United States District Court, D. New Jersey
Lavonne Berry, No. 70372-056 FCI Fairton Counsel for
Kristin Lynn Vassallo, Esq. Office of the U.S. Attorney
Counsel for Defendants
L. HILLMAN, U.S.D.J.
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.
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.
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.
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
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.
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
• 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 ...