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March 6, 1989

BURLINGTON COUNTY, NEW JERSEY, HAROLD COLBURN, JR., Individually and collectively as the Burlington County Board of Chosen Freeholders; MICHAEL J. CONDA, Individually and collectively as the Burlington County Board of Chosen Freeholders; CATHERINE A. COSTA, Individually and collectively as the Burlington County Board of Chosen Freeholders; HENRY J. METZGER, Individually and collectively as the Burlington County Board of Chosen Freeholders; ROBERT C. SHINN, JR., Individually and collectively as the Burlington County Board of Chosen Freeholders; JOHN BRADMAN, Individually and officially as Warden of Burlington County Jail; ED PIERCE, Captain, Burlington County Jail; KEN HORTON, Sergeant, Burlington County Jail; ROOSEVELT McKINNEY, Correction Officer Burlington County Jail; LEWIS SPEIGHT, Correction Officer, Burlington County Jail; MIKE POLIS, Correction Officer Burlington County Jail; RICHARD LIGHTSEY, Correction Officer, Burlington County Jail; TIM FLOURNOY, Correction Officer, Burlington County Jail; GUARD ADAMS, Correction Officer, Burlington County Jail; GUARD GORHAM, Correction Officer, Burlington County Jail; WILLIAM H. FAUVER, Individually and as Commissioner of the New Jersey Department of Corrections; and JOHN CALL, Individually and as Deputy Director of the Division of Adult Institutions in New Jersey, Defendants

The opinion of the court was delivered by: BARRY


 The events which led to the grievous injuries suffered by plaintiff Timothy Ryan on October 4, 1983 have been fully set forth in my earlier opinion, Ryan v. Burlington County, 674 F. Supp. 464 (D.N.J. 1987), and will be but briefly summarized here. The locus of those events was the Burlington County Jail, a facility which it is undisputed was sorely lacking in a number of critical respects.

 The Burlington County Jail is a small two-story structure which had previously been used as an armory. The first floor, at times relevant here, consisted of dormitory housing, and the second floor consisted of six dormitory cells and four individual, maximum-security cells. Id. at 471. On April 20, 1977, and on March 28, 1978, two lawsuits were commenced by inmates of the jail asserting that the jail conditions violated the laws of New Jersey and the Constitution of the United States. In response to those cases (referred to collectively as " Vespa "), the Board of Chosen Freeholders of Burlington County (hereinafter "Board") retained the services of a corrections expert, and both the expert and Michael Hogan, the Assistant County Solicitor, recommended that the Board attempt to settle the cases. Id. Because the Sheriff, who was the administrator of the jail, refused to sign the proposed Vespa consent decree, the Board, on May 13, 1981, adopted a resolution assuming jurisdiction, custody, and control of the jail. Id. at 472. The Vespa settlement was approved by the Honorable Dickinson R. Debevoise on June 1, 1981.

 The Vespa consent decree did not contain an admission on defendants' part that plaintiffs' constitutional rights had been violated. It required, however, that no more than 117 inmates were to be housed at the jail on any given day, "except in emergencies," and a maximum of eight inmates were to be placed in cell 208. Id. It also required that defendants implement, by September 1981, a classification system whereby inmates would be reviewed within sixty days of their admission to determine where they should be housed within the jail. Moreover, by June 1983, the jail was to have an "inmate reception area" and eight detention rooms for the purpose of classifying incoming inmates. Id. The consent decree also included numerous provisions for other alterations in the jail's physical plant and administration, such as adequate lighting, heating, and plumbing, and a law library.

 The day after the entry of the Vespa consent decree, then-Governor of New Jersey Brendan T. Byrne signed Executive Order ("E.O.") No. 106. The order was designed to relieve the problem of overcrowding in the state and county prisons, and it directed that William Fauver, the Commissioner of the Department of Corrections ("D.O.C."), be given the authority to designate the place of confinement of all state and county inmates. Id. at 468-69. The Supreme Court of New Jersey upheld the validity of E.O. 106 in Worthington v. Fauver, 88 N.J. 183, 440 A.2d 1128 (1982), observing that the centralization of authority for the allocation of prisoners among state and county institutions was rationally related to the goal of alleviating overcrowding in those institutions. Id. 674 F. Supp. at 469-70.

 E.O. 106 had an immediate adverse effect upon the overcrowding problem at Burlington County Jail. Between July 1981 and February 1982, the average daily population at the jail was 157 inmates, and over the following year the average population was 147 inmates. Id. at 474. Between September 15 and October 7, 1983, the number of inmates ranged from 128 to 165, with an average daily population of 147 inmates, id., accordingly, during this period the Vespa inmate cap of 117 inmates was never met. The Vespa requirements of a classification system and of minimum floor area per inmate had, similarly not been met by October 1983.

 On September 30, 1983, plaintiff Timothy Ryan was placed into custody at Burlington County Jail after having been arrested for a motor vehicle violation. *fn1" He was assigned to cell 208, which already housed nine inmates, one more than permitted by the Vespa decree. Four days later, while breakfast was being served in the cells, plaintiff was attacked by a fellow inmate, Maurice Scott. Id. at 466. Scott, who had been awaiting transfer to a state prison as a parole violator, had most recently been convicted of the receipt of stolen property. See Knox Aff., Exh. S. While at the Burlington County Jail, Scott had been involved in several violent attacks on fellow inmates 674 F. Supp. at 466. As a result of the attack by Scott, plaintiff suffered a broken neck and was rendered quadriplegic.

 In April 1985, plaintiff filed the instant lawsuit, seeking compensatory and punitive damages under 42 U.S.C. §§ 1983, 1985 and under pendent state law causes of action. The named defendants were William Fauver; Joseph G. Call, Deputy Director of the Division of Adult Institutions; Michael Hogan; the Board and its individual members (collectively referred to as "Board defendants"); Warden John Bradman; Captain Edgar Pierce; Sergeants William Adams and Kenneth Horton; and Corrections Officers Harry Gorham, Michael Polis, Richard Lightsey, Lewis Speight, Roosevelt McKinney, and Timothy Flournoy (collectively referred to as "Jail defendants"). In my opinion of November 9, 1987, I dismissed plaintiff's § 1985 claim, his § 1983 claims predicated upon the Fourth, Fifth, and Eighth Amendments, and his claims against Fauver and Call in their official capacities. I also granted Hogan's motion for summary judgment on the ground of qualified immunity, while rejecting Fauver and Call's motions for identical relief. I rejected, as well, Fauver and Call's claim that plaintiff's complaint did not state a cognizable § 1983 claim and their claim that their actions did not affirmatively cause the injuries to plaintiff. Plaintiff has subsequently dismissed his § 1985 claims and his pendent state law claims, the latter barred by N.J.S.A. 59:5-2(b)(4).

 Presently before me are two sets of summary judgment motions. Both the Board defendants and the Jail defendants seek judgment in their favor on the ground that they are entitled to qualified immunity, and on the ground that their actions were at most negligent and do not subject them to § 1983 liability. The Board defendants also move for summary judgment on the basis of absolute legislative immunity. Decision on these motions was held in abeyance pending the review of my November 1987 opinion by the Court of Appeals for the Third Circuit, and were renewed after that decision was affirmed. See Ryan v. Burlington County, 860 F.2d 1199 (3d Cir. 1988).

 For the reasons that follow, the Board defendants' motion for summary judgment will be denied in full. Similarly, the Jail defendants' motion will be denied, except that judgment will be ordered in favor of the corrections officers on the ground of qualified immunity.


 A. Qualified Immunity

 The defense of qualified immunity serves to insulate a governmental official from liability in civil damages when the discretionary conduct of that official "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Lee v. Mihalich, 847 F.2d 66, 69 (3d Cir. 1988). The judicially-created doctrine balances the interest in vindicating constitutional rights which have been violated by public officials against the interest in allowing public officials to perform their discretionary duties without fear of disruptive lawsuits and personal liability in money damages. Hynson v. City of Chester, 864 F.2d 1026, 1031 (3d Cir. 1988); see Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987). Summary judgment in favor of a defendant on the ground of qualified immunity is to be denied if a jury could find that the defendant could not reasonably have believed that his actions were lawful, and is to be granted if a jury could not find that the defendant's belief in the lawfulness of the challenged actions was unreasonable. Lee, 847 F.2d at 69. It is the objective reasonableness of a defendant's actions that governs; what the defendant actually believed or did not believe is irrelevant to the qualified immunity analysis. Anderson, 107 S. Ct. at 3040.

 The Supreme Court of the United States has provided the following definition of a "clearly established right":

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has been declared unlawful, but it is to say that in the light of the preexisting law the unlawfulness must be apparent.

 Id. at 3039 (citations omitted). The Third Circuit has required "some but not precise factual correspondence" between the relevant caselaw and the challenged conduct, and has required that officials "apply general, well developed legal principles." Stoneking v. Bradford Area School District, 856 F.2d 594, 599 (3d Cir. 1988) (citations omitted). In determining whether caselaw evidenced a clearly established right, courts are to examine the state of the law as of the time of the challenged conduct rather than the time at which the qualified immunity defense is raised. Lee, 847 F.2d at 69. Finally, although the public official asserting the defense of qualified immunity bears the burden of pleading and proof, Kovats v. Rutgers, 822 F.2d 1303, 1313 (3d Cir. 1987), a plaintiff may overcome the official's asserted defense only by demonstrating that his or her clearly established rights were violated by that official. Hynson v. City of Chester, 827 F.2d 932, 935 (3d Cir. 1987).

 In my earlier opinion in this matter, I noted two of plaintiff's constitutional rights that were clearly established as of October 1983. First, based upon Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), and Union County Jail Inmates v. DiBuono, 713 F.2d 984 (3d Cir. 1983), plaintiff had the right, as a pretrial detainee, to be free from overcrowded conditions that amounted to the imposition of punishment. Ryan, 674 F. Supp. at 476-77. Second, Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981), among other cases, established for pretrial detainees "a constitutional right to be housed separately from known dangerous convicted inmates who pose a threat to their personal security unless physical facilities do not permit their separation." Id. 674 F. Supp. at 477-78. With respect to the former right, I found that the overcrowded conditions at Burlington County Jail, when viewed in the light most favorable to plaintiff, would support a finding that plaintiff had been unconstitutionally subjected to punishment; with respect to the latter right, I found that a reasonable jury could conclude from the evidence that classification of inmates was possible at the Burlington County Jail in October 1983. Id. at 476-78. Defendants are not free to contest these legal and factual findings in their present motions.

 To these two clearly established constitutional rights I now add a third: plaintiff's right to be housed in a reasonably safe prison environment. In the context of a suit alleging sexual assault by a school teacher upon a female student, the Third Circuit found a clearly established right in the student to be protected, by the school authorities, from harm caused by the actions of third parties such as teachers. Stoneking, 856 F.2d at 603-04. In so finding, the court explicitly observed that

 Id. at 603 n.14; see Curtis v. Everette, 489 F.2d 516, 518 (3d Cir. 1973) (prison officials' failure to restrain inmate who attacked plaintiff provided basis for valid § 1983 claim against officials), cited in Davidson v. O'Lone, 752 F.2d 817, 821 (3d Cir. 1984) (en banc), aff'd sub nom. Davidson v. Cannon, 474 U.S. 344, 88 L. Ed. 2d 677, 106 S. Ct. 668 (1986). The existence of this right was further manifested by the holding in Youngberg v. Romeo, 457 U.S. 307, 315, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982), that state officials were liable under § 1983 for their failure to take all reasonable steps necessary to prevent the plaintiff, an involuntarily committed resident of a mental institution, from being injured by fellow inmates. See Stoneking, 856 F.2d at 603 n.14 (citing Youngberg in finding that the female student's rights "were even more clearly established" by the date of her graduation in 1983). *fn2" Accordingly, I find that in October 1983 plaintiff enjoyed a constitutional right to a safe prison environment, which environment was required to have been reasonably ensured by the actions of those responsible for the maintenance and operation of the prison.

 As I have previously observed, defendants' motions for summary judgment should be granted if a jury could not find that the defendants' belief in the lawfulness of the challenged actions was unreasonable. Lee, 847 F.2d at 69. In order to perform the requisite analysis, the information and options available to each set of defendants must be examined with respect to each of plaintiff's three clearly established constitutional rights. The reasonableness of defendants' responses to the situation at Burlington County Jail, in light of ...

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