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KOCIENSKI v. CITY OF BAYONNE

February 22, 1991

ELIZABETH KOCIENSKI, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF HELEN GARITY, DECEASED, PLAINTIFF,
v.
CITY OF BAYONNE, A MUNICIPAL CORPORATION, COUNTY OF HUDSON, A BODY POLITIC UNDER THE LAWS OF THE STATE OF NEW JERSEY, LARRY A. BUTLER, CHIEF WARDEN OF THE COUNTY OF HUDSON, EUGENE MCCOY, THE BAYONNE POLICE DEPARTMENT, JAMES SISK, CHIEF OF POLICE, JOSEPH PELLICHIO, DIRECTOR OF PUBLIC SAFETY, POLICE OFFICER MARK SMITH, POLICE OFFICER DAVID MARKOWSKI, LIEUTENANT SULLIVAN AND POLICE OFFICERS JOHN KLIMEK, AND LIEUTENANT ROBERT MCCARTHY, AND POLICE OFFICERS JOHN DOES 1-10, BEING FICTITIOUS NAMES, DEFENDANTS.



The opinion of the court was delivered by: Barry, District Judge.

OPINION

I. INTRODUCTION

Plaintiff Elizabeth Kocienski ("Kocienski") instituted this action on May 14, 1990 against the City of Bayonne, the County of Hudson and various other city and county officials, both on behalf of herself and as Administratrix ad Prosequendum of the estate of her sister, Helen Catherine Garity ("Garity"). Garity committed suicide in the Bayonne Municipal Jail on December 7, 1988 by hanging herself with her panty hose, and it is this event which gives rise to the allegations in the complaint. Kocienski alleges that her sister's death was the direct and proximate result of defendants' wanton and callous indifference to her sister's obvious psychological needs and that, by failing to prevent her sister from committing suicide, defendants deliberately subjected her sister to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States. See Amended Complaint at Counts Four and Five.*fn1

Defendant James Sisk ("Sisk"), Chief of Police of the Bayonne Police Department, as well as defendants Leonard Sullivan ("Sullivan"), David Markowski ("Markowski"), Mark Smith ("Smith"), Robert McCarthy ("McCarthy"), and John Klimek ("Klimek"), officers employed by the Bayonne Police Department, now move for summary judgment. See Fed.R.Civ.P. 56. These officers ("the Bayonne defendants") assert that their conduct toward Garity during her period of incarceration in the city jail cannot be characterized as having been deliberately indifferent to any known psychological need Garity may have had, and that, as a consequence, they are not responsible for her death.

For the reasons set forth below, summary judgment will be granted in favor of defendants Sisk, Sullivan, Markowski, Smith, McCarthy and Klimek. On the Court's own motion, the City of Bayonne and the Bayonne Police Department will be dismissed as defendants. The actions of the remaining defendants ("the Hudson County defendants") are not now before me and, therefore, will not be addressed at this time.

II. FACTS

At sixteen minutes past midnight on the morning of December 7, 1988, two officers of the Bayonne Police Department responded to a report that a heavy set woman was breaking into automobiles parked in the area of 22 West 29th Street, in Bayonne. The officers arrived at the scene and observed Garity fleeing from the area with several bags of merchandise. Garity was detained and a brief investigation at the scene revealed that much of the merchandise had been taken from the interior of several nearby cars. This merchandise included, inter alia, two calculators, an American Express Card, and several cassette tapes. See Defendants' Movant Brief I at Exh. 1-2. Garity was also found to be carrying a Phillips Head screw-driver which the police believed had been used to gain entry to the automobiles. Garity was arrested and subsequently charged with theft and possession of burglary tools. See Defendants' Movant Brief I at Exhs. 6-7.

After her arrest, Garity was transported to the Bayonne Municipal Jail where she was searched by a female guard. See Defendants' Movant Brief I at Exh. 8. Garity was wearing trousers, a plaid shirt and panty hose. The guard removed only Garity's earrings, a gold colored chain, and her shoe laces. Id.

Garity was placed in a cell in the female block of the jail at 1:15 A.M. From 1:15 A.M. to 6:00 A.M., the cells were checked every fifteen minutes, and from 6:20 A.M. to 10:35 A.M., the cells were checked every twenty-four minutes. See Defendants' Movant Brief I at Exhs. 10, 11. Garity was served breakfast at 8:30 A.M. and, at 8:54 A.M., she was taken to a conference room for questioning.

Garity was escorted to the conference room by officer Markowski. Both Markowski and another officer, Smith, were present at the session, which lasted approximately thirty to forty minutes. During the questioning, a third officer, Sullivan, entered the room and noticed that Garity was wearing panty hose. He informed Markowski and Smith that, upon returning Garity to her cell, one of them should inform the desk officer that she was wearing panty hose. See Defendants' Opposition Brief at Exhs. 12-15. See also Deposition of David H. Markowski, sworn to September 19, 1990 (hereinafter "Markowski Dep.") at pp. 55-56. See also Deposition of Mark Smith, sworn to September 19, 1990 (hereinafter "Smith Dep.") at pp. 109-110.

Markowski and Smith finished questioning Garity at approximately 9:30 A.M., at which time Smith escorted Garity back to the front desk. Smith placed Garity in a glass-fronted holding room near the desk and informed the desk officer, McCarthy, that Garity was wearing panty hose. See Smith Dep. at pp. 110-111. After being alerted to this fact, McCarthy briefly attempted to locate a female police officer to ascertain whether or not standard police procedure mandated that Garity surrender her panty hose, but was unable to locate anyone to answer his question. He subsequently became immersed in his duties at the desk and make no further inquiries. See Plaintiff's Opposition Brief I at Exh. J.

At 9:45 A.M., Garity was returned to her cell by the guard monitoring the cell block, Klimek. McCarthy did not inform Klimek that Garity was wearing panty hose, and Klimek was apparently unaware of that fact. See Markowski Dep. at p. 72; see also Plaintiff's Opposition Brief at Exh. J. At the time that Garity was returned to her cell, the cell block was being checked every twenty-four minutes. See Defendants' Movant Brief I at Exh. 11. The cells were also equipped with a continuously functioning audio surveillance system.

When Klimek checked Garity's cell at 10:35 A.M., he found her hanging by her panty hose, which she had tied to the bars of her cell. Klimek unsuccessfully attempted to resuscitate her and hit a "panic button" to summon assistance. Several police officers came to his aid, and a paramedic squad was also summoned. Garity was taken to the Bayonne Hospital, where further attempts were made to resuscitate her. She was pronounced dead at 11:10 A.M. See Defendants' Movant Brief I at Exh. 16; see also Plaintiff's Opposition Brief I at p. 12.

Only moments after Garity was found hanging by her panty hose, Detective Hendra of the police department was summoned. See Plaintiff's Opposition Brief I at pp. 7-8 and Exh. L (p. 2). Hendra photographed the scene and drew a sketch of the cell depicting the location of Garity's body in relation to the other items in the cell. See Plaintiff's Opposition Brief I at Exh. (p. 4) (sketch) and Exh. K (color photographs). Hendra's photographs reveal, inter alia, that several drops of blood were in the toilet bowl, and on the surface of a bench which was situated on one side of the cell. See Plaintiff's Opposition Brief I at Exh. K, Photographs A, D and E.

December 7, 1988 was not the first day on which members of the Bayonne Police Department had come into contact with Garity. On January 25, 1987, Kocienski had reported Garity to the police department as a missing person. See Plaintiff's Opposition Brief I at Exh. E. The police report indicated that Kocienski had informed the police that Garity had a history of psychological problems, and may have been suffering from emotional problems as a result of the recent death of her husband. Kocienski canceled the missing person report two days after it was filed. Id.

Similarly, on June 15, 1987, the police came into contact with Garity after having been called by Kocienski to go to Garity's apartment because it appeared she had overdosed on drugs. An officer found Garity in a dazed state, and summoned an ambulance to assist her. See Plaintiff's Opposition Brief I at Exh. F. Kocienski alleges that she informed the police over the telephone of Garity's history of depression and suicide. See Affidavit of Elizabeth Kocienski, sworn to August 23, 1990 (hereinafter "Kocienski Aff.") at ¶ 3.

On November 23, 1988 (two weeks prior to the events in question) officers Smith and Markowski called on Garity while investigating a burglary and theft at the apartment next door to Garity's and noticed that she appeared to be intoxicated. See Defendants' Movant Brief I at Exh. 18. Garity was subsequently arrested in ...


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