United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
brings this 42 U.S.C. § 1983 federal civil rights action
pro se against Corrections Officer Marcyves Maurice
(“Maurice”) and twenty unnamed individuals
alleging the use of excessive force at the Special Treatment
Unit (“STU”) in New Jersey. Maurice now moves for
summary judgment under Federal Rule of Civil Procedure 56.
There was no oral argument. Fed.R.Civ.P. 78(b). For the
reasons that follow, the motion is GRANTED
and Plaintiff's Complaint is DISMISSED WITH
following facts are drawn from Plaintiff's Complaint,
deposition testimony, and Maurice's Statement of
Undisputed Material Facts and supporting
committed at the STU, Plaintiff alleges Maurice, in two
instances, pushed, shoved, and punched him. Marshall-Otto
Cert., Ex. A, Plaintiff's Dep. 7:2-7, 7:13-20, June 27,
2017 (“Pl.'s Dep.”), ECF No. 50; Compl., ECF
No. 1. In the first encounter, Plaintiff wished to air a
grievance about another resident to the sergeant immediately,
but Maurice told Plaintiff to hold off because the
“sergeant will be in later.” Pl.'s Dep. 8:23-
9:16. Instead of waiting, Plaintiff sought to dial 9-1-1 to
notify local police, but Maurice prevented the call when he
came over and hung up the phone. Id. 10:2-7. After
using the phone again to dial the police, Plaintiff claims a
“push and shove match” ensued. Id.
10:9-19. About a minute later when Plaintiff returned to his
cell, Maurice showed up, made threats, and the two started
throwing punches. Id. 11:7-14, 15:13-16. The fight
ended with both men clutching each other and Maurice
threatening Plaintiff. Id. 11:21- 12:3. Apart from
these events in August 2012, a review of Plaintiff's
electronic medical records between May and November 2012
contains no evidence of Plaintiff complaining about nor
seeking treatment for the alleged altercations. Id.,
now moves for summary judgment, arguing Plaintiff serially
abuses the in forma pauperis system in filing this
action and, in any event, the excessive force
claim fails because the record shows no evidence that Maurice
used any force, let alone excessive force. Br. Def.'s
Mot. Summ. J. 5-6, ECF No. 49-1. Also, Maurice argues that
even if the Court finds a genuine dispute of material fact as
to whether the use of force occurred, he is entitled to
qualified immunity. Id. at 9.
responds, filing a brief petition for summary judgment and
objections to Maurice's motion. But Plaintiff provides no
statement of material facts nor any factual documentation to
support his claims whatsoever, ignoring Local Civil Rule
56.1(a)'s requirements to file a responsive statement of
material facts. Instead, Plaintiff lobs objections regarding
discovery, accuses opposing counsel of unethical conduct, and
argues to disqualify the New Jersey Attorney General's
office from representing Maurice, a state employee.
See Pl.'s Pet. Summ. J. 3, ECF No. 55. In reply,
Maurice contends Plaintiff's petition for summary
judgment fails to provide a legal or factual basis to allow
the Court to consider granting summary judgment in
Plaintiff's favor or to which Maurice could respond.
Def.'s Letter Reply 1-2, ECF No. 56.
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); see Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough
Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual
dispute is genuine if a reasonable jury could find for the
non-moving party and is material if it will affect the
outcome of the trial under governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In its review, the Court considers all evidence and
inferences drawn therefrom in the light most favorable to the
non-moving party. Andreoli v. Gates, 482 F.3d 641,
647 (3d Cir. 2007).
filing a Section 1983 civil rights action, a plaintiff
“must show that the defendant, under the color of state
law, deprived [him] of a federal constitutional or statutory
right.” Miller v. Mitchell, 598 F.3d 139, 147
(3d Cir. 2010) (citation omitted). As to excessive force
claims, a plaintiff must identify how a prison official's
treatment caused “unnecessary and wanton infliction of
pain.” Whitley v. Albers, 475 U.S. 312, 320
(1986). The issue is “whether force was applied in a
good faith effort to maintain order or restore discipline or
maliciously and sadistically for the very purpose of causing
harm.” Id. at 320-21 (citations omitted).
Also, the plaintiff must show more than de minimus
force was used to an extent it would be
‘“repugnant to the conscience of
mankind.'” Whitley, 475 U.S. at 327
(quoting Estelle v. Gamble, 429 U.S. 97, 103
reviewing the record, the Court finds no reasonably jury
could find in Plaintiff's favor. Apart from
Plaintiff's pleading and deposition testimony given, the
record is devoid of even a scintilla of evidence to establish
that any assault, fistfight, or back-and-forth push and shove
match occurred. Further, as to the injuries Plaintiff
suffered, there lacks a single notation in the medical
records to document any such treatment given. Pl.'s Dep.
12:17-13:17. And absent from the record is any documented
grievance or filing of a complaint with prison officials.
See Id. 13:14-15:1; Decl. of Maj. William Gamba,
¶¶ 4- 7, ECF No. 49-5.
taking Plaintiff's deposition testimony as the given
facts here, there still lacks a genuine dispute as to whether
Maurice exerted any force against Plaintiff. Yet if, as
Plaintiff claims, both were grasping each other, “not .
. . every malevolent touch by a prison guard gives rise to a
federal cause of action.” Hudson v. McMillian,
503 U.S. 1, 9 (1992) (citation omitted); Pl.'s Dep.
11:21-25. At most, Plaintiff's version of events shows
Maurice may have acted rude and inappropriately, but nothing
of the constitutional import. Finally, the Court need not
opine on Plaintiff's desire to disqualify the New Jersey
Attorney General's office and opposing counsel beyond
mentioning there lacks a basis in fact to show a conflict of
interest in representing Maurice.