United States District Court, D. New Jersey
LIONELL G. MILLER, Plaintiff,
GARY M. LANIGAN, et al., Defendants.
E. THOMPSON U.S. DISTRICT JUDGE
matter comes before the Court on Defendants' R. Fraley
and Francis McDonough Motion for Summary Judgment. (ECF No.
68). Plaintiff Lionell Miller opposes the motion. (ECF No.
74). The Court has issued the opinion below based on the
written submissions of the parties and without oral argument
pursuant to Local Civil Rule 78.1(b). For the reasons stated
below, the motion is granted in part.
alleges Defendants failed to protect him by intervening
during an altercation he had with another inmate at New
Jersey State Prison ("NJSP") on March 17, 2011. The
undisputed facts are as follows: Plaintiff was incarcerated
in NJSP's West Compound in 7-Wing (Left), Tier 1, cell
number 18 on March 17, 2011. (Plaintiffs Redacted Response to
Defendants' Statement of Material Facts, ECF No. 76-1
¶¶ 1, 4). Defendants were assigned to Plaintiffs
tier as unit officers on March 17, 2011. (Id. ¶
3). 7-Wing is an administrative segregation unit where each
cell is a single-occupancy cell. (Id. ¶¶
5-6). On March 17, 2011, Plaintiff was let out of his
assigned cell by Defendant McDonough for the purpose of
taking a shower. (Id. ¶ 9). The shower
procedure consists of the officer manning the control panel
remotely letting the inmate out of his cell. (Id.
¶ 7). "The inmate then walks from their cell to the
shower and is locked in until they are finished."
(Id. ¶ 8). Plaintiff took a mirror with him to
the shower on March 17, 2011 because he believed someone was
entering his cell and damaging his property when he left.
(Id. ¶ 10). The mirror permitted him to look
down the tier towards his cell. (Id. ¶ 11).
Plaintiff was showering, he saw the inmate tier runner,
Johnson, enter a cell. (Id. ¶ 12). "At
some point during his shower, Plaintiff forced open the
locked door to the shower." Miller v. Fraley,
No. 12-4470, 2017 WL 3429343, at *2 (D.N.J. Aug. 9,
2017); (ECF No. 46). Plaintiff walked towards his
cell, passing in front of Johnson's cell, whereupon
Johnson asked Plaintiff why he would submit remedy forms
about him. (ECF No. 76-1 ¶¶ 14-15). Plaintiff
stated that he did not know what Johnson was talking about,
and Johnson said "'he wanted to get something off
his chest-----"' (Id. ¶¶ 16-17).
Johnson exited the cell and a physical altercation ensued.
(Id. ¶ 17). "Plaintiff was not acting in
self-defense when he and inmate Johnson were involved in the
March 17, 2011 altercation." Miller, 2017 WL
3429343, at *2. At his deposition, Plaintiff testified
that Johnson '"grabbed me, I had on shower shoes, he
grabbed me, held me on the bars, he kneed me.'" (ECF
No. 76-1 ¶ 19). Plaintiff was hit in the head, face, and
stomach an unknown number of times. (Id.
¶¶ 20-21). Plaintiff never lost consciousness and
did not suffer any cuts or bleeding. (Id.
¶¶ 28-29). Plaintiff sustained a back injury that
he later told medical staff occurred when he hit his lower
back on the metal bars. (Id. ¶ 30). Defendant
Fraley watched the fight unfold. (Id. ¶ 36).
few minutes,  a team of officers intervened to stop the
fight. (Id. ¶ 22). Plaintiff was being held
upright against the bars when the response team arrived.
(Id. ¶ 23). The response team pepper-sprayed
Plaintiff and wrestled him to the ground. (Id.
¶ 24). Both Plaintiff and Johnson were charged with
fighting and disrupting the orderly operation of the
facility. (Id. ¶ 25). Plaintiff was charged
with tampering with the shower lock in addition to those two
charges. (Id. ¶ 26). He was found guilty of all
three charges. (Id. ¶ 27).
filed a pro se complaint on July 18, 2012, (ECF No. 1), and
an amended complaint on June 6, 2013, (ECF No. 7). The
Honorable Michael A. Shipp, D.N.J.,  permitted the amended
complaint to proceed on Plaintiffs failure to protect,
assault and battery, and retaliation claims against
Defendants Fraley and McDonough. (ECF No. 12). On February 3,
2017, Defendants moved for summary judgment. (ECF No. 40).
Judge Shipp found that "Plaintiffs [failure to protect]
claim is based on three purported facts: (1) that Defendants
intentionally permitted Plaintiff to be on the tier at the
same time as inmate Johnson; (2) that inmate Johnson attacked
Plaintiff unprovoked; and (3) that [w]hile [P]Iaintiff was
being attacked[, ] both [D]efendants ... were
watching.'" Miller, 2017 WL 3429343, at *5
(first alteration added)(omissions in original). Judge Shipp
granted summary judgment on the assault and battery claim and
on the allegations that Defendants opened the shower door and
that Plaintiff was acting in self-defense when Johnson
attacked Plaintiff unprovoked. Id. at *7. Judge
Shipp denied summary judgment on the retaliation claim and on
the failure to protect claim insofar as it was based on
Defendants' failure to intervene in the altercation
between Plaintiff and Johnson because Defendants did not
produce copies of the relevant internal policies.
bono counsel was appointed for Plaintiff. (ECF No.
Limited discovery ensued with copies of the relevant prison
policies exchanged pursuant to a confidentiality order. (ECF
No. 61). Defendants have now moved for summary judgment on
the remaining claims, failure to protect and retaliation,
relying on the internal prison policies. The matter is now
ripe for disposition. Fed.R.Civ.P. 78(b).
the Federal Rules of Civil Procedure, "[s]ummary
judgment is appropriate only if 'the movant shows that
there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.' In
making that determination, a court must view the evidence
'in the light most favorable to the opposing
party.'" Tolan v. Cotton, 572 U.S. 650, 657
(2014) (quoting Fed.R.Civ.P. 56(a); Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970)). A
"genuine" dispute of "material" fact
exists where a reasonable jury's review of the evidence
could result in "a verdict for the non-moving
party" or where such fact might otherwise affect the
disposition of the litigation. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The Court must grant
summary judgment against any party "who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Failure to Protect
again move for summary judgment on Plaintiffs failure to
protect claim based on their adherence to NJSP's Internal
Management Procedure dealing with Code 33s. In other words,
Defendants argue their actions were reasonable because they
followed the prison's policy in managing inmate conflict.
Judge Shipp previously denied summary judgment to Defendants
on this basis because they had not produced the relevant
Internal Management Procedures. Miller, 2017 WL
3429343, at *6. Despite having been given another opportunity
to present this issue to the Court, Defendants have again
failed to establish the reasonableness of their conduct as a
matter of law.
denying the prior summary judgment motion, Judge Shipp noted
a fact-sensitive inquiry was necessary to determine whether
prison officials acted reasonably for purposes of a failure
to protect claim: "for example; (1) whether, how, and
for how long Defendants attempted to intervene verbally; (2)
if Defendants attempted to intervene verbally, how often in
Defendants' experience verbal intervention is sufficient
to 'break up' an altercation; and (3) the number of
guards needed to intervene in an altercation between two
inmates." Id. (citing Bistrian v.
Levi,696 F.3d 352, 372 (3d Cir. 2012)). Defendant
Fraley's declaration is the same one previously submitted
and again "fail[s] to address most of the inquiries set
forth by the Third Circuit in Bistrian or any other
relevant issues concerning the reasonability ...