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Paladino v. Newsome

United States Court of Appeals, Third Circuit

March 16, 2018

BRIAN PALADINO, Appellant
v.
K. NEWSOME; JOHN DOES 1-10; SHIRLEY STEPHENS; GARY M. LANIGAN; CHARLES WARREN; M. PERKINS; L.T. CROTHERS; D. GERDES; OFFICER WHITE; OFFICER PINKSTON; OFFICER IMPAGLIAZZO; K. NELLSEN; SGT. ANTOINELLO; J. ILARDI; J. DOMINGUEZ; OFFICER MAURA; JOHN ROES 1-10; SGT. ANDERSON; JASON HOLDER

          Argued: November 15, 2017

         On Appeal from the United States District Court for the District of New Jersey (District Court No. 3-12-cv-02021) District Judge: Honorable Anne E. Thompson

          Shannon L.C. Ammon Rachel A.H. Horton Bruce P. Merenstein Schnader Harrison Segal & Lewis LLP Counsel for Appellant

          Christopher C. Josephson Alex J. Zowin Office of Attorney General of New Jersey Richard J. Hughes Justice ComplexCounsel for Appellees

          Before: CHAGARES, VANASKIE, and FUENTES, Circuit Judges

          OPINION OF THE COURT

          FUENTES, Circuit Judge.

         Brian Paladino, an inmate at New Jersey State Prison (the "Prison"), filed a section 1983 civil rights action against various Prison employees alleging a number of constitutional claims. The District Court granted summary judgment on many of his claims after finding that he failed to exhaust administrative remedies, as required by the Prison Litigation Reform Act of 1995 (the "Act"). In so doing, the District Court-without notifying the parties-relied on our decision in Small v. Camden Cnty.[1] to resolve the exhaustion issue based on the record alone.

         While we affirm with respect to the majority of Paladino's claims, we vacate the grant of summary judgment on Paladino's excessive force claim based on an alleged assault in October 2010 (the "2010 excessive force claim") because there existed a genuine issue of material fact regarding whether he exhausted that claim. Although conclusory assertions are insufficient to survive a motion for summary judgment, such relief should be denied when there is a genuine issue of material fact on exhaustion.

         As the District Court correctly noted, under Small, "judges may resolve factual disputes relevant to the exhaustion issue."[2] Nevertheless, as discussed below, we now hold that some type of notice and an opportunity to respond are needed before a district court elects to decide factual disputes regarding exhaustion. Thus, we remand for further proceedings as to whether Paladino properly exhausted his 2010 excessive force claim.

         I. Background

         A. The Prison's Grievance Process

         Prison inmates submit grievances through the Inmate Remedy System Form (the "form"). Generally, a form should be processed and returned within thirty days. An inmate must appeal within ten days if he is dissatisfied with the response. The Administrator renders decisions on appeal. An inmate who receives a response to his appeal has exhausted his administrative remedies.

         B. Paladino's Complaint

         Paladino, then pro se, filed an initial complaint in April 2012, and an amended complaint in June 2012 (collectively, the "Complaint"). The District Court sua sponte dismissed several of Paladino's claims, none of which are at issue. However, the District Court permitted Paladino to proceed with claims that Defendants violated his Eighth Amendment rights by (1) using excessive force against him on three occasions; (2) subjecting him to poor conditions of confinement by depriving him of meals, recreation, contact visitation, educational programs, hygiene supplies, and cleaning supplies; and (3) providing inadequate medical care. The District Court further allowed Paladino to pursue Fourteenth Amendment claims for deprivation of meals, as well as cleaning, writing, and hygiene supplies.

         C. First Summary Judgment Motion

         In January 2013, Defendants filed a motion for summary judgment based on Paladino's failure to exhaust. In support, Defendants searched the Prison's records and attached all forms filed by Paladino from May 2011 through June 2012. Defendants maintained that this evidence showed that Paladino failed to exhaust because he did not file the required forms for many of his claims, and while he filed forms for some of his other claims, he did not appeal the Prison's responses to those forms.

         Paladino responded by generally claiming that the record was "incomplete."[3] Paladino also said that he appealed when he received responses to the forms, however, the Prison never responded to those appeals. Paladino further broadly alleged that Prison employees "intentionally lie, manipulate, improperly handle and falsify" forms.[4] Paladino did not, however, claim that the record was missing grievance forms he had filed concerning any of the claims at issue in his Complaint.

         In June 2013, the District Court granted Defendants' motion in part, finding that Paladino failed to exhaust his excessive force and medical care claims, as well as the majority of his conditions of confinement and equal protection claims (the "June 2013 order"). In this regard, the District Court found that the forms Defendants submitted were "a complete set" because Paladino did not assert that he filed any other forms.[5] Accordingly, because there were no forms in the record for the excessive force and medical care claims, as well as certain of the conditions of confinement and equal protection claims, the District Court entered summary judgment on them.

         However, the District Court denied the motion with respect to the conditions of confinement claims regarding hygiene supplies and recreational privileges, and the Fourteenth Amendment claims for hygiene and writing supplies. The District Court held there was a genuine issue of material fact regarding exhaustion of these claims because Paladino filed forms for them and asserted that the Prison failed to respond.

         Paladino moved for reconsideration. The District Court granted the motion in part, finding that it erred in granting summary judgment on the 2010 excessive force claim because the record only contained forms from May 2011 to June 2012.

         D. Second Summary Judgment Motion

         At the heart of this appeal is Defendants' second summary judgment motion on exhaustion grounds. This time, Defendants submitted all forms filed by Paladino found in the Prison's records between August 2010 and May 2011. Defendants contended that Paladino failed to exhaust his 2010 excessive force claim because the Prison's records did not contain a form for the underlying assault. Defendants further argued that Paladino failed to exhaust his Eighth Amendment conditions of confinement claims regarding hygiene supplies and recreational privileges, as well as his Fourteenth Amendment claim for lack of hygiene supplies, because he did not appeal the Prison's responses on those claims.

         In opposition, Paladino vaguely insisted that he filed "numerous" forms and "appealed numerous responses" that "vanished after being properly submitted and/or filed."[6]Paladino further stated that "numerous [] grievances have gone missing in regards to [his] claims of excessive force."[7]Importantly, this last assertion was supported by specific record evidence in the form of Paladino's sworn deposition testimony that he "submitted no less than six [] forms about [excessive force] [and], about wanting to be placed in some type of protective custody."[8] Indeed, when pressed during his deposition whether he filed forms "specifically about this allegation of excessive force, " Paladino responded "I remember they were about that, yes."[9]

         In March 2015, the District Court granted summary judgment on Paladino's remaining claims (the "March 2015 order"). Despite acknowledging "a factual dispute between the parties regarding the exhaustion issue, " the District Court did so on the record alone.[10] In so doing, the District Court noted that Paladino "point[ed] to no substantive proof to support [his] conclusion besides his own self-serving assertions."[11]

         The District Court held that, while Paladino submitted forms regarding a lack of hygiene supplies and recreational privileges, he did not exhaust those claims because "he did not appeal the initial decisions made by the [Prison]."[12] Thus, the District Court granted summary judgment on the Eighth Amendment conditions of confinement claims for inadequate hygiene supplies and lack of recreational privileges, as well as the Fourteenth Amendment claim for lack of hygiene supplies.[13] The District Court also held that Paladino failed to exhaust his 2010 excessive force claim because, while he "filed numerous [forms] relating to a variety of issues, " there was "no evidence" that he filed a form "relating to his allegations of an assault in October 2010."[14] In reaching this conclusion, the District Court did not consider Paladino's sworn deposition testimony that he filed at least six forms for that claim. This appeal followed.[15]

         II. Discussion[16]

         The Act's exhaustion requirement states that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."[17] This requirement "applies to a grievance procedure described in an inmate handbook but not formally adopted by a state administrative agency."[18] "Failure to exhaust is an affirmative defense the defendant must plead and prove; it is not a pleading requirement for the prisoner-plaintiff."[19]

         A. The Summary Judgment Orders

         Paladino contends that the District Court erred in granting motions for summary judgment because there were disputed factual issues regarding exhaustion. Defendants respond that summary judgment was warranted "[b]ecause Paladino failed to submit anything other than self-serving assertions" to counter the "voluminous" records they produced.[20] We address the two summary judgment orders in turn.

         i.The June 2013 ...


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