ANNE E. THOMPSON, District Judge.
This matter comes before the Court on Defendants' R. Fraley and Francis McDonough Motion for Summary Judgment. (ECF No. 68). Plaintiff Lionell Miller opposes the motion. (ECF No. 74). The Court has issued the opinion below based on the written submissions of the parties and without oral argument pursuant to Local Civil Rule 78.1(b). For the reasons stated below, the motion is granted in part.
Plaintiff alleges Defendants failed to protect him by intervening during an altercation he had with another inmate at New Jersey State Prison ("NJSP") on March 17, 2011. The undisputed facts are as follows: Plaintiff was incarcerated in NJSP's West Compound in 7-Wing (Left), Tier 1, cell number 18 on March 17, 2011. (Plaintiff's Redacted Response to Defendants' Statement of Material Facts, ECF No. 76-1 ¶¶ 1, 4). Defendants were assigned to Plaintiff's tier as unit officers on March 17, 2011. (Id. ¶ 3). 7-Wing is an administrative segregation unit where each cell is a single-occupancy cell. (Id. ¶¶ 5-6). On March 17, 2011, Plaintiff was let out of his assigned cell by Defendant McDonough for the purpose of taking a shower. (Id. ¶ 9). The shower procedure consists of the officer manning the control panel remotely letting the inmate out of his cell. (Id. ¶ 7). "The inmate then walks from their cell to the shower and is locked in until they are finished." (Id. ¶ 8). Plaintiff took a mirror with him to the shower on March 17, 2011 because he believed someone was entering his cell and damaging his property when he left. (Id. ¶ 10). The mirror permitted him to look down the tier towards his cell. (Id. ¶ 11).
While Plaintiff was showering, he saw the inmate tier runner,
After a few minutes,
Plaintiff filed a pro se complaint on July 18, 2012, (ECF No. 1), and an amended complaint on June 6, 2013, (ECF No. 7). The Honorable Michael A. Shipp, D.N.J.,
Pro bono counsel was appointed for Plaintiff. (ECF No. 53).
Under the Federal Rules of Civil Procedure, "[s]ummary judgment is appropriate only if `the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.' In making that determination, a court must view the evidence `in the light most favorable to the opposing party.'" Tolan v. Cotton, 572 U.S. 650, 657 (2014) (quoting Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). A "genuine" dispute of "material" fact exists where a reasonable jury's review of the evidence could result in "a verdict for the non-moving party" or where such fact might otherwise affect the disposition of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must grant summary judgment against any party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Defendants again move for summary judgment on Plaintiff's failure to protect claim based on their adherence to NJSP's Internal Management Procedure dealing with Code 33s. In other words, Defendants argue their actions were reasonable because they followed the prison's policy in managing inmate conflict. Judge Shipp previously denied summary judgment to Defendants on this basis because they had not produced the relevant Internal Management Procedures. Miller, 2017 WL 3429343, at *6. Despite having been given another opportunity to present this issue to the Court, Defendants have again failed to establish the reasonableness of their conduct as a matter of law.
In denying the prior summary judgment motion, Judge Shipp noted a fact-sensitive inquiry was necessary to determine whether prison officials acted reasonably for purposes of a failure to protect claim: "for example; (1) whether, how, and for how long Defendants attempted to intervene verbally; (2) if Defendants attempted to intervene verbally, how often in Defendants' experience verbal intervention is sufficient to `break up' an altercation; and (3) the number of guards needed to intervene in an altercation between two inmates." Id. (citing Bistrian v. Levi, 696 F.3d 352, 372 (3d Cir. 2012)). Defendant Fraley's declaration is the same one previously submitted and again "fail[s] to address most of the inquiries set forth by the Third Circuit in Bistrian or any other relevant issues concerning the reasonability of Defendants' conduct." Id. at *6 n.18. Defendant Fraley's assertion that he was "not permitted to personally break up the fight until a response team arrived on the unit" [REDACTED\]
Although it is uncontested that Defendant Fraley attempted to intervene verbally, it is disputed how long Plaintiff and Johnson fought before Sgt. Stout signaled for the Code 33.
It is also a contested factual issue whether Defendant McDonough had an opportunity to intervene. Defendant McDonough certified that he was on a break during the fight and did not return until it was over. (ECF No. 68-3 at 14 ¶¶ 3-4). Plaintiff testified during his deposition that he saw Defendant McDonough at the Officers' station watching the fight. (ECF No. 68-3 at 24, 22:4-6). This is consistent with his declaration in response to Defendants' First Motion for Summary Judgment in which he stated that both Defendants were watching the fight from outside the gate on one tier. (ECF No. 44-2 at 8 ¶ 12). This is sufficient to create a factual issue for the jury to decide. See Tolan v. Cotton, 572 U.S. 650, 656 (2014) ("[C]ourts may not resolve genuine disputes of fact in favor of the party seeking summary judgment.").
For the above stated reasons, the Court will deny summary judgment on the failure to protect claim.
"In order to establish illegal retaliation for engaging in protected conduct, [Plaintiff] must prove that: (1) his conduct was constitutionally protected; (2) he suffered an adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to discipline him." Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). Plaintiff alleged in his amended complaint that Defendants retaliated against him because of a prior lawsuit filed in this district. (ECF No. 7 ¶¶ 1-9). Defendants argue that Plaintiff has failed to establish an "adverse action" because Plaintiff has failed to establish a viable failure-to-protect claim and has no proof to refute Defendants' statements that they were unaware of his previous lawsuit. (ECF No. 69-1 at 28).
Defendants have certified they had no knowledge of any prior lawsuit by Plaintiff on March 17, 2011. (ECF No. 68-3 at 12 ¶ 13; 15 ¶ 6). Plaintiff has not addressed the retaliation claim in his opposition nor provided any evidence to contradict these assertions. (See generally ECF No. 76). The Court will therefore grant the summary judgment motion on the retaliation claim because Plaintiff cannot prove his constitutionally protected conduct was a substantial or motivating factor in the alleged failure to protect.
Defendants argue that they are entitled to qualified immunity because Plaintiff purportedly failed to demonstrate a violation of a clearly established constitutional right. As Judge Shipp noted, "[p]rison officials' failure to intervene in an altercation between inmates `is a paradigmatic example of a failure to protect claim, and in no way requires an extension or expansion of the case law to be established.'" Miller, 2017 WL 3429343, at *7 (quoting Farmer v. Lanigan, No. 12-5716, 2016 WL 4107693, at *5 (D.N.J. Aug. 1, 2016)). See also Bistrian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012). Defendants are not entitled to qualified immunity.
For the reasons stated above, summary judgment is granted on the retaliation claim and denied on the failure to protect claim. An accompanying Order will be entered.