NEAL v. POWELL

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MILTON NEAL,

Plaintiff,

aint Civil Action No. 17-4768 (KMW) (MJS)

v. OPINION

JOHN POWELL, et □□□

Defendants.

WILLIAMS, District Judge:

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

in this prisoner civil rights matter. (ECF No. 58.) Plaintiff filed a response to the motion (ECF

No. 60), to which Defendants replied. (ECF No. 66.) Following notice that the Court intended to

make factual determinations as to the exhaustion issues raised in the motion, the parties submitted

supplemental briefing. (ECF Nos. 75-76.) This Court also held an evidentiary hearing on the

motion on February 24 and March 7, 2023. (See ECF Nos. 93-94) For the following reasons,

Defendants motions shall be granted in part and denied in part.

1. BACKGROUND

The events at issue in this matter arose out of a brief interaction between Plaintiff and a

pair of corrections officers in August 2015 while Plaintiff was a prisoner in Bayside State Prison.

(See ECF No. 58-6 at 5.) On the morning of August 14, 2015, Plaintiff was confined to a satellite

camp facility of the prison, known as Spruce 2. (ECF No, 58-9 at 51-52.) That afternoon, while

filling a bottle of water at a water fountain, Plaintiff spotted Defendants Woolson and Tracey, who

he believed were plotting to attack him. (Ud. at 54.) The officers, by contrast, attested that they

had no interaction with Plaintiff prior to the incident in question, Ud. at 4, 11.) According to the

officers, while ten feet away, Plaintiff threw the bottle at Defendant Woolson, striking him in the

chest. Ud.) Plaintiff denies throwing the bottle, but does state that he dropped it. Ud. at 55.)

Photographs taken after the incident do appear to show water stains consistent with being struck

with a water bottle on Woolson’s uniform. (ECF No, 58-7 at 16.)

According to the officers, after the bottle struck Woolson, Woolson called for backup and

sprayed Plaintiff in the face with mace. (ECF No. 58-9, at 4, 11.) Plaintiff then tried to run up a

flight of stairs to wash out his eyes. (Ud. at 55.) According to Defendant Woolson, Plaintiff

stumbled on the stairs and struck his face, while Plaintiff maintains he did not hurt himself on the

stairs. (/d. at 4-5, 55.) Once at the top of the stairs, Plaintiff attempted to wash out his eyes while

Defendants Woolson and Tracey ordered him to get down and be handcuffed. (/d.) Plaintiff

testified at his deposition that the officers then struck him in the face with something like a large

metal flashlight, damaging his teeth. Ud. at 55.) Defendants instead contend that Plaintiff was not

punched or struck with an object, but was tackled to the ground and restrained because he resisted

their attempts to take him into custody. (Ud at 4-5, 11-12.)

As a result of this incident, Plaintiff was placed into disciplinary detention and charged

with disciplinary infractions related to his alleged assault on Defendant Woolson. (See ECF No.

58-7 at 1-6.) Following a disciplinary hearing, Plaintiff was found guilty of these infractions and

sanctioned with penalties including detention in administrative segregation and loss of 180 days

commutation credits. Ud.) Plaintiff did not file an administrative appeal. Ud. at 136.)

During his deposition, Plaintiff confirmed that he was familiar with the administrative

exhaustion system in place in New Jersey prisons in August 2015 and knew that exhaustion

ry

required him to not only file a grievance, but appeal any adverse determination. (/d. at 236-38.)

At his deposition, Plaintiff contended that he attempted to file grievance forms after his being

placed in punitive detention following the incident, but that he did not receive responses to these

paper forms. (/d. at 237-38.) These forms include an inmate inquiry form filled out on August

17, 2015, requesting to see investigators because of “physical brutality” by unspecified officers

(id, at 286), an inmate inquiry form submitted on August 20, 2015, requesting dental records and

to have x-rays taken of his teeth (id. at 288), and an inmate grievance form Plaintiff submitted on

September 21, 2015, following his transfer to Northern State Prison, alleging the same excessive

force allegations contained in his complaint. (ECF No. 58-10 at 2-9.) Plaintiff testified at his

deposition that he never received an initial response to this last set of paper grievance forms. (ECF

No, 58-9 at 238-40.) A second version of this grievance form provided by the state, however,

appears to show that a response was provided, but Plaintiff failed to appeal that response. (ECF

No. 58-10 at 10-13.) Plaintiff confirmed during his deposition that these were the only paper

grievances he filled out with regards to this incident, although he did send letters to the NJ

Department of Corrections in October 2015 and October 2016, and filed an additional electronic

grievance In October 2016 which resulted in his being told the matter was closed, which he did

not appeal. Cd. at 238-290.) In this October 2016 grievance, Plaintiff asserts that he previously

filed a grievance at Southern State on August 20, 2015, a statement that appears to refer to the

August 20 inquiry form discussed above.

In a certification, Danielle Weber, the Technical Program Assistant at Southern State

Correctional Facility, in which Plaintiff was housed between the events of August 14, 2015, and

his transfer on August 31, 2015, states that inmates in the detention unit in which Plaintiff was

held during this time have full access to both paper inquiry and grievance forms, which they may

request from and return to a social worker who goes through the unit daily without interference

from guard staff. (ECF No. 75-1 at 2-4.) She further attests that although Plaintiff did file a pair

of inquiry forms during his two week stay in the detention unit, there is no record of any grievance

filed between August 14 and 31, 2015, and the prison keeps accurate and detailed records of all

paper grievances. (/d.)

Linda Linen, an executive assistant at South Woods State Prison, in which Plaintiff was

detained between August 31 and September 14, 2015, also provided a certification regarding that

prison’s paper grievance system which was in place during the relevant time period. (ECF No,

75-2 at 2-4.) She attests that paper inquiry and grievance forms were freely available to all

prisoners during that time in their housing units, and could be submitted through secured

mailboxes. Ud.) She further states that the prison keeps detailed records of all filed grievance

paperwork, but has no record of Plaintiff filing any grievances between August 31 and September

14. Ud)

At the evidentiary hearing, this Court heard testimony from various prison staff who

essentially testified in line with the information contained in their certifications. CECF No. 93 at

6-122.) Plaintiff also testified, largely in line with his prior deposition testimony. (/@. at 133-155.)

During his testimony, Plaintiff testified that he was unable to file a grievance form during his stay

in punitive detention during August 2015 as the staff member responsible did not provide him with

the proper forms, and that his other attempts at filing grievances were unsuccessful as he never

received any responses to them. (/d. at 14-50.) Having considered the testimony provided at the

hearing, this Court found each of the witnesses to be generally credible, although their memories

were certainly colored by the considerable passage of time since the events in question. Turning

specifically to Plaintiff, this Court found Plaintiff's testimony to be credible, and specifically

credits Plaintiffs testimony that he was unable to file a grievance due to lack of access to the

proper forms and in testifying that his attempts at exhaustion in September 2015 failed because his

attempts at filing a grievance related to the August 2015 incident did not result in his receiving a

response.

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. vy. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is

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

jury could find in favor of the non-moving party.” Blunt v. 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 v. 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.” Matsuhita 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 Gd Cir, 1996); Serodio vy, 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.

Ul. DISCUSSION

A. Exhaustion

In their motion, Defendants contend that Plaintiff failed to properly exhaust his

administrative remedies prior to filing suit, and that his complaint must be dismissed as a result.

Pursuant to 42 U.S.C, § 1997e, before a prisoner may file a civil rights suit challenging “prison

conditions,” he is required to exhaust all available administrative remedies. Woodford v. Ngo, 548

ULS. 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 seeking 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,

--- US, --+, ---, 136 S. 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).

As all of Plaintiffs claims arise out of a single alleged incident of excessive force and that

incident’s fallout, they relate to the conditions of his prison life and are clearly subject to § 1997e’s

exhaustion requirement. Porter, 534 U.S. at 532. Thus, unless Plaintiff can show that

administrative remedies were not available to him, his complaint must be dismissed unless he has

properly exhausted all of his administrative remedies related to his claims prior to his filing suit in

this matter. /d.; see also Garrett v. Wexford Health, 938 F.3d 69, 84 (3d Cir. 2019) (complaint

will be deficient and must be dismissed if the plaintiff was a prisoner when the complaint is filed

and had not already exhausted his administrative remedies at the time of filing). “Proper

exhaustion demands compliance with [the prison’s] deadlines and other critical procedural rules

because no adjudicative system can function effectively without imposing some orderly structure

on the course of its proceedings.” Woodford, 548 U.S. at 90-91. To properly exhaust his claims,

a prisoner must therefore seek all available administrative remedies and at least substantially

comply with the applicable administrative rules and regulations imposed by the prison in which

he was detained. Jd. at 90-103; Small v. Camden Cnty., 728 F.3d 265, 272 (Gd Cir. 2013)

(completion of the administrative review process requires “substantial” compliance with the

ptison’s grievance procedures). To determine whether a prisoner has properly exhausted his

claims, a court must therefore look to the administrative grievance regime of the prison facility in

question to determine what steps are required to properly exhaust a claim and determine whether

the plaintiff substantially complied with these steps. See Jones vy. Bock, 549 U.S. 199, 218 (2007).

As exhaustion is a threshold issue affecting the plaintiff's entitlement to relief, it is the Court, and

not a jury, which determines whether a plaintiff exhausted his claims, and the Court is in turn

| Although it is true that a plaintiff who files an amended complaint following his release from

prisoner need no longer meet the exhaustion requirement, Plaintiff never sought to do so in this

matter, and thus his operative complaint remains subject to the prisoner exhaustion requirement.

See, eg., Garrett, 938 F.3d at 84,

empowered to resolve any factual disputes related to the exhaustion issue. Smai/, 728 F.3d at 269-

71; see also Paladino v. Newsome, 885 F.3d 203, 208 Gd Cir. 2018).

In acertification and during his testimony, John Falvey, the Assistant Director of the Office

of Diversity and Legal Affairs for the New Jersey Department of Corrections, has provided the

following summary of the rules applicable to the administrative remedy system at place in New

Jersey Prisons. (See ECF No. 58-12 at 1-8.) Although the prisons now use both paper and

electronic remedy systems, at the time in question in 2015 only the paper system was widely

available. Ud. at 2.) Regardless, the rules for exhaustion are the same for both systems, □□□□□

There are two types of remedy form — inquiry forms used “to make routine inquiries” which may

not be appealed and do not constitute exhaustion of remedies, and inmate grievance forms which

are utilized to exhaust administrative remedies. (/d at 3.) Inmates normally must file a grievance

form within ten days of the date of the incident or issue in question. Ud.) Where an inmate instead

first submits an inquiry form, he must instead submit his grievance within fifteen days after the

submission of the inquiry form, even if he did not receive a response to his inquiry form. (Ud)

Under prison guidelines, prisoners should receive a response to a proper grievance within thirty

days, and may appeal any adverse or unsatisfactory response within ten days of receiving it. Ud.

at 4.) An inmate will only properly exhaust his administrative remedies where he submits a

grievance, receives a response, and appeals that response, ultimately receiving a final

determination from prison administration within ten working days of his appeal. (/d.) These same

rules now apply to the newer electronic system, known as the JPAY system, which was put into

place in various prisons between mid-2015 and early 2016. Cd. at 2, 6.)

In this matter, Plaintiff filed a few inquiry forms while in punitive detention in August

2015, which referenced the events of the alleged assault, but did not file a grievance during August

2015. Plaintiff did not file a grievance as to those events until September 21, 2015 — after his time

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his time for filing a timely grievance had passed. The record further indicates that even when

Plaintiff did eventually file untimely grievances in September 2015 and October 2016, he did not

appeal them — either because Plaintiff did not receive the dental as Plaintiff testified regarding the

September 2015 grievance, or because he believed the matter was closed as he testified as to the

October 2016 grievance. The record thus indicates that Plaintiff did not successfully exhaust his

claims.

The question that remains, however, is whether the prison’s grievance system was actually

“available” to Plaintiff during the relevant period during which he could have filed a timely

grievance. As the Supreme Court has explained, “the exhaustion requirement hinges on the

‘availabfility]’ of administrative remedies: An immate, that is, must exhaust available remedies,

but need not exhaust unavailable ones.” Ross, 578 U.S. at 642. A remedy is available only where

it is “capable of use for the accomplishment of a purpose” and is “accessible.” Jd A remedy

system will be unavailable where it operates as a simple “dead end,” or where the system, though

theoretically useable, is “practically speaking, incapable of use.” Jd at 643-44. Such a situation

will arise where prison officials “thwart inmates from taking advantage of a grievance process

through machination, misrepresentation, or intimidation.” Jd. at 644,

During his testimony in this matter, Plaintiff credibly testified that, during his period of

segregated confinement during the latter half of August 2015, he was unable to file a grievance

form as the staff member responsibie for handing out the forms would not provide him with the

proper form and only permitted him inquiry forms. He likewise testified that, when he did attempt

to file grievances after a series of rapid prison transfers in August and September 2015, he was

only able to file grievance forms through the use of an intermediary — those he attempted to submit

himself either disappeared or, to Plaintiff's knowledge, went unanswered, Although there is some

evidence in the record that jail staff did issue a decision as fo Plaintiffs September 2015 grievance,

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there is no clear evidence in the record that this response was ever actually received by Plaintiff,

and Plaintiff testified during his deposition that he did not receive that response, while providing

a copy of the grievance which did not contain the response. As this Court finds Plaintiff's

testimony credible — and the Court finds that the general practice testimony provided by

Defendants does not directly undermine Plaintiff's credibility as to the specific circumstances he

faced — this Court can only conclude that the administrative remedy system was not available to

Plaintiff during the period during which he could have filed a timely grievance. Plaintiff was not

provided with the necessary forms, forms submitted were either not received or were not properly

returned to Plaintiff, and Plaintiff was in any event subjected to a number of transfers in short order

during the relevant period that further hindered his ability to engage in the grievance process even

putting aside the injuries he suffered during the August 2015 incident. Because this Court therefore

concludes that the remedies were not truly available to Plaintiff for proper use during the relevant

time period in August and September 2015, his failure to properly exhaust his claims before filing

suit is excused, Ross, 578 U.S. at 642-44,

B. Defendants’ Heck argument

In their motion for summary judgment, Defendants also argue that Plaintiff should be

prohibited from testifying at any forthcoming trial that he did not throw a water bottle as any such

testimony would be contrary to his prison disciplinary finding of guilt for doing so. Defendants

are thus attempting to use the Heck doctrine to preclude testimony rather than to bar Plaintiff's

claims. Under the Heck doctrine, a federal civil rights action “will not lie when a state prisoner

challenges the fact or duration of his confinement,” nor may such a prisoner use a civil rights claim

to seek either his “immediate release” or a “shortening” of his term of confinement. Wilkinson v.

Dotson, 544 U.S. 74, 79 (2005). The Heck doctrine goes one step further, however, and also bars

any civil rights claim for money damages where the success of that claim would impugn the

nm

validity of a prisoner’s conviction, sentence, or the duration of that sentence. /d. Thus, absent the

prior invalidation of a prisoner’s conviction, sentence, or disciplinary proceeding affecting the

length of a prisoner’s sentence, a state prisoner’s civil rights suit “is barred (absent prior

invalidation) — no matter the relief sought (damages or equitable relief), no matter the target of the

ptisoner’s suit (state conduct leading to conviction or internal prison proceedings) -- if success in

that action would necessarily demonstrate the invalidity of [his] confinement or its duration.” □□□

at 81-82. The Heck doctrine is thus a doctrine which bars a claim entirely — effectively delaying

its accrual — unless and until an underlying conviction or disciplinary punishment has been

overturned.

Plaintiff's claim in this case is one for excessive force — a claim which rises and falls with

whether the force applied to Plaintiff was either used “in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm,” Ricks v. Shover, 891 F.3d 468, 480 (3d

Cir. 2018) (quoting Saith v. Mensinger, 293 F.3d 641, 649 (3d Cir, 2002)). Evaluating such a

claim requires courts look at a number of factors including: “(1) the need for the application of

force; (2) the relationship between the need and the amount of force that was used; (3) the extent

of the injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably

perceived by responsible officials on the basis of facts known to them; and (5) any efforts made to

temper the severity of the forceful response.” Jd. (quoting Smith, 293 F.3d at 649). Inherent in

the nature of this analysis is the clear conclusion that an Eighth Amendment excessive force claim

may prevail even where the plaintiff's own actions instigated a legitimate physical response, but

the officers considerably exceeded the necessary amount of force in mounting their response. See,

e.g., Jacobs v. Bayha, 616 F. App’x 507, 513-14 Gd Cir. 2015). Thus, even if Plaintiff did throw

the bottle as claimed by the guards and found during a disciplinary proceeding, the force used

against him may still be so excessive as to violate his rights. Thus, a jury could find for Plaintiff

1f

even if it rejected any testimony that Plaintiff did not throw a water bottle, and Plaintiff's success

on his claims would not necessarily imply the invalidity of Plaintiff's disciplinary proceedings.

Plaintiff's claim is thus clearly not barred by the Heck doctrine, a point which Defendants’ do not

truly dispute. Instead, they seek to expand Heck into a doctrine of preclusion as to specific points

of testimony. The Heck doctrine, however, has never clearly been held to provide a basis for issue

preclusion by the Supreme Court or Court of Appeals, see, e.g., Ruiz v. NZ. Dep’t of Cerr., No.

15-3304, 2020 WL 2111013, at *6 (D.N.J. May 1, 2020) (citing Simpson v. Thomas, 528 F.3d 685,

694 (9th Cir. 2008)). Heck, then, does not provide the basis for issue preclusion that Defendants

assert, and the request for issue preclusion based on Heck is denied at this time.’

C. Plaintiff’s claims against Defendant Powell

Defendants next contend that Defendant Powell is entitled to summary judgment as

Plaintiff has failed to produce facts sufficient to show his involvement in the alleged wrongdoing,

Plaintiff, in response, contends that Powell became involved in the attack upon him by at least

* Although Heck provides no basis for issue preclusion, binding authority does provide that even

unreviewed state administrative proceedings “should be given preclusive effect in subsequent

section 1983 actions.” Roth vy. Koppers Indus., Inc., 993 F2d. 1058, 1061 (3d Cir, 1993). Thus,

“when a state agency acting in a judicial capacity . .. resolves disputed factual issues of fact

properly before it which the parties have had an adequate opportunity to litigate, federal courts

must give the agency’s factfinding the same preclusive effect it would be entitled to in the State’s

courts.” Jd. at 1062 n. 3 (quoting University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986)).

As New Jersey accords preclusive effects to quasi-judicial administrative proceedings so long as

they have significant procedural and substantive safeguards, see Winters v. N. Hudson Reg. Fire

& Rescue, 212 NJ. 67, 87 (2012), and New Jersey provides considerable protections in prison

administrative proceedings, see Avant v. Clifford, 67 N.J. 496 (1975), it may well be the case that

general issue preclusion or collateral estoppel principles may provide a basis to estop or preclude

Plaintiff from disputing his behavior prior to the attack at any trial in this matter. As the parties

have not actually litigated the more general preclusion issue, however, this Court need not address

it at this time. To the extent Defendants believe that issue preclusion or collateral estoppel

principles in general warrant this Court precluding Plaintiff from testifying that he did not threaten

the officers or did not act aggressively towards them, they may raise that issue via a motion in

limine prior to trial.

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tacitly approving of Woolson’s use of OC spray upon Plaintiff insomuch as Powell failed to

disapprove of it, which Plaintiff believes is evidence of a policy or practice of permitting the use

of the spray “to inflict punishment.” 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.” Murphy v. Middlesex County, 361

F, Supp. 3d 376, 387 (D.N.J. 2019) (citing Baker v. Monroe Township, 50 F.3d 1186, 1190-91 (3d

Cir, 1995)), To succeed on a knowledge and acquiescence theory, the plaintiff must show that the

supervisor had actual, rather than constructive, contemporaneous knowledge of the wrongdoing

and took no action to curtail it thus evincing his deliberate indifference. Rode, 845 F.2d at 1207;

Chavarriaga, 806 F.3d at 222. To alternatively 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 vy. City of York, 564 F.3d 636, 658 (Gd 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 y. City of Philadelphia, 181 F.3d 339,

357 (3d Cir. 1999) (internal quotations omitted); see also City of Canton y. Harris, 489 U.S. 378,

388 (1989). This will generally require a showing that “the need for more or different training is

13

obvious, and [this] inadequacy [is] very likely to result in violation of constitutional rights.”

Carter, 181 F.3d at 357.

Plaintiff argues that his claim against Powell should survive because Powell did not

sufficiently disclaim Woolson’s actions after the fact, indicating either knowledge and

acquiescence or a failure to train. Both arguments, however, are backward looking — they do not

rely on any contemporaneous knowledge of the wrongdoing or the need for training which permits

the inference of personal involvement in the attack on Plaintiff, and instead seek to hold Powell

liable “to the extent” that the attack “came to the attention of Powell.” (ECF No. 66 at 35.) Nothing

in the record indicates that Powell had any pre-existing knowledge that Woolson or Tracey posed

a specific threat to Plaintiff, nor has Plaintiff provided evidence indicating a clear pattern of similar

uses of OC spray or similar attacks on inmates at the facility in which Plaintiff was housed at the

time — the Ancora satellite facility — to support the inference that Powell knew or should have

known of a need for a more developed policy, especially in light of the fact that the NJDOC already

has a restrictive use of force policy applicable to both types of incidents, Indeed, the testimony

during Powell’s deposition indicates that the specific instances of excessive force Plaintiff

identified at Bayside either occurred long before Powell’s arrival at the prison, or occurred at

locations that Powell did not recognize as being a part of the prison at all. GSee ECF No. 58-10 at

21-23.) Thus, the record does not indicate that there was a clear and obvious inadequacy of

training, especially in light of the NJDOC’s use of force policy, that would give rise to the

inference that Powell failed to adopt an adequate training regime, As the record is also devoid of

any contemporaneous, actual knowledge of the attack on Plaintiff, as opposed to his learning of it

sometime after the fact, Plaintiff has failed to show facts sufficient to permit a jury to infer that

Powell was actually involved in the assault upon him or adopted policies that were the moving

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force behind the alleged assault. Powell is therefore entitled to summary judgment as to Plaintiffs

claims against him.

D. Plaintiff's OC spray claim against Officer Tracey

The parties agree that the record indicates that Officer Tracey did not use OC spray on

Plaintiff, and that Plaintiff's claim against him related to its use must therefore be dismissed. (See

ECF No. 66 at 35; ECF No. 58-1 at 39.) Judgment must therefore be entered in relation to

Plaintiff's OC spray claims in favor of Defendant Tracey.

E. Plaintiff’s OC spray claims against Defendant Woolson

In their final series of arguments, Defendants contend that Woolson is entitled to summary

judgment as to Plaintiff’s OC spray related claims as Woolson is entitled to qualified immunity as

to those claims, Defendants do not appear to argue, and this Court does not construe them to be

arguing, that Woolson is entitled to qualified immunity as to the alleged attack on Plaintiff after

the OC spray was deployed, and to be moving only as to the initial use of the OC spray.? “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 v.

Fuentes, 795 F.3d 410, 417 Gd Cir, 2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). “When properly applied, [qualified immunity] protects all but the plainly incompetent or

those who knowingly violate the law.” Spady v, Bethlehem Area Sch. Dist., 800 F.3d 633, 637 3d

Cir, 2015) (quoting Ashcroft vy. al-Kidd, 563 U.S, 731, (2011)). In determining whether immunity

3 Although the two instances are separable insomuch as the use of the OC spray was first, and

followed by the alleged assault a short time later after Plaintiff had, at least, attempted to retreat,

that OC had been used prior to the alleged assault with a flashlight or the like would be entirely

relevant to whether that use of force was excessive at trial, notwithstanding any grant of qualified

immunity as to the initial use of OC spray.

1¢

applies, courts use a two pronged fest: “a court must decide ‘whether the facts that a plaintiff has .

.. shown make out a violation of a constitutional right’[, alnd second, the Court must determine

‘whether the right at issue was clearly established at the time of [the] defendants alleged

misconduct.’” fd. (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

For a claim to be clearly established, “existing precedent [must have] placed the .. .

constitutional [right in] question beyond debate.” Id. at 638. With the exception of cases involving

“obvious violations” of prior Supreme Court rulings, a plaintiff's claim will only be “clearly

established” where “the violative nature of the particular conduct [was] clearly established.”

James v, New Jersey State Pol., 957 F.3d 165, 169 (d Cir, 2020). The conduct in question must

therefore be defined at an “appropriate level of specificity,” Spady, 800 F.3d at 638, and, when so

defined, the plaintiff must identify “a case where an officer acting under similar circumstances . .

. was held to have violated” the constitutional provision in question. James, 957 F.3d at 169-70.

For the purposes of this analysis, “clearly established rights are derived either from binding

Supreme Court and Third Circuit precedent or from a robust consensus of cases of persuasive

authority in the Courts of Appeals” in effect at the time of the conduct in question. fd. at 170.

At his deposition, Officer Woolson testified that Plaintiff threw a bottle of liquid at him,

splashing him in the process, and Woolson responded by calling in a disciplinary code and then

spraying Plaintiff with OC spray seconds later from ten to twelve feet away. Plaintiff in turn

testified at his own deposition that Woolson wanted to “get him” and maced him while he was

filling up a water bottle, which he then dropped. Plaintiff testified that he was thereafter tackled

and beaten with a flashlight, a claim the Defendants deny. Photographic evidence in the record

clearly indicates that Officer Woolson was struck with liquid, and that Plaintiff suffered significant

damage to his mouth area and bled. (ECF No. 58-7 at 15-18.) Taking all of these facts together,

and viewing them in the light most favorable to the non-moving party, these facts suggests that

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either while filling up a water bottle or after, Plaintiff — purposefully or inadvertently — splashed

Woolson, who deployed OC spray without first providing commands or orders, and the officers

thereafter forcefully restrained Plaintiff.

Defined at the appropriate level of particularity, the conduct at issue here is the deploying

of OC spray, without first issuing a command or order to stop, upon a prisoner after being splashed

with liquid. A jury who credited Plaintiff's version of events could infer that this use was

excessive. As outlined above, to find the use of force excessive, a jury would have to find that the

force in question was used not to restore order, but instead to inflict harm. Ricks, 891 F.3d at 480.

in making that decision, one must consider the need for the force, the relationship between that

need and the amount of force used, the extent of the injury, the extent of the threat posed to others

by the plaintiff, and any efforts to temper the severity of the force. Jd Viewed in the light most

favorable to Plaintiff, there was only a limited need for an application of force ~- Plaintiff at worst

purposely splashed Woolson with a clear liquid that Woolson found surprising more than

threatening, Plaintiff's actions posed little threat to anyone after the water had been splashed, and

Woolson made no efforts to temper the need for force by issuing orders to Plaintiff before

deploying the OC spray — by his own admission he called a code and then immediately sprayed

Plaintiff before even approaching him. Viewing these facts together, a jury could infer that

Woolson’s use of the spray was not a good faith effort at attempting to restore order, but rather an

action taken to inflict harm on Plaintiff out of anger for being splashed.

‘The question of whether such a violation was clearly established in 2015, however, is much

more difficult, Although it is clear that the use of gratuitous force, including OC spray, against a

restrained or non-resisting inmate amounts to an established violation of the Eighth Amendment,

see, eg., Sledge vy. Martin, No. 21-348, 2023 WL 2332464, at *6-7 (W.D. Pa. Mar. 2, 2023)

(collecting cases), there is also caselaw which indicates that the use of OC spray to obtain

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compliance after issuing an order to an inmate “does not violate any rights.” See, e.g., Spada v.

Houghton, No, 20-223, 2022 WL 4280519, at *2 (W.D. Pa. July 22, 2022); see also Soto v. Dickey,

744 F.2d 1260, 1270 (4th Cir, 1984), This case falls somewhere between the two lines of cases —

an officer in Woolson’s position could conclude that Plaintiff's splashing of the liquid was

disruptive behavior meriting a response, but Woolson made no effort to order or attempt to restrain

Plaintiff prior to employing OC spray without verbal warning. Likewise, Plaintiff was not

restrained at the time, but he had also not yet failed to properly respond to a verbal command

before the spray was used, Having reviewed the available caselaw, this Court could find no

binding precedent which put beyond question the issue of whether there is a clearly established

right of a prisoner to be free from being pepper sprayed after splashing a guard with water, and at

least some persuasive precedent suggests to the contrary, See, e.g., Williams v. Benjamin, 77 F.3d

756, 763 (4th Cir. 1996) (short burst of mace used after inmates threw water on guards did not

violate Eighth Amendment). As there is no clear case which clearly establishes the right in

question here, this Court must grant Defendant Woolson qualified immunity as to the use of OC

spray and enter judgment in his favor as to that issue only.

4 The Court reiterates, however, that Defendants have neither argued or shown that either Tracey

or Woolson are entitled to qualified immunity for the beating Plaintiff asserts they gave him

unnecessarily afer the deployment of the pepper spray, and that the prior use of pepper spray may

be directly relevant to the question of whether thar use of force was excessive.

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IV. CONCLUSION

In conclusion, Defendants’ Motion for Summary Judgment (ECF No. 58) is granted in part

and denied in part. Judgment shall be entered in favor of Defendant Powell as to all of Plaintiffs

claims, and entered in favor of Defendants Tracey and Woolson only as to Plaintiffs claims related

to the use of OC spray. Defendants Tracey and Woolson have not shown an entitlement to

summary judgment as to Plaintiffs claims related to the alleged beating with a metal object after

the use of the OC spray, and those claims remain before the Court. An appropriate order follows.

United States District Judge

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