**NOT FOR PUBLICATION**

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________________________

 :

LIONELL G. MILLER, :

 :

Plaintiff, : Civil Action No. 11-0859 (FLW)

 :

v. : MEMORANDUM OPINION

 :

MICHELLE R. RICCI et al., :

 :

Defendants. :

_________________________________:

 

Wolfson, United States District Judge:

This matter comes before the Court bywayof a motion for summaryjudgment byDefendants

Joseph Fry, Elia Perez, William Nagy, Peter Wojciechowski, and Norman Tyson (collectively,

“Defendants”), challenging pro se Plaintiff Lionell G. Miller’s excessive force claims against them. 

Plaintiff, in opposition, has filed a “cross-motion opposing Defendants’ motion for summary

judgment.” Forthe reasons stated below, Defendants’ motion for summaryjudgment is granted, and

Plaintiff’s cross-motion is denied. The Clerk will be directed to seal Plaintiff’s medical records. 

I. BACKGROUND

Plaintiff filed the instant Complaint on February 15, 2011. See Docket Entry No. 1. In his

Complaint, he alleges that, on February 24, 2009, correctional officers Perez, Fry, Nady,

Wojeciechowski and Tyson used excessive force during a pat-down search. See id. Defendants

maintain that a disciplinaryhearing followed, duringwhich Plaintiff was found to have assaulted two

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officers during that incident and, thus, had to be subdued. See Docket Entry No. 56-1, at 1.1

Plaintiff’s excessive force claim involves the following allegations of physical force: (1) that

Plaintiff’s wrist was twisted; (2) that Plaintiff was “taken” to the ground; and (3) that Plaintiff was

punched and kicked on the head when he was already down. 

Defendants move for summary judgment on several grounds. First, Defendants contend that

Plaintiff did not exhaust his administrative remedies because, while Plaintiff filed a grievance

regarding the alleged use of excessive force, he did not appeal the prison staff’s response to his

grievance. Second, Defendants argue that Plaintiff’s excessive force claim fails because he cannot 2

identify the particular officer(s) who punched and kicked him when he was down. Third, in

Defendant’s view, the force applied to Plaintiff was both necessary and proportionate to the security

needs implicated by the incident. Finally, Defendants contend that the surveillance footage of the

alleged excessive force incident reveals that the twisting of Plaintiff’s wrist lasted only one second,

and, therefore, constituted non-actionable, de minimis force. See Docket Entry No. 56-1, at 2-3. 

In opposingDefendants’motion, Plaintifffiled a “cross-motion opposing Defendants’ motion

for summary judgment.” While Plaintiff frames his submission as a cross-motion, it is clear from

his papers that he is not seeking summary judgment but is only opposing a grant of summary

judgment to Defendants. Forthe following reasons, the Court concludes that Plaintiff failed to fully 3

The Complaint further stated a retaliation claim, challenges to the administrative 1

proceeding, and a failure-to-protect claim. However, the Court screened the complaint pursuant to

28 U.S.C. §1915, and dismissed all of Plaintiff’s claims except his excessive force claim. See

Docket Entries Nos. 5 and 6. 

Facts related to Defendants’ exhaustion defense are discussed in more detail infra.

2

Plaintiff states in his Notice of Motion that he moves “for an order denying the 3

defendants Motion for Summary Judgment.” Pl. Notice of Motion at 1, Docket Entry No. 64.

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exhaust his administrative remedies, and grants summary judgment to Defendants on that basis.

II. LEGAL STANDARD

Summary judgment is appropriate if, in light of the record accrued, “there is no genuine issue

as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c); see also Carrasca v. Pomeroy, 313 F.3d 828, 832-33 (3d Cir. 2002); Pearson v.

Component Tech. Corp., 247 F.3d 471, 482 n. 1 (3d Cir. 2001) (relying on Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986)). “For an issue to be genuine, ‘all that is required is that sufficient

evidence supporting the claimed factual dispute be shown to require a jury or a judge to resolve the

parties’ differing versions of the truth at trial.’” Haybarger v. LawrenceCounty Adult Probation and

Parole, 667 F.3d 408, 412 (3d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248-49 (1986), and First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253- 288-89 (1968)). A

factual matter is material if, under the substantive law, it could affect the outcome of the suit. See

Anderson, 477 U.S. at 248; Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013) (citing

Scheidemantle v. SlipperyRock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006));

see also Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). In deciding whether

summary judgment should be granted, the court must consider the facts drawn from the “pleadings,

the discovery and disclosure materials on file, and any affidavits” and is obligated to “view the

inferences . . . drawn from the underlying facts in the light most favorable to the party opposing the

motion.” Fed. R. Civ. P. 56(c); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).

III. ANALYSIS

The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect

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to prison conditions under [S]ection 1983 . . . by a prisoner confined in any . . . correctional facility

until [all] administrative remedies [that] are available are exhausted.” 42 U.S.C. § 1997e(a).

However, while administrative exhaustion is a mandatoryprerequisite to the filing of a Section 1983

action by a prisoner, “failure to exhaust is an affirmative defense . . . , and . . . inmates are not

required to . . . demonstrate exhaustion.” Jones v. Bock, 549 U.S. 199, 216 (2007). If failure to

exhaust administrative remedies is shown, a motion for summary judgment maybe granted, see, e.g.,

Terrell v. Benfer, 429 F. App’x 74, 77 (3d Cir. 2011), but the burden to establish due exhaustion

cannot be shifted to the plaintiff until and unless the defendant makes such a showing. Oleson v.

Bureau of Prisons, 411 Fed. App’x 446 (3d Cir. 2011).

Here, Defendants have pointed to record evidence demonstrating that Plaintiff failed to fully

exhaust his administrative remedies, despite Plaintiff’s contentions to the contrary. Plaintiff states,

by way of declaration, that he submitted an Inmate Remedy Form, regarding his excessive force

claim, to the Administrator of the East Jersey State Prison, Donald Mee, on March 8, 2009. Miller

Decl. dated Nov. 11, 2012 (“Miller Decl.”), ¶ 35. He further states that, once he was notified that

his grievance was rejected, he “filled out the appeal section of th[at] Inmate Remedy Form and

resubmitted it to . . Donald Mee in mid April of 2009.” Id. at ¶ 38. To be clear, the Inmate Remedy 4

Form consists of five parts: Part 1 is the area in which the inmate explains his grievance; Part 2 of

the form is filled out by a prison coordinator; Part 3 contains the staff’s response to the grievance;

Part 4 is the area designated for an inmate to write his appeal; and Part 5 is for the response to the

“Under the New JerseyAdministrative Code, inmates must submit an administrative 4

appeal within ten days of the issuance of a decision.” Wilson v. Correctional Medical Svcs., 412

Fed.Appx. 424 (3d Cir. 2010) (citing N.J.A.C. 10A:1-4.6(b)). See also Ortiz v. New Jersey Dept.

of Corrections, 406 N.J.Super. 63, 65 (App. Div. 2009) (discussing same).

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inmate’s appeal. See Shah Decl. dated Dec. 14, 2012, Exh. A at 10. While Plaintiff maintains that

he submitted the form with Part 4 completed, he asserts that he never received a response to that

purported appeal. See Miller Decl., ¶ 39. In support of his declaration, Plaintiff attaches a copy of

the form with an uncompleted Part 4—he does not attach any copywith a completed appeals section.

In connection with their reply brief, Defendants attach a discovery response from counsel for

the New Jersey Department of Corrections (“NJDOC”), Deputy Attorney General Joseph M.

Micheletti. In this letter, Micheletti’s states that the NJDOC was instructed by the Magistrate Judge

presiding over this matter to produce to Plaintiff all “Inmate RemedySystem Forms” filed on or after

February 24, 2009. Attached to his letter are copies of all forms filed after that date, which amount

to approximately 35 forms. Noticeably absent from the copies is a March 8th form with a completed

appeal section. Like the copy attached to Plaintiff’s papers, the appeal section of the March 8th

form included in the file is conspicuously blank. Accordingly, even viewing the evidence in the light

most favorable to Plaintiff, the record reflects that Plaintiff did not appeal the denial of the March

8th grievance and, as such, his excessive force claim must be dismissed for failure to exhaust

administrative remedies. Accord Wallace v. Doe, No. 12–3926, 2013 WL 353484, *3 (3d Cir. Jan.

31, 2013) (affirming dismissal on failure to exhaust grounds where Plaintiff did not appeal

grievance). Although Plaintiff asserts that he completed the appeal section of the form and

submitted the form Donald Mee in mid-April 2009, his uncorroborated declaration can not serve to

create a genuine issue of material fact on this issue in light of the record evidence. Moreover, that

the NJDOC produced approximately 35 forms militates against a finding that NJDOC misplaced or

destroyed his purported appeal.

The Court recognizes that, in exhaustion cases, defendants typically submit an affidavit by

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a prison official responsible for maintaining prison grievance forms, in which the official verifies

that Plaintiff made no such filing. Compare Jackson v. Taylor, 467 Fed.Appx. 98, 99 (3d Cir. 2012)

(affirming dismissal on failure to exhaust grounds where defendants submitted affidavit from

Assistant Chief Grievance Officer); Bristol v. Settle, 457 Fed.Appx. 202, 203-04 (3d Cir. 2012)

(affirming dismissal on failure to exhaust grounds based upon evidence submitted by prison

grievance coordinator). Nevertheless, the Court concludes that the discovery response by NJDOC

counsel, coupled with copies of all of Plaintiff’s Inmate RemedySystem Forms dating from February

24, 2009, satisfy Defendants’ burden of proof, and sufficiently demonstrate that Plaintiff did not

appeal the denial of his March 8th grievance. Accord Smith v. Dir., Fed. Bureau of Prisons, 412 5

Fed.Appx. 427, 429-30 (3d Cir. 2011) (affirming dismissal for failure to exhaust where defendants

submitted a declaration from an attorney at the Federal Correctional Complex at Allenwood,

Pennsylvania, that was supported byrecords showing grievances filed bythe plaintiff during the time

period in question). 

Because the Court concludes that Plaintiff failed to exhaust his administrative remedies, the

Court need not addressDefendants’ alternative grounds for summaryjudgment. Finally, Defendants’

request to seal Plaintiff’s medical records will be granted for the reasons articulated by the

Magistrate Judge in Docket Entry No. 34. 

IV. CONCLUSION

In light of the foregoing, Defendants’ motion for summary judgment is granted, and 

Plaintiff further argues that the Defendants’ motion for summary judgment is 5

premature because he had not received a response to his discovery request for copies of all the

inmate grievance forms he submitted. Because Defendants’ provided that discovery in connection

with their reply brief, that aspect of his opposition is now moot.

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Plaintiff’s “cross-motion in opposition to Defendants’ motion for summary judgment” is denied. 

Defendants’ application to seal Plaintiff’s medical records is also granted. An appropriate Order

follows.

s/Freda L. Wolfson

 Freda L. Wolfson

United States District Judge

Dated: May 13, 2013

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