Opinion
Civil Action No. 03-5596 (JBS).
December 17, 2004
Mr. Juan M. Vazquez #125080/758487B, New Jersey State Prison, Trenton, New Jersey, Plaintiff pro se.
Peter C. Harvey, Attorney General of New Jersey, Nicole S. Morris, D.A.G., R.J. Hughes Justice Complex, Trenton, New Jersey, Attorney for Defendants.
OPINION
This matter comes before the Court by Plaintiff Juan M. Vasquez's motion for a temporary restraining order and/or preliminary injunction, as well as Defendants' motion to dismiss or, in the alternative, motion for summary judgment. Plaintiff has sought a stay of summary judgment motion practice pursuant to Rule 56(f), Fed.R.Civ.P., because of difficulty in obtaining legal assistance and photocopying, but he in fact filed detailed opposition later, dated November 10, 2004. For the reasons discussed herein, Defendants' motion will be granted for Plaintiff's failure to exhaust his administrative remedies and Plaintiff's request for relief will be denied.
Accordingly, Plaintiff's Rule 56(f) motion to stay summary judgment motion practice will be denied. The opposition filed demonstrates that Mr. Vasquez was able in the interim to obtain all services and information necessary to oppose the motion.
BACKGROUND
Procedural Posture
Plaintiff, John M. Vasquez, is a New Jersey State inmate, currently incarcerated at New Jersey State Prison in Trenton, New Jersey. Plaintiff filed this pro se action pursuant to 42 U.S.C. § 1983 against various employees of the New Jersey Department of Corrections, alleging violations of his constitutional rights that allegedly occurred while he was confined to Garden State Youth Correctional Facility, East Jersey State Prison, Bayside State Prison and New Jersey State Prison. Plaintiff names as defendants Commissioner of the Department of Corrections Devon Brown, Administrator Roy Hendricks, Administrator Charles Leone, Assistant Superintendent T. Michael Power, Sergeant Francis Georgescu, Senior Correction Officer John Caldwell, Senior Correction Officer Robert Cotto, Senior Investigator Brian Bonomo, and Chaplains Rina Terry and Samuel Atchison (hereinafter "Defendants").
Plaintiff submitted his Complaint on November 26, 2003, alleging, inter alia, that Defendants Caldwell and Cotto interfered with his access to the courts in violation of the First Amendment; that Defendants Georgescu, Caldwell and Cotto used excessive force; that Defendant Devon Brown failed to protect him in violation of the Eighth Amendment; Defendants Commissioner Devon Brown, Roy Hendricks, Samuel Atchison, Michael Power, Charles Leone, Rina Terry, Caldwell and Cotto interfered with his right to the free exercise of religion in violation of the First Amendment and 42 U.S.C. § 2000c-1; and that Defendants Bonomo, Leone and Georgescu retaliated against him. Plaintiff seeks declaratory and injunctive relief as well as compensatory and punitive damages. Plaintiff's Complaint arises largely out of his allegation that Defendants denied him certain religious articles. This Court filed the Complaint on February 9, 2004, after granting Plaintiff's application to proceed in forma pauperis. Chief Judge Bissell dismissed Plaintiff's Complaint as to Michael Shanklin and the Honorable Garrett E. Brown, Jr. with prejudice. On April 7, 2004, Plaintiff filed a motion for a temporary restraining order and/or preliminary injunction.
On June 23, 2004, the undersigned ordered the Clerk of Court to correct the docket to reflect Brian Bonomo as an additional defendant and dismissed the following claims with prejudice: all claims against Defendant David Ragonese; all claims against Defendants Steven Johnson, Mark Yajcaji and Rina Terry arising out of their testimony in Vasquez v. Burns, D.N.J. Civil Action No. 99-2589 (GEB); all claims for deprivation of Plaintiff's right to procedural due process, arising out of allegedly false disciplinary reports and disciplinary proceedings as against Katherine Ireland and Devon Brown; and all claims against the Defendants in their official capacities.
On October 15, 2004, Defendants filed their motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56 on October 15, 2004. By letter dated October 22, 2004, and filed October 26, 2004, plaintiff requested additional time to respond to the motion because it required reference to matters outside the pleadings which would require additional time for his research and obtaining of copying services and the like, pursuant to Rule 56(f), Fed.R.Civ.P., and he also noted the bases for his opposition. Mr. Vasquez submitted more detailed opposition and attachments in response to Defendants' dispositive motion, filed November 15, 2004. The defendants' reply was filed December 3, 2004. Since it is clear, as both parties acknowledge, that matters outside the pleadings have been submitted (and will be considered), the motion must be addressed on its alternate basis — for summary judgment under Rule 56.
Confinement at Garden State Youth Correctional Facility
Plaintiff was confined at Garden State Youth Correctional Facility ("GSYCF") from November 28, 1999 through January 10, 2002. (Affidavit of Abel Espada, ¶ 11; Ex. B.) Plaintiff claims that on January 4, 2002, he was found guilty of disciplinary infractions filed by Defendant Bonomo, a Special Investigator at GSYCF. (Complaint, Statement of Claims ¶ 12, Parties ¶ 6.) On January 1, 2002, Plaintiff received two disciplinary charges for violating N.J.A.C. 10A:4-4.1(a) *.005, threatening another person with bodily harm and one charge for violating N.J.A.C. 10A:4-4.1(a) *052, making sexual proposals or threats. (Espada Affidavit, ¶ 12; Ex. C.) The charges were filed by Defendant Bonomo and were heard by Hearing Officer Zane Maguire who found Plaintiff guilty. (Id.) Plaintiff was consequently sanctioned with detention and recreation segregation and lost commutation credits and contact visits. (Id.) These disciplinary charges were referred to the Prosecutor's Office for further action. (Id.)
Confinement at East Jersey State Prison
Plaintiff was transferred from GSYCF to the Administrative Close Segregation Unit ("ACSU") at East Jersey State Prison ("EJSP") in Rahway, New Jersey on January 10, 2002, where he was confined until November 6, 2002. (Espada Affidavit, ¶ 12; Ex. C.) Plaintiff claims that he submitted an Inmate Request Form to Defendant Michael Power regarding his legal and religious articles. (Complaint, Statement of Claims, ¶ 25.) Plaintiff alleges that upon his transfer to the ACSU at EJSP, his legal and religious property was seized as contraband and would be returned to him upon his release from ACSU. (Id. at ¶¶ 26-28.) Plaintiff acknowledges that the ACSU Handbook provides that all religious materials are subject to search for contraband, but claims that his religious soaps and other religious articles should not be deemed contraband and that other inmates "similarly situated" are permitted to retain their religious oils. (Id. at ¶ 32.) Plaintiff claims that he contacted Defendant Commissioner Brown regarding the confiscation of his religious property but no remedial action was taken. (Id. at ¶ 34.)
Confinement at Bayside State Prison
Plaintiff was transferred from EJSP to Bayside State Prison ("Bayside") in Leesburg, New Jersey on November 6, 2002, where he was confined until May 7, 2003. (Espada Affidavit, ¶ 12; Ex. C.) Plaintiff claims that on November 11, 2002, he submitted a memorandum to Defendant Leone, Administrator of Bayside, concerning his "religious and legal issues." (Complaint, Statement of Claims, ¶ 44.) Plaintiff alleges that he submitted an Inmate Interview Request Form to Defendant Chaplain Terry concerning the interruption of his religious services and denial of his religious items. (Id. at ¶ 52.) Plaintiff further claims that he submitted request forms on April 2, 2003 and April 14, 2003, for use of the law library and legal materials. (Id. at ¶ 56.) Plaintiff contends that on April 23, 2003, he submitted an Inmate Request Form concerning the denial of the use of the law library and legal materials. (Id. at ¶ 62.)
On April 26, 2003, Defendant SCO Caldwell charged Plaintiff with violating N.J.A.C. 10A:4-4.1(a) *.005, threatening another with bodily harm and *.708, refusal to submit to a search. (Espada Affidavit, ¶ 12; Ex. C.) On May 2, 2003, Hearing Officer Kathy Ireland found Plaintiff guilty of the charges and sanctioned him to detention, administrative segregation and loss of commutation time. (Id.) Plaintiff appealed the decision of the hearing officer and that decision was upheld. (Id.)
Confinement at New Jersey State Prison
Plaintiff was transferred from Bayside to ACSU at New Jersey State Prison ("NJSP") on May 7, 2003, where he is currently confined. (Espada Affidavit, ¶ 12; Ex. C.) Plaintiff claims that on May 8, 2003, he submitted an Inmate Request Form to Defendant Chaplain Atchison concerning his religious beliefs, practices and religious articles but received no response. (Complaint, Statement of Claims, ¶ 80.) Plaintiff further alleges that on July 10, 2003, he submitted an Administrative Remedy Form requesting to speak to Defendant Chaplain Atchison about his religious articles and racial and religious discrimination but no action was taken. (Id. at ¶ 86.) Plaintiff states that on July 28, 2003, he submitted an Administrative Remedy Form concerning the alleged deprivation of legal materials from the law library. (Id.) Plaintiff asserts that Defendant Commissioner Brown was made aware of the alleged racism and brutality toward African American inmates by white prison officials. (Id. at ¶ 158.)
DISCUSSION
Standard of Review
Defendants have filed a motion to dismiss for failure to state a claim or, in the alternative, for summary judgment in lieu of an answer. Because it is necessary to look beyond the face of Plaintiff's Complaint to decide this motion, it is not properly brought under Rule 12(b)(6) and this Court will review the matter before it under the summary judgment standard.
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law.Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "[T]he nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Country Floors v. Partnership of Gepner and Ford, 930 F.2d 1056, 1061-63 (3d Cir. 1991). However, where the nonmoving party bears the burden of persuasion at trial, "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." Celotex Corp., 477 U.S. at 325.
Exhaustion of Administrative Remedies
The remaining Defendants seek dismissal of this action due to Plaintiff's failure to exhaust administrative remedies. In 1996, Congress enacted the Prison Litigation Reform Act (" PLRA"), Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321 (April 26, 1996). Congress's purpose in enacting the PLRA was "primarily to curtail claims brought by prisoners under 42 U.S.C. § 1983 and the Federal Torts Claims Act . . . many of which are routinely dismissed as legally frivolous." Santana v. United States, 98 F.3d 752, 755 (3d Cir. 1996). The PLRA provides that no action may be brought with respect to prison conditions unless the prisoner has exhausted available administrative remedies. 42 U.S. § 1997e(a). Specifically, § 1997e(a) provides:
No action shall be brought with respect to prison conditions under section 1983 of this title, 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.
"[T]he PLRA's exhaustion requirement 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." Porter v. Nussle, 534 U.S. 516, 532 (2002). Failure to exhaust is an affirmative defense to be pleaded by the defendant. Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003);Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). Moreover, exhaustion is mandatory, even if the available administrative processes cannot grant the desired remedy. Booth v. Churner, 532 U.S. 731, 736 (2002).
42 U.S.C. § 1915 provides that "[a]s used in this section, the term `prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." In assessing whether the exhaustion requirement applies to a plaintiff, a court must look to this status at the time he filed his complaint. Troville v. Venz, 303 F.3d 1256, 1259 (11th Cir. 2002); see also Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002). Here, it is undisputed that Plaintiff was a prisoner at the time he filed his Complaint.
In Rivera v. Whitman, 161 F. Supp. 2d 337, 341 (D.N.J. 2001),rev'd on other grounds, Ray v. Kertes, 285 F. 3d 287, 293 n. 6 (3d Cir. 2002), the district court held that a prisoner must exhaust all of the claims that make up his federal civil action before he may file a civil rights suit in federal court. Rivera's complaint contained both exhausted and unexhausted claims. After a detailed and lengthy analysis of the provision's text, its legislative history, and other policy considerations, the district court held that "the plain language of section 1997e(a), as well as the legislative intent and policy interests behind it, compels a `total exhaustion' rule." Id. at 343. The adoption of a total exhaustion rule serves to reduce piecemeal litigation, thereby increasing the likelihood that all claims will be reviewed in a single proceeding. Moreover, the prisoner's interest in obtaining speedy relief in federal court on his claims is not likely to be unreasonably impaired by requiring total exhaustion. See generally Crews v. Horn, 360 F.3d 146 (3d Cir. 2004); Lambert v. Blackwell, 134 F.3d 506 (3d Cir. 1997). This result appears to be mandated by the language of § 1997e(a) which speaks in terms of "actions" and not "claims." For these reasons, courts in other jurisdictions confronted with complaints involving both exhausted and unexhausted claims have held that the entire case should be dismissed. See e.g., Keenan v. Twommey, 229 F.3d 1152 (6th Cir. 2000); Graves v. Norris, 218 F.3d 884 (8th Cir. 2000).
Pursuant to N.J.A.C. 10A:8-1.1 through 10A:8-3.6, GSYCF has adopted an Inmate Handbook ("Handbook") that sets forth the administrative procedures prisoners must utilize to bring grievances to the attention of prison authorities. (Affidavit of Margaret Ossont, ¶¶ 4, 10, Ex. A; Espada Affidavit, ¶¶ 4, 10, Ex. A.) According to the GSYCF Handbook, Administrative Remedy procedures are established to provide an avenue for all inmates to express their problems, knowing that a complaint will be investigated by an appropriate staff member. (Ossont Affidavit, ¶ 5; Espada Affidavit, ¶ 5.) The GSYCF Handbook further provides that prisoners must utilize the inmate request tracking system. (Ossont Affidavit, ¶ 6; Espada Affidavit, ¶ 6.) An inmate must first complete an "Inmate Request Form," which must be placed in the bright yellow mailboxes located throughout the facility. (Id.) The inmate must then allow thirty days before receiving an answer to the request. (Id.)
If the inmate is not satisfied with the response on the "Inmate Request Form," then the inmate can submit an "Interview Request Form" and the interview is at the discretion of the Department Supervisor. (Ossont Affidavit, ¶ 7; Espada Affidavit, ¶ 7). Finally, an "Administrative Remedy Form" may be submitted when an inmate has been unable to address complaints or questions satisfactorily. (Ossont Affidavit, ¶ 8; Espada Affidavit, ¶ 8.) If the inmate does not agree with the response, he has ten days to file an appeal. (Ossont Affidavit, ¶ 6; Espada Affidavit, ¶ 6.) To file an appeal, the inmate must complete part four of the Administrative Tracking Request Form. (Id.) Appeals decisions are final decisions at the institutional level. (Id.)
The record reflects that Plaintiff pursued the administrative remedies available to him with regard to the allegations contained in paragraphs six of the Parties section and paragraph twelve of Plaintiff's Statement of Claims. However, Plaintiff has not pursued the administrative remedies available to him with regard to his claim that he was threatened by staff at GSYCF.
Plaintiff claims that he has filed administrative grievance forms regarding alleged threats by Defendant Brian Bonomo of GSYCF. Plaintiff states that he submitted an Inmate Request Form while at GSYCF, dated January 6, 2002, with an eight-page letter attached to it regarding a disciplinary action. (See Plaintiff's Ex. A.) Plaintiff further claims that he submitted a second Inmate Request Form at GSYCF on January 6, 2002 addressed to Rayford Johnson. (See Plaintiff's Ex. B.) There is no confirmation, however, that these forms were ever submitted to the administration at GSYCF. No response was ever provided to Plaintiff, per the procedure outlined in the Inmate Handbook. Plaintiff also alleges that he submitted an Administrative Remedy Form with correspondence on October 9, 2002 to Department of Corrections Division Director Douglas Gerardi and mailed it to GSYCF. However, there is no record of this Administrative Remedy Form being filed at GSYCF. (Ossont Affidavit, ¶ 9; Espada Affidavit, ¶ 9.) Although Plaintiff has provided a copy of his correspondence, he has not provided a copy of the Administrative Remedy Form. (See Plaintiff's Ex. F.)
Plaintiff admits that after he was transferred from GSYCF on January 10, 2002, he did not file any institutional grievance forms there. He does allege, however, that upon his arrival at EJSP, he submitted an Inmate Request Form, dated May 16, 2002, with a letter addressed to Commissioner Devon Brown regarding alleged threats made by Defendant Bonomo. There is no record that Plaintiff ever filed this Inmate Request Form. In response to his correspondence, however, the Inmate Correspondence Coordinator at the Department of Correction's Division of Operations provided Plaintiff with a letter stating:
Your concern is an institutional matter. Please submit an Administrative Remedy Form or Inmate Request Form at the Institution for response regarding this concern. A separate from is required for each concern. There is a thirty (30) day response time to your submitted form.
(Plaintiff's Ex. C.) This letter provided Plaintiff with notice that in order for the proper institution to address his concerns, he would have to properly file an institutional grievance. There is no evidence, however, in the record that Plaintiff did so with respect to his claim that he was threatened by Defendant Bonomo at GSYCF. (Ossont Affidavit, ¶ 9; Espada Affidavit, ¶ 9.)
Plaintiff claims that he has written letters to former New Jersey Governor James McGreevey regarding the alleged threats by Defendant Bonomo and disciplinary actions which allegedly led to an investigation by the East Jersey Special Investigations Division as well as a five-page letter to former Department of Corrections Assistant Commissioner Robert Balicki. Even taking these allegations as true, however, Plaintiff has not demonstrated that he followed the administrative procedures outlined in the Inmate Handbook, to which he was subject. Plaintiff's contention that the executive and legislative branches of the government are part of the administrative remedies available to prisoners is meritless. Plaintiff, like all inmates with grievances, is required to file an institutional grievance form with the prison administration, thereby providing the institution with notice and an opportunity to address complaints internally. The writing of letters of the kind Plaintiff offers here does not comply with the explicit written procedures established in the Inmate Handbook, and thus, renders Plaintiff's retaliation claim unexhausted.
Mr. Vasquez's evidence that he submitted initial Inmate Request Forms with respect to some of these grievances, and the institution's certification that no such forms were received in those instances, does not create a material dispute under the requirements of § 1997e(a), above, that "such administrative remedies as are available [shall be] exhausted." If Mr. Vasquez filed an Inmate Request Form that was unanswered for 30 days, he would have to grieve that non-response by submitting the Administration Remedy Form to the next institutional level under the handbook policy, which he failed to do in those instances at issue here. That he did not request or obtain a final determination of the grievances means they were unexhausted.
In summary, the record demonstrates that Plaintiff has exhausted his administrative remedies only with respect to his allegations of retaliation, as set forth in paragraphs six of the Parties section and paragraph twelve of the Statement of Claims of Plaintiff's Complaint. However, Plaintiff has failed to exhaust his available administrative remedies with respect to all other claims raised herein, particularly his claims that he was threatened by staff at GSYCF.
Since Plaintiff's Complaint contains both exhausted and unexhausted claims, § 1997e(a) requires this Court to dismiss Plaintiff's entire action without prejudice. This means that Plaintiff will have the opportunity to submit to the prison administration at this time, the Inmate Request Forms required by the administrative remedy process, and to exhaust that process, before bringing such claims in this Court. If Plaintiff wishes instead to abandon his unexhausted claims and pursue only his exhausted claims, he can clearly so indicate and seek immediate reopening of this docket as to the exhausted claims. If the unexhausted claims are abandoned, they will be dismissed with prejudice. Plaintiff's Motion for a TRO/Preliminary Injunction
In ruling on a motion for a preliminary injunction, this Court must consider the following four facts: (1) the likelihood that the moving party will prevail on the merits; (2) the extent to which, if any, the moving party will be irreparably harmed; (3) the extent to which the non-moving party will suffer irreparable harm if the injunction is granted; and (4) the public's interest.ATT Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994). Issuing a preliminary injunction is "an `extraordinary remedy' and should be restricted to `limited circumstances.'" Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1988). The moving party bears the burden of proving that all elements required for an injunction are met. See Adams v. Freedom Forge Corp., 204 F.3d 475, 486 (3d Cir. 2000).
In addition, a district court must be convinced that its consideration of the four relevant factors favors the granting of preliminary relief, Shire US, Inc. v. Barr Labs, Inc., 329 F.3d 348, 352 (3d Cir. 2003), and a preliminary injunction should issue only if the party seeking it produces evidence sufficient to convince the court that all four factors favor preliminary relief. ATT v. Winback and Conserve Program, Inc., 42 F.3d at 1427.
Here, based on the discussion above, Plaintiff is unable to demonstrate his likelihood of success on the merits. Thus, the inquiry ends and Plaintiff's motion for a temporary restraining order and/or preliminary injunction must be denied.
CONCLUSION
For the reasons discussed above, Defendants' motion to dismiss or, in the alternative, for summary judgment, must be granted, as Plaintiff has not satisfied the requirement of administrative exhaustion. Moreover, Plaintiff's failure to exhaust undermines his argument as to likelihood of success on the merits. Thus, Plaintiff's motion for a temporary restraining order or permanent injunction must be denied, and his Complaint will be dismissed without prejudice, pending his exhaustion of the available administrative remedies as to all claims. If Plaintiff exhausts his administrative remedies as to all claims in this action, he may then seek to reopen this docket, since this dismissal is without prejudice. If Plaintiff chooses instead to abandon his unexhausted claims and pursue only his exhausted claims in this case, he may clearly so indicate and seek reopening of this docket only as to his exhausted claims, while his unexhausted claims will, in that event, be dismissedwith prejudice.
ORDER
This matter having come before the Court upon Plaintiff's motion for a temporary restraining order or preliminary injunction as well as upon Defendant's motion to dismiss or, in the alternative, for summary judgment; and the Court having considered the submissions of the parties in support thereof and in opposition thereto; and for the reasons expressed in the Opinion of today's date; and for good cause shown;IT IS this 17th day of December 2004, hereby
ORDERED that Defendant's motion to dismiss or, in the alternative, for summary judgment [Docket Item No. 28-1] shall be, and hereby is, GRANTED and summary judgment is entered finding Plaintiff has failed to exhaust his available administrative remedies as to some claims brought in this action; and
IT IS FURTHER ORDERED that Plaintiff's motion for a temporary restraining order and/or preliminary injunction [Docket Item No. 4-1] shall be, and hereby is, DENIED ; and
IT IS FURTHER ORDERED that Plaintiff's Complaint shall be, and hereby is, DISMISSED WITHOUT PREJUDICE ; and
IT IS FURTHER ORDERED that the Clerk of Court shall close this case upon its docket.