                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                    No. 11-2380
                                   _____________

                              FRANCISCO DIDIANO,
                                          Appellant

                                          v.

               KAREN BALICKI; SOUTH WOODS STATE PRISON;
                   JOHN DOE(S) 1-10;JOHN DOE(S) 11-20
                             ______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW JERSEY
                         (D.C. Civil No. 1-10-cv-04483)
                  District Judge: Honorable Robert B. Kugler
                                 ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                   July 10, 2012
                                  ____________

               Before: RENDELL, SMITH and BARRY, Circuit Judges

                            (Opinion Filed: July 17, 2012)
                                   ____________

                                      OPINION
                                    ____________

BARRY, Circuit Judge

      Appellant Francisco Didiano (“Didiano”) appeals the District Court’s grant of

summary judgment in favor of the South Woods State Prison and Karen Balicki, the
prison administrator. We will affirm.

                                             I.

       In December 2008, Didiano was an inmate at South Woods State Prison in

Bridgetown, New Jersey. He had three cellmates, including a man named Duan Howard

(“Howard”), a prisoner classified as having “mental health special needs.” On December

19, 2008, Howard used a prison-issued “hot pot” to boil water in the cell. Under normal

circumstances, the prison-issued hot pots are not supposed to be able to bring water to a

boil, but Howard had altered his device to increase its power. Howard then used the

boiling water to attack Didiano, pouring it all over Didiano’s face, head, neck, shoulders

and back while he was asleep in the cell. As a result, Didiano sustained serious and

permanent injuries and was taken to an outside hospital to receive treatment for his burns.

Following his discharge from the hospital, he was transferred to the medical wing of

Northern State Prison to convalesce. On January 29, 2009, about a month after the

assault, Didiano was transferred back to South Woods State Prison.

       In April 2009, Didiano used the help of a so-called “prison paralegal” named Nash

to file three official administrative complaints, called Inmate Remedy Forms, with the

prison. The record is bereft of information about Nash, and there is no evidence that he

was a prison official or employee. Didiano claims that he depended upon the services of

Nash in using the Inmate Remedy System because he has “limited facility with the

English language and with writing in particular.” Nash filled out the three administrative


                                             2
complaints, alleging: (1) that the prison had “been negligent in administering medical care

and treatment” to Didiano; (2) that Howard’s assault on Didiano was due to the prison’s

“failure to properly inspect and adhere to safety standards”; and (3) that, because Howard

was a “special needs” inmate, the prison should not have housed him in the general

population.

       Sometime later, prison officials responded with a “Corrective Action Form,”

which identified several deficiencies with the complaints. In particular, the Corrective

Action Form stated: (1) that Didiano must complete a Health Services Request Form; (2)

that his complaints did not contain specific information, and he must resubmit the

complaint with additional information; and (3) that he cannot use the Inmate Remedy

System forms for Department of Corrections disciplinary charges. In addition, the

Corrective Action Form contained a handwritten note that instructed Didiano to “speak

with housing unit Sat. clarify dates.” 1

       When Didiano received the Corrective Action Form, he went to Nash and asked

what he should do in response. Nash told Didiano that someone from the prison wanted

to meet with him and that Didiano should wait for the meeting to be scheduled. Didiano

followed Nash’s advice and did not take any action.

       In late May or early June 2009, Didiano met with a prison psychologist. During


1
  The handwriting is difficult to read, and defendants claim that the note actually states:
“speak with housing unit Sgt. clarify dates.” Although defendants’ reading seems more
plausible, we accept Didiano’s reading for purposes of analyzing the grant of summary
judgment.
                                              3
the course of their conversation, Didiano told the psychologist about the complaints he

had submitted, as well as the Corrective Action Form he had received in response. He

asked the psychologist to follow-up on the complaints and see if a meeting with the prison

officials would be scheduled. According to Didiano, however, the psychologist did not

follow-up as requested. No one from the prison ever contacted him to set up a meeting.

      On July 30, 2010, Didiano filed suit in New Jersey state court against the South

Woods State Prison and the prison administrator, Karen Balicki (“Balicki”). Didiano

named Balicki as a defendant in both her individual and official capacities. The

complaint also listed numerous “John Doe” individuals as defendants. Didiano asserted

claims under 42 U.S.C. § 1983 for violation of his Eighth Amendment rights, alleging

that defendants failed to protect him from Howard’s unprovoked assault by allowing an

inmate “with known psychological problems to remain in the general prison population”

and to possess a “hot pot that was easily modifiable to become a dangerous

instrumentality.” He also asserted a claim under the New Jersey Civil Rights Act

(“NJCRA”), N.J.S.A. § 10:6-2, for violations of the New Jersey state constitution under

these same theories.

      Defendants removed the case to federal court. Following removal, they filed a

motion to dismiss or, in the alternative, for summary judgment, raising several grounds in

support of their motion, including: (1) that Didiano’s claims were barred by the Eleventh

Amendment and the doctrine of sovereign immunity; (2) that Didiano’s claims were


                                            4
barred by the Prison Litigation Reform Act, because he had failed to exhaust his

administrative remedies before bringing suit; (3) that the prison and defendant Balicki, in

her official capacity, are not “persons” amenable to suit under either § 1983 or the

NJCRA; and (4) that there were no grounds for holding Balicki liable in her individual

capacity. Didiano opposed the motion.

       Because the parties submitted evidence outside the pleadings, the District Court

treated defendants’ motion as one for summary judgment and granted the motion. The

Court rejected defendants’ argument that the suit was barred by sovereign immunity, but

agreed that Didiano had failed to exhaust his administrative remedies, that defendants

were not “persons” within the meaning of § 1983 and the NJCRA, and that there was no

basis for a claim against Balicki in her individual capacity. Finally, the Court concluded

that the claims against the John Doe individuals could not survive in light of the dismissal

of the named defendants. Didiano timely appealed.

                                            II.

       The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331

and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over a district court’s grant of summary judgment, viewing all evidence in favor of the

non-moving party and resolving all doubts in that party’s favor. Albright v. Virtue, 273

F.3d 564, 570 (3d Cir. 2001); S.E.C. v. Hughes Capital Corp., 124 F.3d 449, 452 (3d Cir.

1997); Fed. R. Civ. P. 56(a).


                                             5
                                               A.

        Didiano argues that the District Court erred in concluding that his claims against

the prison and Balicki (in her official capacity) must be dismissed because they are not

“persons” within the meaning of the NJCRA. Like § 1983, the plain language of the

NJCRA imposes liability on any “person” who violates a plaintiff’s civil rights under

color of law. In particular, the NJCRA provides in relevant part that:

        Any person who has been deprived of any . . . rights . . . secured by the
        Constitution or laws of the United States, or . . . by the Constitution or laws
        of this State, or whose exercise or enjoyment of those substantive rights,
        privileges or immunities has been interfered with or attempted to be
        interfered with, by threats, intimidation or coercion by a person acting
        under color of law, may bring a civil action for damages and for injunctive
        or other appropriate relief.

N.J.S.A. § 10:6-2(c) (emphasis supplied).

        Interpreting the comparable language of § 1983, 2 the Supreme Court has held that

the States, arms of the States, and state officials acting in their official capacities, are not


2
    The language of the federal civil rights statute provides:

        Every person who, under color of any statute, ordinance, regulation,
        custom, or usage, of any State or Territory or the District of Columbia,
        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 . . . .

42 U.S.C. § 1983 (emphasis supplied).

                                                6
“persons” within the meaning of the statute. Will v. Mich. Dep’t of State Police, 491 U.S.

58, 71 (1989) (“We hold that neither a State nor its officials acting in their official

capacities are ‘persons’ under § 1983”); Indep. Enters. Inc. v. Pittsburgh Water & Sewer

Auth., 103 F.3d 1165 (3d Cir. 1997) (a political subdivision of the state is not a “person”

within the meaning of § 1983 if it is effectively an “arm of the State” for Eleventh

Amendment purposes). 3 Didiano concedes that his suit against the prison is essentially a

claim against the Department of Corrections, an arm of the State of New Jersey. He also

concedes that Balicki is a state official that he has sued in her official capacity. Thus, in

the face of this binding Supreme Court authority, he does not dispute that his § 1983

claims against the prison and Balicki (in her official capacity) must fail. Rather, he

contends that the District Court erred in dismissing his state-law NJCRA claim on this

ground, arguing that there are good reasons why the word “person” should be interpreted

differently in the NJCRA context than in § 1983, and should be construed to extend to

defendants here. We disagree.

       Although the NJCRA does not itself define the word “person,” the term is defined

elsewhere in the New Jersey code:

       Unless it be otherwise expressly provided or there is something in the
       subject or context repugnant to such construction, the following words and
       phrases, when used in any statute and in the Revised Statutes, shall have the
       meaning herein given to them.
       ....
       Person. The word “person” includes corporations, companies, associations,

3
  Cf. Hafer v. Melo, 502 U.S. 21, 23 (1991) (“We . . . hold that state officials sued in their
individual capacities are ‘persons’ for purposes of § 1983.”) (emphasis supplied).
                                             7
       societies, firms, partnerships and joint stock companies as well as
       individuals . . . and, when used to designate the owner of property which
       may be the subject of an offense, includes this State, the United States, any
       other State of the United States as defined infra and any foreign country or
       government lawfully owning or possessing property within this State.

N.J.S.A. § 1:1-2 (emphasis supplied). In other words, the statutory definition explicitly

states that the word “person” shall include the State of New Jersey only in the limited

circumstance of certain property disputes not applicable here. Thus, New Jersey has

provided its own definition of the word “person,” and that definition does not include the

State or defendants which are the functional equivalent of the State.

       Didiano is left to argue only that a construction that excludes the State from the

definition of the word “person” is repugnant to the subject and context of the NJCRA.

Once again, we disagree. Nothing in the language or subject matter of the NJCRA

compels that conclusion. 4 Instead, Didiano relies on cases and statements from outside

the context of the NJCRA, including: (1) general statements of law suggesting that “New

Jersey has a long and powerful tradition of enforcing state constitutional rights”; and (2)

arguments that constitutional claims are not barred by the State’s sovereign immunity or


4
 Indeed, contrary to Didiano’s argument, the text of the NJCRA actually seems to support
the conclusion that the State is not a “person” subject to suit. Under the statute, one of
the remedies for violating a plaintiff’s constitutional rights is the imposition of a civil
penalty. N.J.S.A. § 10:6-2(c) (citing subsection 10:6-2(e)). The statute directs, however,
that this “civil penalty shall be conveyed to the State Treasurer for deposit into the State
General Fund.” N.J.S.A. § 10:6-2(e) (emphasis supplied). If the State were found liable
in an NJCRA action, therefore, it would create the bizarre result of the State paying a civil
penalty to itself. This suggests that the legislature did not contemplate State liability
under the NJCRA.

                                             8
the New Jersey Tort Claims Act. (See Appellant’s Br. at 13-16). Such abstract evidence,

however, is insufficient to overcome the explicit statutory definition of “person”

contained in § 1:1-2. Accordingly, the District Court correctly granted summary

judgment on Didiano’s claims against the State and Balicki, in her official capacity. 5

                                              B.

       Even if Didiano has no viable claim against the prison and Balicki, in her official

capacity, he argues that he nonetheless has a § 1983 claim against Balicki in her

individual capacity. The District Court concluded that he did not because any such §

1983 claim was barred by the Prison Litigation Reform Act (“PLRA”) for failure to

exhaust administrative remedies. We agree.

       With respect to the exhaustion requirement, the PLRA 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.

42 U.S.C. § 1997e(a). Under this requirement, the prisoner must pursue all available

administrative remedies to their end, and must do so properly, i.e., without procedural

default. See Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). This is true regardless of

whether the administrative remedies meet federal standards, whether they are “plain,

speedy, and effective,” and whether the prisoner seeks relief not available in grievance


5
 Because we conclude that the New Jersey statutes explicitly exclude the State from the
definition of a “person” under § 1:1-2, we need not address the parties’ arguments about
whether, and to what extent, the NJCRA should be interpreted identically to § 1983.
                                             9
proceedings, notably money damages. Id. at 227 (quoting Porter v. Nussle, 534 U.S. 516,

524 (2002)).

       Didiano “concedes that the PLRA applies to him and that he did not complete

South Wood’s grievance process” because he did not respond to the Corrective Action

Form. (Appellant’s Br. at 25-26). He argues, however, that that the exhaustion

requirement does not apply where “prison officials’ conduct so interferes with a

prisoner’s ability to use the grievance process that the remedy is not ‘available.’” (Id. at

25). In support of this argument, he relies on Brown v. Croak, 312 F.3d 109 (3d Cir.

2002). In Brown, the district court dismissed a prisoner’s lawsuit for failure to exhaust

his administrative remedies because he did not file a formal grievance with the prison.

On appeal, we vacated the dismissal on the ground that the prisoner raised a genuine issue

of material fact as to whether prison officials essentially thwarted or prevented him from

exhausting the remedies. The prisoner had alleged that prison officials told him he could

not file a formal grievance until the prison’s “pre-grievance investigation” had been

completed. He waited for months, but was never told that the investigation was

concluded. Accepting his allegations as true, we held that the administrative remedies

were not “available” to the prisoner within the meaning of the PLRA and the district court

improperly dismissed his claim.

       Didiano’s reliance on Brown is misplaced. The thrust of Brown is that the

prisoner’s use of the administrative remedies was frustrated by the prison officials. There


                                             10
is simply no comparable evidence in this case. Rather, Didiano admits that the prison

properly sent him a Corrective Action Form explaining the actions needed to proceed

with his complaints. Because he wanted assistance with the Corrective Action Form, he

went to a “prison paralegal” named Nash. According to Didiano, it was Nash who told

him to take no action and simply wait for the prison to set up a meeting. If there was

evidence that Nash was a prison official, this case would fall squarely within Brown.

Defendants contend, however, that “prison paralegals” are not prison officials, but rather

are fellow inmates who provide advice and counsel, and there is nothing in the record (or

even in Didiano’s brief) to contradict that. The fact that Didiano got bad advice from a

fellow prisoner is unfortunate, but it does not excuse his failure to exhaust the

administrative remedies.

       Didiano is left to argue that he told a prison psychologist that he was expecting a

meeting with the prison and asked him to “follow-up” to see if a meeting would be

scheduled. Even assuming the psychologist is a prison official, we are nonetheless

unpersuaded. According to defendants, prison psychologists do not have any authority

related to the Inmate Remedy System. The grievance system is instead handled by the

social workers, housing unit officers, and the Inmate Remedy Coordinator. Once again,

there is nothing in either the record or Didiano’s brief to refute this. In any event, the fact

that the psychologist did not follow-up on Didiano’s inquiry regarding a meeting is not

the kind of active “thwarting” of the grievance system that was present in Brown—


                                              11
especially in light of the fact that the Corrective Action Form specifically told Didiano

what he needed to do to proceed. 6 Accordingly, the District Court did not err in granting

summary judgment on Didiano’s § 1983 claim against Balicki in her individual capacity.

                                            III.

       For the foregoing reasons, we will affirm the order of the District Court.




6
  Although Didiano asserts he has difficulty with the English language, he did not at any
time seek assistance from prison staff in understanding the Corrective Action Form.
                                            12
