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Bryant v. Higbee

United States District Court, D. New Jersey

September 29, 2017


          Mr. Pontell Bryant, Bayside Prison Plaintiff pro se.

          Gregory R. Bueno, Esq. Office of the Attorney General State of New Jersey Attorney for Defendants.




         I. INTRODUCTION .............................................. 2

         II. BACKGROUND ................................................ 3

         A. Factual Background ...................................... 3

         B. Procedural Background .................................. 14

         III. STANDARD OF REVIEW ....................................... 19

         IV. ANALYSIS .................................................. 21

         A. Constitutional Claims against Defendants in Their Official Capacities .................................................. 21

         B. Plaintiff's state-law negligence claim and the New Jersey Tort Claims Act ............................................. 23

         C. Constitutional Claims and Qualified Immunity ........... 28

         1. Qualified Immunity Overview ........................... 29

         2. Eighth Amendment Excessive Force Claim ................ 32

         3. First Amendment Retaliation Claim ..................... 44

         4. Fourteenth Amendment Due Process Claim ................ 51

         5. Fourteenth Amendment Equal Protection Claim ........... 55

         D. Administrative Exhaustion under the PLRA ............... 56

         V. CONCLUSION ................................................. 60


         Plaintiff Pontell Bryant (hereinafter “Plaintiff” or “Bryant”), acting pro se in this matter, filed suit against various correctional officers for a number of claims arising out of alleged assaults in June of 2012. Plaintiff cites causes of action arising from both 42 U.S.C. § 1983 and New Jersey law. While Plaintiff is currently incarcerated at Bayside Prison in Leesburg, New Jersey, his allegations relate to a period of time when he was incarcerated (and Defendants were employed as correctional officers) at South Woods State Prison (“SWSP”).

         The crux of his lawsuit, as the Court presently understands it, are allegations of excessive force and retaliation, stemming from two assaults Plaintiff alleges to have taken place on June 12, 2012 and June 15, 2012. Plaintiff pleads causes of action for violations of his constitutional rights under the Eighth Amendment, the First Amendment, and the Fourteenth Amendment; he also pleads a cause of action for negligence under New Jersey law. [Docket Item 76.]

         This matter is before the Court on Defendants' Motion for Judgment on the Pleadings and for Summary Judgment. [Docket Item 149.] Plaintiff filed a Response in Opposition. [Docket Item 153]. Defendants filed a Reply in Support of their Motion. [Docket Item 160.] Subsequently, Bryant filed a supplemental exhibit to his Response [Docket Item 161]; in response to this supplemental exhibit, Defendants filed a letter requesting leave to file supplemental briefing addressing this exhibit and in further support of their motion [Docket Item 163].

         For the reasons set forth below, the Court grants in part and denies in part Defendants' motion for judgment on the pleadings and for summary judgment. The Court also denies as moot Defendants' request to file supplemental briefing addressing Plaintiff's additional exhibit and orders an evidentiary hearing on the subject of administrative exhaustion.


         A. Factual Background

         In June of 2012, Plaintiff was incarcerated at SWSP in Bridgeton, New Jersey. [Docket Item 149-2 ¶ 27.] Plaintiff alleges that he was assaulted twice that month by correctional officers at that facility.

         First, Plaintiff claims that he was assaulted at SWSP on June 12, 2012 at around 9:25 AM by C.O.s Janda, Rivera, Curtis, and Downs [Docket Item 76 ¶¶ 10, 12-13] and that C.O.s Clark, Butler, Curtis (again), and Cope “came to join in” the assault. Id. ¶¶ 11-12. He alleges that this assault took place by means of punches and kicks while Plaintiff was in restraints, and that such assault constituted excessive force. Id. ¶¶ 10-13. In his response in opposition, he elaborates on this allegation as follows: “[O]n June 12, 2012 defendants Janda, Rivera, Downs, Curtis, Cope, [and] Butler were escorting me from Unit 2-1-R to center command holding cell at 9:25 am approx. Defendants Downs and Cope threw Plaintiff to the cell floor while Curtis, Butler, Rivera, and Janda arbitrarily punched and kicked me all over my body while I was in restraints[, ]” causing physical injury and emotional distress. Plaintiff continues: “I was not provided with medical treatment.” [Docket Item 153 at 1.] In support, he cites to his deposition testimony. [Id. at 1-2, citing Docket Item 149-20.]

         Second, Plaintiff claims that C.O.s Herman, Higbee, and Bagliani assaulted him on June 15, 2012 at approximately 9:45 AM; Herman allegedly “yell[ed] this is for Officer Rivera[, ]” and Bagliani and Higbee allegedly assaulted Plaintiff while escorting him from a detention area to “courtline.” [Docket Item 76 ¶¶ 15-17.] Plaintiff alleges that this assault led to his hospitalization in the infirmary for approximately two weeks. Id. 16. In his response in opposition to the instant Motion, Plaintiff elaborates on this incident as follows: “On June 15, 2012 while being escorted back from courtline hearing to detention unit cell room, defendants Jackson, Higbee and Herman and Bagliani punched and kick[ed] my body in retali[a]tion of defendant Rivera (at which time Herman yelled out ‘this is for Rivera')[.]” [Docket Item 153 at 2.] Plaintiff alleges that this caused him “pain, suffering, physical injury and emotional distress at which time (a few days later) plaintiff was having chest pains and was placed in the infirmary for two weeks!” Id.

         Plaintiff's medical records from June and July of 2012 indicate as follows:

• On June 11, 2012, Plaintiff complained of hip pain. [Docket Item 151-1 at 87.]
• On June 12, 2012, Mary Ellen Green, RN, wrote a “Chart Note for holding cell eval, ” wherein she stated that Plaintiff was, on that date, “seen in holding cell, prior to transfer to detention. I/M [inmate] denies any SI/HI [suicidal ideation/homicidal ideation] and has no abrasions or lacerations on upper torso and has old tatoos [sic] on arms. Medically cleared for transfer to detention.” [Docket Item 151 at 2.]
• On June 14, 2012, Plaintiff's medical records reflect an “Office Visit: Nurse Sick Call” for an unrelated skin condition. [Docket Item 151-1 at 84-86.]
• On June 23, 2012, Plaintiff had an abnormal EKG after complaining of chest pain. [Id. at 62, 76, 78-79.] It appears that this was the date he was transferred to the infirmary. He also requested a renewal of naproxen to address his “[right] hip pain.” [Id. at 83-84.]
• On June 24, 2012, during infirmary rounds, Plaintiff “denie[d] any pain, no complaints made, no acute distress.” [Id. at 69.]
• On June 25, 2012, a note in Plaintiff's medical records states: “change from infirmary to ECU [Extended Care Unit] status. Plan: awaiting lab results, continue Tylenol for pain.” [Id. at 57.] Also on that date, Plaintiff complained of chest pain and lightheadedness while he was visited in the infirmary. [Id. at 60-61, 63.]
• It appears that Plaintiff provided urine for urinalysis on or about June 25, 2012 at 11:00 AM; the results of that urinalysis showed the presence of “occult blood” in his urine at a level of “3”, a condition also known as hematuria. [Id. at 58-59.]
• On June 26, 2012, the medical staff noted the presence of blood in Plaintiff's urine and stated “[w]ill recheck.” [Id. at 53.]
• It appears that Plaintiff again provided a urine sample on June 26, 2012 [id. at 52-53], and on that date, the urinalysis now revealed only “trace” amounts of occult blood. [Id. at 51.]
• On June 27, 2012, Dr. William Briglia, DO, noted the repeat of the urinalysis “without significant hematuria.” [Id.]
• On June 26, 2012, Plaintiff spoke to Troy Heckert, Psy.D., at SWSP; Heckert reported that Plaintiff stated that he was in Detention “because he wrote a remedy form stating that the Sgt. [sic] and tier officer were making racial slurs against him. He added that while in Detention, he was being harassed by officers and was not regularly receiving meals. He said he has written multiple remedy forms about this and has written to SID [Special Investigations Division], but no one from SID has spoken with him.” [Docket Item 151-2 at 3-4.]
• Plaintiff's medical records from June 27, 2012 through July of 2012 reflect test results showing abnormally elevated liver enzymes. [Id. at 32-38, 42, 47-48.]

         Defendants' version of the events of June 12 through June 15, 2012, is quite different. Defendants allege that, on the morning of June 12, 2012, Plaintiff exposed his penis to Defendant Rivera, who “charged him with engaging in prohibited act .052, making sexual proposals or threats to another.” [Docket Item 149-2 30.] Plaintiff was given a hearing on this disciplinary charge “where he was given the opportunity to make statements and present evidence and witness statements on his behalf[, ]” and requested and was given the assistance of an inmate counsel substitute; he was ultimately found guilty. Id. ¶¶ 31-33. His sanction was “fifteen days' detention with credit for time served, ninety days' administrative segregation, and sixty days' loss of commutations time[, ]” and his guilty finding was affirmed by SWSP administration. Id. ¶¶ 34-35. Plaintiff did not, during “this adjudication, ” “adduce any evidence that the subject disciplinary charge was filed against him in retaliation for refusing to assault an inmate for defendant Rivera or for any other retaliatory purpose”; nor did he appeal the finding of guilt to the Appellate Division of the Superior Court of New Jersey. Id. ¶¶ 36-37.

         Defendants contend that Plaintiff was moved from his cell to pre-hearing detention on June 12, 2012 by defendants Butler and Cope and by non-defendant Sgt. Janda, but that they escorted him without incident. Id. ¶¶ 39-40. Plaintiff was then moved to a different cell (1043 in Detention A-Pod) on that date by defendants Downs and Curtis and non-defendant CO Clark; Defendants contend that those officers also escorted Plaintiff without incident. Id. ¶¶ 41-42.

         Defendants next state that the evidentiary record reflects that, on June 13, 2012, defendant Herman and non-defendant CO Vargas were in the process of removing Plaintiff from that cell to have him appear for the administrative hearing on the .052 charge, when Plaintiff made a sexual proposition to them while stroking his exposed penis. Plaintiff was given a second .052 charge for this new incident. Id. ¶¶ 53-54. He was subsequently found guilty of this charge on June 20, 2012 after he was afforded “notice and an opportunity to defend against the charge.” Id. ¶¶ 54-55. Again, Defendants state, Plaintiff adduced no evidence that this second charge was filed in retaliation for refusing to assault an inmate at defendant Rivera's behest or for any other retaliatory reason. Id. ¶ 56. This charge was also affirmed by SWSP administration. Id. ¶ 57.

         On June 15, 2012, Plaintiff submitted a “request for polygraph” in the context of his hearings on the two .052 charges; the Hearing Officer, N. Morales-Pitre, stated that “Inmate's Reason for Request” was that “Bryant believes the 1st charge was in retaliation for writing up SCO Rivera & Sgt. Janda--and that the 2nd charge was in retaliation to the 1st charge.” [Docket Item 149-22 at 19.]

         In response to the allegation that Plaintiff was assaulted by defendants Higbee, Herman, Bagliani, and “non-answering defendant Jackson” on June 15, 2012, Defendants assert the only evidence for such a proposition is Plaintiff's own testimony, and that “the record confirms that defendants Butler, Cope, Curtis, and Downs had no interaction with Plaintiff at all on June 15, 2012.” [Docket Item 149-2 ¶¶ 58-60.]

         Plaintiff was transferred to the Extended Care Unit on June 23, 2012, and remained there under medical care until July 2, 2012, when he was transported to New Jersey State Prison. Id. ¶¶ 66-81.

         In an Inmate Remedy System Form (“IRF”) dated “6-15-12, ” Plaintiff stated that on June 15, 2012 at (what appears to the Court to read) 9:30 AM, “S/C.O. Jackson came to get me with another unknown officer and at time this Officer Jackson he push me on the bed handcuff my [illegible] and punch me once in the back of the head and said watch what you do to [illegible] when she is around near your cell #1042. This officer breached his duty when using excessive force. S/C.O. Jackson herein at N.J.D.O.C. at S.W.S.P. here in at all time [illegible] for the responsible safety, care and supervision of all prisoners. This is a pattern of abuse [illegible] I have been threaten[ed] several times and assault [illegible] this writer fears for his life. This incident occur[red] while the officers came to take me to courtline.” [Docket Item 149-24 at 2.[1] This IRF was addressed to “S.I.D. & Administrator Holmes”; Part II, where an administrator records what is done with the IRF, reflects that the IRF was forwarded to SID on July 13, 2012 with a subject of “Excessive Force.” Id.

         On July 10, 2012, Plaintiff's mother, Londela Bryant, sent a fax to SID “Attn.: Mr. Sierra” and enclosed a letter from Plaintiff to her. [Docket Item 151-4 at 2-4.] Ms. Bryant stated her belief that defendant Rivera fabricated the .052 charge against Plaintiff “after he refuse[d] to assault another male inmate for her.” Ms. Bryant also raised the concern that Plaintiff had previously filed a complaint against “the Sgt.” who was responsible for investigating Rivera's disciplinary charge, setting up a conflict of interest. Id. at 2.

         Plaintiff's letter, which was addressed to his mother and appears to be dated “6-13-12, ” states that he had filed complaints against Janda and Curtis on June 6, 2012 for “racial and bias slurs, ” and that Janda was responsible for locking him up one week later on the sexual proposal charge. Id. at 3. Plaintiff's letter outlines defendant Rivera's alleged request to have Plaintiff assault another inmate named Jackson. Plaintiff states: “I wrote SID and told them but I didn't hear anything from them yet, please call S.I.D. and let them know that I have been threaten[ed] by several officers to keep my mouth shut. They come by my door and tell me watch what I eat and that after I see courtline I'm gonna get a Southwoods Special. I wrote all of this on a remedy form so administrative just has to check for the 3 reme[]dy forms.” Id. He continues: “I don't like to be sexually harass and threaten to have my own penis up my butt. I wrote that first reme[]dy form on 6-6-12 on the Sgt. then on 6/12/12 this the same Sgt. to lock up me and investigating the matter.” Id. at 4.

         While the fax from Ms. Bryant is dated July 10, 2012, the records of the SID investigation state that SID “received a [N]DOC] Central Officer Referral concerning SWSP I/M Bryant, Pontell” on “06-27-2012.” [“SID Report, ” Docket Item 151-3 at 2.][2] The SID Report takes into ...

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