. A.) The DVD recording shows that Plaintiff refused to comply with Vessell‟s orders to step out of his cell and submit to handcuffing. Plaintiff covered the window of his cell in violation of prison rules, barricaded his cell door with his mattress, and soaked the floor in his cell with a slippery substance. (Id.) After Bryant refused to comply with Vessell‟s orders, a burst of pepper spray was administered through an opening in his cell door. When Plaintiff still refused to comply, the extraction team entered his cell to handcuff and shackle him. (Id.) The DVD recording shows that Plaintiff was extremely combative, uncooperative, and resistant when the extraction team entered his cell. It took the extraction team about three minutes to subdue Bryant and secure him with restraints. (Id. at SID0003.) Plaintiff also yelled expletives at the team and threatened to spit on them. As a result, an anti-spitting mask was placed over Bryant‟s head. (Id.) Even after Plaintiff was secured, he continued to be uncooperative and yelled statements like "this is far from over" and "I‟ve been planning this since day one." (Calderon Decl. Ex. A.) Vessell advised Bryant that his handcuffs would be removed if he cooperated; however, Bryant responded that there would be "round two" if his handcuffs were removed and that he would "come out swinging." (Id.)

Immediately after Bryant‟s decontamination shower, he was taken for a medical examination. The video explicitly shows Plaintiff stating that he "refuses medical attention." (Id.) Nonetheless, Nendze examined Plaintiff. (Pelzer Decl. Ex. C. at DOC0018.) Nendze noted that Bryant‟s "vital signs were within normal limits." (Id.) She also lifted Plaintiff‟s shirt and performed a physical examination of his back, chest, and abdomen. (Calderon Decl. Ex. A.) Her examination revealed that Bryant had a laceration on his outer left eye and a small cut on his left middle finger. (Pelzer Decl. Ex. C. at DOC0018.) Nendze treated Plaintiff‟s wounds. (Calderon Decl. Ex. A.)

Bryant received three prison disciplinary charges as a result of his actions on that day: *.005 (threatening), *.306 (conduct which disrupts), and *.012 (throwing bodily fluids), which was later amended to a *.002 charge (assault). (Pelzer Decl. Ex. C at DOC0001-DOC0005, DOC00026-DOC0030.) Plaintiff alleges that the extraction team punched and kicked him, hit him in the eye with handcuffs, and placed him in tight restraints. (Am. Compl. ¶¶ 12-13.)

Subsequently, Plaintiff, proceeding pro se, filed this action alleging a violation of 42 U.S.C. § 1983 for failure to provide medical care and use of excessive force in violation of the Eighth Amendment, retaliation, being subjected to unconstitutional procedural hearings, and negligence. (Id. ¶¶ 20-26.)


a.Summary Judgment Standard

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986). A fact is only "material" for purposes of a summary judgment motion if a dispute over that fact "might affect the outcome of the suit under the governing law." Id. at 248. A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The dispute is not genuine if it merely involves "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party meets its initial burden, the burden then shifts to the non-movant who must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations, speculation, unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001). "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party‟s evidence "is to be believed and all justifiable inferences are to be drawn in his favor.‟" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).

The nonmoving party "must present more than just "bare assertions, conclusory allegations or suspicions‟ to show the existence of a genuine issue." Podobnik v. U.S. Postal Service., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the nonmoving party is required to "point to concrete evidence in the record which supports each essential element of its case." Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284, 286 (D.N.J. 2004). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party‟s ...

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