IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

AARON R. JOHNSON,

 Plaintiff,

v.

LOUIS KING,

Defendant.

Civil No. 11-3836 RMB/JS

OPINION

Aaron R. Johnson

546546C S.W.S.P.

215 Burlington Road

Bridgeton, NJ 08302

Pro se Plaintiff

James T. Dugan

Atlantic County Department of Law

1333 Atlantic Avenue, 8th Floor

Atlantic City, New Jersey 08401

Attorney for Defendant

This matter comes before the Court upon a motion by 

Defendant Louis King (“Defendant”) to renew his motion for 

summary judgment. For the reasons that follow, Defendant’s 

motion is denied and this matter will proceed to trial on June 

19, 2014, as this Court will reconsider its prior decision 

regarding the costs of transporting Plaintiff’s key witness. 

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I. Background

Pro se Plaintiff, Aaron Johnson (“Plaintiff”)1, claims, 

pursuant to 42 U.S.C. § 1983, that Defendant violated his 

constitutional right to be free from excessive force while he was 

a pre-trial detainee incarcerated in the Atlantic County Justice 

Facility. Plaintiff claims that on August 11, 2010, Defendant, a 

corrections officer at the facility, kicked him down a set of 

stairs while Defendant was escorting Plaintiff from the showers. 

Plaintiff’s principal evidence in support of this claim is the 

eyewitness account of his cellmate - Michael Williams. Plaintiff 

has offered the testimony of no others in support of his 

contention that his fall was caused by Defendant kicking him. 

The only support for his contention are his own statements, as 

informed by Williams, and a written statement by Williams stating 

that “I seen [sic] Officer L. King kick Aaron Johnson down a 

flight stairs [sic].” [Docket No. 42 at Ex. D]. Defendant 

disputes Plaintiff’s version of events and claims that Plaintiff 

simply fell down the stairs. 

In this Court’s prior Order [Docket No. 44], the Court found 

that Plaintiff could proceed with his claim against Defendant in 

his individual capacity as Plaintiff intended to present the live 

1 Plaintiff is proceeding in this matter in forma pauperis. 

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testimony of Williams at trial. Pursuant to motions in limine, 

this matter was set to proceed to a bifurcated trial with the 

liability portion of trial set to commence on January 13, 2014. 

Plaintiff’s only fact witness, Williams, was ordered by this 

Court to be produced without the prepayment of fees by Plaintiff.

[Docket No. 57].

On December 20, 2013, Defendant moved for reconsideration as 

to the production of inmate Williams at the expense of the State.

[Docket No. 58]. This Court granted that motion for 

reconsideration and found that all costs related to producing 

Williams needed to be paid in advance by the Plaintiff pursuant 

to N.J.A.C. 10A:3-9.13, which states, in relevant part:

(a) The costs of transporting an inmate to court for civil 

action will be paid by the Department of Corrections 

when:

1. The cause of action is related to the inmate's 

confinement. 

* * *

(b) The cost of transporting an inmate to court for a civil 

 action other than those listed in (a) above shall be 

 paid in advance of the transportation by:

1. The inmate;

2. The inmate’s attorney or representative; and/or

3. The person bringing the civil action against the

inmate or that person's representative.

A review of this statute persuaded this Court that, because 

inmate Williams was not covered under subsection (a), Plaintiff 

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had to pay the cost of production in advance, and that asking the 

State to seek reimbursement for the transportation of Williams 

would improperly require the State to absorb the related 

expenses. 

During a hearing on the pending motion for reconsideration 

and other motions in limine, Plaintiff was informed that he would 

have to bear the costs of producing Williams. See Porter v. 

Dept. of the Treasury, 564 F.3d 176, 180 n.3 (3d Cir. 2009) (“IFP 

status exempts litigants from filing fees only. It does not 

exempt litigants from the costs of copying and filing documents; 

service of documents other than the complaint; costs . . . 

expert witness fees. . . or sanctions.”). The Court, in an 

attempt to accommodate Plaintiff and allow him to present his 

case via admissible evidence, offered him the opportunity to 

either proceed to trial and pay the related expenses to produce 

Williams or stay the matter for a limited time. Plaintiff 

elected to stay the matter pending Williams’ scheduled release 

from prison, which was slated for some time in April of 2014. 

Trial was set to commence on May 12, 2014, following Williams’ 

release date. 

Shortly after his release date, Williams, for reasons 

unknown, was re-incarcerated. The parties appeared for trial on 

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May 12, 2014, but the trial did not proceed as Plaintiff’s only 

witness, Williams, was not available. Although Plaintiff was 

prepared to proceed to trial, he was not aware that Williams had 

been re-incarcerated. During a hearing held on May 12th in lieu 

of trial, Defendant asked this Court to renew the motion for 

summary judgment in light of the fact that the only evidence 

Plaintiff planned to present in support of his contention that 

Defendant kicked him down the stairs was the testimony of 

Williams, who Plaintiff was not prepared to produce to testify at 

trial. 

In light of Plaintiff’s inability to pay the fees associated 

with producing Williams, and in an effort to continue to ensure 

that Plaintiff had every opportunity to present his case via 

admissible evidence, this Court delayed decision on Defendant’s 

renewed motion for summary judgment and provided Plaintiff with 

ten days to supplement the record to present competent evidence. 

The only additional submissions this Court has received are 

Plaintiff’s request for a writ of habeas corpus ad testificandum 

for inmate Williams and a letter regarding the reports of a 

corrections officer. [Docket No. 76 & 78]. In this first 

submission, Plaintiff admits that his case “depends [in] large 

part on Michael W. Williams[’] testimony.” [Docket No. 76]. 

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Plaintiff has not represented that he will pay the costs 

associated with producing Williams or that he has other 

admissible evidence in support of his claim. In a letter dated 

May 22, 2014, counsel for Defendant, after speaking with 

administrators at South Woods State Prison, indicated to this 

Court that “no arrangements have been made to transport Michael 

Williams to Court.” [Docket No. 77]. 

II. Standard

Summary judgment shall be granted if “the movant shows that 

there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a). A fact is “material” if it will “affect the outcome of 

the suit under the governing law . . . .” Anderson v. Liberty 

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

it could lead a “reasonable jury [to] return a verdict for the 

nonmoving party.” Id. When deciding the existence of a genuine 

dispute of material fact, a court’s role is not to weigh the 

evidence: all reasonable “inferences, doubts, and issues of 

credibility should be resolved against the moving party.” Meyer 

v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983). 

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III. Analysis

Before entertaining Defendant’s renewed motion for summary 

judgment, this Court feels compelled to first reconsider its 

ruling that Plaintiff must pre-pay the expenses associated with 

the production of Williams as it finds, for reasons discussed 

further below, that such reconsideration is warranted to prevent 

manifest injustice. 

During his deposition, Plaintiff clarified that the basis 

for his contention that he was “kicked” was based on the 

statement of Williams:

Q: Isn’t it true that the first time you thought you 

were kicked was when Michael Williams told you [that] 

you were kicked?

A: Yes, and other inmates.

Pl.’s Deposition Transcript, 58:3-6. Moreover, in his inmate 

grievance form completed on August 15, 2010, Plaintiff stated, “I 

don’t know what exactly happened, I heard I was kicked down the 

steps . . .” Def.’s Ex. I (emphasis added). Without the 

testimony of inmate Williams, Plaintiff would be opposing 

Defendant’s summary judgment motion and attempting to proceed to 

trial on the sole basis of hearsay. Hearsay is defined in 

Federal Rule of Evidence 801(c) as "a statement, other than one 

made by the declarant while testifying at the trial or hearing, 

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offered in evidence to prove the truth of the matter asserted." 

Fed. R. Evid. 801(c). Certainly, Plaintiff seeks to present 

classic hearsay evidence during trial in the form of Williams’ 

out of court statement that Plaintiff was kicked, which is being 

offered for its truth. 

It is clear, that without the testimony of Williams, summary 

judgment in favor of Defendant would be warranted. Upon 

revisiting the statute related to transportation of inmates, this 

Court finds that, based on the particular circumstances of this 

case, Williams should be produced by the Department of 

Corrections for purposes of testifying at trial set for June 19, 

2014, without prepayment of fees by Plaintiff. 

In coming to this conclusion, this Court starts with Section 

(a) of N.J.A.C. 10A:3-9.13 which states, in relevant part, that: 

(a) The costs of transporting an inmate to court for civil 

action will be paid by the Department of Corrections 

when:

1. The cause of action is related to the inmate's 

confinement. 

Clearly, a § 1983 claim for excessive force alleged to have 

occurred based on the conduct of an officer employed by the 

Department of Corrections constitutes a cause of action “related 

to the inmate’s confinement.” In such instance, the 

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Administrative Code requires that the Department of Corrections 

transport, at its own cost, the inmate alleged to have been the 

victim of excessive force. 

Read literally, the Department of Corrections is required 

only to pay the inmate/victim’s transportation costs but not such 

costs for an inmate/witness. In many cases, this presents an 

insurmountable hurdle for inmates who have filed their civil 

rights complaints in forma pauperis. On the other hand, 

requiring the Department of Corrections to transport any and all 

inmates alleged to be involved in a cause of action covered by 

subsection (a) presents an unrealistic and undue burden on the 

institution. In the end of its analysis, however, the Court will 

require the Department of Corrections to transport Williams 

without prepayment by Plaintiff.2 In this case, the Department 

2 It appears that the Court would not err in denying 

Plaintiff’s request to have the Department of Corrections 

transport Williams without prepayment, as Defendant strongly 

urges this Court to do. See e.g., Boring v. Kozakiewicz, 833 F. 

2d 468, 474 (3d Cir. 1987) (“[t]he plaintiffs’ dilemma in being 

unable to proceed in this damage suit because of the inability to 

pay for expert witnesses does not differ from that of nonprisoner 

claimants who face similar problems.”). However, for the reasons 

set forth herein, the Court will direct the Department of 

Corrections to do so and charge the costs to the Plaintiff. Cf. 

Boring, 833 F. 2d at 474 (3d Cir. 1987) (“There is no provision 

for furnishing pretrial detainees expert witnesses at government 

expense; but, without expert testimony, pretrial detainees' 

complaints that their jailers neglected to provide them with 

prescribed medical treatment cannot reach the jury. Thus indigent 

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of Corrections should not be able to shield itself behind 

subsection (a) when it or its employees are accused of wrongdoing

and the sole evidence to support the complainant is another 

inmate within that same institution. The appearance of Williams 

will require no more than one day, even less, perhaps; thus, the 

expenditure burden on the Department of Corrections is minimal. 

This is not to say, however, that in all cases involving alleged 

excessive force the Department of Corrections should be required 

to transport every inmate/witness identified by a

plaintiff/inmate. Instead, the Court will have to conduct a 

fact-based inquiry on a case-by-case basis. Here, that inquiry 

results in the production of only one other inmate housed in the 

same facility, without whom Plaintiff has no chance of pursuing 

his civil rights claim. Moreover, the Court will direct that the 

costs of transporting Williams shall be ultimately borne by the 

Plaintiff. 

pretrial detainees can never recover for pain and suffering, 

suffered as a result of neglected medical treatment unless they 

are released, obtain funds, and can hire an expert. The 

inhumanity of this paradoxical rule of law alone suggests a 

serious flaw. If our superiors in the federal judicial hierarchy 

were to insist upon such inhumane a rule, we would, despite 

misgivings, have to apply it. The Supreme Court, however, has not 

suggested it, and this court's caselaw is to the 

contrary)(Gibbons, J., dissenting). 

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In the event that Plaintiff prevails in the liability phase 

of his trial and is awarded damages by a jury following the 

damages trial, Plaintiff’s damages award shall be reduced by the 

costs incurred by the State as a result of complying with this 

Court’s order to produce Williams.3 If, however, Plaintiff does 

not prevail in this matter, for every month Plaintiff’s prison 

account exceeds $10.00, until the costs of producing Williams are 

paid, the agency having custody of the Plaintiff shall assess, 

deduct from Plaintiff’s account, and forward to the Department of 

Corrections payment equal to 20% of the preceding month’s income 

credited to Plaintiff’s account. Each payment shall reference 

the civil docket number of this action. The Court notes that 

Plaintiff’s projected release date is in January of 2016, 

ensuring that several payments will be collected prior to his 

release, whereupon he will become a productive citizen and be 

able to repay the amount in full. This Court finds this solution 

to be the most equitable balancing of interests in light of the 

language of N.J.A.C. 10A:3-9.13 and Plaintiff’s rights under § 

1983. 

3 This Court assumes that the Plaintiff does not object to 

this procedure as it was the Court’s original decision with 

respect to producing Williams without prepayment by Plaintiff. 

Indeed, Plaintiff has requested the Court adhere to its initial 

ruling. 

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IV. Conclusion

For the foregoing reasons, Defendant’s request for summary 

judgment is denied and trial in this matter will commence on June 

19, 2014. The Department of Corrections will produce Williams 

and the appropriate Writ will issue. 

/s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: June 2, 2014

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