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Nance v. Delaney

United States District Court, D. New Jersey

June 5, 2019

ANDRE NANCE, Plaintiff,
SCO. FRANCIS DANLEY et al, Defendants.




         Plaintiff 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.


         Nance 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.)

         The 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.)

         In 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.)

         The 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.)

         Thereafter, 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 & 34.)

         The 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.[1] (Mem. of Law on Behalf of PL, ECF No. 40.)


         Federal 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.

         A 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.

         Local 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 ...

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