ARMSTRONG v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

QUADIR ARMSTRONG,

Plaintiff,

Civil Action No. 20-5125 (MW) (MJS)

Vv.

OPINION

NEW JERSEY DEPARTMENT OF

CORRECTIONS, et al.,

Defendants,

WILLIAMS, District Judge:

This matter comes before the Court on Defendants’ Motions seeking Summary Judgment

in this prisoner civil rights matter. CECF No. 36.) Plaintiff filed a response to the motion (ECF

No. 44), to which Defendants replied. (ECF No. 46.) Also before the Court is Defendants’ motion

to seal portions of the summary judgment record. (ECF No, 38.) Having reviewed the motion to

seal and having found that the documents in question, including Plaintiff’s medical records,

warrant sealing, Defendants’ motion to seal shall be granted. For the following reasons,

Defendants’ motion seeking summary judgment is granted in part and denied in part.

I, BACKGROUND

Following an incident in which he was shot in 2015, Plaintiff became a wheelchair bound

paraplegic. (ECF No. 36-8 at 4.) Following his most recent conviction for drug and weapons

charges in December 2016, Plaintiff was placed in South Woods State prison in January 2017.

(ECF No. 37-10 at 2-4.) Following a short-lived transfer to Mid-State Correctional Facility in the

summer of 2017, Plaintiff returned to South Woods on September 1, 2017. Gd. at 3.) On October

25, 2019, he was transferred to Southern State Correctional Facility, where he remained until

Match 4, 2020, when he was moved to the Bo Robinson Treatment Center, (ECF No, 37-11 at 8.)

Plaintiff was thereafter moved to the Garden State Youth Correctional Facility between May 23

and 29, 2020, before being transferred to New Jersey State Prison between May 29, 2020, and his

ultimate release from custody in November 2020. (/d.) This suit deals with a number of incidents

in which he alleges he was subjected to mistreatment during his prison stay between 2017 and

2020. (See ECF No. 4,)

Plaintiff’s first claim deals with treatment he experiences at Mid-State Correctional Facility

in the summer of 2017. At his deposition, Plaintiff testified that while at Mid-State for a

rehabilitation program, he was barred from recreation, could not eat at a table as the mess tables

were not situated for wheelchair use, and could not attend schooling or the law library. (ECF No.

36-8 at 5.) However, when his family complained, a ramp was built for him. Gd.) Plaintiff also

testified that during one incident in June of 2017, while returning from an Islamic service, he was

asked to take his hands out of his pants, which he was using to prevent himself from urinating.

(id, at 6.) Plaintiff did not, but gave his reasons for doing so. (/d@.) As a result of his refusal,

Plaintiff was instructed to strip down for a search. Ud.) While doing so, an Officer Snider accused

Plaintiff of throwing a shoe at him, which resulted in “like six officers” including Snider, Sergeant

Pearson, Sergeant Whittaker, Lt. Miller, and Sergeant Miller, attacking and pepper spraying him.

(/d. at 6-7) Plaintiff was thereafter taken to medical and deposited in a cell. Gd.) Plaintiff hurt

his knee in the process, but was provided medical attention after a delay which was apparently

video-recorded. (d.)

Plaintiff's next claim arises out of events which occurred on April 23, 2018, in South

Woods State Prison. On that date, during a spot check of Plaintiffs medication, it was determined

ry

that Plaintiff was missing a large number of his prescribed Neurontin pills. (See ECF No. 37 at

2.) When confronted about this, guards reported that Plaintiff said he had taken the pills as a

suicide attempt following the death of a family member. (/¢@.) Asa result, Plaintiff was placed on

temporary suicide watch and given a disciplinary infraction, resulting in his ultimate removal to a

disciplinary cell, and being moved into double cell housing on April 25, 2018. Ud; ECF no. 36-2

at 4.)

Plaintiff next claims, that he was attacked and suffered injuries at the hands of his then

cellmate, Jamel Allen, in April 2018 at South Woods State Prison. (ECF No. 36-8 at 7.) According

to Plaintiff, on April 20, 2018, Allen assaulted his previous cellmate. (/d.) Plaintiff testified at his

deposition that an Officer Beatie thereafter told Plaintiff he wanted to see Allen fight someone.

(ECF No. 9.) On April 23, 2018, after Plaintiff was placed into his cell, Plaintiff contends Beatie

transferred Allen into Plaintiff's cell. (dé. at 8-9.) During a guard shift change, while Plaintiff was

giving him his privacy to wash, Allen snuck behind him and began to beat him. (/d.) Several

inmates in adjacent cells called for an officer, at which point an Officer King arrived and ordered

Allen to stop what he was doing. (/d.) When Allen did not stop, the officer went to get help, and

returned “three to four minutes” with a group of officers, at which point Allen stopped attacking

him and the two were separated, (/d. at 9-12.) As a result of the attack, Plaintiff suffered injuries

including a concussion and damage to his ribs. Ud. at 10.)

At his deposition, Officer King testified that although he knew Ailen was an inmate in his

unit, he knew nothing else about him, and was unaware that Allen had previously been involved

in any fighting with other inmates. (ECF No, 36-9 at 6-7.) Likewise, although King was familiar

with Plaintiff as having been in and out of the detention unit at the prison, he had not had any

prior interaction with him. Cd at 9.) According to King, he heard a commotion shortly after

arriving to work, and he then went to Plaintiffs cell where he heard Plaintiff asking for help, and

called for a sergeant and more officers to come to help. (/d. at 7.) King testified that he initially

did not see anything, but after he called for help, he saw Allen hit plaintiff with a shoe. (/d. at 7.)

King testified that additional officers arrived in “less than a minute,” at which point Sergeant

Tomlin ordered the officers in to restrain both prisoners and end the fight. Gd.) King further

testified that, after he was removed from his cell, a nurse saw to Plaintiff’s injuries a “couple

minutes” later. (/d. at 9.)

Sergeant Tomlin was also deposed regarding this incident. Although Tomlin did not have

memory of the event, he noted that he had written a report which stated that Allen had been

moved into Plaintiff's cell at 8:30 pam. (ECF No. 36-10 at 7-8.) Tomlin testified that upon

discovering the attack by Allen, he called for help over the radio and Tomlin and other officers

came to help, but that by the time they arrived Allen had ceased his attack and separated from

Plaintiff following King’s order. (/d at 10.) Tomlin also reiterated that in his report he wrote

that, when he arrived following King’s call for help, they found Plaintiff in his wheelchair. Ud. at

8.) According to his report, Tomlin testified that following the officers separating the two and

sending Plaintiff for treatment, Allen was moved to an administrative segregation unit and issued

charges. Cd. at 9-10.) Tomlin testified that he did not know why Allen was placed in Plaintiffs

cell, that he had no previous knowledge of or dealings with Allen, and had no clear way of knowing

why he was there from the available paperwork that he received as an officer on the unit. (Ud. at

10.) Finally, Tomlin testified that all of the cells in his unit are handicap accessible, and that

inmates including Plaintiff eat in their cell or a dayroom, which is also handicap accessible. (Ud.

at 11.)

‘The officers’ report regarding this incident largely mirrors their testimony. (See ECF No.

37 3.) According to the report, shortly after arriving at 10:00 p.m., Officer King heard shouting,

entered Plaintiff's unit, followed the direction of other inmates to Plaintiffs cell and saw Plaintiff

and Allen, he then saw Allen strike Plaintiff and ordered them to separate, and Allen moved away.

Ud.) According to the report, King called for help, other officers arrived, and the two were

separated and moved out for examination, at which point Piaintiff was taken to the hospital for

treatment, and Allen was moved to punitive housing and issued institutional charges for attacking

Plaintiff. (fd)

In May 2018, Plaintiff filed a Prison Rape Elimination Act complaint against an Officer

Busnardo, who Plaintiff claimed told him to show him his genitalia. (ECF No. 36-2 at 7; ECF No.

44 at 46.) According to Plaintiff, Busnardo thereafter threatened to attack Plaintiff when he was

next out of sight of cameras. (Jd)

In the ensuing months at South Woods, while still in punitive housing, Plaintiff requested

to be placed into a handicap cell rather than be returned to the wheelchair accessible but not rail

equipped cell in which the April 26 attack had taken place, but he was told the one of the

handicapped cells in the detention unit was already in use by another inmate. (ECF No. 36-8 at

13.) Plaintiff admitted in his deposition, however, that the cell in which he was placed prior to the

disciplinary housing and after his return to general population was handicapped accessible. Ud.)

Plaintiff also testified at his deposition to having issues contacting his attorney while in

South Woods, (Ud. at 14.) Specifically, he testified that his attorney’s phone number was restricted

when he attempted to call it, so he put in requests to have the number made available to him, which

Plaintiff testified he was told would be done. (/d.) Because the number was not immediately

added to the call list, however, Plaintiff had to contact his attorney through writing instead. □□□□□□

Plaintiff conceded at his deposition, however, that the officers to whom he complained “wouldn’t

have the power” to make the number unrestricted, that this was instead a system wide issue. (/d.

at 14-15.)

Plaintiff later had issues with his physical therapy teacher, Miss Angie. (Ud. at 16.)

Initially, Plaintiff had braces to help him stand for brief periods during therapy. Ud.) Those braces,

and Plaintiff's personal tablet, were both taken from him during a cell move to administrative

segregation related to his being charged with misusing medication as detailed in the next

paragraph. (/d@.) As the result of the loss of the braces, Miss Angie told him he could no longer

do the physical therapy, although she also told him that the therapy was unnecessary as there was

no hope of restoring Plaintiffs ability to walk. (/d. at 15.)

The loss of the braces and tablet during a move was a result of an incident in June 2018.

Specifically, during a check on Plaintiffs cellmate, Plaintiff was accused of abusing his

medication again, specifically that he had illicitly taken suboxone, which Plaintiff claims he did

not have at that time. (/d. at 16.) Plaintiff was urine tested and placed in a medical observation

room for several days during which he did not have wheelchair access and had to use a milk carton

to relieve himself if he could not get a nurse to find someone to help him onto the toilet. Ud. at

17-18.)

In March 2020, Plaintiff was scheduled for transfer to the Bo Robinson Assessment and

Treatment Center, a halfway house facility. (ECF No. 36-2 at 9.) When Plaintiff was brought out

to the busses for transportation, however, there was no available wheeichair van to transport him.

(ECF No. 36-8 at 19-20.) The guards, uncertain as to why there was no vehicle to transport

Plaintiff other than a bus he could not ride, called for more information. (/d. at 20.) Plaintiff was

returned to the prison and told he would need to wait a few days for a handicapped vehicle to

transport him. Ud. at 20.) The prison administrator and several other officials spoke with and

apologized to Plaintiff as this occurrence was an accident that was not supposed to happen. (/d. at

21.) The prison made arrangements for Plaintiff and transferved him a week later. (id)

kK

In the final incident, Plaintiff was transferred to New Jersey State Prison in advance of his

release from custody. (Ud) While he was there, a fight between other inmates occurred, and

Plaintiff was separated and temporarily placed in a facility without a handicapped shower for

several days, but was provided with equipment with which to wash himself. Ud. at 21-22.)

Plaintiff was then moved to a cell in New Jersey State Prison, but that cell’s door was too small

for Plaintiff's wheelchair to fit through. (dat 22.) A sergeant was called, and they used a make

chair system using a repurposed shower chair to help Plaintiff get in and out of his cell. Ud.) This

system was less than ideal, and led to Plaintiff falling. Vd.) He was then provided with medical

attention. (d.) Plaintiff testified that Plaintiff's placement in this cell, however, was the result of

COVID-telated restrictions on transfers. (Ud. at 21,)

Il. LEGAL STANDARD

Pursuant to Rule 56, a court should grant a motion for summary judgment where the record

“shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law,” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of

“identifying those portions of the pleadings depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is

material “if it bears on an essential element of the plaintiff’s claim,” and is genuine if “a reasonable

jury could find in favor of the non-moving party.” Blunt vy. Lower Merion Sch, Dist,, 767 F.3d

247, 265 (3d Cir. 2014), In deciding a motion for summary judgment a district court must “view

the underlying facts and all reasonable inferences therefrom in the light most favorable to the party

opposing the motion,” id, but must not make credibility determinations or engage in any weighing

of the evidence. See Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “Where the

record taken as a whole could not lead a rational trier of fact to find for the non-moving party,

[however,] there is no genuine issue for trial.” Matsubita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S, 574, 587 (1986).

Once the moving party has met this initial burden, the burden shifts to the non-moving

party who must provide evidence sufficient to establish that a reasonable jury could find in the

non-moving party’s favor to warrant the denial of a summary judgment motion. Lawrence v, Nat’l

Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir. 1996); Serodio v. Rutgers, 27 F. Supp. 3d

546, 550 (D.N.J. 2014).

“A nonmoving party has created a genuine issue of material fact if

it has provided sufficient evidence to allow a jury to find in its favor

at trial. However, the party opposing the motion for summary

judgment cannot rest on mere allegations, instead it must present

actual evidence that creates a genuine issue as to a material fact for

trial.”

Serodio, 27 F. Supp. 3d at 550.

If, DISCUSSION

A. Exhaustion

In their motion, Defendants contend that Plaintiffs claims were not properly exhausted

and his complaint must be dismissed. Pursuant to 42 U.S.C. § 1997e, a prisoner must exhaust all

available administrative remedies before filing a civil rights action challenging prison conditions.

Woodford v. Ngo, 548 U.S. 81, 84-85 (2006), Indeed, a prisoner is required to “exhaust

administrative remedies even where the relief sought — [such as] monetary damages ~ cannot be

granted by the administrative process.” Jd.; see also Booth vy. Churner, 532 U.S. 731, 734 (2001).

Where an administrative procedure is available, a plaintiff secking to challenge prison conditions

via a federal civil rights action must fully and properly exhaust his administrative remedies prior

to filing suit, and exceptional circumstances will not excuse a plaintiffs failure to exhaust his

claims. Ross v. Blake, --- U.S. ---, ---, 136 8S. Ct. 1850, 1856-57 (2016). This “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 vy. Nussle, 534 U.S. 516, 532 (2002); see also Booth v. Churner, 206 F.3d 289,

298 (3d Cir. 2000), aff'd, 532 U.S. 731 (2001).

The chief dispute between the parties appears to be whether administrative remedies were

available to Plaintiff in prison, and whether he actually attempted to make use of available

remedies. What the parties largely ignore, however, is the fact that Plaintiff filed an amended

complaint in this matter on December 9, 2020, a month after his release from prison. (See ECF

No. 4; ECF No. 36-8 at 4). In Garrett v. Wexford Health, 938 F.3d 69, 84 (3d Cir, 2019), the Third

Circuit held that while a failure to exhaust prior to the filing of suit by a prisoner warranted the

dismissal of his complaint, that deficiency could be cured by the filing of an amended complaint

following a plaintiffs release from prison as the exhaustion requirement does not apply to those

who are not prisoners at the time of the filing of their operative complaint and an amended

complaint filed following release supersedes and replaces the original prisoner complaint. Because

Plaintiff filed an amended complaint after his release from prison, and that complaint replaced the

original complaint that he filed as a prisoner, the amended complaint cured any filing defect in the

form of a failure to exhaust administrative remedies. fd. That Plaintiff does not appear to have

properly exhausted his claims is thus immaterial — the exhaustion requirement does not apply to

his operative complaint, and that complaint’s filing removed the requirement that his unexhausted

claims be dismissed under § 1997e under Third Circuit precedent. fa. Defendants are therefore

not entitled to the dismissal of Plaintiff's complaint for lack of exhaustion.

B. Time Bar

oO

Defendants next contend that several of Plaintiff's claims are time barred. In this matter,

Plaintiff raises three types of claims — claims under 42 U.S.C. § 1983 asserting violations of his

constitutional rights, claims of disability discrimination under the ADA and Rehabilitation Act,

and state law tort claims. All three classes of claims are subject to the same statute of limitations

— New Jetsey’s two year statute of limitations for personal injury torts. See Disabled in Action of

Pa. vy. SE. Pa, Transp, Auth., 539 F.3d 199, 208 Gd Cir. 2008) (both ADA and Rehabilitation Act

claims are subject to the general personal injury statute of limitations of the forum state); see also

Patyrak vy. Apgar, 511 F. App’x 193, 195 (3d Cir, 2013) (§ 1983 claims subject to state personal

injury statute of limitations, which in New Jersey is two years). In this matter, Plaintiff filed his

initial complaint on April 26, 2020. (ECF No. 1.) Defendants therefore argue that those of

Plaintiff's claims which accrued before April 26, 2018 — which include Plaintiffs claims related

to his stay at Mid-State in 2017 during which he was allegedly denied access to certain facilities

for lack of wheelchair accessibility, his claims regarding being strip searched and manhandled

after having a hand in his pocket in 2017, and his claims related to being charged with abusing his

medication on April 23, 2018, are time barred.

Although Plaintiff recognizes that several of his claims accrued more than two years before

he filed suit in this matter, he contends that his limitations period should be tolled because he was

required to exhaust his claims. Absent a conflict with federal law, federal courts apply the tolling

principles of the state in which the claims arose in federal civil rights actions. Pearson vy. Sec’y

Dep’t of Corr., 775 F.3d 598, 602 (3d Cir. 2015). Under New Jersey law, a statute of limitations

may be equitably tolled in three circumstances: where the plaintiff was induced or tricked into

missing a deadline by his adversary, where the plaintiff was “in some extraordinary way”

prevented from asserting his claims in a timely fashion, or where the plaintiff timely asserted his

claims in the wrong forum or through a defective pleading. See Binder v. Price Waterhouse &

Co., 923 A.3d 293, 298 (NJ. App. Div. 2007). As the exhaustion requirement is a statutory

prohibition to filing suit for a prisoner, the Third Circuit has held that a civil rights claim’s statute

of limitations may be tolled while a prisoner is engaged in exhausting his administrative remedies

as doing so is essentially the prisoner’s attempt at removing an obstacle to filing suit. Pearson,

775 F.3d at 602-04. Although that case was decided under Pennsylvania law, courts in this district

have generally found the reasoning applicable under New Jersey law. See, e.g., Valdez v. Schillari,

No. 16-2943, 2017 WL 6619328, at *7 (D.N.J. Dec. 27, 2017); Kelly vy. Lanigan, No. 14-3165,

2015 WL 5164871, at *5 (D.N.J. Sept. 2, 2015).

Pearson and its progeny, however, do not stand for the proposition that limitations periods

will be tolled unless and until a prisoner either completes the exhaustion of his claims or is released.

Statutes of limitations will only be tolled while a prisoner is actually engaged in the exhaustion

process. See, e.g., Jones v. Unknown D.O.C. Bus Driver & Transportation Crew, 944 F.3d 478,

481-82 (3d Cir, 2019); Montalban v. Powell, 799 F, App’x 111, 112 (3d Cir, 2020). A claim will

therefore be tolled through exhaustion only while an administrative remedy is actually pending,

and not during the period before the prisoner attempts to file such a remedy or after his remedies

cease to be pending. Montalban, 799 F. App’x at 112. Ifa prisoner fails to even attempt

exhaustion, clearly no tolling would apply. Za.

In this matter, Defendants have produced all remedies filed by Plaintiff that they possess,

which they contend include all of the remedies Plaintiff filed and are considerable in number. Of

these remedies, none reference the abusing medication incident or the strip search. As to Plaintiff's

stay in Mid State, although a few do reference his complaints about access to the facility, each

received a response within a couple of days indicating steps were being taken to alleviate the issue

which was not appealed. (See ECF No. 36-11 at 219.) In response to this lack of evidence of

relevant grievances, Plaintiff provides a certification in which he asserts, with limited detail at best,

44

that he filed various grievances during his stay to which he did not receive a satisfactory response.

(See ECF No. 44 at 27-34.) Plaintiff provides no specific details as to any grievances filed relevant

to the three untimely claims — he does not allege when he filed any grievance as to those claims,

when he filed repeat grievances, or when any action or inaction on those grievances may have

occurred, and instead just states that he filed many grievances without specific reference to those

incidents. Instead, he provides detail only as to grievances filed in relation to the April 26 attack

and other, later issues not relevant to the time bar issue. (/d.)

Such vague and self-serving assertions in an affidavit, which lack specific factual

information, are insufficient to show, in response to a summary judgment motion, that a prisoner

engaged in the grievance process, See, e.g, Paladino v. Newsome, 885 F.3d 203, 208 (3d Cir.

2018). Plaintiff has failed to provide any concrete factual statements or similar information

sufficient to show that he had filed proper grievances sufficient to warrant tolling as to the untimely

claim, and has thus not shown that he had pending, grievances which were not answered and which

languished and prevented him from timely filing suit. Instead, the record indicates that the one on

point grievance he did file in 2017 as to the Mid-State situation was responded to in short order —

two days later— and resulted in positive progress. Even providing Petitioner the benefit of those

two days, his claims relating to the 2017 incidents and the April 23 incident do not become timely.

Because Petitioner has failed to show he had pending grievances sufficient to warrant tolling, his

claims arising before April 26, 2018, are all time barred and are dismissed as such. Montalban,

799 F. App’x at 112.

ASD

C. Plaintiff’s non-NJCRA! state law claims

Defendants next contend that Plaintiff's state law claims must be dismissed because

Plaintiff failed to file a notice of claim for any state law tort claim other than those related to the

April 26, 2018, attack, and because the New Jersey Tort Claims Act provides immunity for

damages arising out of attacks by other inmates. Plaintiff does not dispute that he failed to file a

notice of claim for any claim other than the April 26, 2018, attack. (See ECF No, 36-2 at 11; ECF

No. 44 at 50.) The New Jersey Tort Claims Act serves as a limited waiver of sovereign immunity

by the State of New Jersey and controls the liability of New Jersey’s public entities and their

employees, including the New Jersey Department of Corrections, its prisons, and employees. See,

e.g., Gaston v, New Jersey, 298 F. App’x 165, 167-68 Gd Cir, 2008); NJ. Stat. Ann. § 59:8-1, et

seg. Under the NJTCA, a plaintiff seeking to “maintain an action against a public entity or public

employee .. . must file a notice of claim with either the State Attorney General or with ‘the

department or agency involved in the wrongful act or omission ... within 90 days of the accrual

of the cause of action.” Gaston, 298 F. App’x at 167-68 (quoting NZ. Stat, Ann. § 59:8-7). Failure

to do so requires the dismissal of a Plaintiff’s state law tort claims. fd at 168. Because Plaintiff

admitted he did not file a notice of claim for any state law tort other than those related to the April

26, 2018, incident, his remaining state law claims must be dismissed for failure to comply with the

NJTCA. Id.

' Claims brought pursuant to the NJCRA are analogues to federal claims brought pursuant to 42

U.S.C. § 1983 and are subject to the same defenses, standards, and immunities. See, e.g., Trafton

v. City of Woodbury, 799 F. Supp. 2d 417, 443-44 (D.N., 2011). They are thus generally

coterminous with the equivalent federal civil rights claim. fd NJCRA claims, however, are not

subject to the New Jersey Tort Claims Act’s requirements and provisions. See Teel v. Eliasen, No.

17-2253, 2018 WL 5307806, at *3 (D.N.J. Oct. 26, 2018). This Court thus evaluates Plaintiffs

NJCRA claims, to the extent they are raised separately, alongside his federal civil rights claims,

and in this section dealing with state law tort claims discusses only Plaintiffs tort claims raised in

Count IV of his amended complaint.

192

Defendants also argue that they are immune from suit for the claims arising out of the April

26, 2018, incident because the NJTCA grants immunity for damages arising from attacks by

inmates on other inmates. Under the Act, neither public entities nor their employees shall be liable

for “any injury caused by .. . a prisoner to any other prisoner.” NJ Stat. Ann. § 59:5-2(b)(4).

Under this statute, the New Jersey courts have found a prison official will be immune from injuries

resulting from an attack by one cell mate on another “even if the defendants knew the cell-mate

had a history of violent assault, and thus were grossly negligent in separating the plaintiff and the

cell-mate.” Kaseem Ali-X vy, Power, No. 10-2990, 2013 WL 4588615, at *3 (D.N.J. Aug. 8, 2013)

(citing White v. Lewis, 383 A.2d 744, 746 (N.J. Super. App. Div. 1978)). Plaintiff's injuries related

to the April 26, 2018, incident fall into exactly this category -- the failure of prison officials to keep

Plaintiff separate from Allen despite at least Officer Beattie being aware of Allen’s violent streak.

Although Plaintiff provides testimony suggesting Beattie hoped the two may quarrel, there is

nothing to suggest the attack by Allen was a direct result of anything other than Allen’s own

choices, and the injuries arising from the attack match those found subject to immunity in White

almost exactly. Jd. Plaintiffs state law tort claims related to the April 26, 2018, incident are

therefore dismissed because Defendants are immune under the Act. Jd All of Plaintiffs non-

NJCRA state law claims are therefore dismissed with prejudice pursuant to the NJTCA.

D. Plaintiff’s Federal Civil Rights Conspiracy Claims

Defendants next argue that they are entitled to judgment as a matter of law as to Plaintiff's

conspiracy claims because Plaintiff has failed to produce any evidence to support a claim of

conspiracy. In order to make out a claim of civil rights conspiracy, a Plaintiff must prove the

elements of a conspiracy — a “meeting of the minds” shown through agreement and concerted

action. See Startzell v. City of Phila., 533 F.3d 183, 205 (3d Cir. 2008). The “bare allegation of

tA

an agreement is insufficient to sustain a conspiracy claim,” Brown v. Deparlos, 492 F. App’x 211,

215 (3d Cir. 2012), and a Plaintiff may not show a conspiracy by merely showing that two parties’

actions had the same result or were the result of conscious parallelism without evidence supporting

agreement and concerted action. Desposito v. New Jersey, No. 14-1641, 2015 WL 2131073, at *14

(D.N.J. May 5, 2015). Here, Plaintiff has presented no actual evidence of a conspiracy, The

testimony of Plaintiff at his deposition suggests that, at least related to the April 26 incident, Officer

Beattie was hoping for conflict between Plaintiff and his cellmate, but he has failed to even suggest

anything showing that the other officers agreed with that goal or tried to carry it out. Indeed, the

two officers who were deposed both stated that they knew nothing about Allen or his history, and

stated that they were unaware of any such intention on Beaitie’s part. Because Plaintiff has

likewise failed to produce any evidence of a meeting of the minds among Defendants as to any of

_ his other claims, he has failed to provide any evidence, let alone a dispute of material fact, as to

conspiracy, and Defendants are entitled to sammary judgment on Plaintiff's conspiracy claims as

such.

E. Plaintiff’s Due Process and Punitive Damages claims

Defendants argue that Plaintiff's Due Process claim, asserted in his amended complaint as

a sort of catch all duplication of his other federal civil rights claims, must be dismissed because it

does not apply where a more specific right governs the claims at issue. Plaintiff presented no

argument in his briefing to oppose this argument. Under the “more-specific-provision rule,” “if a

constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth

Amendment, the claim must be analyzed under the standard appropriate to that specific provision,

not under the rubric of substantive due process.” Betts. V. New Castle Youth Development Center,

621 F.3d 249, 260 (3d Cir. 2010) (quoting United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997).

jc

Thus, where, as in Plaintiff's Eighth Amendment civil rights claims here, a claim is raised both as

an Eighth Amendment claim such as failure to protect and as a Due Process claim, the claim may

only be raised pursuant to the Eighth Amendment, which subsumes any Due Process claim related

to the event. As Plaintiff's constitutional claims here all arise out of the Eighth Amendment as a

convicted prisoner, that amendment’s standards control, and no Due Process claim is available.

Td. at 260-61, Therefore, Plaintiff's Due Process claims are dismissed.

Defendants likewise contend that Plaintiff's stand-alone claim for punitive damages must

be dismissed because punitive damages are not separate or distinct from an underlying entitlement

to relief. Plaintiff does not dispute the point, and Defendants are correct. See Giordano v. Solvay

Specialty Polymers USA, LLC, 522 F. Supp. 3d 26, 38 (D.N.J. 2021) (although a party may seek

punitive damages for an alleged tort or constitutional claim, such a claim is merely incidental to a

cause of action and is not a cognizable stand-alone basis for relief), Thus, while Plaintiffmay seek

punitive damages at trial where available, to the extent he intended Count VIII of his complaint to

serve as a basis for relief in the form of punitive damages, that claim is dismissed as not cognizable.

ld.

F. Plaintiff's failure to protect claim?

Defendants next contend that they are entitled to judgment as a matter of law as to

Plaintiff's failure to protect claim related to the April 26, 2018, assault by Allen. To make out an

Eighth Amendment failure to protect claim, a plaintiff must show that he was “incarcerated under

conditions posing a substantial risk of serious harm” and that the defendants were “deliberately

indifferent” to that risk of harm. Beit v. Fed. Bureau of Prisons, 336 F. Supp. 3d 428, 438-39

* Because Plaintiff lumps his policy/supervisory claims raised under § 1983/the NJCRA and the

ADA together, this Court addresses the supervisory claims separately below.

tii

(D.N.J. 2018); see also Farmer v. Brennan, 511 U.S. 825, 833 (1994); Bistrian vy. Levi, 696 F.3d

352, 367 (3d Cir. 2012), abrogated in part on other grounds by Mack v. Yost, 968 F.3d 311, 319

n. 7 Gd Cir. 2020). An officer will only be deliberately indifferent where he knew of and

disregarded a known risk of serious harm. Be/t, 336 F.3d at 438. One subset of failure to protect

claim is a claim for failure to intervene in an altercation between inmates — a claim which requires

a plaintiff show that the officer had a “realistic and reasonable opportunity to intervene” in a

conflict between prisoners and “simply refused to do so,” resulting in harm to the plaintiff.

Bistrian, 696 F.3d at 271; Smith, 293 F.3d at 650-51,

Defendants argue that they are entitled to judgment on this claim as the two officers who

sat for depositions, King and Tomlin, testified that they had no prior interaction with or knowledge

of Allen or any risk he posed to Plaintiff. Plaintiff counters by pointing to his own testimony that

another officer, Beattie, told him he knew of Allen’s history of violence and that he wanted to see

the two fight. Plaintiff also suggests that Defendants should have known that Allen had prior

disciplinary charges related to a prior fight because he was subject to an order of no contact.

Finally, Plaintiff contends that his wheelchair status alone may support his claim because he

believes his cell was not wheelchair accessible.

Turning first to the wheelchair issue — although Plaintiff asserts the cell in which he was

housed at the time was not wheelchair ready, his own testimony shows both that he did have use

of his wheelchair in the cell, and that his wheelchair could be used to exit and enter the cell. There

is nothing in the record sufficient to show that Plaintiff's wheelchair status alone amounted to an

undue risk of harm. Plaintiff's allegations regarding the keep separate order are similarly

unconvincing — the records submitted clearly indicate that the keep separate order was only entered

afier the altercation with Allen and was specifically designed to keep only those two separate

because of the attack on April 26, 2018. (See ECF No. 37-11 at 9.) The keep separate order is

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thus a red herring. Because this Court has already found that Plaintiff has failed to set forth any

conspiracy, Plaintiff likewise cannot impute the knowledge he testified Beattie possessed to all of

the other officers — Plaintiff provides no testimony specifically showing that any of the other

named Defendant officers actually had knowledge of Allen’s history, or had reason to know that

he posed a direct threat to Plaintiff, rather than merely to the alleged prior cellmate he attacked.

Indeed, the Third Circuit has held that allegations of a general “history of violent assaults against

other inmates,” in the absence of any specific threat to the plaintiff, is too speculative to support a

of deliberate indifference. Bistrian, 696 F.3d at 371.

Here, the record indicates that Allen told officers after the fight that his attack on Armstrong

was not motivated by any specific aspect or trait on Plaintiff's part, but was an outburst as a result

of Allen’s general anger with his situation. (See ECF No. 37 at 3.) Plaintiff has identified only

one officer who clearly had knowledge of even this history — Defendant Beattie. Absent the

conspiracy this Court has already rejected, and because there is no testimony sufficient to impute

this knowledge to any other named Defendant, this Court cannot find that any Defendant except

Beattie, was clearly aware of Allen’s history,, especially in light of both Tomlin and King testifying

that they knew nothing of Allen or his history. As the record is devoid of facts sufficient to show

that any Defendant other than Beattie knew of and disregarded the risk Allen posed to Plaintiff,

there is no genuine issue of material fact as to whether the non-Beattie Defendants were

deliberately indifferent to that risk, and the Defendants other than Beattie are entitled to summary

judgment as to the portion of Plaintiffs claim related to the decision to house the two together,

Turning to Beattie, Plaintiff pleads that Beattie knew of Allen’s prior attack on a cellmate,

that Beattie told him that Allen had attacked an old man in another cell, and that he wanted to “see

him go up against somebody that’s tough.” (ECF No. 36-8 at 9-10.) Plaintiff also states that

Beattie placed Allen in Plaintiffs cell, and that he assumed that Beattie thought Plaintiff was the

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sort of “tough” guy he wanted to see Allen fight. These allegations, if credited by a jury, do more

than show a mere knowledge of a speculative history of violence, and instead indicate that Beattie

apparently knew Allen was dangerous, knew he was likely to attack his next cell mate, wanted to

see that happen, and thus placed him with Plaintiff in the hopes of such an attack occurring. These

facts, if credited, would be sufficient to show that he knew of the risk Allen posed, was aware it

was likely to spill over into an attack on Plaintiff, and placed them together expecting an attack to

occur. Thus, a genuine issue of material facts as to the question of whether Beattie was deliberately

indifferent to a severe risk to Plaintiffs health and safety, and Beattie is thus not entitled to

summary judgment on Plaintiff's failure to protect claim.

Putting Beattie aside, there is also a second aspect to Plaintiff's failure to protect claim —

that the officers who responded to the attack failed to properly intervene to protect him from

Allen’s attack. As to this claim, the relevant defendants would be King, Tomlin, and the other

responding officers. Here, the facts clearly indicate that the officers did have a reasonable

opportunity to intervene to end the attack once King discovered the altercation, and that the officers

did take some action -- the parties agree that King ordered Allen to stop, called for help, and then

he and the other officers engaged to separate the two. Although Plaintiff equivocated in his

deposition as to why Allen stopped — a result of the officers ordering him to stop and deploying

means such as pepper spray to achieve that result or Allen merely choosing to end the attack,

Plaintiff's own deposition testimony shows that once the additional officers arrived to help King,

the altercation was put to an end in short measure and the officers did take steps to intervene and

end the assault. Thus, Plaintiff fails to make out a claim for failure to intervene as to Tomlin and

the other officers who helped King end the attack as they did intervene to the extent they could

and separated the two.

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The question as to King is more complicated. As to King, it is clear that he did have an

opportunity to intervene when he found Plaintiff being attacked by Allen shortly after 10:00 p.m.

Its also clear that King did indeed take steps to address the situation — he ordered Allen to stop and

called for more officers to help restrain and remove Allen. The parties disagree, however, over

the fine details — Plaintiff testified that King ordered Allen to stop, then left for three to four

minutes to get help before separating the two, while the officers maintain King never left and

merely radioed for help. Plaintiff likewise testified that King took no action to stop Allen other

than ordering him to stop — an order Plaintiff states Allen ignored -- while King states that Allen

stopped immediately and the two remained separate while King awaited the atrival of help while

watching over the two.

Construing the facts in Plaintiffs favor as the non-moving patty, this Court is faced with a

factual scenario in which an officer responded to calls for help from inmates, went to the cell in

question, saw an attack, ordered the attacking inmate to cease, and then called for help before

returning to break up the attack three to four minutes later with the help of other officers. Even

under Plaintiffs version of events, King did take steps to address the situation, and the question is

whether those steps are sufficient to show that he is not liable.

As the Third Circuit explained in Bistrian,

[nJo doubt, there are some circumstances in which an officer’s

response to an inmate attack is so half-hearted that it effectively

amounts to no response at all... . But surely there are cases at the

other end of the spectrum in which an inmate fails to [show] that an

officer’s response was so unreasonable as to give rise to an

entitlement to relief. For example, if an inmate alleges that an

assailant landed two punches in rapid succession, the fact that

guards saw the first punch and reacted quickly enough to prevent a

third, but not the second, is not unreasonable. .. . The key is whether

prison officials acted reasonably; if so, they cannot be found liable

on a failure-to-protect claim.

an

696 F.3d at 371-72. Where a plaintiff contends that an officer directed an assailant to stop, but did

not enter the fray to end the assault until enough staff were present to help, the Third Circuit found

that such a situation could give rise to liability if the delay before help arrived were sufficiently

long and the assailant continued a violent assault in the meantime. /d at 372. Here, the parties

disagree on the key issues -- Plaintiff contends there was a three to four minute delay, King that

the delay was a matter of moments; Plaintiff contends that Allen continued the assault unabated,

King that the assault ended at his command and that he watched to make sure it did not resume

without leaving. There are thus genuine issues of material fact in this matter as to whether King’s

response to the situation was adequately reasonable, and King has thus failed to show that he is

entitled to summary judgment as to this part of Plaintiff's failure to protect claim,

In addition to arguing that they are entitled to summary judgment as to the failure to protect

claims, Defendants also argue they are entitled to qualified immunity as to those claims as Plaintiff

has failed to show a constitutional violation. In making this argument, however, Defendants do

not argue that Petitioner’s right to be free from attack without intervention from responding

officers was not clearly established ~ indeed, they directly concede that Plaintiff had a clearly

established right “not to have prison officials stand by and watch him be assaulted” by another

inmate. (See ECF No. 36-1 at 38.)

“The doctrine of qualified immunity shields government officials who perform

discretionary functions ‘from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.’” Santini vy. Fuentes, 795 F.3d 410, 417 Gd Cir. 2015) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). In determining whether immunity applies, courts use a two pronged test:

“a court must decide ‘whether the facts that a plaintiff has... shown make out a violation of a

constitutional right’[, a]nd second, the Court must determine ‘whether the right at issue was clearly

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established at the time of [the] defendants alleged misconduct.’” Spady v. Bethlehem Area Sch.

Dist., 800 F.3d 633, 637 (3d Cir, 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)),

As Defendants concede that Plaintiff's right in question was clearly established, the only issue

before the Court is whether Plaintiff has shown a violation. As discussed above, Plaintiff has

shown that there is a genuine issue of material fact as to whether Defendants Beattie and King

failed to protect him from the threat Allen posed either before or during the assault. Thus, were a

jury to credit Plaintiff's version of events, that version of events would show a constitutional

violation. As such, and in light of Defendant’s concession that the right in question is clearly

established, Defendants King and Beattie are not entitled to qualified immunity at this time.

Because Plaintiff failed to show a violation of his rights as to the remaining officer Defendants for

the reasons expressed above, however, the officers other than King and Beattie are entitled to

qualified immunity. Whether construed as a direct argument for judgment or a claim for qualified

immunity, the non-supervisory Defendants other than Beattie and King are entitled to judgment as

to the failure to protect claims, but summary judgment as to the failure to protect claims only is

denied as to Defendants Beattie and King.

F. Plaintiff's ADA/Rehabilitation Act Claims

Defendants next contend that they are entitled to summary judgment on Plaintiff's claims

under the Americans with Disabilities Act and the Rehabilitation Act. The “substantive standards

for determining liability are the same” under either Act. Furgess v. Pennsylvania Dep't of Corr.,

933 F.3d 285, 288 (3d Cir. 2019) “To state a claim under either the ADA or the [Rehabilitation

Act, a plaintiff] must allege that he is a qualified individual with a disability, who was precluded

from participating in a program, service, or activity, or otherwise was subject to discrimination, by

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reason of his disability.” /d. at 288-89. Under the Rehabilitation Act, a plaintiff is also required

to show that the entity which allegedly discriminated against him received federal funding. See,

CG vy. Pa. Dep't of Educ., 734 F.3d 229, 235 n.10 Gd Cir. 2013); Owens v. Armstrong, 171

F. Supp. 316, 328 (D.N.J. 2016). To establish causation sufficient to state a claim for relief under

the Rehabilitation Act, a plaintiff must plead facts showing that his disability was “the sole cause

of discrimination” against him, while the ADA instead requires “but for” causation, Furgess, 933

F.3d at 291 n, 25; 734 F.3d at 236 n. 11. To make out a claim for damages, as opposed to

injunctive relief, the plaintiff must show intentional discrimination. Furgess, 933 F.3d at 289.

Thus, because Plaintiff seeks only money damages,’ he must show that he has a qualifying

disability, that he was precluded from participating in a prison program, service, or activity or was

otherwise discriminated against by reason of his disability, and that the discrimination against him

was intentional. Jd The standard for determining whether discrimination was intentional in this

context is deliberate indifference. Jd; see also ex rel. Durrell y. Lower Merion School Dist.,

729 F.3d 248, 264-65 3d Cir. 2013).

Defendants do not dispute that Plaintiff has a qualifying disability, nor that they are subject

to suit under the Act insomuch as the New Jersey Department of Corrections receives federal

funding. Instead, they argue that they are entitled to summary judgment on Plaintiff's ADA/RA

claims because Plaintiff has failed to show that any of the complained of events amounted to

intentional discrimination because of Plaintiffs disability. In response, Plaintiff provides the

following as the basis for his ADA/RA claims — the failure to constantly ensure Plaintiff had a

3 Plaintiff requested only money damages in his complaint, but even had he wished for injunctive

relief, his release from prison would render a request for such relief moot as he is no longer subject

to prison conditions following his release. Likewise, because punitive damages are not available

under the ADA or Rehabilitation Act, see Barnes vy. Gorman, 536 U.S, 181, 189-90 (2002), only

compensatory damages are available on these claims.

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wheelchair accessible cell, Plaintiff's inability to attend GED classes in 2017 for lack of ramps or

elevators, the keep separate order issue in which Plaintiff was not given a single occupancy cell,

Plaintiff missing recreation for lack of handicap access, and the incidents in which Plaintiff missed

doctor’s appointments or transfers because a wheelchair van was not available the day of the

transfer.

As explained above, the claim related to the 2017 GED classes is time barred, and

Defendants correctly note that the facility, upon Plaintiff's request, chose to install a handicap

ramp to address the issue, so there is no evidence of intentional discrimination in the form of

deliberate indifference as to that event even if that claim was not time barred. Likewise, as

explained above, the keep separate order is a red herring ~ Plaintiff's records reveal only that he

was ordered to keep separate from Allen after the April 26, 2018, attack, and was not subject to a

single occupancy cell restriction as a result of that order, and thus that issue, too, fails to set forth

a case of discrimination on account of Plaintiffs disability. Plaintiff's transportation issues

likewise fail to indicate deliberate mdifference or otherwise intentional discrimination — although

the proper transportation vans were not available on the dates of initial transfers, Plaintiff was

directly told by prison officials that the lack of wheelchair vans were a mistake, they apologized

to him, and engaged in alternative arrangements. The missed doctor appointment issues are part

of Plaintiff's 2017 Mid-State claims (see ECF No. 44 at 30), and are thus time barred, although

they in any event appear to be mistakes rather than deliberate indifference, Plaintiff's recreation

issues, too, appear to be part of the 2017 time barred Midstate claims (see id. at 28), and are thus

time barred, although the Court notes that there, too, Plaintiff admits a ramp was built for his

access, suggesting something short of deliberate indifference. Several of Plaintiff's claims

regarding being in non-handicap cells, likewise, arise out of his 2017 stays in Mid-State and South

aA

Woods State Prisons, and appear to be time barred as well. These events all therefore fail to serve

as a basis for damages under the Acts.

What remains are Plaintiffs post-April 26, 2018, claims that he was placed for periods of

time in cells which were not fully handicapped accessible.4 The record and Plaintiffs own

testimony indicate that, other than during brief punitive or medical observation periods, he was

provided cells that were, at the very least, wheelchair accessible ifnot fully handicap friendly while

in South Woods, Indeed, Defendant Tomlin testified that most cells in South Woods are

wheelchair accessible, and Plaintiff's own grievances show that there were handicap shower

facilities in the prisons in which he was housed, although the chairs for them were at times

damaged. Although Plaintiff did have brief periods during which he was placed in units without

full wheel chair access during his stay in New Jersey State Prison following a temporary transfer

at the height of COVID when further movement was not practical, Plaintiff acknowledges that he

was provided with alternative washing arrangements and an alternative system for getting into his

wheelchair, albeit one which was not ideal. Nothing Plaintiff provides suggests that these events

were motivated by intentional discrimination, but instead appear to be the fallout of several

unrelated events — a fight in a processing facility, COVID-19 related lock downs, an unexpectedly

tight cell door, or the like. All considered, though Plaintiff's prison stay was certainly not ideal,

4 During his deposition, and in his original complaint, Plaintiff does make mention of several other

negative incidents he experienced during his prison stay, including losing property, being denied

full access to his civil attorney as officers told him that his attorney was not on his visitors list,

facing negative treatment and discrimination as retaliation for filing complaints, and being denied

physical therapy after having his braces confiscated. Those incidents, however, do not appear to

be related to the ADA/RA claims, but instead appear to have been raised solely on the state law

tort causes of actions discussed above. Plaintiff does not raise them in response to summary

judgment on the ADA or RA claims here, nor does it appear they would stand as bases for damages

claims under the Acts because in each incident the maltreatment was not related to wheelchair

status, but instead to personal grudges, lost or stolen equipment, or general distaste unrelated to

the wheelchair issue.

yc

Plaintiff has failed to show facts clearly showing the type of intentional discrimination, arising to

at least deliberate indifference on account of his disability, required to support his non-time barred

claims for damages under the ADA and RA. Therefore, Defendants are entitled to summary

judgment as to Plaintiff's claims for damages under the Acts.

G. Plaintiff’s Supervisory/Policy claims

In addition to his direct claims, Plaintiff attempts to raise his failure to protect claims and

ADA/RA claims against the NJDOC and various supervisory defendants through a claim that DOC

policies and a failure on the part of the DOC to train its officers caused the violations in question.

Defendants argue that they are entitled to summary judgment as to these supervisory claims?

because Plaintiff has failed to identify any DOC policy which was deficient or caused his injuries,

and the Defendants have provided a number of policies which were adopted prior to the incidents

in question which show that the DOC has developed a system for dealing with ADA claims through

an ADA coordinator who attempts to ensure disabled inmates’ needs are accommodated, that

internal grievances are considered and handled, that prisoner complaints of wrongdoing are

properly investigated, and that only reasonable force is used as necessary in response to

disciplinary or dangerous issues, (ECF No, 37-2 through 37-8), In response to these arguments,

Plaintiff argues that his supervisory claims should survive because he was assaulted by Allen who

he believes should not have been placed in his cell, Plaintiff provided testimony connecting Officer

> Although Defendants do not argue the point, the Court notes that while the NIDOC may be a

proper ADA defendant, the Department and its supervisory officials in their official capacities are

immune from suit under § 1983, and that the Department and supervisors to the extent they are

sued in their official capacities would be entitled to judgment on that basis as well. See Christ the

King Manor, Inc. v. Sec’y U.S, Dep’t of Health and Human Servs., 730 F.3d 291, Gd Cir. 2013);

Lenhart v. Pennsylvania, 528 F. App’x 111, 114 Gd Cir, 2013); Grohs v. Yatauro, 984 F. Supp.

2d 273, 280 (D.N.J. 2013). However, because they are entitled to judgment for the reasons set

forth below in any event, the Court need not address that issue further.

AC

Beattie to that allegedly improper placement, and Plaintiff erroneously construes Officer King as

not understanding an officer’s duties merely because he did not provide an extended response to

questions about what his duties and responsibilities were. Plaintiff does not identify any actual

policy which resulted in his injury in his response to summary judgment.

To be held responsible for a civil rights claim, a defendant must have “personal

involvement” in the alleged wrong; a claim may not be premised solely on vicarious liability.

Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d Cir, 2015) (citing Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988)). A supervisor may therefore only be held liable where she

either created a policy which caused the alleged wrong, participated in violating the plaintiffs

rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced

in his subordinate’s violations.” Adurphy v. Middlesex County, 361 F. Supp. 3d 376, 387 (D.N.J.

2019) (citing Baker vy. Monroe Township, 50 F.3d 1186, 1190-91 (3d Cir. 1995)). To establish a

claim based on the adoption of a policy, a plaintiff must prove that the supervisor “established or

enforced policies and practices directly causing the constitutional violation” in question.

Chavarriaga, 806 F.3d at 223. Making such a showing requires that the plaintiff identify the

policy, custom, or practice in question specifically, MeTernan v. City of York, 564 F.3d 636, 658

(3d Cir, 2009). A failure to train or supervise claim is a subset of policy adoption claim which

requires a showing that the failure to adopt further training policies amounts to “deliberate

indifference to the rights of persons with whom [the defendant’s] employees will come into

contact.” Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999) (internal quotations

omitted); see also City of Canton v. Harris, 489 U.S. 378, 388 (1989). This will generally require

a showing that “the need for more or different training is obvious, and [this] inadequacy [is] very

likely to result in violation of constitutional rights.” Carter, 181 F.3d at 357.

Here, Plaintiff has failed to identify any specific policy which caused or gave rise to or

caused the violations in question, and the policies Defendants have provided severely undercut his

assertion that prison policies were the driving force behind his claims. Likewise, a pithy answer

from King during a deposition does not in any way show that there was an obvious need for more

training. Indeed, King’s testimony indicates that he was quite aware of the need to protect inmates

from other prisoners who might attack them, as were the other officers he summoned to aid in

removing Allen from Plaintiffs cell. Although King’s response may, if the jury were to credit

Plaintiff's version of events, be insufficient to prevent liability, it alone does not show an obvious

need for more training such that the supervisory Defendants could be said to have been deliberately

indifferent to Plaintiff's rights. Likewise, that Beattie allegedly had improper motives in assigning

Allen to Plaintiffs cell does not indicate that the supervisors were, or should have been aware of

that desire, nor that there was an obvious need for more training, rather than the failings of an

individual officer. Plaintiff has failed to show that there was a policy which was the moving cause

behind the violations in this matter, and has otherwise failed to show that the NJDOC or

supervisory defendants were personally involved in the alleged wrongs, and the NJDOC and

supervisors are therefore entitled to summary judgment on Plaintiffs civil rights claims.®

Finally, the Court notes that Defendants have also filed a motion to seal (ECF No. 38) in

which they request that several exhibits attached to their motion for summary judgment be sealed

as they contain confidential information including disciplinary actions, Plaintiffs medical history,

and other private records, Plaintiff does not oppose this request. Given the obvious privacy

® Because the only claims which remain following this opinion are Plaintiffs claims against

Beattie and King related to the April 26, 2018, failure to protect incident, and Defendants concede

that Plaintiff is entitled to seek compensatory damages as to that claim, this Court need not address

Defendants’ final argument that Plaintiff has failed to show sufficient physical harm to be able to

seek such damages as to his other claims on which Defendants will be granted summary judgment.

JQ

interests involved, the lack of opposition, and Defendants having shown good cause, this Court

will grant the motion to seal.

IV. CONCLUSION

In conclusion, Defendants’ motion to seal (ECF No. 38) is granted, and Defendants’

Motion for Summary Judgment (ECF No, 36) is granted in part and denied in part. An appropriate

order follows.

=k DQ eT

Hon.'Karen M. Williams,

United States District Judge

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