Berry v. Fitzgerald

          Larry Lavonne Berry, No. 70372-056 FCI Fairton Counsel for Plaintiff

          Kristin Lynn Vassallo, Esq. Office of the U.S. Attorney Counsel for Defendants

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Plaintiff Larry Lavonne Berry, a pro se inmate formerly incarcerated at the Federal Correctional Institution in Fort Dix, New Jersey, brings this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against two employees of the Federal Bureau of Prisons, Stephen Fitzgerald and Robert Wright, alleging that they coerced and threatened him into having sex while he was incarcerated at FCI Fort Dix. Presently before the Court is Defendants' Motion for Summary Judgment, which is ripe for adjudication. See ECF No 17. For the reasons that follow, the Court will deny the Motion.

         I. Factual Background

         In the Complaint, Plaintiff alleges that he was “force[d] to have a sexual relationship with Officer Wright, ” who worked in the laundry, beginning on August 21, 2014. ECF No. 1 at 5. Plaintiff further alleges that Wright told Officer Fitzgerald about what he did with Plaintiff, and that Plaintiff was then “coerce[d] and threaten[ed] to have sex with Officer S. Fitzgerald [in] approximately June [or] July 2015.” Id. at 5-6. According to Plaintiff, he would be paged to the “School Building” on Sundays, when the building was closed, and Officer Fitzgerald would be waiting for him. Id. Plaintiff states that this “went on for months” and that when he “got enough nerve to make [Fitzgerald] stop, ” he was written up on false charges. Id. at 6.

         Plaintiff alleges that he informed several people about some or all of these events including case manager Wright (who Berry did not realize was Officer Wright's sister), the “head psychologist, ” and his case manager, Olsen and that “nothing changed, ” but Olsen told him to “come talk to him” if it happened again. Id. Plaintiff also alleges that he prepared a “Prison Rape Elimination Act BP-8 remedy” and spoke with Lieutenants Miyoc and Hackney about it but they “threaten[ed] to send [him] to SHU, ” and although he re-wrote his statement, neither “did anything to protect” him. Id. at 5-6.

         Based upon these allegations, Plaintiff asserts constitutional claims for sexual assault against Defendants Wright and Fitzgerald in their individual capacities. As relief, Plaintiff seeks $5, 000, 000 in damages. See id. at 6.

         Defendants answered the Complaint, ECF No. 16, and then moved for summary judgment before discovery, ECF No. 17. In support of their Motion for Summary Judgment, Defendants assert the judgment should be entered in their favor because Plaintiff failed to exhaust his administrative remedies regarding the claims alleged in the Complaint. See id. In support of their Motion, they provide the following undisputed facts regarding the exhaustion of Plaintiff's administrative remedies. See ECF No. 17-4.

         Plaintiff arrived at FCI Fort Dix on August 19, 2014, and remained in custody there until March 1, 2016, when he was transferred to FCI Fairton in Fairton, New Jersey. See ECF No. 17-7. According to the BOP's records, Plaintiff has never filed an administrative remedy concerning the events alleged in his complaint. See ECF No. 17-6. These records show that Plaintiff has filed a total of five administrative remedies while in the custody of the Bureau of Prisons. See id. Specifically, Plaintiff has filed the following grievances:

• An April 2016 BP-10 Regional Office appeal from a disciplinary hearing (Remedy ID 859688-Rl), which was denied in May 2016;

• A June 2016 BP-11 Central Office appeal from the same disciplinary hearing (Remedy ID 859688-Al), which was denied in April 2017;

• An August 2016 BP-9 administrative remedy to the warden of FCI Fairton asking the records department to “stop trying to open old cases” (Remedy ID 872780-Fl), which was withdrawn at his request;

• An October 2016 BP-9 administrative remedy to the warden of FCI Fairton asking the BOP to remove a “point” on his custody classification for a prior escape (Remedy ID 879641-Fl), which was denied on October 28, 2016; and • A November 2016 BP-9 administrative remedy to the warden of FCI Fairton asking the records department to “stop sending ...