DOTY v. UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

ALFRED DOTY, :

:

Plaintiff, : Civ. No. 15-3016 (NLH) (JS)

:

v. : OPINION

:

FCI FT. DIX WARDEN JORDAN :

HOLLINGSWORTH; UNIT MANAGER :

BARBARA NEVINS; UNIT OFFICER :

JASON BAZYDLO; UNKNOWN UNIT :

OFFICERS #1-#10, :

:

Defendants. :

______________________________:

APPEARANCES:

Paul E. Svensson, Esq.

Michael K. Burke, Esq.

Hodges Walsh Messemer & Burke, LLP

55 Church Street, Suite 211

White Plains, NY 10601,

Counsel for Plaintiff

Craig Carpenito, United States Attorney

Anne B. Taylor, Assistant United States Attorney

Office of the United States Attorney

401 Market Street, PO Box 2098

Camden, NJ 08101

Counsel for Defendants

HILLMAN, District Judge

This case concerns an assault that Plaintiff Alfred Doty, a

former federal prisoner, suffered at the hands of another inmate

while incarcerated at FCI Fort Dix (“Fort Dix”), New Jersey. In

the second amended complaint (“SAC”), Plaintiff alleges that

former Fort Dix Warden Jordan Hollingsworth, FCI Fort Dix Unit

Manager Barbara Nevins, and Unit Officer Jason Bazydlo

(“Defendants”) failed to protect him from the assault in

violation of the Eighth Amendment. ECF No. 33.

At issue is Defendants’ Motion for Summary Judgment, which

is ripe for adjudication. See ECF No. 77. The Court has

subject-matter jurisdiction over this case pursuant to 28 U.S.C.

§ 1331, as this case concerns a federal question. For the

reasons that follow, the Court will grant the Motion.

I. BACKGROUND

A. Undisputed Facts

1. General Operations and Procedures at FCI Fort Dix

FCI Fort Dix is a federal prison which houses low security,

sentenced federal inmates. ECF No. 82-1 ¶ 3. Inmates at Fort

Dix are assigned to one of several housing units in the East or

West Compound. ECF No. 85-1 at 18 ¶ 1. The compounds are

distinct and secure areas consisting of several buildings

including dormitory style housing, inmate recreation, education,

and food services. ECF No. 82-1 ¶ 3. Inmates are prohibited

from entering any housing unit other than the one to which they

are assigned unless they have received authorization. ECF No.

85-1 at 18 ¶ 1. Inmates found in a housing unit other than

their assigned one without authorization should be issued an

incident report and are subject to disciplinary action. Id.

The inmates can move about their compound during ten-minute

“moves.” ECF No. 82-1 ¶ 4. After the move has ended, the

inmate must wait until the next move to relocate. Id. However

on weekend afternoons, Fort Dix operates as an “open compound”

and inmates may move freely around their compound for

approximately an hour until afternoon recall. Id. ¶ 6. During

open compound, entrances to the housing units are left unlocked.

Id. ¶ 7. The officers are supposed to monitor the doors during

moves and should prevent unauthorized inmates from entering the

housing units. Id. ¶ 9. The housing officer must permit

inmates to get to their next destination and therefore must

track entry to the housing unit as much as possible while also

allowing inmates to change location. Id. ¶ 10. The officers

use census counts and other tools to check inmates’ location

throughout the day. Id. ¶ 13. Correctional Officers and other

prison employees are “responsible for the accountability of all

inmates in their assigned areas, details, and housing units.”

ECF No. 85-1 at 18 ¶ 2. Any officer who does not take action to

maintain inmate accountability could be disciplined. Id. at 19

¶ 4.

2. Events up to and including the assault

On Saturday, August 24, 2013, Plaintiff was assigned to

Housing Unit 5711 (“Unit 5711”) within the East Compound. ECF

No. 82-1 ¶ 14. Defendant Jason Bazydlo was a correctional

officer serving as the Unit Officer for Unit 5711 at that time.

Id. ¶ 15. He was responsible for approximately 366 inmates in

the three-floor unit. ECF No. 85-1 at 22 ¶ 17. He made it his

practice to conduct random and irregular rounds throughout the

unit to avoid establishing a pattern that inmates could

anticipate. Id. at 21 ¶ 11. During moves, he sometimes stayed

by the door and sometimes moved throughout the unit. Id. ¶ 12.

He also did this during the weekend lunch period. Id.

Before August 24, 2013, Officer Bazydlo and Plaintiff had

only interacted with each other when Officer Bazydlo delivered

Plaintiff’s mail. ECF No. 82-1 ¶ 16. Plaintiff never told

Officer Bazydlo that he felt his physical safety was at risk

before August 24, 2013. Id. Plaintiff also had never spoken or

otherwise communicated with Unit Manager Barbara Nevins or

Warden Jordan Hollingsworth about his personal safety prior to

August 24, 2013. Id. ¶¶ 17-18.

On Thursday, August 22, 2013, another inmate woke Plaintiff

up from a nap to ask if Plaintiff wanted to fight. Id. ¶ 19.

The inmate did not reside in Unit 5711. Id. ¶ 20. There was no

physical altercation at that time, and Plaintiff did not report

to Defendants or anyone else at Fort Dix that he had been

physically threatened by an inmate who did not reside in his

housing unit. Id. ¶ 22. Plaintiff testified that he did not

fear for his physical safety after the August 22 incident. Id.

¶ 23. Plaintiff did not receive any threats on Friday, August

23, 2013. Id. ¶ 24.

On the morning of August 24, 2013, an intoxicated inmate

was found in Unit 5711 and was scheduled to be transported to

the Special Housing Unit (“SHU”). ECF No. 85-1 at 22 ¶ 18.

Officer Bazydlo was not yet on duty when the intoxicated inmate

was discovered. Id. No inmates from other units had prior

permission to be in Unit 5711 on August 24, 2013. Id. ¶ 19.

After the 10:00 morning count and before lunch, Plaintiff went

down to the sally port, an area around the door where inmates

congregate ahead of leaving the building. ECF No. 82-1 ¶¶ 25-

26. Plaintiff arrived at the sally port first and was alone

with Officer Bazydlo. Id. ¶ 27. Officer Bazydlo later quoted

Plaintiff as telling him that “If you go upstairs later with a

breathalyzer, you’ll catch a lot of them. Hooch is getting bad

here, there is a whole black market and it’s getting violent.”

Id. ¶ 31. This was the first time Plaintiff had reported the

production of intoxicants in the unit or expressed concerns

about unauthorized inmates. Id. ¶ 33. Although Plaintiff

apparently witnessed people in his unit drinking homemade

intoxicants several times a week, he had never seen them be

violent or threaten violence. Id. ¶ 36. Plaintiff did not tell

Officer Bazydlo that he felt at risk of physical harm. Id. ¶

29. Plaintiff stopped talking to Officer Bazydlo when other

inmates started filling the sally port. Id. ¶ 32.

Officer Bazydlo believed Plaintiff’s report to be a general

statement about potential violence that was not worth reporting

to a lieutenant. ECF No. 85-1 at 23 ¶ 20. He would be required

to report a specific threat of violence to his lieutenant. Id.

at 21 ¶ 14. He could not recall what he did in response to

Plaintiff’s report, but he testified that he would not have

deviated from his normal routine of making random and irregular

rounds throughout the unit. Id. at 23 ¶ 21.

Plaintiff went to lunch following his conversation with

Officer Bazydlo, and then went to the pill line. ECF No. 82-1 ¶

37. He returned to his housing unit after receiving his

medication. Id. ¶ 38. As it was a Saturday afternoon, Fort Dix

was operating as an open compound and Plaintiff was able to move

freely around without waiting for a ten-minute move. Id. ¶ 39.

When Plaintiff returned to the housing unit, the door was

unlocked. Id. ¶ 40. Plaintiff did not see a guard at the

entrance and the door to the guard’s office was closed. Id.

Plaintiff went to the restroom on the first floor, down the

hall from the entrance door. Id. ¶ 41. Upon exiting the stall,

Plaintiff was confronted by an inmate he identified as

“Jefferies.” Id. ¶ 42. Jefferies was not housed in Unit 5711

and was not authorized to be in that housing unit on August 24,

2013. Id. ¶ 43. Jefferies is also not the inmate who had

awoken Plaintiff the day before. Id. ¶ 21. Jefferies had been

waiting for Plaintiff and said he heard Plaintiff had problems

with him. Id. ¶ 44. Plaintiff told Jefferies that he did not

have a problem with him, but he did have a problem with the way

Jefferies treated Plaintiff’s friend and roommate, Russell

Ochocki. Id. ¶ 45. Plaintiff claimed that Jefferies had been

pressuring Ochocki to buy commissary for him under threat of

physical assault. Id. ¶ 46. Plaintiff asserted that Jefferies

had slapped Ochocki, leaving a bruise, and stolen Ochocki’s

commissary items when Ochocki did not buy the items Jefferies

requested. Id. ¶ 47. This incident was never reported to the

officials at Fort Dix. Id. Plaintiff and Jefferies had never

spoken to each other before the confrontation in the bathroom.

Id. ¶ 48.

The last thing Plaintiff remembers about the bathroom

confrontation is that Jefferies said something to the effect of

“you are nothing but chomos,” and Plaintiff responded that “you

don’t know anything about me.” Id. ¶ 49. “Chomos” is a slang

term for “child molester.” Id. Around 12:50 in the afternoon,

Jefferies assaulted Plaintiff, causing Plaintiff to lose

consciousness. Id. ¶ 50. Plaintiff does not know what he was

assaulted with, and Jefferies was gone by the time Plaintiff

regained consciousness. Id. ¶ 51. Plaintiff testified that

when he went to the housing unit officer’s office after he was

assaulted, he saw another officer with Officer Bazydlo. Id. ¶

52. Plaintiff further testified that Officer Bazydlo said to

that other officer: “I hope this isn’t in retaliation for what

he told me this morning.” Id.1

Jefferies’ assault on Plaintiff caused Plaintiff to sustain

a fractured skull, fractured orbital bones, fractured left

cheek, split hard pallet, a broken tooth, and lacerations on his

upper and lower lips. Id. ¶ 53. Plaintiff did not know

Jefferies was upset with him until immediately before Jefferies

assaulted Plaintiff in the bathroom on August 24, 2013. Id. ¶

54. Plaintiff testified that he met another inmate who had been

assaulted by Jefferies, but he did not know who that inmate is

and did not know if any of the Defendants were aware that

Jefferies had assaulted another inmate. Id. ¶ 55.

3. Investigation

As part of the investigation into the assault, Special

Investigative Section Department Lieutenant Joyce Tucker showed

Plaintiff a photo array and asked if he could identify his

assailant. Plaintiff declined to identify Jefferies from the

photo array because he was afraid of retaliation. Id. ¶ 57; ECF

1 The Court notes that Officer Bazydlo denies being in his office

with another officer and does not recall making this statement.

ECF No. 82-4 103:24 to 104:2. This dispute of fact is not

material.

No. 85-1 at 23 ¶ 23. Lieutenant Tucker did not save the photo

array because the photographs did not result in an

identification. ECF No. 85-1 at 24 ¶ 27. There was a

surveillance camera positioned outside of Unit 5711 that would

have recorded anyone entering and exiting the unit through the

main door on August 24, 2013. Id. ¶ 25. Lieutenant Tucker

reviewed footage from that camera, which was recorded around the

time of the assault, but it is unknown what happened to the

video. Id. ¶ 26. Prison personnel later concluded that a group

of inmates from Baltimore was behind the assault. Id. ¶ 24.

Some of those inmates lived in Unit 5711, others did not. Id.

4. Supervisory Defendants

In August of 2013, Barbara Nevins was a Unit Manager

responsible for the administrative oversight of ten staff

members, including the case managers, counselors, and unit team.

ECF No. 82-1 ¶¶ 70-71. Much of Unit Manager Nevins’ work was

administrative, such as overseeing the paperwork for transfers

and halfway house referrals. Id. ¶ 72. She was not the

immediate supervisor of the correctional staff officers. Id. ¶

73.

Unit Manager Nevins was not working on Saturday, August 24,

2013. Id. ¶ 76. She received a phone call that afternoon

informing her that an inmate had been assaulted in her housing

unit; she was asked to come to the prison. Id. After her

arrival at Fort Dix, she walked around the unit and informally

talked to other inmates to keep the atmosphere calm. Id. ¶ 77.

She was not involved in the formal investigation of the assault

and did not speak to Officer Bazydlo about the assault. Id. ¶

78. Plaintiff did not speak with Unit Manager Nevins before

August 24, 2013 or inform her that he felt at risk of assault.

Id. ¶ 79. Unit Manager Nevins learned for the first time that

inmates were coming into Unit 5711, without authorization, to

visit inmates housed in 5711 after August 24, 2013. Id. ¶ 80.

During his tenure as Warden of Fort Dix, Jordan

Hollingsworth was responsible for overseeing the management of

the facility. Id. ¶ 81. Much of his time was consumed by

administrative matters, including staffing matters, although he

would be notified of certain assaults. Id. ¶ 82. Warden

Hollingsworth did not control the Fort Dix budget and would have

preferred to hire more officers throughout his tenure if he

could have. Id. ¶ 82. The correctional services chain of

command consisted of Warden Hollingsworth, associate wardens, a

captain, lieutenants, and correctional officers. Id. ¶ 84.

Warden Hollingsworth did not know Officer Bazydlo, but he

did know Unit Manager Nevins. Id. ¶ 85. Prior to August 24,

2013, Plaintiff had never spoken or interacted with Warden

Hollingsworth in any way; he never expressed to Warden

Hollingsworth any concern that he felt he was at a risk for

assault. Id. ¶ 86. Warden Hollingsworth does not recall

whether he was contacted about the assault on Plaintiff when it

happened. Id. ¶ 87.

II. STANDARD OF REVIEW

Summary judgment should be granted when the pleadings,

depositions, answers to interrogatories, admissions on file, and

affidavits show that there is no genuine dispute as to any

material fact and that the moving party is entitled to a

judgment as a matter of law. Fed. R. Civ. P. 56(c). A disputed

fact is material when it could affect the outcome of the suit

under the governing substantive law. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party. Id. at 250. The Court should view the

facts in the light most favorable to the non-moving party and

make all reasonable inferences in that party’s favor. Hugh v.

Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

Initially, the moving party must show the absence of a

genuine issue concerning any material fact. See Celotex Corp.

v. Carrett, 477 U.S. 317, 323 (1986). Once the moving party has

satisfied its burden, the non-moving party, “must present

affirmative evidence in order to defeat a properly supported

motion for summary judgment.” Anderson, 477 U.S. at 257.

“While the evidence that the non-moving party presents may be

either direct or circumstantial, and need not be as great as a

preponderance, the evidence must be more than a scintilla.”

Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).

If the court determines that “the record taken as a whole

could not lead a rational trier or fact to find for the non-

moving party, there is no ‘genuine issue for trial.’”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986) (quoting First Nat’l Bank of Arizona v. Cities Serv.

Co., 391 U.S. 253, 289 (1968)). Rule 56 mandates the entry of

summary judgment against the party who fails to make a showing

sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden

of proof at trial. Celotex Corp., 477 U.S. at 322.

III. DISCUSSION

The sole remaining claim in the SAC is Plaintiff’s failure

to protect claim under the Eighth Amendment. The principal

issues to be decided are (1) whether Defendants are entitled to

summary judgment on Plaintiff’s claims that Officer Bazydlo

failed to reasonably respond to Plaintiff’s warning about the

possibility of violence from intoxicated or unauthorized inmates

in Unit 5711 and that Warden Hollingsworth and Unit Manager

Nevins implemented inadequate policies to prevent unauthorized

inmates from entering Unit 5711, and (2) to the extent there may

have been a violation, are Defendants entitled to qualified

immunity.

A. Failure to Protect

“[P]rison officials must ensure that inmates receive

adequate food, clothing, shelter, and medical care, and must

‘take reasonable measures to guarantee the safety of the

inmates[.]’” Farmer v. Brennan, 511 U.S. 825, 832 (1994)

(quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). “While

‘prison officials have a duty to protect prisoners from violence

at the hands of other prisoners,’ injury at the hands of a

fellow prisoner itself does not amount to an Eighth Amendment

violation.” Counterman v. Warren Cty. Corr. Facility, 176 F.

App'x 234, 238 (3d Cir. 2006) (quoting Farmer, 511 U.S. at 833–

34).

“[T]o establish a failure-to-protect claim, an inmate must

demonstrate that (1) he is ‘incarcerated under conditions posing

a substantial risk of serious harm’; and (2) the prison official

acted with ‘deliberate indifference’ to his health and safety.”

Paulino v. Burlington Cty. Jail, 438 F. App'x 106, 109 (3d Cir.

2011) (per curiam) (quoting Farmer, 511 U.S. at 834).

“[D]eliberate indifference is a subjective inquiry, while risk

of harm is evaluated objectively.” Betts v. New Castle Youth

Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010) (citing Atkinson v.

Taylor, 316 F.3d 257, 262 (3d Cir. 2003)). To prove the

objective component of his claim, Plaintiff must establish (1)

the seriousness of the injury; (2) a sufficient likelihood that

serious injury will result under the circumstances present; and

(3) the risks associated with the circumstances under which the

injury occurred violate contemporary standards of decency. Id.

at 257.

Defendants concede that Plaintiff suffered a serious

injury, but they argue “there is no evidence of a sufficient

likelihood that serious injury would result under the

circumstances present during Plaintiff’s incarceration, or that

the risks associated with the circumstances present violated

contemporary standards of decency.” ECF No. 77-1 at 41.

Defendants further argue that Plaintiff cannot meet his

burden of proof on the subjective deliberate indifference

component. In Farmer, the Supreme Court held that “a prison

official cannot be found liable under the Eighth Amendment for

denying an inmate humane conditions of confinement unless the

official knows of and disregards an excessive risk to inmate

health or safety[.]” 511 U.S. at 837. “[T]he official must

both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also

draw the inference.” Id. “[S]ubjective knowledge on the part

of the official can be proved by circumstantial evidence to the

effect that the excessive risk was so obvious that the official

must have known of the risk.” Beers-Capitol v. Whetzel, 256

F.3d 120, 133 (3d Cir. 2001). Defendants assert Plaintiff

cannot show that they disregarded a known risk to his safety.

1. Officer Bazydlo

Plaintiff argues that Officer Bazydlo’s “individual

practices as a housing unit officer as well as his response to

Mr. Doty’s report amounted to deliberate indifference of

substantial risks to Mr. Doty and the inmates within Unit 5711.”

ECF No. 82 at 15. “Having full knowledge that inmate

accountability was a top safety concern as expressed in the

institutional supplements coupled with his own admission that

the housing units were understaffed, Bazydlo consciously

disregarded the requirement to man the door during inmate move

periods with full knowledge of the risks in not doing so.” Id.

at 16. “The risk that unaccounted inmates would be free to

enter and exit Unit 5711 during 10-minute moves and the entire

hour that the door was open during lunch on August 24, 2013, is

obvious and Bazydlo’s knowledge of that is fairly inferable.”

Id.

Plaintiff cannot establish that Officer Bazydlo failed to

protect him in violation of the Eighth Amendment. There is no

evidence in the record that Officer Bazydlo “knew of, but

disregarded, ‘an objectively intolerable risk of harm.’”

Counterman v. Warren Cty. Corr. Facility, 176 F. App'x 234, 240

(3d Cir. 2006)(emphasis in original) (quoting Farmer, 511 U.S.

at 846). Plaintiff admitted he was not aware that Jefferies was

upset with him until just before the assault in the bathroom.

ECF No. 77-4 at 80:11-14. He also admitted the incident between

Jeffries and Russell Ochocki, which Plaintiff did not witness,

had not been reported to prison authorities. Id. at 71:12-13,

25 to 72:2. Plaintiff also could not identify the other inmate

allegedly assaulted by Jeffries, nor could he state with

certainty that Officer Bazydlo knew about the prior assault.

Id. at 93:4-14, 97:5-7. Plaintiff did not report the August 22

incident, in which an inmate who did not live in Unit 5711 woke

Plaintiff up from a nap to ask if he wanted to fight, to Officer

Bazydlo and admitted that he did not fear for his physical

safety. Id. at 47:9-19.

Plaintiff’s “warning” to Officer Bazydlo did not convey a

substantial threat of violence. Plaintiff testified that he

told Officer Bazydlo “that there were people from other units

coming into the building and that there was a lot of wine being

made and that they were drinking. There are parties.” Id. at

54:8-11. He “suggested that they do a search of the building.”

Id. at 54:25. He stated this was the first time he had ever

told prison authorities about his concerns. Id. at 56:6-8.

Plaintiff admitted he did not tell Officer Bazydlo that he felt

at risk of physical harm and that he had never seen any

intoxicated inmates become violent or threaten violence. Id. at

79:11-13, 19-22.

Plaintiff’s argument against Officer Bazydlo is in essence

an argument that Officer Bazydlo should have known there was a

substantial risk of serious harm to the inmates of Unit 5711

based on the officer-to-inmate ratio and Plaintiff’s warning

that there was alcohol being made in the unit by inmates who

were not supposed to be there. However, “the mere presence of

circumstances from which a reasonable person could infer ‘an

excessive risk to inmate health or safety’ is insufficient;

rather, the official must actually make the inference and

disregard it.” Counterman, 176 F. App'x at 238 (emphasis in

original) (quoting Farmer, 511 U.S. at 837). There is no

evidence in the record that Officer Bazydlo was aware of a

specific risk from Jeffries, nor is there circumstantial

evidence that there was an obvious, general danger to inmates in

Plaintiff’s situation. See Beers-Capitol v. Whetzel, 256 F.3d

120, 131 (3d Cir. 2001).

Even if one assumes that Bazydlo had ignored Plaintiff’s

warnings about homemade alcohol and its attendant risks to

inmate safety, that risk was not the one that ripened into

Jefferies’s assault on Plaintiff. Jefferies was apparently

angry at Plaintiff over his defense of Ochocki, his cellmate, a

brewing dispute that Bazydlo knew nothing about. To hinge

liability on harm arising from an unreported risk simply because

of a vague warning about an unrelated risk would turn the

Defendants into Plaintiff’s protector against all risks. The

physical harm here is indeed substantial and horrific, but to

hold these Defendants responsible something more is required.

While a more generalized risk could be enough, here

Plaintiff has provided no evidence that there was a

“longstanding, pervasive, well-documented, or expressly noted”

history of inmate violence caused by inmates being in units

other than their own. Id. Mere knowledge that inmates were in

Unit 5711 without authorization is not enough “to create a

subjective awareness, on [Officer Bazydlo’s] part, of an

objectively excessive risk to [Plaintiff’s] safety.”

Counterman, 176 F. App'x at 239. Plaintiff himself admitted

that he was not in fear for his physical safety prior to this

incident. In the absence of a genuine issue of material fact,

the Court grants summary judgment to Officer Bazydlo.

2. Warden Hollingsworth and Unit Manager Nevins

Plaintiff’s Eighth Amendment claims against Warden

Hollingsworth and Unit Manager Nevins also fail. He argues they

are liable as they implemented deficient policies “regarding 10

minute moves and the hour-long open door during lunch on the

weekends.” ECF No. 82 at 24. “Both Nevins and Hollingsworth

would have known that these polices were untenable given the

shortage of officers and the escalating issues throughout FCI

Fort Dix.” Id.

In order to hold Warden Hollingsworth and Unit Manager

Nevins liable based on their policies or practices, Plaintiff

must identify a specific policy or practice that they failed to

employ and show that: (1) the existing policy or practice

created an unreasonable risk of injury; (2) they were aware that

there was an unreasonable risk; (3) they were indifferent to

that risk; and (4) the injury resulted from the policy or

practice. Beers-Capitol, 256 F.3d at 134 (citing Sample v.

Diecks, 885 F.2d 1099 (3d Cir. 1989)).

Plaintiff can satisfy this standard by either showing that

Warden Hollingsworth and Unit Manager Nevins “failed to

adequately respond to a pattern of past occurrences of injuries”

like his, or by “showing that the risk of constitutionally

cognizable harm was ‘so great and so obvious that the risk and

the failure of supervisory officials to respond will alone’

support finding that the four-part test is met.” Id. at 136–37

(quoting Sample, 885 F.2d at 1118).

Plaintiff cannot prove Warden Hollingsworth and Unit

Manager Nevins were aware of an unreasonable risk of injury for

the same reasons he could not prove Officer Bazydlo was actually

aware of an unreasonable risk. Unit Manager Nevins did not know

until after August 24, 2013 that inmates were coming into Unit

5711 without authorization. ECF No. 77-4 at 31:17-22.

Plaintiff did not inform Warden Hollingsworth or Unit Manager

Nevins that he felt unsafe in the unit, and there was no

longstanding, obvious history of inmate attacks caused by

unauthorized inmates in units other than their own.

Plaintiff cannot rely on the subsequent change in the move

policy to prove awareness of a risk. Fed. R. Evid. 407. Nor

does the fact that the video footage of the entryway and the

photo array are unavailable warrant a spoliation inference in

Plaintiff’s favor. “The spoliation inference is an adverse

inference that permits a jury to infer that ‘destroyed evidence

might or would have been unfavorable to the position of the

offending party.’” Mosaid Techs. Inc. v. Samsung Elecs. Co.,

348 F. Supp. 2d 332, 336 (D.N.J. 2004) (quoting Scott v. IBM

Corp., 196 F.R.D. 233, 248 (D.N.J. 2000)). “For the rule to

apply, it is essential that the evidence in question be within

the party's control.

Further, it must appear that there has been an actual

suppression or withholding of the evidence.” Brewer v. Quaker

State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995) (internal

citation omitted). The photo array was administered by

Lieutenant Tucker, who is not a party to this action. There is

no evidence Defendants had control over the video footage or

that they actually suppressed the footage. Therefore,

spoliation sanctions are not warranted.

Because there are no genuine issues of material fact,

Warden Hollingsworth and Unit Manager Nevins are entitled to

judgment as a matter of law.

3. Unknown Officers

The SAC also raises claims against Unknown Unit Officers 1-

10. Despite the close of discovery some months ago, Plaintiff

has failed to identify these John or Jane Doe defendants.

Because Plaintiff has failed to identify them and because the

time for doing so has since past, the Court must dismiss them

without prejudice on its own motion pursuant to Federal Rule of

Civil Procedure 21.

Federal Rule of Civil Procedure 21 provides that “on motion

or on its own, the court may at any time, on just terms, add or

drop a party.” Fed. R. Civ. P. 21. See also Blakeslee v.

Clinton County, 336 F. App’x 248, 250 (3d Cir. 2009) (affirming

dismissal of Doe defendants pursuant to Rule 21). “Use of John

Doe defendants is permissible in certain situations until

reasonable discovery permits the true defendants to be

identified. If reasonable discovery does not unveil the proper

identities, however, the John Doe defendants must be dismissed.”

Id. See also Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 37

(E.D.Pa. 1990) (“Fictitious parties must eventually be dismissed

. . . if discovery yields no identities.”).

Plaintiff has had more than enough time to allow him to

identify the individual John and Jane Doe defendants and

thereafter to amend the complaint. Plaintiff has failed to do

so. As such, the Court must dismiss the John and Jane Doe

defendants. See Blakeslee, 336 F. App’x at 250-51; Adams v.

City of Camden, 461 F. Supp. 2d 263, 271 (D.N.J. 2006) (holding

that, after a reasonable period of discovery has passed, “[i]t

is appropriate, before proceeding to trial, to eliminate [the]

fictitious defendants from [an] action under Fed. R. Civ. P.

21.”).

B. Qualified Immunity

Defendants further argue they are entitled to qualified

immunity on Plaintiff’s Eighth Amendment claim. “Qualified

immunity shields government officials from civil damages

liability unless the official violated a statutory or

constitutional right that was clearly established at the time of

the challenged conduct.” Taylor v. Barkes, 135 S. Ct. 2042,

2044 (2015) (internal citation and quotation marks omitted).

The first prong of the analysis “asks whether the facts, [t]aken

in the light most favorable to the party asserting the injury,

... show the officer’s conduct violated a [federal] right[.]”

Tolan v. Cotton, 572 U.S. 650, 655-56 (2014) (internal quotation

marks and citations omitted) (alterations and omissions in

original). “The second prong of the qualified-immunity analysis

asks whether the right in question was ‘clearly established’ at

the time of the violation.” Id. at 656 (internal citation and

quotation marks omitted). “Courts have discretion to decide the

order in which to engage these two prongs.” Id.

As the Court grants summary judgment on the merits, it is

not necessary to address the qualified immunity question beyond

noting that Plaintiff has not proven a violation of a

constitutional right.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motion for

summary judgment is granted. An appropriate Order follows.

Dated: November 25, 2019 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.