HINES v. LANIGAN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

ERIC HINES, :

:

Plaintiff, : Civ. No. 17-2864 (NLH) (MJS)

:

v. : OPINION

:

:

GARY M. LANIGAN, et al., :

:

Defendants. :

:

______________________________:

APPEARANCES:

Solomon M. Radner, Esq.

Radner Law Group PLLC

17515 West Nine Mile Rd

Southfield, MI 48075

Attorneys for Plaintiff

Matthew J. Platkin, Attorney General of New Jersey

Marvin L. Freeman, Deputy Attorney General

New Jersey Attorney General’s Office

R.J. Hughes Justice Complex

25 Market Street - P.O. Box 112

Trenton, NJ 08625

Attorneys for Defendants New Jersey Department of

Corrections, Lanigan, Bonds, Marin (aka Marvin), Waters, Vallie,

Hicks, Jackson, Moratelli, Smith, Goffred, McNear, and Horsey

HILLMAN, District Judge

Plaintiff Eric Hines is proceeding on his Fourth Amended

Complaint (“FAC”), ECF No. 119, against Defendants New Jersey

Department of Corrections (“NJDOC”), former NJDOC Commissioners

Gary Lanigan and Marcus Hicks, NJDOC Deputy Director Willie

Bonds, Corrections Officers E. Marin (aka Marvin), Waters, T.

Jackson, Moratelli, L. Smith, Goffred, McNear, and Sergeants

Vallie, Horsey, and Jackson. Defendants have moved for summary

judgment. ECF No. 137. Plaintiff opposes the motion. ECF No.

140. Defendants filed a reply in further support of their

motion. ECF 142. Defendants also accepted the Court

invitation, ECF 144, to file evidence to support their

affirmative defense of failure to exhaust administrative

remedies. ECF 147.

For the reasons herein, the Court will grant the motion and

enter judgment in Defendants’ favor.

I. BACKGROUND1

Plaintiff, a convicted and sentenced state prisoner, was

confined in East Jersey State Prison (“EJSP”) in 2015. DSOF ¶

1. He was transferred from EJSP to South Woods State Prison

(“SWSP”) on July 30, 2015. Id. He

1 These facts are derived from Defendants’ Local Civil Rule 56.1

Statement of Material Facts and the exhibits specifically

referenced. Defendants’ Statement of Material Facts, ECF No.

137-2 (“DSOF”). Plaintiff’s “Statement of Facts,” ECF No. 140

at 1, does not comply with Local Civil Rule 56.1 because it does

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

indicating agreement or disagreement and, if not agreed, stating

each material fact in dispute and citing to the affidavits and

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

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

Defendants’ Rule 56.1 Statement because “facts submitted in the

statement of material facts which remain uncontested by the

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

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

2

On April 26, 2017, Plaintiff filed an application for in

forma pauperis without an accompanying complaint. Id. ¶ 2; ECF

No. 1.. The Court denied the in forma pauperis application

without prejudice. ECF No. 2. Plaintiff, at that time acting

pro se, submitted a new in forma pauperis application and an

amended complaint raising claims under Title II of the Americans

with Disabilities Act (“ADA”), as well as First and Eighth

Amendment claims under 42 U.S.C. § 1983. ECF No. 4. The Court

granted the in forma pauperis application on November 15, 2017.

ECF No. 6.

On September 24, 2018, Plaintiff filed another motion to

amend. ECF No. 10. The Court granted the motion on January 18,

2019, and directed Plaintiff to file a second amended complaint

within 30 days. ECF No. 12. Plaintiff obtained counsel, who

filed a second amended complaint on March 27, 2019. ECF No. 18.

The Court permitted the second amended complaint to proceed.

ECF No. 19.

Plaintiff filed a pro se motion to file an “all-inclusive”

third amended complaint on January 7, 2020. ECF No. 47.2

Magistrate Judge Joel Schneider granted the motion on July 15,

2020. ECF No. 58.

2 Plaintiff’s Counsel at that time was permitted to withdraw on

October 16, 2019. ECF No. 41.

3

Defendant Scott Miller filed a motion for summary judgment

based on Plaintiff’s failure to provide an affidavit of merit

for Plaintiff’s medical negligence claims. ECF No. 67. The

Court granted the motion and entered judgment in favor of

Defendant Miller on October 26, 2021. ECF No. 83. The Court

granted Defendant Sharmalie Perera’s unopposed motion to dismiss

on November 5, 2021. ECF No. 87. Defendant Miller’s

crossclaims were dismissed on December 9, 2021. ECF No. 88.

Plaintiff, now represented by current counsel, filed the

FAC on March 31, 2023. DSOF ¶ 12. The FAC alleges Defendants

NJDOC, Lanigan, Hicks, and Bonds violated Title II of the ADA by

failing to put Plaintiff, who is confined to a wheelchair and

uses a catheter, in an accessible cell. FAC ¶¶ 6-9. He alleges

that he fell and injured his shoulder while in EJSP. Id. ¶ 7.

He alleged his SWSP cells were non-ADA compliant until 2021.

Id. ¶ 8. Plaintiff also alleged that Defendants Lanigan, Hicks,

and Bonds violated the Eighth Amendment by putting him into

cells that were “infested with spiders, frogs, mice, and

crickets . . . .” Id. ¶ 11. He alleged that Defendant Waters

violated the Eighth Amendment by using excessive force during a

strip search, id. ¶ 15, and that Defendants Perry, Vallie,

Petit, Marin, Jackson, Moratelli, Smith, Horsey, and McNear

retaliated against him when he filed a Prison Rape Elimination

Act (“PREA”) complaint against Defendant Waters, id. ¶¶ 19-28.

4

Plaintiff dismissed his claims against Defendants Perry and

Petit on June 20, 2023. ECF No. 133. As noted above, the

remaining defendants filed a motion for summary judgment on July

3, 2023. ECF No. 137. That motion is now fully briefed and

ripe for adjudication.

II. STANDARD OF REVIEW

Summary judgment should be granted when the pleadings,

depositions, answers to interrogatories, admissions on file, and

affidavits show that there is no genuine dispute as to any

material fact and that the moving party is entitled to a

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

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

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

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

evidence is such that a reasonable jury could return a verdict

for the non-moving party. Id. at 250. The Court should view

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

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

v. Butler Cnty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

Initially, the moving party must show the absence of a

genuine issue concerning any material fact. See Celotex Corp.

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

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

affirmative evidence in order to defeat a properly supported

5

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

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

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

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

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

III. DISCUSSION

A. Failure to Exhaust

Defendants assert the FAC must be dismissed because

Plaintiff failed to exhaust his administrative remedies. ECF

No. 137-1 at 18. Under the Prison Litigation Reform Act,

(“PLRA”), prisoners must “exhaust ‘such administrative remedies

as are available’ before bringing suit to challenge prison

conditions.” Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting

42 U.S.C. § 1997e(a)). This includes constitutional claims,

Woodford v. Ngo, 548 U.S. 81, 91 n.2 (2007), and “applies to all

inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege

excessive force or some other wrong.” Porter v. Nussle, 534

U.S. 516, 532 (2002). See also Bayete v. Dep’t of Corr., No.

22-2975, 2023 WL 8827474, at *3 (D.N.J. Dec. 21, 2023) (noting

exhaustion requirement applies to ADA claims).

The PLRA’s “language is ‘mandatory’: An inmate ‘shall’

bring ‘no action’ (or said more conversationally, may not bring

any action) absent exhaustion of available administrative

6

remedies.” Ross, 578 U.S. at 638-39 (citing Woodford, 548 U.S.

at 85). “There is no question that exhaustion is mandatory

under the PLRA and that unexhausted claims cannot be brought in

court.” Jones v. Bock, 549 U.S. 199, 211 (2007).

A district court may decide whether plaintiffs exhausted

their administrative remedies without a jury even if there are

disputed facts after providing notice to the parties and an

opportunity to submit further evidence. Paladino v. Newsome,

885 F.3d 203, 211 (3d Cir. 2018); Small v. Camden Cnty., 728

F.3d 265, 270 (3d Cir. 2013). The Court provided notice to the

parties on January 5, 2024. ECF No. 144. In support of their

motion, Defendants have submitted copies of relevant grievances

and inquiries filed by Plaintiff, ECF No. 137-8 at 56-101; the

2019 EJSP Inmate Handbook, id. at 103-11; and the 2017 SWSP

Inmate Handbook, id. at 113-26. Defendants submitted the

Declaration of Steven Jonaitis (“Jonaitis Dec.”) in response to

the Court’s Paladino notice. ECF No. 147. Plaintiff did not

submit any material in response to the Paladino notice.

“The burden to plead and prove failure to exhaust as an

affirmative defense rests on the defendant.” Rinaldi v. United

States, 904 F.3d 257, 268 (3d Cir. 2018). “Furthermore, the

defendant must prove that the prisoner-plaintiff failed to

exhaust each of his claims. There is no ‘total exhaustion’ rule

permitting dismissal of an entire action because of one

7

unexhausted claim.” Small, 728 F.3d at 269 (emphasis in

original). “[O]nce the defendant has established that the

inmate failed to resort to administrative remedies, the onus

falls on the inmate to show that such remedies were unavailable

to him.” Rinaldi, 904 F.3d at 268.

1. Count One – Americans With Disabilities Act

Count One alleges a violation of the ADA against the

Defendants NJDOC and Lanigan, Hicks, and Bonds in their official

capacities. FAC ¶¶ 5-9. According to the FAC, Plaintiff was

placed into a non-accessible cell in EJSP on June 7, 2015. Id.

¶ 7. A few days later, he fell and injured his shoulder. Id.

The injury required surgery. Id. Plaintiff was transferred to

SWSP on July 30, 2015. DSOF ¶ 1.

While at SWSP, Plaintiff “was placed in an ADA compliant

cell in about August 2016 for a few days and then taken to a

medical unit for a few days, after which he was then moved to a

non-compliant cell in D Building from October 2016 through

August 2021 . . . .” FAC ¶ 8.

The Court considers the SWSP Handbook to provide the

relevant administrative process because the submitted EJSP

Handbook is the 2019 edition. ECF No. 137-8 at 103. Plaintiff

was transferred to SWSP on July 30, 2015. DSOF ¶ 1. SWSP uses

JPay kiosks to file and track inmate grievances and inquires.

ECF No. 137-8 at 125; Jonaitis Dec. ¶¶ 10-20. “Staff who

8

receive the remedy form can review the form through the JPay

system and provide a response electronically. When a response

is provided, it is also submitted electronically and can be

accessed . . . through the ‘Communications Center’ option.”

Jonaitis Dec. ¶ 22. The JPay kiosks are also used to submit

appeals of staff responses to grievances. Id. ¶ 23. “Appeals

to grievance forms are tracked under the same reference number

as the initial submission.” Id. ¶ 26. “Appeal decisions shall

be rendered by the administrator and are therefore to be

considered as final decisions at the correctional facility

level.” ECF No. 137-8 at 122.

Plaintiff submitted Grievance 16077 on September 8, 2015,

stating “[your] refusal to respond to inmate inquiry has

violated my rights to redress as a ada in wheelchair with a

disability and not being afforded just what other inmates are is

a [violation] of the disability act. I will pursue these

channel [sic] for relief.” Id. at 83. Prison officials

responded on September 8, 2015 asking Plaintiff to be more

specific on the form and stating that they were unable to find

any unanswered forms. Id. The same official filed another

response on September 18, 2015, asking Plaintiff to state his

request. Id. A different official wrote on November 4, 2015

that “[i]f this is medical issue, you must submit medical form

located on your housing unit. If you have an ADA grievance you

9

may submit ADA grievance form.” Id. Plaintiff never appealed

this grievance, making it unexhausted.

Plaintiff submitted Inquiry 026772 on October 14, 2015

stating that he had previously requested help because he was

unable to get on and off the toilet without assistance. Id. at

77. He said that he was still waiting for an answer to that

request and stated “[a]lso every complaint dealing with [ADA]

that I have submitted, redress has been refused.” Id. The

inquiry was rejected on October 19, 2015 because the inquiry had

“more than one (1) concern that this system can handle.” Id.

“Unlike a Grievance, an Inquiry Form is not subject to an

administrative appeal; therefore, they do not suffice for

exhaustion.” Jonaitis Dec. ¶ 33. Therefore, this inquiry does

not comply with the SWSP administrative remedy program.

Plaintiff submitted Grievance 250380 on October 30, 2016

alleging that he was being denied medical supplies or supplies

to clean his diaper in violation of the ADA. ECF No. 137-8 at

61. Prison officials responded on November 21 and 28, 2016.

Id. Plaintiff did not appeal, making this grievance

unexhausted.

Plaintiff submitted an inquiry on December 13, 2017,

asserting that the SWSP medical director failed to supervise a

doctor who did not provide Plaintiff with medical supplies or

10

supplies to clean his diaper. Id. at 56. This inquiry does not

comply with the SWSP administrative remedy program.

Plaintiff filed Grievance 806638 on March 6, 2018. Id. at

67. The grievance stated that “Commissioner and prison official

violating title 2 of the [ADA]. Housing [ADA] wheelchair

inmates in cells unaccessible [sic] to handicaps.” Id. A

prison official responded on March 12, 2018, stating “[p]er

policy and procedures, inmates in wheelchair are house [sic] at

handicaps unit.” Id. Plaintiff submitted an appeal on March

24, 2018, asking “[t]hen please explain to me why cell 1026 has

[no] hand[i]cap railing to prevent accident. Your action[s] are

violating Title 2 of American with disability act and

rehabilitation act because you receive federal money.” Id.

Defendant Bonds responded on April 30, 2018: “Mr. Hines please

note that I am having this matter researched. Once I receive

the needed information a response will be provided.” Id.

Defendants argue that Plaintiff did not properly exhaust

his ADA claim in part because he did not file any grievances

within 10 days of his June 2015 accident. ECF No. 137-1 at 22-

23; DSOF ¶ 27. “[T]o properly exhaust administrative remedies

prisoners must ‘complete the administrative review process in

accordance with the applicable procedural rules,’ rules that are

defined not by the PLRA, but by the prison grievance process

itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting

11

Woodford v. Ngo, 548 U.S. 81, 88 (2007)). However, Grievance

806638 is considered exhausted because Defendant Bonds

considered the merits of the grievance instead of rejecting it

on procedural grounds. See Rinaldi v. United States, 904 F.3d

257, 271 (3d Cir. 2018) (holding claim is exhausted “where a

prison disregards its own procedures and rejects an inmate’s

otherwise procedurally defaulted complaint on the merits”); Camp

v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (finding prisoner

exhausted PLRA remedies when the “allegations have been fully

examined on the merits by the ultimate administrative authority”

(emphasis in original)).

Although Grievance 806638 was exhausted, Plaintiff did not

comply with the PLRA because he completed exhaustion after he

filed his § 1983 complaint in 2017. “The [PLRA] prohibits an

inmate from bringing a civil rights suit alleging specific acts

of unconstitutional conduct by prison officials ‘until such

administrative remedies as are available are exhausted.’”

Oriakhi v. United States, 165 F. App’x 991, 993 (3d Cir. 2006)

(per curiam) (emphasis in original) (quoting 42 U.S.C. §

1997e(a)). See also Porter v. Nussle, 534 U.S. 516, 524 (2002)

(“[E]xhaustion is a prerequisite to suit.”). “[T]here appears

to be unanimous circuit court consensus that a prisoner may not

fulfill the PLRA’s exhaustion requirement by exhausting

administrative remedies after the filing of the complaint in

12

federal court.” Oriakhi, 165 F. App’x at 993. See also

Thornton v. West, 529 F. App’x 107, 110 (3d Cir. 2013) (per

curiam) (“Because Thornton filed his medical grievance after

commencing this action, his claims were not properly

exhausted.”); Aaron v. Whetsel, 147 F. App’x 5 (10th Cir. 2005)

(holding inmate’s failure to exhaust his administrative remedies

before filing complaint required dismissal of his § 1983 action

even though he subsequently exhausted his administrative

remedies); Johnson v. Ozmint, 567 F. Supp. 2d 806, 815 (D.S.C.

2008) (“[A]ny grievances that Plaintiff has filed since the

filing of this lawsuit would not entitle him to proceed on these

claims.”). Therefore, Plaintiff’s ADA claim is subject to

dismissal for failure to exhaust because Plaintiff did not

complete the exhaustion process before filing suit.

2. Count Two – Conditions of Confinement

Count Two of the FAC alleges Defendants Lanigan, Hicks, and

Bonds placed Plaintiff into a cell “that was infested with

spiders, frogs, mice, and crickets in 2016, 2017, 2018.” FAC ¶

11. He alleges they placed him “in this particular cell knowing

he would be subjected to these conditions.” Id. ¶ 12.

Plaintiff failed to exhaust this claim.

Plaintiff filed Inquiry SWSP18036403 on October 17, 2018

complaining about “[e]xposure to insects, crickets, spiders,

frogs, and other vermin.” ECF No. 137-8 at 71. “Unlike a

13

Grievance, an Inquiry Form is not subject to an administrative

appeal; therefore, they do not suffice for exhaustion.”

Jonaitis Dec. ¶ 33. This inquiry does not comply with the SWSP

administrative remedy program.

Plaintiff also filed Grievance SWSP18038005 stating that

“[s]everal complaints submitted on 10/30/2016 and 1/23/2017

about exposure to constant insects, crickets, spider, frogs, and

other vermin.” ECF No. 137-8 at 74. A prison official

responded on October 29, 2018, saying “[y]our issues is [sic]

being referred to the Custody Department for investigation.”

Id. Plaintiff did not file an appeal as required by SWSP

procedures. Id.; id. at 122 (“Appeal decisions shall be

rendered by the administrator and are therefore to be considered

as final decisions at the correctional facility level.”). See

also Jonaitis Dec. ¶ 32. Plaintiff did not properly exhaust the

claims in Count Two.

3. Count Three – Excessive Force During Strip Search

Plaintiff alleges in Count Three that Defendant Waters

“intentionally pulled out Mr. Hines’ catheter and grabbed his

penis, didn’t allow Mr. Hines to put on a diaper, and interfered

with Mr. Hines’ prescribed medications” during a strip search on

October 17, 2016. FAC ¶ 15. He also alleges that he was

retaliated against for filing a PREA complaint against Defendant

Waters. Id. ¶ 16.

14

Plaintiff submitted Inquiry 242073 on October 20, 2016

alleging that Defendant Waters violated the ADA by not giving

Plaintiff privacy to change his catheter and diaper. ECF No.

137-8 at 76. This Inquiry does not allege excessive force

during the strip search, so it is not enough to put prison

officials on notice of Plaintiff’s claim. “The point of the

grievance is to alert prison officials to a problem, so they

have an opportunity to correct it. The wrong to which a

prisoner must alert the prison officials cannot be construed so

broadly as to undermine the basic purpose of the grievance

process.” Olivares v. United States, No. 07-3476, 2010 WL

5251429, at *6 (D.N.J. Dec. 16, 2010), aff’d, 447 F. App’x 347

(3d Cir. 2011). See also ECF No. 137-8 at 120 (requiring remedy

forms to “include a summary of the requested information or

presented issues, concerns or complaints”). Moreover, an

inquiry is insufficient to exhaust administrative remedies.

Jonaitis Dec. ¶ 33.

Plaintiff filed Grievance SWSP18000345 on March 14, 2018

alleging that former Defendant Perry failed to investigate

Plaintiff’s PREA complaint against Defendant Waters and

threatened to retaliate against Plaintiff for filing the PREA

complaint. Id. at 81. Prison administration filed a response

on March 20, 2018 stating that “[t]his matter is being referred

to PREA for review and response.” Id. Plaintiff appealed on

15

March 28, 2018 objecting to the lack of investigation and making

more allegations of retaliation by former Defendants Perry and

Petit. Id. Prison administration responded “Noted” on April 3,

2018. Id.

Plaintiff filed Grievance SWSP18000835 on March 17, 2018

alleging that former Defendant Petit retaliated against

Plaintiff for filing the PREA complaint against Defendant

Waters. Id. at 80. Prison administration filed a response on

March 22, 2018 stating that “[t]his matter is being referred to

the Special Investigations Division and PREA here at Central

Office for review and response.” Id. Plaintiff submitted an

appeal on March 28, 2018 referring the administration to

Grievance SWSP18000345 as the appeals “originated from the same

source.” Id. There was no further response to Grievance

SWSP18000835. Id.

Plaintiff filed Grievance SWSP18032627 on September 25,

2018. Id. at 79. The initial filing alleged that Plaintiff was

being threatened by Defendants Waters and Vallie and requested a

housing change. Id. Prison administration filed a response on

October 24, 2018 stating that “[t]his matter is being referred

to the Special Investigations Division here at Central Office

for review and response.” Id. In his October 26, 2018 appeal,

Plaintiff wrote “Sco. Waters stripped search me twice, and then

had the nerve to snatch the catheter out of inmates penis.” Id.

16

Prison administration responded on October 31, 2018, “[t]his

will also be forwarded to SID.” Id.

Grievances SWSP18000345 and SWSP18000835 do not serve to

exhaust Plaintiff’s claim against Defendant Waters because they

concern the alleged acts of retaliation that followed the strip

search, not the use of force during the strip search. ECF No.

137-8 at 81. Even if Grievance SWSP18032627 served to exhaust

the excessive force claim despite not mentioning the strip

search until the appeal, exhaustion did not take place until

after Plaintiff filed his § 1983 complaint. This claim is

subject to dismissal because Plaintiff did not complete

exhaustion before filing his suit. Thornton v. West, 529 F.

App’x 107, 110 (3d Cir. 2013) (per curiam).

4. Count Four – Retaliation

The final count of the FAC alleges Defendants Vallie,

Marin, Jackson, Moratelli, Smith, McNear, and Horsey violated

the First Amendment by retaliating against Plaintiff for filing

the PREA complaint against Defendant Waters. FAC ¶¶ 20-28.

a. Defendant Vallie

According to Plaintiff, Defendant Vallie told him on

November 8, 2016 that he “hope[d] they beat the shit out of

[Plaintiff] for ‘ratting on officers.’” Id. ¶ 20. Plaintiff

submitted Grievance SWSP18000721 on March 17, 2018 making a

similar allegation against Defendant Vallie. ECF No. 137-8 at

17

92. Prison administration filed a response on March 22, 2018

stating that “[t]his matter is being referred to the Special

Investigations Division here at Central Office for review and

response.” Id. Plaintiff submitted an appeal on March 28, 2018

referring the administration to Grievance SWSP18000345 as the

appeals “originated from the same source.” Id. There was no

further response to Grievance SWSP18000721. Id.

This claim is subject to dismissal because Plaintiff did

not complete exhaustion before filing his suit.

b. Defendant Marin

Plaintiff alleged that Defendant Marin called him a “rat”

and told other inmates that Plaintiff raped children. FAC ¶ 22.

Plaintiff alleged this occurred around July 7, 2019. Id.

Plaintiff also alleged that Defendant Marin allowed other

inmates to steal Plaintiff’s property. Id.

Plaintiff submitted Grievance SWSP19030736 on July 17, 2019

that stated Defendant Marin “allowed inmates unescorted to pack

personnal [sic] property, a piece of picture was in the toilet.”

ECF No. 137-8 at 85. He asked that the video footage be

retained for this Court’s review. Id. Prison officials

responded on July 19, 2019. Id. One stated that this was

“[n]ot an S.I.D. grievance. Will be forwarded to

administration.” Id. The next response directed Plaintiff to

file an Open Public Records Act (“OPRA”) request form. Id.

18

Plaintiff responded on July 20, 2019: “Your failure to act

concerning previous grievances of retaliation are not of

concern, I [am] putting this administration on notice, making a

formal request to retain video footage of incident for the

court’s review.” Id. On August 2, 2019, the administrator

responded by directing Plaintiff to the prior answer that told

Plaintiff to file an OPRA request. Id.

Plaintiff has not exhausted his allegations that Defendant

Marin called him a “rat” and rapist in front of other inmates

because Grievance SWSP19030736 does not make these claims. See

Id. at 120 (requiring remedy forms to “include a summary of the

requested information or presented issues, concerns or

complaints”). However, Plaintiff did exhaust his claim that

Defendant Marin permitted other inmates to take Plaintiff’s

personal property on July 7, 2019. The grievance sufficiently

alerted prison officials that Plaintiff claimed Defendant Marin

was retaliating against him for his participation in this

lawsuit. Therefore, only Plaintiff’s allegations that Defendant

Marin called him a “rat” and rapist are subject to dismissal for

failure to exhaust.3

c. Defendant Jackson

3 Since the alleged retaliation did not take place until July

2019, Plaintiff could not have exhausted his remedies for this

claim before he filed the original complaint.

19

Plaintiff alleges Defendant Jackson told him that he “would

let [Plaintiff’s] property get stolen because of the PREA on an

officer.” FAC ¶ 23. Plaintiff alleged “[t]his happened on four

separate occasions between 11/20/16-11/20/19.” Id.

Plaintiff alleged in the same grievance that made the

retaliation allegation against Defendant Marin, Grievance

SWSP19030736, that Defendant Jackson “returned property Jplayer

headphone, 2pk of batteries, and pictures were missing.” ECF

No. 137-8 at 85. This is insufficient to exhaust Plaintiff’s

claim because it does not sufficiently alert prison officials

that Plaintiff is alleging Defendant Jackson acted out of

retaliation.

Plaintiff only alleges that Defendant Jackson returned

Plaintiff’s property with some items missing. Id. In contrast,

Plaintiff specifically alleges Defendant Marin “has retaliated

before . . . .” Id. Read as a whole, the grievance appears to

blame Defendant Marin for Plaintiff’s missing property because

Defendant Marin allowed other inmates to pack Plaintiff’s

property and has a history of retaliation. The grievance does

not sufficiently alert prison officials that Plaintiff was

alleging that Defendant Jackson told Plaintiff that he would

allow Plaintiff’s property to be stolen because of the PREA

complaint. See Olivares v. United States, 447 F. App’x 347,

351–52 (3d Cir. 2011) (holding inmate failed to exhaust claim

20

about lack of a knee-brace because his grievance “isolated the

concerns expressed to those involving surgery and possible

relocation”). See also ECF No. 137-8 at 120 (requiring remedy

forms to “include a summary of the requested information or

presented issues, concerns or complaints”). Therefore,

Plaintiff did not exhaust his claims against Defendant Jackson.

d. Defendant Moratelli

Plaintiff alleged in the FAC that “Defendant Moratelli

wrote on Mr. Hines’ cell door that Hines weas a rat, as direct

retaliation and in refence to Hines’ PREA complaint; 1/30/2019.”

FAC ¶ 24. He also alleged that “[o]n or about Feb. 9, 2019,

Defendant Moratelli retrieved the keys to Mr. Hines’ cell from

Officer L. Smith and opened Hines’ door and said that L. Smith

and Officer Goffred told Moratelli that Hines filed a PREA . . .

.’” Id. ¶ 25.

Plaintiff did not file a grievance about these alleged

incidents. Therefore, he did not exhaust this claim.

e. Defendants Goffred and Smith

Plaintiff alleges Defendant Smith gave Defendant Moratelli

the key to Plaintiff’s cell and told Defendant Moratelli about

the PREA complaint. Id. He also alleges that Defendant Smith

put him into a chokehold “and whispered that he would break

Hines’ neck” in April 2019. Id. ¶ 26. Plaintiff asserts

Defendant Goffred told Defendant Moratelli about the PREA

21

complaint and told Plaintiff “‘n****r you’re fucking with our

jobs now, we’re going to hang your ass.’” Id. ¶ 25.

Plaintiff filed two grievances in April 2019, but neither

concerned Defendants Goffred or Smith. One requested a dental

appointment. ECF No. 137-8 at 101. The other grievance was

about mail. Id. at 100. Therefore, Plaintiff did not exhaust

his claim against Defendants Goffred and Smith.

f. Defendants McNear and Horsey

Plaintiff’s final retaliation claim alleges that “[o]n or

about September 28, 2019, Defendant McNear said ‘this is what we

do to rats’ and rammed Mr. Hines’ wheelchair into the wall;

Defendant Sgt Horsey watched and laughed and said he didn’t see

anything.” FAC ¶ 27.

Plaintiff did not file a grievance about this alleged

incident. Therefore, he did not exhaust this claim.

The Court finds that Plaintiff failed to exhaust his

administrative remedies for all his claims, except for his claim

that Defendant Marin permitted other inmates to take Plaintiff’s

personal property on July 7, 2019. Plaintiff now bears the

burden of showing that the administrative remedy program was

unavailable to him. Rinaldi v. United States, 904 F.3d 257, 268

(3d Cir. 2018).

B. Availability of Remedy

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Plaintiff argues that administrative remedies were

unavailable because Defendants prevented him from using the

system through intimidation. “Despite filing complaints,

[Plaintiff] continued to be harassed and threatened and his

medical needs denied. Even though Plaintiff was filing proper

complaints, relief was a dead end.” ECF No. 140 at 13. “With

all deference given to Plaintiff’s version of event[s] for

Summary Judgment purposes, certainly it is a reasonable

interpretation of defendant’s conduct to be thwarting,

intimidating and depriving Plaintiff of any real relief.” Id.

at 14 (citing Ross v. Blake, 578 U.S. 632, 644 (2016)).

“‘[I]ntimidation’ by prison officials can ‘thwart inmates

from taking advantage of a grievance process’ and thus render

that process ‘unavailable.’” Rinaldi, 904 F.3d at 268 (quoting

Ross, 578 U.S. at 644). “To defeat a failure-to-exhaust

defense, an inmate must show (1) that the threat was

sufficiently serious that it would deter a reasonable inmate of

ordinary firmness and fortitude from lodging a grievance and (2)

that the threat actually did deter this particular inmate.” Id.

at 269. The Court finds that Plaintiff has not established that

he was deterred from filing grievances.

Plaintiff did not testify during his deposition that prison

officials kept him from using the grievance system. See Pla.

Dep. passim. Nor did he submit a certification to that effect

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after the Court’s Paladino notice. ECF No. 144. Additionally,

Plaintiff filed other grievances alleging retaliation,

suggesting that he was not deterred. See, e.g., ECF No. 137-8

at 79-80, 92, and 94. See also Rinaldi, 904 F.3d at 269

(“Evidence that an inmate continued to file substantially

similar claims through the same grievance process, for example,

may be sufficiently compelling to defeat an inmate’s assertion

of subjective deterrence.”). Plaintiff did exhaust other

grievances through the system, which supports the Court’s

conclusion that he had access to the remedy system. See, e.g.,

ECF No. 137-8 at 96-101.

After considering the record before the Court, the Court

finds that Plaintiff failed to exhaust available remedies for

his claims, excluding the claim that Defendant Marin permitted

other inmates to take his personal property, before filing this

lawsuit. Therefore, the Court will award summary judgment on

the unexhausted claims.

C. Merits

The Court has concluded that Plaintiff exhausted his

administrative remedies for the claim that Defendant Marin

permitted other inmates to take his personal property in

retaliation for filing the PREA complaint against Defendant

Waters. FAC ¶ 22. The Court now assesses whether Defendant

Marin is entitled to judgment as a matter of law.

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To prove his retaliation claim, Plaintiff must show that:

(1) he was engaged in constitutionally protected conduct, (2)

‘he suffered some “adverse action” at the hands of prison

officials,’ and (3) ‘his constitutionally protected conduct was

“a substantial or motivating factor” in the decision’ to take

that action.” Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir.

2017) (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

2001)).

Defendant Marin testified under oath at a deposition.

Marin Deposition, ECF No. 137-8 at 3 (“Marin Dep.”). He denied

the accusation that he let other inmates steal Plaintiff’s

property. Id. 12:15, 13:3-6. He testified that he worked as a

property officer and became familiar with Plaintiff’s property

because he had to pack up Plaintiff’s property every time

Plaintiff went to administrative segregation. Id. 14:1-14. He

recalled that Plaintiff’s property was mostly legal paperwork

aside from his state-issued property. Id. 16:6-15. He also

denied knowing that Plaintiff filed a PREA complaint against

Defendant Waters. Id. 24:20-22. He stated that he could not

remember if anyone had ever filed a grievance against him. Id.

26:4-11.

Plaintiff has not produced any admissible evidence to

contradict Defendant Marin’s sworn statements. At his

deposition, Plaintiff testified that Defendant Jackson was

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responsible for the theft of his property because Defendant

Jackson was the property officer at the time. See Pla. Dep.

79:14-15 (“Q: Do you know who stole your property? A: He’s the

property officer. He the one who took it.”); id. 79:25

(testifying that Defendant Jackson was “the only one that went

in there”); 80:16-19 (“Q: So your allegation is that [Defendant

Jackson] stole your property as a means of retaliation. A: He

— he told me he was going to let them steal it.”); 82:11-13 (“[]

Terrance Jackson have control of my property and allowed the

inmates to take the property to him. Thus, my property is

gone.”). Plaintiff did not mention Defendant Marin’s alleged

involvement beyond acknowledging the accusation from the FAC.

Id. 78:17 to 79:4.

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

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

motion with facts in the record and cannot rest solely on

assertions made in the pleadings, legal memoranda, or oral

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

201 (3d Cir. 2006). See also Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 257 (1986) (“[T]he plaintiff must present

affirmative evidence in order to defeat a properly supported

motion for summary judgment.”). Plaintiff has not provided

evidence that would permit a factfinder to conclude that

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Defendant Marin retaliated against him. Therefore, the Court

will award summary judgment to Defendant Marin.4

IV. CONCLUSION

For the reasons set forth above, the Court will grant

Defendants’ motion for summary judgment. Judgment will be

entered in Defendants’ favor.

An appropriate Order follows.

Dated: February 26, 2024 s/ Noel L. Hillman

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

4 As the Court has awarded summary judgment to Defendants on all

claims, it is unnecessary to address their qualified immunity

arguments.

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