RAMIREZ v. SWSP CUSTODY OFFICERS

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

OSCAR PRIOR RAMIREZ, :

:

Plaintiff, : Civ. No. 20-3887 (NLH) (EAP)

:

v. : OPINION

:

:

SWSP CUSTODY OFFICERS, et al.,:

:

Defendants. :

:

______________________________:

APPEARANCES:

Charles Harry Landesman, Esq.

Law, Froelich & Landesman

90 Maria Drive

P.O. Box 474

Hillsdale, NJ 07642

Attorneys for Plaintiff

Matthew J. Platkin, Attorney General of New Jersey

Eric Intriago, Deputy Attorney General

Office Of The Attorney General for the State of New Jersey

25 Market Street

PO Box 112

Trenton, NJ 08625

Attorneys for Defendant Administrator John Powell

Thomas J. Pyle, Jr., Esq.

MacNeill O’Neill, Riveles & Spitzer LLC

240 Cedar Knolls Road

Suite 104

Cedar Knolls, NJ 07927

Attorneys for Defendants Lisa Mills, Sherita Latimore-

Collier, Christina Carman

HILLMAN, District Judge

Plaintiff Oscar Prior Ramirez is proceeding on an amended

complaint against Defendants John Powell, Administrator of South

Woods State Prison (“SWSP”) and SWSP Custody Officers. Amended

Complaint (“Am. Compl.”) ECF No. 9. Defendant Powell now moves

for summary judgment on the amended complaint, ECF No. 52, and

to seal certain exhibits, ECF No. 54. Plaintiff opposes the

summary judgment motion. ECF No. 58.

For the reasons set forth below, the Court will grant both

motions in part.

I. BACKGROUND

Plaintiff is a convicted and sentenced state prisoner and

has been incarcerated in SWSP since May 20, 2014. Am. Compl. ¶

1. He uses a wheelchair and has a colostomy bag to help him use

the bathroom. “On or around October 12, 2018, Plaintiff was

placed in ACSU cell 1029 in the administrative segregation unit,

which is a disciplinary unit.” Defendant’s Statement of

Undisputed Material Facts (“DSOF”), ECF No. 52-2 ¶ 7.1

1 These facts are derived from Defendant’s Local Civil Rule 56.1

Statement of Undisputed Material Facts and the exhibits

specifically referenced. Plaintiff’s “Statement of Facts,” ECF

No. 58 at 5, does not comply with Local Civil Rule 56.1 because

it does not “address[] each paragraph of the movant’s statement,

indicating agreement or disagreement and, if not agreed, stating

each material fact in dispute and citing to the affidavits and

other documents submitted in connection with the motion . . . .”

Local Civ. R. 56.1(a). Accordingly, the Court adopts

2

“Plaintiff was placed [in] administrative segregation due to

discipline he received from refusing to move cells on a prior

occasion, receiving thirty-one days of administrative

segregation.” Id. ¶ 8. Plaintiff alleges that “ACSU cell 1029

was not handicap accessible and lacked handicap support for

using the toilet” and that “he fell from transferring from his

wheelchair to the toilet due to the lack of a handlebar.” Id.

¶¶ 9-10. Plaintiff broke his ankle because of the fall. Id. ¶

11. “The day of the fall, medical staff did not note the fall

was life-threatening and noted ‘no acute distress noted.’ The

day after, Plaintiff was given an X-ray and placed in a cast a

couple days later.” Id. ¶ 13 (quoting ECF No. 52-6 at 32).

Plaintiff submitted a grievance on October 21, 2018:

while in this acsu I told the officer that I needed a

handicap cell. It was denied knowing that I’m a

paraplegic, causing me [to] fall and sprain my ankle and

still they have not taken this serious enough to provide

me with adequate treatment and housing. I informed the

off that I needed to speak with a sgt. [and] he refused

to allow me to speak with a supervisor.

ECF No. 52-6 at 21. Luz Torres responded on October 22, 2018:

“Your issues is being refer [sic] to the Custody Department for

an investigation.” Id. On October 30, 2018, Scot Chard

responded: “Your issue is with the MEDICAL DEPARTMENT and you

Defendant’s Rule 56.1 Statement because “facts submitted in the

statement of material facts which remain uncontested by the

opposing party are deemed admitted.” Hill v. Algor, 85 F. Supp.

2d 391, 408 n.26 (D.N.J. 2000); see also Local Civ. R. 56.1(a).

3

have to submit your complaint to them for your medical needs and

medical discrepancies. As of 10/25/2018 you were transferred

from ACSU to Facility 1.” Id. Plaintiff wrote back on November

3, 2018:

I was transferred however it doesn’t changes [sic] what

happened to me at ACSU which I fractured my ankle,

according to federal law and ADA, once you receive

federal funding you have to comply with ADA, which you

failed to do so causing unreasonable risk of harm to

inmate in your custody which is also eighth amendment

violation, for the foregoing reason please render a

final resolution to this matter.

Id. On November 14, 2018, Linda Linen responded: “You were

advised on 10/30/18 Your issue is with the MEDICAL DEPARTMENT

and you have to submit your complaint to them for your medical

needs and medical discrepancies. As of 10/25/2018 you were

transferred from ACSU to Facility 1.” Id.

Plaintiff submitted a grievance to Defendant Powell on

November 16, 2018:

Dear Mr. Powell,

Sir, I am writing this in response to the response that

I received which does not negate the fact that I was

under your custody. They should have prevented any

unnecessary injury by placing me in a cell that was not

properly equipped for handicapped people.

The issues with the medical department are completely

seperate [sic] from your responsibilities to ensure

safety for inmates.

ECF No. 52-9 at 2. Luz Torres responded on November 21, 2018:

“Your housing unit was appropriate for ADA accommodation.” Id.

4

Plaintiff appealed: “i would like to know what part of the cell

in ACSU is appropriate for a handicap? and who made this

decision?” Id. Defendant Powell responded on November 29,

2018: “‘Your housing unit was appropriate for ADA

accommodation.’ Case Closed.” Id.

Plaintiff submitted another grievance to Defendant Powell

on February 11, 2019:

Even though your last response on 11-14-18 indicated I

was moved from ACSU to Facility 1, I am still living

with the physical and mental burden associated with

being placed by Custody in an improperly equipped

housing cell (cell #1029 in ACSU), which resulted in me

breaking my ankle on 10-12-18. None of this should have

ever happened because I should never have been placed in

ACSU cell #1029.

ECF No. 52-6 at 25. Luz Torres responded on February 20, 2019:

“This form do not [sic] contain SPECIFIC information. Submit a

new form with additional information.” Id. Plaintiff

responded:

Please refer to my 10-21-18 grievance (Ref #18036980)

and inquiry (Ref #18036981), both of which specifically

state that I told the ACSU officer that I was a

paraplegic and needed a handicapped equipped cell. I

was refused an opportunity to speak to a supervisory

sergeant. Not long after being placed in cell#1029, I

fell and broke my ankle because the cell was not properly

equipped to accommodate a physically handicapped

wheelchair bound inmate. Knowing that I was a

paraplegic, why was I placed in cell#1029? Why was I

not allowed to speak to a sergeant? Why was there not

even an attempt to install support bars in the cell while

I was there? What were the results of the Custody

Department Investigation referenced in the 10-22-18

response from Administration?

5

Id. On March 4, 2019, Defendant Powell responded: “Please be

advised you received a response from Mrs. Torres on 2/20/19,

which stated ‘This form do not contain SPECIFIC information.

Submit a new form with additional information as requested.”

Id.

Plaintiff filed another grievance on February 13, 2019

asking for an investigation by the medical ombudsman into why he

was “returned to the unsafe detention cell#1029 instead of being

moved to a more appropriate cell in ECU [Extended Care Unit],2

where detention protocols could still have been enforced.” Id.

at 30. “Being placed back in an unsafe cell only risked further

injury to my ankle. . . . I would hate to think that my previous

complaints about inadequate medical supplies affected the

decision making process.” Id. Mr. Thomas responded on March

14, 2019: “You did not meet criteria for ECU placement at that

time. You were seen on 2/26 for follow up with the orthopedic

specialist who removed the cast. No problems noted. Prior to

that, no recommendations were made by the specialist for any

special housing arrangements.” Id. “Plaintiff filed a Notice

2 In his June 10, 2022 deposition, Plaintiff described ECU as

“like a hospital area, that when you are going out to the

hospital, you’re staying for a short time to recover.”

Plaintiff’s Deposition (“Pla. Dep.”), ECF No. 52-8 at 12:25 to

13:2.

6

of Tort claim for the October 12, 2018 incident on May 29,

2019.” DSOF ¶ 21.3

Plaintiff filed his original complaint pro se on April 8,

2020. ECF No. 1. He filed the amended complaint on July 13,

2020. ECF No. 9. The amended complaint raised claims of

deliberate indifference to medical conditions, unconstitutional

conditions of confinement, violations of the Americans with

Disabilities Act (“ADA”), violations of the New Jersey Law

Against Discrimination (“NJLAD”), medical malpractice, and

intentional infliction of emotional distress. Id. at 12.

Counsel entered an appearance on Plaintiff’s behalf on September

1, 2020. ECF No. 11. On June 2, 2022, Plaintiff settled with

Medical Defendants Lisa Mills, Sherita Latimore-Collier, and

Christina Carman and dismissed all claims against them. ECF No.

47 (amended Feb. 21, 2023, ECF No. 63).

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

3 Defendant cites to the “Certification of Peter Ramos” for this

claim but did not include the certification with his summary

judgment motion.

7

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 non-moving 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).

III. DISCUSSION

Plaintiff reached a settlement agreement with Medical

Defendants Mills, Latimore-Collier, and Carman, leaving only his

8

claims against Defendant Powell and John Doe Custody Officers

and Medical Department remaining.4

A. Deliberate Indifference to Medical Needs

Plaintiff alleges Defendant Powell was deliberately

indifferent to Plaintiff’s medical needs “when [Plaintiff] was

placed in a prison cell that was not properly equipped for

handicapped inmates. The prison guards placed plaintiff in this

cell despite having notice that plaintiff used a wheelchair and

was physically handicapped.” ECF No. 58 at 11.5 “As the

administrator of South Woods State Prison, [Defendant Powell]

oversaw the activities and supervised the work of the

Corrections Officers of the prison and the placing of inmates

into cells.” Id.

To state an Eighth Amendment Claim, a plaintiff must allege

facts indicating that defendants were deliberately indifferent

4 Plaintiff has not identified or served the John Doe Defendants.

5 Plaintiff filed all claims against Defendant Powell in both his

individual and official capacity. Defendant Powell is immune

from suit to the extent this claim is raised against him in his

official capacity. The Eleventh Amendment to the United States

Constitution provides that, “[t]he Judicial power of the United

States shall not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of the United States

by citizens of another State, or by Citizens or Subjects of any

Foreign State.” U.S. Const. amend. XI. A suit against a public

official “‘in his or her official capacity is not a suit against

the official but rather is a suit against the official’s office

. . . .’” Printz v. United States, 521 U.S. 898, 930–31 (1997)

(quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

(1989)).

9

to his or her serious medical need. Estelle v. Gamble, 429 U.S.

97, 104 (1976). To accomplish this, “a plaintiff must make (1)

a subjective showing that ‘the defendants were deliberately

indifferent to [his or her] medical needs’ and (2) an objective

showing that ‘those needs were serious.’” Pearson v. Prison

Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (alteration in

original)).

Defendant Powell argues there was “no serious medical need

because Plaintiff’s fracture was treated the following day by x-

ray and a cast was placed on Plaintiff’s leg a couple of days

later.” ECF No. 52-1 at 14. “There is no evidence the leg

injury was life threatening or created some serious risk of harm

to Plaintiff nor any evidence Powell delayed or prevented

Plaintiff from receiving medical care.” Id. A medical need is

serious where it “has been diagnosed by a physician as requiring

treatment or is . . . so obvious that a lay person would easily

recognize the necessity for a doctor’s attention.” Monmouth

Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347

(3d Cir. 1987) (citations omitted). Plaintiff’s disability

seemingly would qualify as a serious medical need, and a broken

ankle arguably fits this requirement. See Nock v. Taylor, No.

05-1020, 2005 WL 1206844, at *3 (D.N.J. May 20, 2005) (“[A]

broken ankle is a serious medical need . . . .”). Regardless,

10

Plaintiff has not shown that there is a disputed issue of fact

on the deliberate indifference element.

The Third Circuit has found deliberate indifference “‘where

the prison official (1) knows of a prisoner’s need for medical

treatment but intentionally refuses to provide it; (2) delays

necessary medical treatment based on a non-medical reason; or

(3) prevents a prisoner from receiving needed or recommended

medical treatment.’” Parkell v. Danberg, 833 F.3d 313, 337 (3d

Cir. 2016) (quoting Rouse, 182 F.3d at 197). As a supervisor,

Defendant Powell “may not be held liable for the

unconstitutional conduct of [his] subordinates under a theory of

respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676

(2009). “Individual defendants who are policymakers may be

liable under § 1983 if it is shown that such defendants, ‘with

deliberate indifference to the consequences, established and

maintained a policy, practice or custom which directly caused

[the] constitutional harm.’” A.M. ex rel. J.M.K. v. Luzerne

Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)

(quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720,

725 (3d Cir. 1989)) (alteration in original). Plaintiff must

produce evidence of “a specific policy or practice that the

supervisor failed to employ and show that: (1) the existing

policy or practice created an unreasonable risk of the Eighth

Amendment injury; (2) the supervisor was aware that the

11

unreasonable risk was created; (3) the supervisor was

indifferent to that risk; and (4) the injury resulted from the

policy or practice.” Beers-Capitol v. Whetzel, 256 F.3d 120,

134 (3d Cir. 2001) (citing Sample v. Diecks, 885 F.2d 1099, 1118

(3d Cir. 1989)).

Plaintiff has not produced any such evidence. The record

before the Court indicates that Plaintiff did not inform

Defendant Powell of his concerns about Cell 1029’s

appropriateness until after his injury, and he admitted in his

deposition that he had never spoken directly to Defendant

Powell. Pla. Dep. at 39:25 to 40:2. Plaintiff filed his

grievances after his fall, so the grievances do not show that

Defendant Powell was aware of the situation beforehand but was

indifferent to any risk. Plaintiff received treatment for his

injury, and “[c]orrectional defendant-administrators who are not

themselves physicians cannot ‘be considered deliberately

indifferent simply because they failed to respond directly to

the medical complaints of a prisoner who was already being

treated by the prison doctor.’” Diaz v. Warden Lewisburg USP,

630 F. App’x 148, 151 (3d Cir. 2015) (quoting Durmer v.

O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993)).

The Court must grant summary judgment against any party

“who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

12

which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Accordingly, Defendant Powell is entitled to judgment as a

matter of law on Plaintiff’s deliberate indifference to medical

needs claim.

B. Unconstitutional Conditions of Confinement

Plaintiff’s second claim against Defendant Powell asserts

that Defendant Powell subjected Plaintiff to unconstitutional

conditions of confinement because “[Defendant Powell] also has

knowledge of the grievances filed by the Plaintiff concerning

Plaintiff being locked up in an appropriate cell. He further

failed to address Plaintiff’s issues therefore Plaintiff had to

suffer the pain of a broken ankle.” Am. Compl. at 13.6 Id.

“The Constitution ‘does not mandate comfortable prisons,’

but neither does it permit inhumane ones and it is now settled

that ‘the treatment a prisoner receives in prison and the

conditions under which he is confined are subject to scrutiny

under the Eighth Amendment.’” Farmer v. Brennan, 511 U.S. 825,

832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981);

Helling v. McKinney, 509 U.S. 25, 31 (1993)). “The Eighth

Amendment imposes duties on prison officials to ‘provide humane

6 Defendant Powell is immune from suit to the extent this claim

is brought against him in his official capacity. See supra note

5.

13

conditions of confinement’ and ‘ensure that inmates receive

adequate food, clothing, shelter, and medical care.’” Barndt v.

Wenerowicz, 698 F. App’x 673, 676–77 (3d Cir. 2017) (quoting

Farmer, 511 U.S. at 832). “To establish an Eighth Amendment

conditions of confinement claim, [Plaintiff] must show that (1)

the deprivation alleged was objectively, ‘sufficiently serious’

such that the prison officials’ acts or omissions resulted in

the denial of ‘the minimal civilized measure of life’s

necessities’; and (2) that the prison officials exhibited a

‘deliberate indifference’ to his health and safety.” Id. at 677

(quoting Farmer, 511 U.S. at 834).

Plaintiff argues in opposition to Defendant’s motion that

“Defendant Powell should have known that plaintiff, a

handicapped inmate was transferred to Administrative

Segregation, commonly known as Ad Seg, because he refused an

assignment to a non-handicapped cell in general population.”

ECF No. 58 at 9. However, “[t]he knowledge element of

deliberate indifference is subjective, not objective knowledge,

meaning that the official must actually be aware of the

existence of the excessive risk; it is not sufficient that the

official should have been aware.” Beers-Capitol v. Whetzel, 256

F.3d 120, 133 (3d Cir. 2001).

“[S]ummary judgment is essentially ‘put up or shut up’ time

for the non-moving party: the non-moving party must rebut the

14

motion with facts in the record and cannot rest solely on

assertions made in the pleadings, legal memoranda, or oral

argument.” Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195,

201 (3d Cir. 2006). Plaintiff’s opposition to the summary

judgment motion boils down to “Defendant Powell as the

administrator of South Woods State Prison oversees and

supervise[s] the corrections officers.” ECF No. 58 at 9. He

asserts that “there are substantial questions of fact that need

to be resolved by a jury,” including “[w]hat knowledge did

defendant Administrator Powell have with respect to the

placement of plaintiff in a non handicapped cell and when did he

acquire this knowledge?” and “Did Administrator Powell know that

plaintiff was a handicapped individual who used a wheelchair?”

ECF No. 58 at 8. These are questions Plaintiff should have

asked Defendant Powell during discovery. Plaintiff has not

produced evidence, such as deposition testimony or a description

of Defendant Powell’s oversight duties, that would allow a

factfinder to conclude Defendant Powell personally knew that

Plaintiff raised objections to his general housing assignment

and subsequent disciplinary assignment due to the lack of

accommodations.

Plaintiff opposition to Defendant’s motion does meet his

burden of proof on whether Defendant Powell knew of and

15

disregarded an excessive risk to Plaintiff’s safety. The Court

will grant summary judgment to Defendant Powell on this claim.

C. Violations of the ADA and NJLAD

Count Three of the Amended Complaint alleges violations of

the ADA:

Administrator John Powell is responsible for not

complying with statutes and requirements of ADA. The

law is clear when the institution receives federal funds

to ensure the safety of disabled inmates. Therefore,

Administrator John Powell failed to comply with the

statutes established by law. John Powell has knowledge

of the Plaintiff being placed in an inappropriate cell.

Complying with the Americans with Disabilities Act is

not just to say that housing is appropriate for disabled

inmates, the violation is only when handicapped inmates

are kept in inappropriate cells, as has been

continuously mentioned by the Plaintiff, that he was

placed in an inappropriate cell. 1029-AC SU. The

Plaintiff was made to stay in that cell until his charge

was complete.

. . . .

After Plaintiff obtained multiple fractures in his left

ankle, medical department as well as Administrator John

Powell failed their responsibilities.

ECF No. 9 at 14. Such a claim may only be brought against

Defendant Powell in his official capacity. See Kokinda v.

Pennsylvania Dep’t of Corr., 779 F. App’x 944, 949 (3d Cir.

2019) (dismissing plaintiff’s “claims for individual damages

liability under Title II of the ADA fail for the simple reason

that there is no such liability.”); Dews v. Link, No. 18-4285,

2021 WL 2223795, at *3 (E.D. Pa. June 2, 2021) (“Even though

individuals cannot be sued in their individual capacities for

16

money damages under Title II of the ADA or the Rehabilitation

Act, they may be sued in their official capacities.”).

Accordingly, the real party in interest is SWSP. Kentucky v.

Graham, 473 U.S. 159, 165 (1985)) (“[A]n official-capacity suit

is, in all respects other than name, to be treated as a suit

against the entity.”).

Under Title II of the ADA, “no qualified individual with a

disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. To

establish a violation of Title II, Plaintiff must prove: “(1)

that he is a qualified individual; (2) with a disability; (3)

who was excluded from participation in or denied the benefits of

the services, programs, or activities of a public entity, or was

subjected to discrimination by any such entity; (4) by reason of

his disability.” Dahl v. Johnston, 598 F. App’x 818, 819–20 (3d

Cir. 2015) (citing 42 U.S.C. § 12132); see also Bowers v. Nat’l

Collegiate Athletic Ass’n, 475 F.3d 524, 553 n.32 (3d Cir.

2007), amended on reh’g (Mar. 8, 2007). Defendant Powell does

not appear to argue that Plaintiff is not a qualified individual

with a disability; therefore, the Court considers these elements

to have been satisfied.

17

“State prisons fall squarely within the statutory

definition of ‘public entity,’ which includes ‘any department,

agency, special purpose district, or other instrumentality of a

State or States or local government.’” Pa. Dep’t of Corr. v.

Yeskey, 524 U.S. 206, 210 (1998) (quoting 42 U.S.C. §

12131(1)(B)). “[T]he phrase ‘service, program, or activity’

under Title II . . . is ‘extremely broad in scope and includes

anything a public entity does.’” Furgess v. Pennsylvania Dep’t

of Corr., 933 F.3d 285, 289 (3d Cir. 2019). “[] Department of

Justice guidance on Title II regulations explicitly refers to a

prison’s provision of hygiene as being included under the

statute’s purview.” Id. “Specifically, the DOJ explains that

corrections systems are unique facilities under Title II because

inmates cannot leave, and thus prisons must address the needs of

inmates with disabilities by providing ‘accessible toilet and

shower facilities, devices such as a bed transfer or a shower

chair, and assistance with hygiene methods for prisoners with

physical disabilities.’” Id. (quoting 28 C.F.R. pt. 35, App. A,

at 663 (2017)). The Court finds that a reasonable factfinder

could conclude that the provision of a toilet is a service,

program, or activity within the meaning of Title II.

Defendant Powell argues “there is no evidence Plaintiff was

placed in ACSU cell 1029 as discrimination for his disability,

which is necessary for Plaintiff to make out these claims.” ECF

18

No. 52-1 at 18. “Plaintiff first wrote directly to Powell

regarding the fall incident on November 16, 2018, well after

Plaintiff’s October 25, 2018 departure from ACSU cell 1029 and

the October 12, 2018 fall. Powell responded on November 29,

2018; this was a month after Plaintiff had already left ACSU

cell 1029.” Id. (internal citations omitted). “Most

importantly, Plaintiff was not placed in ACSU cell 1029 as

discrimination; Plaintiff was placed in ACSU cell 1029 because

of his disciplinary sanction for refusing to move cells at an

earlier date.” Id.

There are disputed issues of fact as to whether Plaintiff

was denied a service, program, or activity by reason of his

disability. “Under Title II, the failure of a public entity to

provide disabled persons with reasonable modifications

constitutes discrimination within the meaning of the [ADA].”

Muhammad v. Dep’t of Corr., 645 F. Supp. 2d 299, 313 (D.N.J.

2008). The record reflects that Plaintiff refused his housing

assignment because of complications from his colostomy bag.

Exhibit E at 12. See also ECF No. 52-7 at 17 (“[]I was being

forced to move to another area wither having my essential and

mandated supplies that assist my wounds/injury and

disability.”). Despite his “face sheet” having a medical alert

for “NEED FOR WHEEL CHAIR OR OTHER DEVICE” and “WHEELCHAIR –

PERMANENT,” Exhibit D at 2, his preliminary incident report

19

states “[t]his inmate is not currently listed as special needs

status at this time.” Exhibit E at 12. See also Exhibit E at

10 (disciplinary special needs form prepared by Sco. T. Hickman

with “no” written in special needs column). Plaintiff was then

placed in Cell 1029 with no handrails over his objection. See

Pla. Dep. at 15:19-23 (“[W]hen I was going to detention, I

clearly mentioned to the officer that the cell I was going into

was not designed for me . . . . It’s not a cell designed for

me.”).

Defendant’s assertion that Plaintiff was placed into

administrative segregation because of his disciplinary charge is

insufficient. The Third Circuit rejected a similar argument in

Furgess v. Pennsylvania Department of Corrections, 933 F.3d 285

(3d Cir. 2019). There, defendants argued that plaintiff had

been “deprived of a shower because his own misconduct landed him

in the RHU, which lacked accessible shower facilities, not

because the PDOC intentionally discriminated against him on the

basis of his disability.” Id. at 291. The Third Circuit found

this argument “unconvincing.” Id. “[T]he sole cause of

Furgess’s deprivation of a shower was his disability. The

PDOC’s argument to the contrary fails because it conflates the

alleged discriminatory action — failure to accommodate by not

making the RHU showers handicapped-accessible — with the

causation element of Furgess’s claims.” Id. (footnote omitted).

20

Defendant’s argument fails for the same reason. “A

prisoner’s misconduct does not strip him of his right to

reasonable accommodations, and a prison’s obligation to comply

with the ADA . . . does not disappear when inmates are placed in

a segregated housing unit, regardless of the reason for which

they are housed there.” Id. Here, as in Furgess, the reason

Plaintiff was placed into administrative segregation “is

irrelevant.” Id. “As the ADA’s regulations make clear,

[SWSP’s] failure to equip [Cell 1029] with accessible [toilets]

does not excuse the prison from its duty to reasonably

accommodate prisoners with disabilities.” Id.

“[I]ntentional discrimination . . . in this Circuit, may be

satisfied by a showing of deliberate indifference.” Id. at 292.

Plaintiff “must present evidence that shows both: (1) knowledge

that a federally protected right is substantially likely to be

violated” i.e., knowledge that the failure to provide Plaintiff

with an accessible toilet likely violated his right to

reasonable accommodations of his disability, “and (2) failure to

act despite that knowledge.” S.H. ex rel. Durrell v. Lower

Merion Sch. Dist., 729 F.3d 248, 265 (3d Cir. 2013) (emphasis

omitted). From the evidence in the record, a reasonable

factfinder could conclude that that SWSP knew about Plaintiff’s

disability and his requests for an accessible toilet. A

reasonable factfinder could also conclude that SWSP placed

21

Plaintiff into a non-accessible cell despite his requests, which

ultimately lead to his injury, and that SWSP’s failure to

provide him an accessible toilet was likely to violate his right

to a reasonable accommodation of his disability. Accordingly,

there are disputed issues that prevent summary judgment on this

claim.

Plaintiff raised a claim under NJLAD in addition to his ADA

claim. NJLAD “relies on the same analytical framework as the

ADA.” Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524,

536 n.12 (3d Cir. 2007). See also Small v. Lanigan, 58 NDLR P

113, 2019 WL 145628, at *4 (D.N.J. Jan. 9, 2019); D.G. v.

Somerset Hills Sch. Dist., 559 F. Supp. 2d 484, 502 (D.N.J.

2008). The Court will deny summary judgment on Plaintiff’s

NJLAD claims for the same reason as his ADA claims.

D. Tort Claims

Defendant Powell also moves for summary judgment on

Plaintiff’s intentional infliction of emotional distress claim.7

Defendant Powell asserts that Plaintiff failed to file a timely

notice of claim form. Defendant Powell cites to the

“Certification of Peter Ramos” for this claim, ECF No. 52-1 at

20, but did not include the certification with his summary

judgment motion. However, the Court need not address whether

7 The Court has supplemental jurisdiction over Plaintiff’s state

law claim. 28 U.S.C. § 1367(a).

22

the tort claim notice was timely filed because Defendant Powell

is entitled to judgment as a matter of law on the merits of the

claim.

Defendant Powell is immune from suit on this claim in his

official capacity. “[T]he New Jersey Tort Claims Act does not

constitute waiver of immunity from suit in federal court; the

statute reflects a limited waiver only of the State’s immunity

from suit in state court.” Allen v. New Jersey State Police,

974 F.3d 497, 505 (3d Cir. 2020) (emphasis omitted). For his

IIED claim against Defendant Powell in his individual capacity,

Plaintiff must prove:

the defendant acted intentionally or recklessly, both in

doing the act and producing emotional distress; the

conduct was so outrageous in character and extreme in

degree as to go beyond all bounds of decency; the

defendant’s actions were the proximate cause of the

emotional distress; and the distress suffered was so

severe that no reasonable person could be expected to

endure it.

Turner v. Wong, 832 A.2d 340, 347 (N.J. Super. Ct. App. Div.

2003) (citing Buckley v. Trenton Sav. Fund Soc’y, 544 A.2d 857

(N.J. 1988)). “The standard is an objective one. The

defendant’s conduct must be ‘sufficiently severe to “cause

genuine and substantial emotional distress or mental harm to

average persons.”’” Id. at 348 (quoting Taylor v. Metzger, 706

A.2d 685, 697 (N.J. 1998)). “The average person, of course,

must be one similarly situated to the plaintiff.” Id.

23

Plaintiff has not submitted evidence to this Court that

would allow a reasonable factfinder to conclude Defendant

Powell’s actions were the proximate cause of Plaintiff’s

emotional distress. Plaintiff asserts: “[P]laintiff broke his

left ankle when he fell of the toilet in the cell. As a result

of this fall, plaintiff alleges that he had severe emotional

distress by being forced to live in a cell that did not

accommodate his needs as a handicapped person.” ECF No. 58 at

18. As the Court noted previously, the undisputed record

indicates that Plaintiff did not file his grievances with

Defendant Powell until after his injury and after Plaintiff had

already been transferred out of Cell 1029. The Court will grant

summary judgment to Defendant Powell on this claim.

E. Qualified Immunity

Defendant Powell argues that he is entitled to qualified

immunity because “there is no clearly established right for an

incarcerated person to have a handle bar near a restroom or to

have prison officials modify a cell in way Plaintiff requested.”

ECF No. 52-1 at 22.

“[O]fficers are entitled to qualified immunity ... unless

(1) they violated a federal statutory or constitutional right,

and (2) the unlawfulness of their conduct was ‘clearly

established at the time.’” D.C. v. Wesby, 138 S. Ct. 577, 589

(2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).

24

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 Court has awarded summary judgment to Defendant

Powell on Plaintiff’s constitutional and state tort claims;

therefore, it is unnecessary to address Defendant’s qualified

immunity argument beyond noting that Plaintiff has not shown a

violation of a constitutional right.

Qualified immunity does not apply to official-capacity

claims. See Kentucky v. Graham, 473 U.S. 159, 167 (1985) (“In

an official-capacity action, these defenses are unavailable.

The only immunities that can be claimed in an official-capacity

action are forms of sovereign immunity that the entity, qua

entity, may possess, such as the Eleventh Amendment.”); I.H. ex

rel. D.S. v. Cumberland Valley Sch. Dist., 842 F. Supp. 2d 762,

778 (M.D. Pa. 2012) (“The doctrine of qualified immunity shields

officials acting and sued in their individual capacities.”).

Accordingly, Defendant Powell may not assert qualified immunity

as a defense to Plaintiff’s ADA claim against him in his

official capacity.

25

F. Motion to Seal

Defendant Powell also moves to seal certain exhibits to his

summary judgment motion. ECF No. 54. “It is well-settled that

there exists, in both criminal and civil cases, a common law

public right of access to judicial proceedings and records. The

public’s right of access extends beyond simply the ability to

attend open court proceedings. Rather, it envisions a pervasive

common law right to inspect and copy public records and

documents, including judicial records and documents.” In re

Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001) (internal

citations and quotation marks omitted). A party seeking to seal

portions of the judicial record from public view bears party

“bears the heavy burden of showing that the material is the kind

of information that courts will protect and that disclosure will

work a clearly defined and serious injury to the party seeking

closure.” Millhouse v. Ebbert, 674 F. App’x 127, 128 (3d Cir.

2017) (per curiam) (internal quotation marks and citations

omitted). In deciding a motion to seal, the Court considers:

(a) the nature of the materials or proceedings at issue;

(b) the legitimate private or public interest which

warrants the relief sought;

(c) the clearly defined and serious injury that would

result if the relief sought is not granted;

(d) why a less restrictive alternative to the relief

sought is not available;

26

(e) any prior order sealing the same materials in the

pending action; and

(f) the identity of any party or nonparty known to be

objecting to the sealing request.

L. Civ. R. 5.3(c)(3).

Plaintiff’s remaining claim alleges that Defendants

violated the ADA by putting him into a cell that did not have

proper accommodations for his disability. Defendant Powell

seeks to seal Plaintiff’s Department of Corrections

“facesheet/progress notes,” Exhibit D, and Plaintiff’s

disciplinary records, Exhibit E. Defendant Powell argues that

“the individual interest warranting relief is Plaintiff’s

privacy interest in preserving the confidentiality of his

personal DOC inmate records.” ECF No. 54-1 at 2. “In addition,

the clearly defined and serious injury that would result if

relief is not granted is Plaintiff’s DOC inmate records and

certain sensitive personal information would become publicly

accessible.” Id.

Plaintiff has a right to have his complaint adjudicated in

a public process, and the public has a right to information

about how state prisons accommodate inmates with disabilities.

“The public’s interest is particularly legitimate and important

where, as in this case, at least one of the parties to the

action is a public entity or official.” Pansy v. Borough of

Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994). “‘Broad

27

allegations of harm, unsubstantiated by specific examples or

articulated reasoning,’ do not support a good cause showing.”

Id. (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108,

1121 (3d Cir. 1986)). Plaintiff’s prison records contain

information directly pertaining to his claim, such as the

notification on his “facesheet” that he has a medical alert for

“NEED FOR WHEEL CHAIR OR OTHER DEVICE” and “WHEELCHAIR –

PERMANENT” and the contradictory claim on his preliminary

incident report that states “[t]his inmate is not currently

listed as special needs status at this time.” Exhibit D at 2;

Exhibit E at 12. These documents provide evidence that prison

officials were aware of Plaintiff’s disability but did not

accommodate him.

The exhibits do contain sensitive information, such as

Plaintiff’s full birthdate, the name and full address of his

emergency contact, and progress notes unrelated to his current

claims, but the Court is not persuaded that it is impossible to

redact the sensitive and irrelevant information from the

exhibits. The Court will grant the motion to seal to the extent

that the unredacted versions will remain under seal, but the

parties will be directed to meet and confer to agree upon

redactions for the exhibits. The redactions will keep the

sensitive personal information private while balancing public

access to judicial records.

28

IV. CONCLUSION

For the reasons set forth above, the Court will grant

Defendant’s motion for summary judgment in part. The motion to

seal will be granted conditioned upon the submission of redacted

exhibits.

An appropriate Order follows.

Dated: March 15, 2023 s/ Noel L. Hillman

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

29