*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

A’DALE FLEMMING, :

: Civil Action No. 11-2561 (FLW)

Plaintiff, :

:

v. : OPINION

:

THE COUNTY OF MERCER, et al., :

:

Defendants. :

:

WOLFSON, District Judge:

Plaintiff A’dale Flemming (“Plaintiff”), by and through counsel Grace S. Power, Esq. and 

Christopher Eugene Torkelson, Esq., filed the instant Complaint, alleging that Defendants the 

County of Mercer (“County”), Charles Ellis (“Warden”), Warden of the Mercer County 

Corrections Center (“MCCC”), and certain unnamed corrections officers of MCCC (collectively 

referred to as “Defendants”), are liable to Plaintiff for violations of his Eighth Amendment rights

pursuant to 18 U.S.C. § 1983, and other state common law claims. In the instant matter, 

Defendants move for summary judgment (“Motion”), arguing that Plaintiff had failed to make a 

sufficient showing to establish the elements of his § 1983 claims against Defendants. For reasons 

stated below, the Court grants the Motion and dismisses the Complaint in its entirety.

I. FACTUAL BACKGROUND

For the purposes of this Opinion, the Court construes all facts most favorable to the nonmoving party. On May 14, 2009, while Plaintiff was an inmate at MCCC, Plaintiff, a member of 

the gang Crips, was attacked by other Crips inmates, Chelsy White (“White”) and Daniel Inman

(“Inman”). (Plaintiff’s Statement of Material Facts (“Pl. Facts”), ¶ 1.) Plaintiff contends that 

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White and Inman initiated the fight by pouring hot coffee on Plaintiff. Upon hearing the 

commotion, Officer Kirby-Jones responded and called a Code 3, which was an indication that there 

was a fight between inmates; Officer Kirby-Jones arrived on the scene within 60 seconds. 

(Defendants’ Statement of Material Facts (“Def. Facts”), ¶ 3.) The officer was unable to stop the 

fight herself. (Pl. Facts, ¶ 9.) However, Officers Waters and Tucker arrived at the scene within 

30 seconds after Officer Kirby-Jones, and they were able to subdue the inmates. (Def. Facts, ¶ 8; 

Pl. Facts, ¶ 9.) Plaintiff suffered serious injuries as a result of the physical altercation. (Pl. Facts, 

¶ 2.)

Prior to the instant action, earlier in 2009, there was a large scale fight at MCCC, wherein

members of the gang group Crips had altercations with other unspecified inmates in the general 

population. (Response, Ex. 2 (Deposition of Officer Kirby-Jones), at 29:1-21.) Plaintiff, White, 

and Inman were involved in that incident. (Pl. Facts, ¶¶ 3, 10.) After the incident, Plaintiff 

maintains that a de-facto policy was instituted by MCCC to segregate Crips members from other 

inmates. Id., ¶ 11. In that connection, according to Plaintiff, Defendants were also able to ascertain

that “sets,” or sub-groups, existed within Crips. Id., ¶ 3. Defendants identified Plaintiff as a 

member of the set “Rollin 60s,” and White as a member of “52 Hoover.” Id., ¶¶ 3-4. Inman was 

not identified with any gang set. Id., ¶ 5.

On May 4, 2011, Plaintiff filed the instant Complaint, alleging that Defendants violated his 

Eighth Amendment rights; Plaintiff also asserted various other state law tort claims against 

Defendants.

1

 (Compl., ¶ 1.) On November 20, 2014, Defendants filed the instant Motion.

1 Plaintiff’s Complaint is inartfully drafted, and therefore, the causes of action asserted in 

the Complaint are difficult to ascertain. Because the Court declines to exercise supplemental 

jurisdiction over Plaintiff’s state law claims, see infra, the Court need not delineate the specific 

state law claims that Plaintiff appears to have asserted. 

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II. STANDARD OF REVIEW

Summary judgment is appropriate where the Court is satisfied that “there is no genuine 

issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is genuine 

only if there is “a sufficient evidentiary basis on which a reasonable jury could find for the nonmoving party,” and it is material only if it has the ability to “affect the outcome of the suit under 

governing law.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts 

will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248. “In considering a 

motion for summary judgment, a district court may not make credibility determinations or engage 

in any weighing of the evidence; instead, the non-moving party's evidence ‘is to be believed and 

all justifiable inferences are to be drawn in his favor.’” Marino v. Indus. Crating Co., 358 F.3d 

241, 247 (3d Cir. 2004) (quoting Anderson, 447 U.S. at 255); see also 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).

The burden of establishing that no “genuine issue” exists is on the party moving for 

summary judgment. Celotex, 477 U.S. at 330. “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.” 

Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001). The non-moving party must 

present “more than a scintilla of evidence showing that there is a genuine issue for trial.” Woloszyn 

v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (quotations omitted). Under Anderson, 

Plaintiffs' proffered evidence must be sufficient to meet the substantive evidentiary standard the 

jury would have to use at trial. 477 U.S. at 255. To do so, the non-moving party must “go beyond 

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the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and 

admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 

477 U.S. at 324 (quotations omitted); see also Matsushita, 475 U.S. at 586; Ridgewood Bd. of Ed. 

v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the merits of a party's motion for 

summary judgment, the court's role is not to evaluate the evidence and decide the truth of the 

matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. 

Credibility determinations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. 

Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

There can be “no genuine issue as to any material fact,” however, if a party 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, 477 U.S. at 322–23. “[A] complete 

failure of proof concerning an essential element of the nonmoving party's case necessarily renders 

all other facts immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.

1992).

III. DISCUSSION

A plaintiff can pursue a cause of action under 42 U.S.C. § 1983 for certain violations of his 

constitutional rights. Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or 

usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen 

of the United States or other person within the jurisdiction thereof to the 

deprivation of any rights, privileges, or immunities secured by the Constitution 

and laws, shall be liable to the party injured in an action at law, suit in equity, or 

other proper proceeding for redress . . . .

Thus, to state a claim for relief under § 1983, a plaintiff must establish, first, the violation of a 

right secured by the Constitution or laws of the United States and, second, that the alleged 

deprivation was committed or caused by a person acting under color of state law. Am. Mfrs. Mut. 

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Ins. Co. v. Sullivan, 526 U.S. 40, 50-1 (1999); Morrow v. Balaski, 719 F.3d 160, 166-7 (3d Cir.

2013).

A. Failure to Protect

The Complaint alleges that Defendants violated Plaintiff’s Eighth Amendment rights by 

(1) allowing prisoners access to items easily converted to weapons: (2) failing to properly screen 

and segregate inmates known to have acted violently in the past; (3) failing to provide sufficient 

staff at the unit where Plaintiff was housed; (4) failing to follow its established safety procedures; 

(5) failing to provide necessary and appropriate security measures; (6) failing to develop and 

implement a classification system and corresponding housing plan for inmates at the Mercer

County Corrections Center; and (7) failing to provide appropriate personnel necessary for the 

safety, welfare and protection of Plaintiff. The Court construes Plaintiff’s claims as violations of 

the Eighth Amendment for failure to protect.

The Eighth Amendment to the United States Constitution prohibits a State from inflicting 

“cruel and unusual punishments” on those convicted of crimes. Rhodes v. Chapman, 452 U.S. 337 

(1981). The Supreme Court has construed the Eighth Amendment as prohibiting “conditions” that 

involve the unnecessary and wanton infliction of pain or are grossly disproportionate to the 

severity of the crime warranting imprisonment. Id. at 347. The cruel and unusual punishment 

standard is not static, but is measured by “the evolving standards of decency that mark the progress 

of a maturing society.” Id. at 346 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1956)). To state a 

claim under the Eighth Amendment, an inmate must satisfy both objective and subjective elements. 

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

The objective element questions whether the deprivation of a basic human need is 

sufficiently serious; the subjective component asks whether the officials acted with a sufficiently 

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culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298 (1991). The objective component is 

contextual and responsive to “contemporary standards of decency.” Hudson v. McMillian, 503 

U.S. 1, 8 (1992). The subjective component follows from the principle that “‘only the unnecessary 

and wanton infliction of pain implicates the Eighth Amendment.’” See Farmer, 511 U.S. at 834 

(quoting Wilson, 501 U.S. at 297 (internal quotation marks, emphasis, and citations omitted)); 

Rhodes, 452 U.S. at 345. What is necessary to establish an unnecessary and wanton infliction of 

pain varies according to the nature of the alleged constitutional violation. Hudson, 503 U.S. at 5.

In the context of a failure-to-protect claim, the inmate must show that he is “incarcerated 

under conditions posing a substantial risk of harm,” Farmer, 511 U.S. at 833, and that prison 

officials knew of and disregarded the excessive risk to inmate safety. Id. at 837. “A pervasive 

risk of harm may not ordinarily be shown by pointing to a single incident or isolated incidents, but 

it may be established by much less than proof of a reign of violence and terror.” Riley v. Jeffes, 

777 F.2d 143, 147 (3d Cir. 1985). “Whether . . . prison official[s] had the requisite knowledge of 

a substantial risk is a question of fact subject to demonstration in the usual ways, including 

inference from circumstantial evidence, and a fact finder may conclude that . . . prison official[s] 

knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842. 

Moreover, if a defendant had knowledge of prior incidents of obvious harm, but simply ignored 

them, that is sufficient to show both the objective and subjective elements of a failure-to-protect 

claim. See Farmer, 511 U.S. at 842 (holding that plaintiff can establish a failure-to-protect claim 

by showing “a substantial risk of [harm that was] longstanding, pervasive, well-documented, or 

expressly noted by prison officials in the past, and the circumstances suggest that the defendantofficial [] had been exposed to information concerning the risk”); Liles v. Camden Cnty. Dep’t of 

Corr., 225 F. Supp. 2d 450, 463 (D.N.J. 2002); Ingalls v. Florio, 968 F. Supp. 193, 199 (D.N.J. 

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1997) (“[T]he chronologically earlier instances of assault may reasonably be considered by a jury 

as indicating a serious risk which defendants did not act to eliminate”).

Here, Plaintiff contends that Defendants placed him in substantial risk of harm by (1) 

allowing inmates to have hot coffee, which can be converted into a weapon; (2) not sufficiently 

staffing the facility with adequate personnel to stop the attack on Plaintiff; and (3) failing to 

establish proper procedures against a known risk of harm, such as segregation of inmates who are 

substantially likely to be aggressive toward one another. The Court finds that Plaintiff has failed 

to proffer sufficient evidence to show a genuine issue of material fact that there was a substantial 

risk of harm for any of these three categories.

With regard to the hot coffee, the mere fact that Defendants allowed inmates to consume 

hot beverages, which was not an unreasonable action in itself, did not place Plaintiff in substantial 

harm. Short of denying access to hot liquids to all inmatesfor any reason, there was simply nothing 

Defendants could have done to eliminate the minor risk that someone may pour hot liquid on 

another inmate; to disallow the consumption of hot coffee, or any hot liquid, would be irrational. 

Indeed, there is also no evidence that White and Inman had used hot coffee as their “weapon of 

choice” in the past, therefore potentially providing notice to Defendants of similar actions by these 

inmates. Permitting inmates to consume hot coffee simply does not create a substantial risk of 

harm rising to the level of a constitutional violation. See Best v. Essex Cnty, N.J. Hall of Records, 

986 F.2d 54, 57 n.7 (3d Cir. 1993) (holding that coffee urn, provided to inmates for “benign 

purposes and yet almost necessarily available to inmates,” was not a substantial risk of harm).

With regard to adequate staffing, there is no evidence demonstrating that staffing was so 

inadequate that it constituted a substantial risk of harm at the time of Plaintiff’s attack. First, 

Plaintiff cannot merely point to his own incident in which he claims there was inadequate staffing 

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to prevent his harm as proof that there must have been an existing substantial risk of harm that led 

to his attack; this is not an adequate proof of causation. See Hamilton v. Leavy, 117 F.3d 742, 747 

(3d Cir. 1997) (“[A] showing that there was an excessive risk to [plaintiff’s] safety is alone 

insufficient to preclude summary judgment”); Heine v. Receiving Area Pers., 711 F. Supp. 178, 

184 (D. Del. 1989) (“To imply that a risk of [harm] existed in ‘thin air’ in the absence of knowledge 

of such a specific risk by prison officials would necessarily require them to monitor every single 

prisoner twenty-four hours a day to in order to insure his safety”). The record shows, which 

Plaintiff does not dispute, that one officer arrived at the scene within 60 seconds of the attack, and 

two more arrived 30 seconds. Without more, officers responding to a fight within 60 to 90 seconds 

after it has started is not objectively unreasonable and did not create a substantial risk of harm 

rising to the level of a constitutional violation.

Plaintiff could have shown the existence of a substantial risk of harm had Plaintiff proffered 

evidence that Defendants had access to information that staffing was inadequate to prevent harm 

to other inmates. See Robinson v. Johnson, 449 F. App’x 205, 208 (3d Cir. 2011) (holding that a 

substantial risk of harm can be established if prison officials had access to information 

demonstrating that the existing practices exposed inmates to substantial risk of harm). However, 

Plaintiff did not do so. Indeed, Plaintiff presented no evidence that Defendants had prior 

knowledge, or there was any information showing, that staffing was inadequate in the prison at 

any time before the subject incident. In light of the circumstances, the Court finds that Plaintiff 

has failed to show a genuine issue of material fact that a substantial risk of harm existed due to 

inadequate staffing.

Likewise, with regard to failing to implement adequate procedures, Plaintiff does not 

establish a substantial risk of harm. Other than Plaintiff’s own attack, Plaintiff points to only one 

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incident suggesting a risk of harm – the 2009 incident in which Crips members were involved in 

a large scale “fight” with other unspecified inmates in the general population. In order to prevent 

further similar incidents, Plaintiff asserts that a de-facto policy was created by Defendants to 

segregate Crips members from other inmates.2 (Deposition of Officer Kirby-Jones, at 29:1-6.) 

However, that policy is not what Plaintiff advances as inadequate or improper. Instead, what 

Plaintiff contends is that this de-facto policy was not sufficiently comprehensive; that is,

Defendants did not implement a policy to separate “sets” within Crips members that were hostile 

to each other; specifically in Plaintiff’s case, Plaintiff suggests that Defendants should have 

separated the “Rollin 60s” from the “52 Hoover.” According to Plaintiff, the lack of policy to 

segregate different “sets” created the substantial risk of harm. The Court disagrees.

Again, beyond Plaintiff’s own incident, Plaintiff does not point to any evidence 

demonstrating that there were prior incidents or attacks between the members of “Rollin 60s” and 

“52 Hoover.” While Plaintiff refers to the 2009 large scale fight as support, at best, that incident 

gave notice to Defendants that there was a substantial risk of harm of physical altercation between 

Crips members and other inmates. The evidence shows, and Plaintiff does not dispute, that 

Defendants took measures to prevent the Crips from fighting with other non-Crips inmates. 

However, fatal to Plaintiff’s case is the fact that all three inmates involved in the instant matter –

Plaintiff, White, and Inman – were members of the Crips and therefore, they were not segregated

2 Defendants, in their reply brief, argued that “[t]the Plaintiff has not provided any case law 

supporting their theory of a ‘de facto’ policy. Nonetheless the argument fails because the County 

in fact did have a written policy (SOP 520) on ‘security threat groups/gangs policy and 

procedure.’” (Def. Reply Brief, at 2.) However, it is unclear, and Defendants do not explain, why 

the written policy negates Plaintiff’s assertion that a de-facto policy existed; it is plausible for 

MCCC to follow an established written policy and adopt other policies as necessary to ensure the 

safety of all inmates. Defendants also did not provide the Court with a copy of the written policy

for evaluation. Without explaining the probative value of this written policy as to this case, the 

Court cannot consider it. 

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under the de-facto policy. In other words, although evidence shows that Defendants knew that the 

three inmates were members of the Crips, and that Plaintiff was a member of “Rollins 60” while 

White was a member of “52 Hoover,” there was simply no evidence that there were signs of 

hostility between any members within the Crips, let alone indications that such hostility existed 

between Plaintiff, White, and Inman. As such, there was no information available to demonstrate, 

or put Defendants on notice, that there was a substantial risk of harm prior to the attack on Plaintiff. 

Consequently, Plaintiff has failed to create a genuine issue of material fact on this element.

As to the second element of the failure-to-protect claim, the Court also finds that Plaintiff 

has failed to create a genuine issue of material fact that Defendants knew of and disregarded a 

substantial risk of harm. There is no evidence to show that Defendants knew that (1) White and 

Inman would use hot coffee as a weapon, (2) staffing was inadequate to reasonably respond to any 

attacks within MCCC, or (3) sets within the Crips were hostile to each other, particularly between 

“Rollins 60” and “Hoover 52.” Furthermore, as the Court explained above, there is also no 

evidence that Defendants knew about any prior incidents of harm in circumstances similar to the 

one here. Indeed, Plaintiff himself admits that “[a]lliances can quickly shift and gang members 

change sets and even hide their gang sets.” (Response at 1; see also Motion, Ex. F (Deposition of 

Lt. Santitoro), at 35:1-10.) Under these facts, Defendants cannot be expected to be on notice of 

any substantial risk of harm within such an ever-changing and possibly hidden set of allegiances. 

Accordingly, Plaintiff has not sufficiently established the knowledge element. Therefore, because 

Plaintiff has failed to support either elements of a failure-to-protect claim, the Court finds summary 

judgment appropriate on this claim. 

To the extent that Plaintiff is asserting a Monell claim against the County, Plaintiff’s claim 

necessarily fails because the Court has not found a constitutional violation in the first place. See 

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Badillo v. Amato, No. 13–1553 (FLW), 2014 WL 314727, at *11 (D.N.J. Jan. 28, 2014) (“[S]ince 

there was no [constitutional] violation in the first place, there can be no claims against the 

municipality for deprivation [under Monell]”); Mulholland v. Cnty. of Berks, 706 F.3d 227, 238 

n.15 (3d Cir. 2013) (finding that “if a municipal employee inflicted no constitutional injury, it is 

inconceivable that the municipality could be liable”) (internal quotations and citations omitted).3

B. State Law Claims

Although the Motion does not address Plaintiff’s state law claims, the Court nonetheless 

address its supplemental jurisdiction over Plaintiff’s state law claims here. 28 U.S.C. § 1367(c)(3) 

permits the district court, within its discretion, to decline to exercise supplemental jurisdiction over 

a claim if “the district court has dismissed all claims over which it has original jurisdiction.” 

Indeed, the Third Circuit has used even stronger language to describe the court's obligations under 

the provision. “The power of the court to exercise pendent jurisdiction, though largely 

unrestricted, requires, at a minimum, a federal claim of sufficient substance to confer subject 

matter jurisdiction on the court.” City of Pittsburgh Comm’n on Human Relations v. Key Bank 

USA, 163 F. App’x 163, 166 (3d Cir. 2006) (quoting Tully v. Mott Supermarkets, Inc., 540 F.2d 

187, 195 (3d Cir. 1976)). “[I]f it appears that all federal claims are subject to dismissal, the court 

should not exercise jurisdiction over remaining claims unless ‘extraordinary circumstances’ exist.” 

Id. “‘[W]here the claim over which the district court has original jurisdiction is dismissed before 

trial, the district court must decline to decide the pendent state claims unless considerations of 

judicial economy, convenience, and fairness to the parties provide an affirmative justification for 

doing so.’” Id. (quoting Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)).

3 The Court need not address whether qualified immunity is an affirmative defense, since 

the Court does not find that there was a constitutional violation.

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In light of the fact that (1) the parties have only conducted limited discovery; (2) a trial has 

not occurred; (3) all remaining claims are state law based; and (4) no extraordinary circumstances 

exist to compel the Court to exercise jurisdiction, the Court declines to exercise supplemental 

jurisdiction over Plaintiff’s state law claims. Therefore, the Court dismisses these claims without 

prejudice. Plaintiff is hereby advised that § 1367(d) permits a tolling of 30 days on the statute of 

limitations period of Plaintiff’s state law claims after the Court’s dismissal here, and failure to 

assert those claims in state court within that 30 days may result in the claims being time-barred.

IV. CONCLUSION

For the reasons set forth above, Plaintiff’s § 1983 claims against all Defendants are

DISMISSED WITH PREJUDICE, and the remaining state law claims are DISMISSED 

WITHOUT PREJUDICE. Plaintiff may file his state law claims in state court within 30 days of 

date of the Order accompanying this Opinion. 

/s/ Freda L. Wolfson

Freda L. Wolfson, U.S.D.J.

Dated: February 10, 2015

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