United States District Court, D. New Jersey
L. WOLFSON U.S. CHIEF DISTRICT JUDGE.
Andre Nance ("Nance" or "Plaintiff) is
proceeding pro se with this civil rights action filed under
42 U.S.C. § 1983. Presently before the Court is a motion
by defendants SCO. Francis Danley ("Danley"), Sgt.
Richard DeFazio ("DeFazio"), and Sgt. Sean
Patterson ("Patterson") (collectively, "the
Moving Defendants") for summary judgment, under Federal
Rule of Civil Procedure 56. (ECF No. 37.) For the following
reasons, summary judgment is granted to the Moving Defendants
with regard to Nance's tort claims, but the remainder of
the motion is terminated pending the Court's resolution
of factual issues pertaining to the threshold issue of
whether Nance properly exhausted administrative remedies with
regard to his federal claims. The Court will direct the
litigants to make supplemental filings on the issue of
administrative exhaustion to permit the Court to resolve this
outstanding issue. If the Court finds that Nance properly
exhausted administrative remedies, the unresolved portions of
the summary judgment motion will be reinstituted.
BACKGROUND AND PROCEDURAL HISTORY
is presently incarcerated at New Jersey State Prison
("NJSP"), in Trenton, New Jersey. On October 13,
2016, Nance began kicking the door to his cell. (Defs.'
Statement of Material Facts Not in Dispute, ECF No. 37-2,
¶ 13 (hereinafter, "Defs.' Stmt."); see
also Pl.'s Statement of Facts, ECF No. 40, at 2-3
(hereinafter "Pl.'s Stmt."). The Moving
Defendants, as well as Perkins, each of whom are corrections
officers, approached Nance's cell because of the kicking.
(Defs.' Stmt. ¶ 14; Pl.'s Stmt.) Patterson spoke
briefly to Nance, and then one of the officers directed Nance
to move to the back of his cell and to kneel. (Defs.'
Stmt. ¶¶ 15-16; Pl.'s Stmt.) Nance complied
with this order, moving to the back of his cell and kneeling
down. (Defs.' Stmt. ¶ 17; Pl.'s Stmt.) The
officers entered Nance's cell and, ultimately, the
encounter resulted in the officers striking Nance multiple
times and handcuffing him. (Defs.' Stmt. ¶ 20;
Pl.'s Stmt.) Thereafter, Nance was taken to the prison
medical clinic for treatment. (Defs.' Stmt.
¶¶22-24; Pl.'s Stmt.)
central factual dispute in this case is what caused the
defendant officers' use of force against Nance. Nance has
alleged that the officers began hitting him with fists and
batons almost immediately upon entering his cell and without
any provocation, as he fully complied with their directives.
(See Pl.'s Stmt.; see also Am. Comp., ECF No. 8.) The
Moving Defendants, on the other hand, contend that, when they
entered the cell, Nance attempted to assault Danley, and they
allege that use of force ceased as soon as "handcuffs
were applied and compliance was obtained." (Defs.'
Stmt. ¶¶ 19-20.)
early 2017, Nance filed a complaint with the Superior Court
of New Jersey, Law Division, Mercer County, asserting claims
against the Moving Defendants and an "SCO Daniel"
for violation of the Cruel and Unusual Punishment Clause of
the Eighth Amendment and for assault and battery under New
Jersey tort law. (See Notice of Removal, Ex. A, Compl., ECF
No. 1-1.) Nance alleged a constitutional claim for excessive
force under the Eighth Amendment and New Jersey tort claims
for assault and battery. (See Id. at 5-6.)
action was removed to this Court on August 25, 2017, and, in
the following weeks, the Moving Defendants answered to the
Complaint. (See ECF Nos. 1-4.) With the Moving
Defendants' consent, Nance filed an Amended Complaint on
December 7, 2017, which replaced defendant SCO Daniel, whom
Nance had apparently misidentified, with Perkins and also
added defendant Warren. (ECF No. 8.) Despite adding these
defendants to the caption, Nance has never provided the Court
any indication that service of process was effected upon
Perkins or Warren. The Moving Defendants filed an Answer to
the Amended Complaint on January 3, 2018. (ECF No. 10.)
the Moving Defendants filed a motion seeking dismissal under
Federal Rule of Civil Procedure 12(b)(6). (ECF No. 13.) In
support of that motion, the Moving Defendants primarily
argued that Nance's tort claims must be dismissed for his
failure to comply with the notice requirement of the New
Jersey Tort Claims Act ("NJTCA") and that
Nance's constitutional claims were bared under Heck
v. Humphrey, 512 U.S. 477 (1994). (Br. on Behalf of
Defs., ECF No. 13-1, at 5-7.) On September 26, 2018, the
Court denied the dismissal motion as procedurally defective,
but noted that the Moving Defendants could raise the same
arguments in a motion for summary judgment. (ECF Nos. 33
Moving Defendants have now raised those arguments, as well as
others, in a motion for summary judgment. (ECF No. 37.) Nance
has opposed summary judgment. (Mem. of Law on Behalf of PL, ECF
Rule of Civil Procedure 56 permits a court to award a party
summary judgment if "the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(a). A factual dispute is genuine if supported by evidence
such that a reasonable jury could return a verdict in the
non-movant's favor. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 251-52 (1986); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); Kaucher v. County of Bucks, 455 F.3d
418, 422-23 (3d Cir. 2006). A fact is material if, under the
governing substantive law, a dispute about the fact might
affect the outcome of the suit. See Anderson, 477
U.S. at 248; Kaucher, 455 F.3d at 423. In
determining whether a genuine dispute of material fact
exists, the Court must view the facts and all reasonable
inferences drawn from those facts "in the light most
favorable to the [non-movant]." Matsushita Elec.
Indus. Co., 475 U.S. at 587.
movant for summary judgment "bears the initial
responsibility of informing the district court of the basis
for its motion." Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). While a defendant moving for summary
judgment must support assertions by "citing to
particular parts of materials in the record,"
Fed.R.Civ.P. 56(c)(1)(A), the movant is not required to
"support its motion with affidavits or other similar
materials negating the opponent's claim,"
Celotex Corp., 477 U.S. at 323. Instead, "the
burden on the moving party may be discharged by
'showing'- that is, pointing out to the district
court-that there is an absence of evidence to support the
nonmoving party's case." Id. at 325. If the
movant has shown an absence of material factual dispute, the
non-movant then bears the burden to "designate specific
facts showing that there is a genuine issue for trial."
Id. at 324 (internal quotation marks omitted).
Moreover, the non-movant may not rest upon the mere
allegations or denials of the pleadings. Id. at 324;
Maidenbaum v. Bally's Park Place, Inc., 870
F.Supp. 1254, 1258 (D.N.J. 1994), aff'd 67 F.3d 291 (3d
Cir. 1995). The non-movant must "do more than simply
show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co., 475 U.S.
at 586. A mere "scintilla of evidence . . . will be
insufficient." Anderson, 477 U.S. at 252.
Civil Rule 56.1 requires that a motion seeking summary
judgment include a statement of material facts not in dispute
and that an opponent of summary judgment shall file "a
responsive statement of material facts, addressing each
paragraph of the movant's statement, indicating agreement
or disagreement and, if not agreed, stating each material
fact in dispute and citing to the affidavits and other
documents submitted in connection with the motion." L.
Civ. R. 56.1(a). The rule further provides that "any
material fact not disputed shall be deemed undisputed for
purposes of the summary judgment motion." Id.
Although a motion for summary judgment may not be granted by
default, merely because it goes unopposed, Anchorage
Assocs. v. V.I.Bd. of Tax Review, 922 F.2d
168, 175 (3d Cir. 1990), the motion may be granted if the
undisputed facts ...