United States District Court, D. New Jersey
MEMORANDUM AND ORDER
Michael A. Shipp United States District Judge
matter has come before the Court on a civil rights Complaint
filed by Plaintiff Fred Thomas, Jr. pursuant to 42 U.S.C.
§ 1983, raising excessive force claims. Presently before
the Court is a motion to dismiss ("Motion") by
Defendant Sergeant Barnwell ("Barnwell" or
"Defendant"). (ECFNo. 41). It appearing:
Barnwell raises two arguments for dismissal. First, he argues
that the Complaint should be dismissed because Plaintiff has
not demonstrated in the Complaint that he exhausted
administrative remedies. The Court agrees that federal law
requires Plaintiff, as a prisoner, to exhaust administrative
remedies prior to assertion of his § 1983 claims.
See 42 U.S.C. § 1997e(a); Porter v.
Nussle, 534 U.S. 516, 532 (2002) ("[W]e hold that
the . . . 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."). However, "failure to
exhaust is an affirmative defense under the PLRA, and inmates
are not required to specially plead or demonstrate exhaustion
in their complaints." Jones v. Bock, 549 U.S.
199, 216 (2007). Failure to plead proper exhaustion,
therefore, is not a basis upon which to dismiss Plaintiffs
Complaint on exhaustion grounds. Because Plaintiff is not
required to plead exhaustion in the first place, the Court
cannot find, at this stage of the litigation, that there are
no additional facts, not pled in the Complaint, which could
establish exhaustion. Accordingly, Defendant's Motion is
denied on this ground.
Barnwell's second argument for dismissal is that the
Complaint fails to state a claim upon which relief may be
granted. To begin, Barnwell seems to suggest that the only
excessive force alleged in the Complaint is "spitting,
" and that "[t]he resulting effect on the plaintiff
appears to be a loss of his 'dreads' per the working
of the Complaint." (Barnwell's Br. 6-7, ECF No.
41-1.) This is contrary to the allegations in the Complaint,
where Plaintiff alleges that he was punched, kicked, and
stomped on by correctional officers. (Compl. 6, ECF No. 1.)
Indeed, the Complaint further alleges that at least one of
the officers was charged by the prosecutor with assault.
(Id. at 4.)
Barnwell further argues that the allegations in the Complaint
cannot definitively establish that he was the individual who
punched, kicked, stomped, or even spit on Plaintiff. Although
the Third Circuit has not ruled on this issue, a majority of
the circuit courts have applied the doctrine of joint and
several liability and indivisible injury to § 1983
claims. As the Seventh Circuit held in addressing a
plaintiffs § 1983 claims, "[j]oint and several
liability is a theory of recovery which requires that the
plaintiffs, in an action alleging tortious or
constitutionally repugnant conduct by multiple actors,
establish that each defendant acted in concert to
'produce a single, indivisible injury.'"
Harper v. Albert, 400 F.3d 1052, 1061-62 (7th Cir.
2005); see Jackson v. City of Pittsburg, 518
F.App'x 518, 520-21 (9th Cir. 2013) (finding a defendant
in a § 1983 case liable for the entire damages award
because his unconstitutional retaliation was a proximate
cause of plaintiff s indivisible injuries); Northington
v. Marin, 102 F.3d 1564, 1569 (10th Cir. 1996)
("Multiple tortfeasors who concurrently cause an
indivisible injury are jointly and severally liable; each can
be held liable for the entire injury. . . . These rules apply
in § 1983 actions."); Koster v. Perales,
903 F.2d 131, 139 (2d Cir. 1990) (upholding the district
court's application of joint and several liability in a
§ 1983 action); Finch v. City of Vernon, 877
F.2d 1497, 1503 (11th Cir. 1989) (finding the municipality
defendant jointly and severally liable for plaintiff s
indivisible injury stemming from a First Amendment
violation); Lugar v. Edmondson Oil Co., Inc., 639
F.2d 1058, 1065 n.14 (4th Cir. 1981), off'd in part,
rev'd in part on other grounds, 457 U.S. 922 (1982)
(holding that a § 1983 plaintiff "may establish
joint and several liability for indivisible injury against
all defendants whose conduct can be shown to have concurred
in causing the ultimate injury"). At least one court in
this district has also applied joint and several liability to
§ 1983 claims. See Carter v. Georgevich, 78
F.Supp.2d 332, 335-36 (D.N J. 2000). Indeed, since §
1983 claims are essentially tort claims in nature, the Court
sees no reason why such fundamental tort principles should
not apply to the § 1983 claims in this case. See
City of Monterey v. Del Monte Dunes at Monterey Ltd.,
526 U.S. 687, 689 (1999) (stating that "[f]here can be
no doubt that § 1983 claims sound in tort").
Here, Barnwell does not deny that he was one of three
officers present at the scene when the alleged assault took
place. Given the circumstances described in the Complaint, it
is plausible that Plaintiff could not discern exactly which
officer threw which punch, made which kick, or spit on him.
It is enough that Barnwell was present, and had personal
involvement in the alleged constitutional violations-he
either participated in the alleged use of excessive force, or
acquiesced in the use of that force. See White v.
Bell, No. 10-0863, 2015 WL 5123984, at *6 (M.D. Term.
Aug. 31, 2015) (adopting a joint and several liability
instruction for the jury on an excessive force claim);
Restatement (Third) of Torts § CI 8 (2000) ("When
an injury is indivisible and legally caused by the tortious
conduct of two or more persons, each is jointly and severally
liable."). The fact that Plaintiff may not have suffered
serious injury from the alleged incident is not dispositive
of Plaintiff s claim. See Wilkins v. Gaddy, 559 U.S.
34, 34 (2010) (holding that, in a claim of excess force by a
prisoner, "the use of excessive physical force ... may
constitute [a constitutional violation] even when the
[plaintiff] does not suffer serious injury.") (citation
and quotation marks omitted); Pannell v. Miller, 131
F.3d 144 (8th Cir. 1997) (holding that "lack of serious
injury [is] not dispositive" of an excessive force
claim); Piper v. City of Elmira, 12 F.Supp.3d 577,
589 (W.D.N.Y. 2014) ("[T]he absence of a serious injury
is not dispositive of the [excessive force] claim[.]");
Antoine ex rel. Antoine v. Rucker, No. 03-3738, 2006
WL 1966649, at *10 (D.N.J. July 12, 2006) ("[A]lthough
relevant, permanent or serious injury is neither a
requirement nor a dispositive factor in an excessive force
claim under § 1983."). Thus, the Motion is denied
on this ground.
therefore on this 30th day of March, 2017,
ORDERED that the motion to dismiss (ECF No.
41) is hereby DENIED; it is further
that the Clerk shall serve a copy of this Order upon
Plaintiff by regular mail.
Barnwell cites to Drippe v.
Tobelinski,604 F.3d 778, 781 (3d Cir. 2010), for the
proposition that Laj prisoner must show compliance with his
prison's specific grievance procedures prior to filing
sm. (Barnwell s Br 5, ECF No. 41-1.) While that may be the
standard, nothing in Drippe holds that Plaintiff
must make that showing at the pleading stage. Indeed,
Drippe addressed a summary judgment motion filed
after discovery concluded, and held that "exhaustion of
administrative remedies is an affirmative defense that need
not be specially ...