Opinion
DOCKET NO. A-1191-11T3
02-19-2015
TYRONE BARNES, Plaintiff-Appellant, v. KEITH HOOPER, Defendant-Respondent, and SUSAN LEONARDO, SCOTT CONE, TITUS THOMASON, AFIYA ROBERTS, ROBERT MAKARSKI and ROBERT BUECHELE, Defendants.
Tyrone Barnes, appellant pro se. Garrity, Graham, Murphy, Garofalo & Flinn, P.C., attorneys for respondent (Thomas D. Foti, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3321-09. Tyrone Barnes, appellant pro se. Garrity, Graham, Murphy, Garofalo & Flinn, P.C., attorneys for respondent (Thomas D. Foti, on the brief). The opinion of the court was delivered by ESPINOSA, J.A.D.
Plaintiff Tyrone Barnes appeals from an order that granted summary judgment to defendants, dismissing his complaint, which alleged violations of 42 U.S.C.A. § 1983, the First and Fourteenth Amendments to the United States Constitution, and intentional infliction of emotional distress. For the reasons that follow, we affirm.
Plaintiff, an inmate in the custody of the New Jersey Department of Corrections (DOC), was transferred to Talbot Hall in September 2008. Talbot Hall is an assessment and treatment facility operated by Community Education Centers, Inc., which works with the DOC to assess whether an inmate is prepared to re-enter the community and transition to a halfway house. The allegations in plaintiff's complaint are based upon the circumstances that preceded his transfer from Talbot Hall to Northern State Correctional Facility (Northern State) approximately one month later.
An incident report dated October 4, 2008, prepared by Kortney Haigler, a counselor at Talbot Hall, stated that plaintiff had walked inside the unit manager's office that day without permission and was "disrespectful, demanding, and irate." Plaintiff was given a demerit for this behavior.
Another incident report was prepared four days later regarding plaintiff's conduct during a clinical intervention committee meeting. Defendant Titus Thomason, the Unit Supervisor, reported that plaintiff disrupted a clinical scheduled activity by refusing to be seated when directed to do so four times and passing a grievance form he had prepared regarding his demerit to the other residents in attendance. Plaintiff was escorted to the office of defendant Keith Hooper, Supervisor of Operations for Talbot Hall, by Thomason and another staff member, defendant Afiya Roberts. After a discussion with plaintiff regarding his behavior, which Hooper described as unsuccessful, Hooper discussed the matter further with defendants, Dr. Scott Cone, Clinical Director, and Sheila Leonardo, the Director of Talbot Hall. It was jointly decided that plaintiff should be transferred back to Northern State.
The other defendants named in the complaint are Robert Makarski, an employee of the DOC, and Robert Buechele, Assistant Administrator at the DOC Central Reception and Assignment Facility.
Plaintiff was charged with prohibited act .256, refusing to obey an order of any staff member. Following a disciplinary hearing, plaintiff was adjudicated guilty of the charge. Thereafter, he filed an appeal from that adjudication, which ultimately proved successful, but has never filed a grievance against Talbot Hall to challenge his transfer to Northern State.
After a tortured history in which the DOC repeatedly failed to abide by orders it had sought from this court, we dismissed the disciplinary charge against plaintiff based in part on the DOC's concession that plaintiff was not provided with all the process due him. Barnes v. Dep't. of Corr., No. A-1517-08 (App. Div. May 14, 2010).
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Plaintiff filed the instant complaint in June 2009, and later filed an amended complaint. Plaintiff alleged that during the course of the meeting in Hooper's office, defendants confronted him regarding the contents of his grievance. He alleged that Hooper told him, "I don't think your [sic] ready to be here at Talbot [H]all nor ready to enter society." He further alleged that, when defendant Leonardo arrived, Hooper stated to her, "I want him out of here, because he's going to be a problem, look at this," and handed her the grievance. Plaintiff said that when he asked Hooper for the reason for his transfer to Northern State, Hooper replied that "he didn't know yet." Plaintiff alleged that the disciplinary charge filed "was entirely fabricated and used as a guise to retaliate against [him] for filing the grievance." The complaint asserted that the transfer to Northern State bypassed Talbot Hall's merit and demerit system, constituted retaliation for preparing his grievance, and violated N.J.A.C. 10A:20-4.19. In support of his § 1983 allegation, plaintiff alleges that defendants owed him a duty to provide clinical care while he was confined at Talbot Hall and exposed him to an unreasonable risk of injury and harm by returning him to Northern State. His allegation of constitutional violations apparently rests upon his claim of "retaliation for possessing and submitting an administrative grievance." Finally, in support of his intentional infliction of emotional distress claim, plaintiff alleged that defendants violated his due process rights "by pursuing a custom, practice or policy of ignoring the statutory requirements governing returning inmates back to prison."
Defendants filed a motion for summary judgment. In granting the motion, the trial court noted that plaintiff had not "filed a grievance as to his allegation that [the] disciplinary report against him was fabricated for the sole purpose of returning him to prison in retaliation for his exercise of his constitutionally protected rights," and therefore had failed to exhaust his administrative remedies. The court also found that plaintiff failed as a matter of law to establish a prima facie case of any violation of a constitutional right. Finally, the court concluded that the defendants are private persons not subject to liability under 42 U.S.C.A. § 1983.
In his appeal from the order that dismissed his complaint, plaintiff argues that there are genuine issues of material fact that precluded summary judgment, and that the trial court erred in concluding he failed to establish a prima facie case of a constitutional violation and in finding that defendants are private persons who are not liable under 42 U.S.C.A. § 1983.
At the outset, we note the broad discretion granted to the Commissioner of the DOC in determining an inmate's place of confinement and transfers within the correctional system. N.J.S.A. 30:4-91.2 provides, in pertinent part,
The commissioner or his duly authorized agent, may designate as a place of confinement any available, suitable, and appropriate institution or facility whether owned by the State or otherwise, and may at any time transfer a person from one place of confinement to another.
The word "facility" shall include private nonprofit community-based residential treatment centers which provided for the care, custody, subsistence, education, training and welfare of inmates.
[(Emphasis added).]
This statute grants the Commissioner "'complete discretion in determining an inmate's place of confinement.'" Williams v. New Jersey Dep't of Corr., 423 N.J. Super. 176, 183 (App. Div. 2011) (quoting Smith v. New Jersey Dep't of Corr., 346 N.J. Super. 24, 29-30 (App. Div. 2001)). This discretion may be circumscribed by legislative action. In Williams, we concluded that the Legislature set the parameters for the determination of whether the Adult Diagnostic and Treatment Center (ADTC) is a "suitable" and "appropriate" institution for the assignment of an inmate under N.J.S.A. 30:4-91.2 because the Sexual Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, defined the type of sex offenders eligible for housing and treatment at the ADTC. Id. at 188; see N.J.S.A. 2C:47-3(h). "We further conclude[d] that the Commissioner does not have the discretion to assign offenders to the ADTC whom the Legislature has determined should not be treated there." Williams, supra, 423 N.J. Super. at 186. The Legislature has not acted to limit the DOC's discretion to transfer an inmate in the circumstances here.
Plaintiff was not without recourse to challenge his transfer, however. The DOC has a grievance procedure in place. N.J.A.C. 10A:1-4.1 to -4.9.
Moreover, plaintiff was required to exhaust administrative remedies before initiating litigation in which he challenged the circumstances of his transfer as violating the United States Constitution and 42 U.S.C.A. § 1983. The Prison Litigation Reform Act, 42 U.S.C.A. § 1997e(a), states:
No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
[(Emphasis added).]
In Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992, 152 L. Ed. 2d 12, 26 (2002), the Supreme Court explained that the exhaustion requirement created by this statute is mandatory and applies to "all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." The Court conveyed the scope of the exhaustion requirement:
All "available" remedies must now be exhausted; those remedies need not meet federal standards, nor must they be "plain, speedy, and effective." Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.
[Id. at 524, 122 S. Ct. at 988, 152 L. Ed. 2d at 21 (internal citations omitted).]
Although plaintiff was plainly familiar with the DOC procedure for filing a grievance, the record fails to show that he filed a grievance or an Inmate Remedy System Form, challenging the decision to transfer him to Northern State and he does not allege that he did so. His failure to exhaust administrative remedies requires the dismissal of his suit pursuant to 42 U.S.C.A. § 1997e(a). It is therefore unnecessary for us to address his remaining arguments.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION