CARATINI v. POWELL

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

PETER L. CARATINI,

Plaintiff,

Civil No. 20-8924 (RMB-MSJ)

v.

OPINION

JOHN POWELL, in his individual capacity

as Administrator of South Woods State

Prison; WILLIE BONDS, in his individual

capacity as Administrator of South Woods

State Prison; LISA SWIFT, in her individual

capacity; OLIVER KELLER, in his

supervisory and individual capacities; P.

SHEPPARD, in his individual capacity; J.

KUHLEN, in his individual capacity; A.

HERNANDEZ, in his individual capacity; R.

SWEENEY, in his individual capacity; A.

DOOLEY, in his individual capacity;

NURSE PRACTITIONER LISA R. MILLS,

in her individual capacity; DENTIST

RICHARD DOE, in his individual capacity;

JOHN DOES 1-25, in their individual

capacities; and JANE DOES 1-10, in their

individual capacities,

Defendants.

RENÉE MARIE BUMB, Chief United States District Judge

THIS MATTER comes before the Court upon Defendants Bonds, Dooley,

Hernandez, Keller, Kuhlen, Powell, Sweeney, Swift, and Sheppard’s (“Defendants”)

Motion to Dismiss Plaintiff Peter Caratini’s (“Plaintiff”) Fourth Amended Complaint.

[Docket No. 98 (“Motion”).] Plaintiff filed a brief in opposition to the Motion and

Defendants filed a reply brief in further support of dismissal. Pursuant to Federal Rule

of Civil Procedure 78 and Local Civil Rule 78.1(b), the Court did not hear oral

argument. For the reasons set forth below, the Court will GRANT the Motion, in part,

DISMISS the Fourth Amended Complaint, in part, and CONVERT the Motion to

one for summary judgment, in part.

I. FACTUAL BACKGROUND

Plaintiff Peter Caratini (“Plaintiff”) brings this civil rights action to remedy a

host of federal and state constitutional violations he allegedly experienced while

incarcerated at South Woods State Prison. [Docket No. 71, Fourth Amended

Complaint (“4AC”).] Relevant here, he has sued various (i) John Doe defendants; (ii)

corrections officers (Defendants Sheppard, Kuhlen, Hunter, Hernandez, Sweeney,

Dooley (the “Retaliation Defendants”)); (iii) and prison administrators (Defendants

Powell, Bonds, and Keller (the “Administrative Defendants”)) for equal protection

violations, retaliation claims, as well as excessive force and failure to protect claims.

A. Equal Protection Claims

Plaintiff is Jewish. [4AC ¶ 31.] He alleges that certain John Doe correctional

officers at South Woods State Prison subjected him and other Jewish prisoners to

discriminatory treatment by requiring them to wait to be searched in an outdoor area

outside the prison chapel before and after worship. [Id. ¶ 32.] He alleges that members

of other religious groups, by contrast, did not have to wait outside and were searched

in the prison chapel. [Id. ¶ 33.] Plaintiff alleges that the wait times were purposefully

longer during periods of inclement weather. [Id. ¶ 34.] While waiting to be searched,

the John Doe officers would allegedly subject Plaintiff and other Jewish prisoners to

antisemitic slurs. [Id. ¶ 33.] Plaintiff highlights three such instances in 2018 occurring

on Passover, Rosh Hashanah, and Hanukkah. [Id. ¶¶ 36–49.] On each holiday, he

alleges, the John Doe officers required Plaintiff and other Jewish prisoners to wait

outside the chapel during heavy rain and frigid temperatures. Plaintiff alleges that he

filed three inmate inquiry grievances regarding the Passover, Rosh Hashanah, and

Hanukkah, incidents detailing for the Administrative Defendants the treatment he and

the other Jewish prisoners were subjected to by the John Doe officers. [Id. ¶ 50.]

B. Retaliation Claims

Plaintiff also alleges that he was subjected to a series of retaliatory actions for

assisting fellow prisoners in drafting grievances, letters, and complaints against

corrections officers. [Id. ¶ 53.] He alleges that after returning from a shower, he

witnessed the Retaliation Defendants searching his cell. [Id. ¶ 55.] Shortly after they

departed, Plaintiff found a “poorly-hidden razor blade” on his desk which was not in

his cell before he left to take a shower. [Id. ¶ 56.] As Plaintiff discovered the razorblade,

one of the Retaliation Defendants returned to charge Plaintiff for unauthorized

possession of the razor blade. [Id. ¶ 57.]

Plaintiff appeared for a disciplinary hearing on the charges but alleges that he

was not provided written notice of the hearing. [Id. ¶ 63.] He denied ownership of the

razor blade and stated that his cellmate could corroborate his version of events. [Id.

¶ 64.] The Retaliation Defendants refused, however, to permit Plaintiff’s cellmate to

testify at the hearing. [Id.] Plaintiff alleges that “[a]fter being denied any opportunity

to present a defense” he was “summarily found guilty and given a punishment of 180

days in administrative segregation” at Northern State Prison in Newark, New Jersey.

[Id. ¶ 65.]

C. Excessive Force Claims

When Plaintiff arrived at his Northern State Prison administrative segregation

cell, he noticed that it had been freshly pepper-sprayed. [Id. ¶ 68.] When Plaintiff

informed Northern State Prison John Doe corrections officers (the “NSP Retaliation

Defendants”) about the condition of the cell, the NSP Retaliation Defendants “simply

smiled” and told Plaintiff to “deal with it.” [Id. ¶ 69.] Plaintiff remained in the

unventilated pepper-sprayed cell for more than 12 hours. He alleges no personal

involvement on the part of the South Woods State Prison Retaliation Defendants with

respect to the pepper-spraying.

D. Failure to Protect Claims

While serving his administrative segregation sentence at Northern State Prison,

Plaintiff alleges that the NSP Retaliation Defendants “in conjunction with the [South

Woods State Prison Retaliation Defendants],” purposefully housed a notorious

prisoner, “Victor,” with him in the same administrative segregation cell. [Id. ¶ 71.]

Plaintiff alleges that the Retaliation Defendants knew that Victor had previously

committed unprovoked acts of physical violence against numerous prisoners he shared

cells with and, so, was usually segregated in a special unit. [Id. ¶ 72.] Victor would

repeatedly make statements reflecting his propensity for violence, including, for

example, “vividly detail[ing] torturing and killing the prosecutor that obtained his

conviction,” expressing his desire to “kill someone” because killing made him “feel

good,” and musing about killing Plaintiff in his sleep for “fun.” [Id. ¶¶ 73–74.] Victor

physically attacked Plaintiff believing himself to be entitled to Plaintiff’s purchased

meal. [Id. ¶ 75.] Plaintiff’s shoulder was severely injured during the attack. [Id. ¶ 76.]

II. PROCEDURAL BACKGROUND

Plaintiff initially brought this civil rights action pro se in the Eastern District of

Pennsylvania. [Docket No. 2.] The Eastern District of Pennsylvania transferred the

case to this Court which screened his first amended complaint pursuant to 28 U.S.C.

§ 1915A(b) dismissing it without prejudice. [Docket Nos. 4, 13.] Plaintiff amended his

pleading twice more and the Court permitted some of his claims to proceed past the

screening stage while dismissing the remainder of his claims. [Docket Nos. 19, 23–24.]

Plaintiff filed a motion to appoint pro bono counsel which this Court granted. [Docket

Nos. 31, 41.] Plaintiff, through his appointed pro bono counsel, filed the operative

Fourth Amended Complaint at issue here. [Docket No. 71.] Defendant Nurse Lisa

Mills—who Plaintiff brings medical deliberate indifference claims against—filed an

Answer to the Fourth Amended Complaint. [Docket No. 78.]

III. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint

if the plaintiff fails to state a claim upon which relief can be granted. The party seeking

dismissal of the complaint must show it fails to state a claim. Lesher v. Zimmerman, 822

F. App’x 116, 119 (3d Cir. 2020). When reviewing a motion to dismiss, courts must

accept the complaint’s factual allegations as true and afford the plaintiff “every

favorable inference to be drawn therefrom.” Malleus v. George, 641 F.3d 560, 563 (3d

Cir. 2011) (quoting Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992)). Courts

will dismiss a complaint if the plaintiff has failed to plead “enough facts to state a claim

to relief that is plausible on its face.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Courts

will not accept “legal conclusions” as true, and “[t]hreadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.” Id.; see

also Malleus, 641 F.3d at 563.

IV. ANALYSIS

A. Equal Protection Claims Against the Administrative Defendants

(Counts II and XII)

Defendants argue that Plaintiff’s equal protection claims against the

Administrative Defendants fail because he has not alleged any personal involvement

on the part of the Administrative Defendants. Administrative supervisors are not liable

under Section 1983 or the NJCRA for the acts of their subordinates. See Ashcroft v.

Iqbal, 556 U.S. 662, 676 (2009); Wronko v. Howell Twp., 2018 WL 516055, at *7 (D.N.J.

2018) (“The NJCRA, like § 1983, does not impose vicarious or respondeat superior

liability.”). Instead, supervisors can only be held liable under either statute if they were

“involved personally, meaning through personal direction or actual knowledge and

acquiescence, in the wrongs alleged.” McKenna v. City of Philadelphia, 582 F.3d 447,

460 (3d Cir. 2009). Knowledge or acquiescence can be proven either via

“contemporaneous knowledge of the offending incident or knowledge of a prior

pattern of similar incidents.” Terranova v. Borough of Hasbrouck Heights, 2020 WL

526113, at *4 (D.N.J. Jan. 30, 2020) (citing CM. ex. rel. Z.H. v. Oliva, 226 F.3d 198, 202

(3d Cir. 2000)).

The parties dispute whether Plaintiff’s submission of three prisoner grievance

forms to the Administrative Defendants documenting the religious discrimination he

and other Jewish prisoners allegedly experienced were sufficient to establish the

Administrative Defendants’ knowledge of the discrimination. [4AC ¶ 50.] Generally,

“a prison official’s secondary review of an inmate’s grievance or appeal is not sufficient

to demonstrate the personal involvement required to establish the deprivation of a

constitutional right.” Simonton v. Tennis, 437 F. App’x 60, 62 (3d Cir. 2011) (citing

Rode v. Dellarciprete, 845 F.2d 1195, 1207–08 (3d Cir. 1988); Hayes v. Gilmore, 802 F.

App’x 84, 87 (3d Cir. 2020) (holding that the denial of prisoner grievances does not

establish personal involvement). Some courts have held, however, that administrative

review of a prisoner’s grievance can establish personal involvement where the plaintiff

alleges an ongoing constitutional violation that he made the administrative defendant

aware of through the filing of administrative grievances and which the reviewing

administrative defendant failed to remedy. See Gomez v. Dimonte, 2023 WL 5526807,

at *3 (D.N.J. Aug. 28, 2023) (collecting cases and holding that plaintiff stated claim

for Eighth Amendment violation where he alleged that defendants failed to provide

him with a prescribed special bland diet and put defendants on notice of that failure

through filing of administrative grievance forms).

Assuming without deciding that those cases apply, the Court rejects Plaintiff’s

characterization of the constitutional violations as “ongoing.” [Docket No. 106 (“Pl.’s

Br.”) at 8.] Rather, he alleges three discrete instances of discrimination on Rosh

Hashanah, Hanukah, and Passover and that he submitted separately-lodged grievance

forms for each of those instances. [4AC ¶¶ 36–50.] And while each instance involves

a similar set of circumstances, none of them can be characterized as “ongoing.” In

Gomez, for example, the violation was ongoing because the plaintiff filed numerous

grievances in an attempt to receive his medically prescribed diet which he was not

receiving at all. Gomez, 2023 WL 5526807, at *3; see also Carter v. Smith, 2009 WL

3088428, at *6 (E.D. Pa. Sept. 22, 2009) (submission of grievance forms to prison

officials adequately stated Eighth Amendment violation because plaintiff filed

numerous grievances in an attempt to receive the necessary treatment in the first

place). Here, by contrast, each discriminatory event ended before Plaintiff submitted a

grievance form. [4AC ¶ 50.] They relate to past, rather than ongoing, harms.

Nor are there other allegations sufficient to support an inference of actual

knowledge by the Administrative Defendants. Plaintiff cites Capps v. Dixon for the

proposition that a “defendant’s review of complaints, inquiry forms, or incident

reports, along with the failure to take sufficient corrective measures, allow [a]

supervisory liability theory to survive [a] motion[] to dismiss.” [Pl.’s Br. at 7 (citing

Capps v. Dixon, 2021 WL 2024998, at *6 (D.N.J. May 21, 2021)).] But in Capps, this

Court permitted a Section 1983 claim to proceed against a police chief—Chief

Farabella—based only in part on complaints he received regarding the defendant

officer’s uses of excessive force. Capps, 2021 WL 2024998, at *6. Chief Farabella’s

actual knowledge was not alleged based purely on the complaints against the officer.

Rather, the plaintiff in Capps alleged that Chief Farabella knew about complaints

lodged against the defendant officer for years and that he had even spoken with the

officer about those uses of force, ultimately failing to take any corrective measures. Id.

There are no such allegations here. The Court will dismiss the Administrative

Defendants without prejudice.

B. Retaliation Claims

1. First Amendment Retaliation (Counts III and XIII)

Defendants argue that the First Amendment conduct Plaintiff alleges he was

retaliated against for—assisting other inmates with their legal filings—is not, in fact,

constitutionally protected. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)

(prisoner alleging retaliation must show constitutionally protected conduct, an adverse

action, and a causal link between the two). The Court agrees.

Generally, prisoners cannot sustain a First Amendment retaliation claim based

on their providing of legal assistance to other prisoners. See Shaw v. Murphy, 532 U.S.

223, 230–32 (2001) (declining to extend constitutional protection to prisoner-to-

prisoner legal communications, instead applying the test from Turner v. Safley, 482 U.S.

78, 89 (1987), under which prisons can limit conduct if the regulation is reasonably

related to a legitimate penological interest). The Third Circuit has held, however, that

where prisoner-to-prisoner legal assistance “was both pursuant to the plaintiff’s job

duties at the prison and in accordance with prison regulations, and was not

inconsistent with legitimate penological interests, such assistance could fall within the

limited First Amendment rights that prisoners retain.” Cooper v. Pennsylvania Dep’t of

Corr., 756 F. App’x 130, 134 (3d Cir. 2018) (quoting Wisniewski v. Fisher, 857 F.3d 152,

156–57 (3d Cir. 2017) (cleaned up)).

In Wisniewski, for example, the Third Circuit found that the plaintiff could state

a First Amendment retaliation claim where he alleged that he was retaliated against

for assisting assigned prisoners with filing prison grievances as part of his job duties as

the prison law library’s “Legal Reference Aide.” 857 F.3d at 156–57. The Third Circuit

held that Wisniewski’s “amended complaint plausibly alleged that his conduct in

assisting his assigned inmate prepare a grievance, which was both pursuant to his job

duties and in accordance with prison regulations, was not inconsistent with legitimate

penological interests, and therefore could fall within the limited First Amendment

rights that prisoners retain.” Id. at 157 (citation omitted).

Conversely, in Watlington on behalf of FCI Schuylkill African American Inmates v.

Reigel, the Third Circuit held that the prisoner-plaintiff could not state a claim for First

Amendment retaliation because even though he “alleged that he was retaliated against

for providing legal assistance to other inmates,” he did not allege, “unlike in

Wisniewski, … that he was providing any such assistance pursuant to his job duties in

the prison, let alone that he was assigned to assist a particular prisoner with a particular

grievance.” 723 F. App’x 137, 140 (3d Cir. 2018). Similarly, in Cooper v. Pennsylvania

Dep’t of Corrections, the Third Circuit again looked to the prisoner-plaintiff’s job duties

in prison to determine whether he prove First Amendment retaliation for providing

legal assistance to other prisoners. 756 F. App’x at 134. The Third Circuit vacated the

District Court’s order granting summary judgment on the plaintiff’s retaliation claim

based on his legal assistance to another prisoner because “neither the District Court

nor the parties had an opportunity to consider whether [plaintiff’s] role of ‘Block

Representative’ is similar to an Inmate Legal Reference Aide,” as in Wisniewski. Id.

This case is more like Watlington and Cooper than Wisniewski. Plaintiff has not

alleged that he was assisting other prisoners with their legal grievances as part of his

prison job duties. Plaintiff argues that Watlington and Cooper both overread Wisniewski

by concluding that a prisoner must have a job duty related to rendering legal assistance

to other prisoners in order to be afforded First Amendment protections for that

assistance. [Pl.’s Br. at 15.] But Plaintiff cites no case where a court has denied a

motion to dismiss a First Amendment retaliation claim based on prisoner-to-prisoner

legal assistance unrelated to a prison job or program. The Court is satisfied of the

persuasive value of Watlington and Cooper. So, Plaintiff’s First Amendment retaliation

claim will be dismissed without prejudice.

2. Disciplinary Charge Retaliation (Counts IV and XIV)

Defendants also argue that Plaintiff cannot sustain a claim that he was denied

due process at his disciplinary hearing on the allegedly fabricated charges in retaliation

for providing legal assistance to fellow prisoners. They contend that under the

Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), Plaintiff cannot

collaterally attack his disciplinary charges without first obtaining favorable

termination of those charges.

In the prison context, Heck is not a sledgehammer that prevents prisoners from

challenging any and all disciplinary infractions. It only bars a prisoner from collaterally

attacking a disciplinary infraction affecting the duration of his confinement. See

Wilkinson v. Dotson, 544 U.S. 74, 79 (2005) (citing Preiser v. Rodriguez, 411 U.S. 475,

489 (1973)). Where a prisoner alleges that he was subjected to a due process violation

leading to sanctions that affected the duration of his confinement, such as the loss of

good-time credits or eligibility for parole, Heck bars his claim. Razzoli v. Dir., Bureau of

Prisons, 293 F. App’x 852, 856 n.6 (3d Cir. 2008) (“Any [] challenge to due process in

the course of the disciplinary hearing and resulting loss of good time credit will not lie

under § 1983.”). His only remedy is to pursue habeas relief. Wilkinson, 544 U.S. at 78.

Plaintiff’s Fourth Amended Complaint does not allege that he was subjected to

disciplinary sanctions that affected the duration of his confinement. Instead, he alleges

only that his disciplinary hearing lacked due process and resulted in “several forms of

unwarranted discipline,” including restrictive confinement, denial of exercise, denial

of outdoor time, denial of access to a common area, and disadvantages in housing

assignments. [4AC ¶¶ 137–38.] But Defendants attach a summary of the disciplinary

charges to their Motion which reflects that the discipline imposed on Plaintiff did affect

the duration of his confinement because Plaintiff was sanctioned with “credit for time

served; 180 days of … administrative segregation …; and 180 days loss of

commutation time[.]” [See Docket No. 98-1 (“Defs.’ Br.”), Ex. A.]

On a motion to dismiss for failure to state a claim, a district court may

“generally consider only the allegations contained in the complaint, exhibits attached

to the complaint and matters of public record.” Schmidt v. Skolas, 770 F.3d 241, 249

(3d Cir. 2014) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d

1192, 1196 (3d Cir. 1993)). So, when “matters outside of the pleadings” are presented

to and are not excluded by the court on a 12(b)(6) motion, the court must instead

convert the motion into one for summary judgment under Federal Rule of Civil

Procedure 56, after giving proper notice to the parties. FED. R. CIV. P. 12(d); In re

Rockefeller Ctr. Prop., Inc. Secs. Litig., 184 F.3d 280, 287 (3d Cir. 1999). “Matters outside

of the pleadings” does not include, however, documents “integral to or explicitly relied

upon in the complaint.” In re Rockefeller Ctr. Props., 184 F.3d at 287 (citations omitted).

That includes an “undisputedly authentic document that a defendant attaches as an

exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.

Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss

simply by failing to attach a dispositive document on which it relied.” Pension Benefit

Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations

omitted).

Plaintiff’s due process and retaliation claims are not based on the document

itself. They are based on constitutional violations that occurred during his disciplinary

proceedings. So, the Court cannot consider the charge summary document without

converting Defendant’s Motion to one for summary judgment. The Court hereby

provides notice that it will convert this portion of Defendant’s Motion to one for

summary judgment following limited discovery regarding whether Plaintiff lost

commutation time as a disciplinary sanction. Hyldahl v. Denlinger, 661 F. App’x 167,

172 (3d Cir. 2016) (“The decision to convert a motion to dismiss to a motion for

summary judgment is generally committed to the district court’s discretion.”) (quoting

Kulwicki v. Dawson, 969 F.2d 1454, 1463 n.11 (3d Cir. 1992)). If he did lose

commutation time as a sanction for the disciplinary infraction, “the direct and natural

consequence of” prevailing on his retaliation and due process claim “would be a

restoration of [commutation time] that by [its] very nature dictate[s] a speedier

release.” Razzoli, F. App’x at 857. That would run afoul of the Heck bar.

C. Excessive Force Claims (Counts VI and XVI)

The Retaliation Defendants argue that they are entitled to qualified immunity

on Plaintiff’s excessive force claims because there is no law clearly establishing that

placing a prisoner in a pepper-sprayed cell for twelve hours is a civil rights violation.

[Defs.’ Br. at 20.] But there is a much simpler reason that Plaintiff’s excessive force

claims must be dismissed against the Retaliation Defendants. Plaintiff failed to allege

that the Retaliation Defendants were personally involved in pepper-spraying the

Northern State Prison administrative segregation cell at all. See Rode, 845 F.2d at 1207

(“A defendant in a civil rights action must have personal involvement in the alleged

wrongs[.]”). Plaintiff’s Fourth Amended Complaint alleges only that, once he arrived

at Northern State Prison to complete his term of administrative segregation, the NSP

Defendants, who are defined as unnamed John Does, locked Mr. Caratini in the

sealed, peppered-sprayed cell for more than 12 hours. [4AC ¶ 66 (defining John Does

16–25 as “NSP Retaliation Defendants”); see also id. ¶¶ 63–70 (alleging no personal

involvement on the part of the Retaliation Defendants).]1 And unlike Plaintiff’s failure

to protect claims, discussed below, Plaintiff did not allege that the NSP Retaliation

Defendants, in conjunction with the South Woods Retaliation Defendants pepper-

sprayed the cell. [See 4AC ¶ 71 (“The NSP Retaliation Defendants, in conjunction with

the SWSP Retaliation Defendants, then purposefully housed a notorious prisoner …

with Mr. Caratini in the same administrative segregation cell.” (emphasis added)).]

So, the Court will grant the Retaliation Defendants’ Motion on the excessive force

claims.

D. Failure to Protect Claims (Counts V and XV)

Because “[b]eing violently assaulted in prison is simply not part of the penalty

that criminal offenders pay for their offenses against society,” prison officials have “a

duty to protect prisoners from violence at the hands of other prisoners” under the

Eighth Amendment’s Cruel and Unusual Punishments Clause. Farmer v. Brennan, 511

U.S. 825, 833–34 (1994). To state a claim for damages against a prison official for

1 The Fourth Amended Complaint’s excessive force counts themselves, [4AC ¶¶ 150–

59 (Count XI); 4AC ¶¶ 218–229 (Count XII)], allege the Retaliation Defendants were

responsible for pepper-spraying Plaintiff’s Northern State Prison administrative

segregation cell. But that is inconsistent with the other allegations in the Fourth

Amended Complaint, which make clear that it was only the John Doe NSP

Defendants who were involved in the pepper-spray incident. [4AC ¶¶ 63–70.] And that

makes sense because the Retaliation Defendants were stationed at South Woods

prison, not Northern State Prison where the pepper-spray incident occurred.

failure to protect from inmate violence, a prisoner must demonstrate that he was

“incarcerated under conditions posing a substantial risk of [objectively] serious harm”

and that the prison official was deliberately indifferent to that substantial risk of

objectively serious harm. Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012) (citing

Farmer, 511 U.S. at 834). Deliberate indifference means that the prison official actually

knew of but disregarded an excessive risk to inmate safety. See id. at 833–37.

Plaintiff alleges that the Defendants “purposefully housed” him with Victor, “a

notorious prisoner,” knowing that Victor “committed unprovoked acts of physical

violence against numerous previous cellmates” and was therefore “usually segregated

in a special unit.” [4AC ¶¶ 71–73.] These allegations are insufficient to survive a

motion to dismiss. “[A] prison official’s awareness of … violent propensities (or

history of violence) of [a] particular inmate[] does not supply an inference of deliberate

indifference.” Buckley v. Kowalski, 2015 WL 179385, at *4 (D.N.J. Jan. 14, 2015)

(citation omitted); Bistrian, 696 F.3d at 371 (the “risk that an inmate with a history of

violence might attack another inmate” is too “speculative” to give rise to an inference

of deliberate indifference). The remainder of Plaintiff’s allegations are also insufficient.

Plaintiff alleges that Victor “frequently made statements to those around him reflecting

his propensity for violence” and that he “mused about killing Mr. Caratini in his sleep

for ‘fun.’” [4AC ¶¶ 73–74.] But he fails to allege that he informed Defendants about

these statements or that Defendants were otherwise aware of the threats such that they

could be deliberately indifferent. The Court will dismiss the failure to protect claims

without prejudice.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss will be GRANTED,

in part, CONVERTED to summary judgment, in part, and the Fourth Amended

Complaint DISMISSED, in part. An accompanying Order shall issue.

January 30, 2025 s/Renée Marie Bumb

Date RENÉE MARIE BUMB

Chief United States District Judge