Rivera v. Whitman

• Decision Date: 17 August 2001
• Docket Number: No. CIV.A.99-544(JEI).,CIV.A.99-544(JEI).
• Citation: 161 F.Supp.2d 337
• Parties: Peter Joe RIVERA, Plaintiff, v. Christine Todd WHITMAN, Jack Terhune, Donald E. Lewis, M. Schilling, Sgt. Kershaw, S.C.O. Perez, Stanley Nunn, Sgt. Warren, S.C.O. Sharp, S.C.O. McConnelly, T. Lopez, James F. Barbo, S.C.O. Schwenk, S.C.O. Wasick, Defendants.
• Court: New Jersey Supreme Court

Page 337

161 F.Supp.2d 337

Peter Joe RIVERA, Plaintiff, v. Christine Todd WHITMAN, Jack Terhune, Donald E. Lewis, M. Schilling, Sgt. Kershaw, S.C.O. Perez, Stanley Nunn, Sgt. Warren, S.C.O. Sharp, S.C.O. McConnelly, T. Lopez, James F. Barbo, S.C.O. Schwenk, S.C.O. Wasick, Defendants.

No. CIV.A.99-544(JEI).

United States District Court, D. New Jersey.

August 17, 2001.

Peter Joe Rivera, Trenton, NJ, Plaintiff Pro Se.

John J. Farmer, Jr., Attorney General of New Jersey by David M. Ragonese, Trenton, NJ, for Defendants.

OPINION

IRENAS, District Judge:

Presently before the Court is Defendants' Motion for Summary Judgment of Plaintiff Peter Joe Rivera's § 1983 action. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1343. For the reasons set forth below, Plaintiffs' suit is dismissed without prejudice.

I. BACKGROUND

Peter Joe Rivera ("Plaintiff") is an inmate presently incarcerated at Northern State Prison in Newark, New Jersey. He brought this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Plaintiff named seventeen defendants in this action, including Christine Todd Whitman, then-Governor of New Jersey; Jack Terhune, Commissioner of the New Jersey Department of Corrections; Donald E. Lewis, Administrator of Riverfront State Prison ("RSP"); W. Stanley Nunn, Administrator of Southwoods State Prison ("Southwoods"); James F. Barbo, Administrator of Northern State Prison ("NSP"); Correctional Medical Services; three RSP corrections officers, Lieutenant M. Schillig, Sergeant Kershaw and Officer Perez; two Southwoods corrections officers, Sergeant Warren and Officer Sharp; three NSP corrections officers, Lieutenant T. Lopez and Officers Schwenk and Wasik; S. Larkins, a disciplinary hearing officer at NSP; and Chief Hearing Officer McNeil of the New Jersey Department of Corrections. (Compl.5-5k). The claims against defendants Whitman, Larkins, McNeil, and Correctional Medical Services, Inc., have already been dismissed. (See Orders 3/25/99, 6/22/99, 2/8/00).

Plaintiff asserts that on May 27, 1998, while he was incarcerated at RSP, he was assaulted by defendants Perez and Kershaw, while Lieutenant Schillig witnessed the incident but refused to intervene. (Compl.6(c)-(e)). Defendants counter that, in preparing to escort Plaintiff to TCC, they merely used necessary force after Plaintiff resisted being handcuffed. (Defs.' Mot. Summ. J. Ex B. at ¶ 3). Plaintiff alleges that he sustained cuts and bruises all over his body during the assault. (Compl. at 6(c)). He claims that once he was in the detention unit, the corrections officers there called the medical staff to care for his injuries. (Id. at 6(f)). Rivera maintains that, after thirty minutes, a nurse arrived and interviewed him through the detention cell's soundproof door. (Id.). He states that the nurse would not treat his injuries, but told him to wait until he was released from the detention area. (Id.). Plaintiff alleges that the medical staff knew he had serious injuries but refused to treat him in retaliation for a lawsuit plaintiff had previously filed against an RSP physician. (Id. at 6(g)). Defendants maintain that Plaintiff had only minor superficial abrasions. (Defs.' Mot. Summ. J. Ex. C at D001).

Plaintiff was transferred to Southwoods in June of 1998. (Compl.6(i)). He claims that many items of his personal property were lost during the transfer and that property he sent to his family never arrived. (Id. at 6(j)). Plaintiff also complains about the conditions of his confinement after his transfer. (Id. at 6(i) 6(j)). Defendants claim this complaint was resolved by a member of the warden's staff. (Defs.' Mot. Summ. J. Ex. D at ¶ 2). Plaintiff next asserts that, on July 31, 1998, Defendants Sergeant Warren and Officer Sharp along with a group of other officers beat him as he was leaving the dining hall. (Compl.6(k)). Defendants counter that they confronted Plaintiff after he was observed to have bulges in his front pockets, and restrained him after he assaulted Warren, one of the confronting officers. (Defs.' Mot. Summ. J. Ex. E at D004-D007). Plaintiff further alleges that medical personnel again refused to provide treatment following the incident. (Compl.6(h)). Again, Defendants claim he suffered only minor abrasions. (Defs.' Mot. Summ. J. Ex. C. at D002).

Plaintiff was transferred to NSP on or about August 2, 1998. (Compl.6(m)-(n)). He claims that the transporting officer, McConnelly, terrorized him throughout the trip to NSP. (Id. at 6(m)). He also alleges that he was denied a meal when he arrived and was denied a sanitary cell as well as clothes and cleaning supplies. (Id. at 6(n)-(o)). Plaintiff further maintains that he was abused by Wasik and Schwenk once they learned that he had assaulted Warren at Southwoods. (Id. at 6(p)-(v)). Plaintiff also included various complaints about the law library services at NSP. (Id. at 6(r)-(s)).

Plaintiff contends that, during his disciplinary hearing on August 3, 1998, vis a vis his assault on Warren, he was denied his right to cross-examine witnesses and that the hearing officer overlooked evidence. (Compl.6(x)-(y)). Plaintiff was found guilty on the disciplinary charges, a decision upheld on appeal. (Defs.' Mot. Summ. J. at 8).

On March 25, 1999, Plaintiff filed the instant action pursuant to § 1983 alleging violations of his constitutional rights under the First, Eighth, and Fourteenth Amendments. On June 29, 2001, Defendants filed this Motion for Summary Judgment.

II. STANDARD OF REVIEW

"[S]ummary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. DISCUSSION

A. § 1997e(a)

42 U.S.C. § 1997e(a) provides that:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

This past term, the Supreme Court held that § 1997e(a) requires exhaustion even if available administrative processes cannot grant the desired remedy. Booth v. Churner, 531 U.S. 956, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). In the instant matter, the issue is whether § 1997e(a) compels a rule of "total exhaustion"—in other words, whether a district court must dismiss a prisoner's § 1983 action if some but not all of the claims are unexhausted or if it may dismiss just those claims which are unexhausted.

The issue is unsettled. The district courts that have addressed the issue are split. Compare Julian-Bey v. Crowley, No. 2:99-cv-107, 2000 U.S. Dist. LEXIS 14071 (W.D.Mich. Sept. 21, 2000) (holding that plain language and policy interests required "total exhaustion" rule); Thorp v. Kepoo, 100 F.Supp.2d 1258 (D.Haw.2000) (same); Keenan v. Twommey, No. 1:97-cv-549, 1999 U.S. Dist. LEXIS 11829 (W.D.Mich. July 29, 1999) (same); Keenan v. Twommey, No. 1:97-cv-549 (W.D.Mich. Sept. 4, 1998) (same); Sanchez v. O.R. Agency for Santa Clara Cty., No. C 98-830 SI(PR), 1998 WL 283561 (N.D.Cal. May 27, 1998) (summarily dismissing without prejudice pursuant to "total exhaustion" rule); Abenth v. Palmer, No. C 96-3938 MHP, 1997 WL 255332 (N.D.Cal. Apr.28, 1997) (same); Estrada v. Gomez, No. C 97-297 SI PR, 1997 WL 220313 (N.D.Cal. Apr.22, 1997) (same); Eakins v. Stainer, No. C 97-694 SI (pr), 1997 WL 122866 (N.D.Cal. Mar.5, 1997) (same), with Johnson v. True, 125 F.Supp.2d 186 (W.D.Va. 2000) (holding that "total exhaustion" rule contradicts congressional intent); Cooper v. Garcia, 55 F.Supp.2d 1090 (S.D.Cal. 1999) (same); Jenkins v. Toombs, 32 F.Supp.2d 955 (W.D.Mich.1999) (same).

While two circuit courts have ruled on the issue, and come to contrary conclusions, neither has analyzed the issue in any depth. Compare Graves v. Norris, 218 F.3d 884, 886 (8th Cir.2000) (holding that "[w]hen multiple prison condition claims have been joined ... the plain language of § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims"), with Riley v. Richards, 210 F.3d 372, 2000 WL 332013 (6th Cir.2000) (per curiam) ("If a complaint contains exhausted and unexhausted, the district court may address the merits of the exhausted claims and dismiss only those that are unexhausted." (citing Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999))).¹ The Third Circuit has yet to address the issue, and the only district court in the circuit to deal with it did so without analysis. Blackwell v. Vaughn, No. 97-CV-3467, 2001 WL 872777 (E.D.Pa. July 3, 2001) (Brody, J.) (reaching merits of exhausted claims while dismissing unexhausted claims under 1997e(a)).

1. Plain Meaning of the Statutory Language

A "familiar canon of statutory construction is that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). Moreover, "words will be interpreted as taking their ordinary, contemporary, common meaning," Perrin v. United...