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WHITAKER v. MERCER COUNTY

August 23, 1999

LISA WHITAKER, PLAINTIFF,
v.
MERCER COUNTY, LOUIS SOTO, PATRICK F. MCMANIMON, MAMIE SAPP, MERCER COUNTY DETENTION CENTER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Garrett E. Brown, Jr., District Judge.

    OPINION

This matter comes before the Court upon the motion of defendants, Mercer County, Mercer County Detention Center, Warden Patrick McManimon and Captain Mamie Sapp (collectively the "County Defendants"), for summary judgment on the plaintiff's amended complaint. For the reasons set forth in this Memorandum Opinion, the defendants' motion is granted.

I. BACKGROUND

On August 5, 1997, plaintiff, Lisa Whitaker, filed a complaint alleging, among other things, that on or about April 15, 1997, defendant, Sergeant Louis Soto, sexually assaulted her at the Mercer County Detention Center, where both Whitaker and Soto were employed as corrections officers. See Plaintiff's Amended Complaint at ¶¶ 1 and 9; Plaintiff's Statement of Material Facts at ¶ 6. Whitaker alleges that Sergeant Soto approached her from behind while the two were stationed alone in the Receiving and Discharge area of the jail and grabbed her breasts, began fondling them and stated "Oh, they're so soft." See Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's Brief") at 3. Soto claims that, as a result of a diabetic episode on April 15, 1997, he does not have any recollection of the alleged attack and can neither confirm nor deny Whitaker's description of the assault. See Report of Edwin W. Rodriguez dated April 15, 1997 at 6-7, attached to Plaintiff's Opposition as Exhibit i*fn1; Defendants' Brief in Support of Motion for Summary Judgment ("Defendants' Brief") at 1.

On or about September 23, 1998, the plaintiff filed an amended complaint in which she further alleged that the County Defendants had retaliated against her for her having filed this action. See Plaintiff's Amended Complaint at Count XIII.

On or about November 10, 1998, the County Defendants moved for summary judgment. The parties appeared before the Court on December 11, 1998 for oral arguments. At those arguments, the Court granted in part and denied in part the defendants' motion. The accompanying order was filed on December 16, 1998. In the December 11, 1998 oral opinion and December 16, 1998 Order, the following counts of plaintiff's amended complaint were dismissed: 1) plaintiff's claims for retaliation contained in Count XIII of the Amended Complaint; 2) the plaintiff's claim for civil conspiracy contained in Count VIII of the Amended Complaint; and 3) the plaintiff's claim under the Violence Against Women's Act, 42 U.S.C. § 13981, et seq., contained in Count IX of the plaintiff's Amended Complaint as to the County Defendants only. The County Defendants' motion for summary judgment as to the plaintiff's claims under the Civil Rights Act, 42 U.S.C. § 1983, et seq., was denied. However, the parties failed to address the issues of employer liability for sexual harassment by supervisors under § 1983 in light of the recent United States Supreme Court opinions in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). This motion followed.*fn2 Additionally, by letter dated November 3, 1998 from plaintiff's counsel, Mark Mulick, Esquire, the plaintiff informed the Court that she was voluntarily withdrawing her negligence claims against all defendants, which are contained in Counts II, V, VI and VII of the Amended Complaint.

In summary, Count I of the Amended Complaint is not asserted against the County Defendants; the plaintiff has withdrawn Count II as to all defendants; Count III is not asserted against the County Defendants; Count IV of the Amended Complaint was dismissed as to the County Defendants on December 11, 1998;*fn3 the plaintiff has withdrawn Counts V, VI and VII as to all defendants; Count VIII was dismissed as to all defendants on December 11, 1998; Count IX was dismissed as to the County Defendants only on December 11, 1998; the plaintiff has withdrawn Count X and the allegations of that Count are incorporated into Count XII; Count XIII was dismissed as to the County Defendants. The only remaining claims against the County Defendants are Count XI alleging that the County Defendants violated the New Jersey Law Against Discrimination, N.J. Stat. Ann § 10:5-1, et seq., and Count XII alleging that the County Defendants violated the plaintiff's civil rights in violation of 42 U.S.C. § 1983. The County Defendants now seek dismissal of the two remaining Counts against them.

First, relying on Faragher and Ellerth, the County Defendants claim they cannot be held liable for Soto's attack on the plaintiff, because the County Defendants had no prior knowledge of any proclivity by Soto to commit a sexual assault. See Defendants' Brief at 4-10. Second, relying on the United States Court of Appeals for the Third Circuit's recent decision in Hurley v. Atlantic City Police Dep't, 174 F.3d 95 (3d Cir. 1999), the County Defendants argue that under the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1, et seq., they cannot be held liable for aiding or abetting Soto's conduct, because the County Defendants did not substantially assist in Soto's allegedly discriminatory conduct. See Defendant's Brief at 11-12. Third, the County Defendants claim that 42 U.S.C. § 1983 precludes the award of punitive damages against a governmental entity or a state actor sued in his or her official capacity and that the plaintiff cannot demonstrate that the governmental actors who are sued in their individual capacities acted with evil motive or intent that would subject them to punitive damages. See Defendants' Brief at 12-13. Finally, the County Defendants argue that they are not liable for punitive damages under the New Jersey Law Against Discrimination because the plaintiff cannot prove that any of the County Defendants acted with actual malice towards the plaintiff. See Defendants' Brief at 14-16.

The plaintiff argues in opposition that the County Defendants knew or should have known of Soto's proclivity to commit a sexual assault based on their knowledge of "approximately fifteen acts of assaultive/bizarre behavior upon both women and men" while employed at the Mercer County Detention Center. See Plaintiff's Opposition at 3. The plaintiff claims that the County Defendants' knowledge of these prior incidents and their alleged failure to act upon that knowledge is sufficient to hold the County Defendants liable as aiders and abettors under the New Jersey Law Against Discrimination, and that their knowledge at least raises a triable issue of fact to be decided by the jury. Id. at 18-20. The plaintiff further argues that the reasonableness of the County Defendants' actions in light of their knowledge of Soto's prior conduct presents a triable issue regarding the County Defendants' § 1983 liability under the Supreme Court decisions in Faragher and Ellerth. Id. at 21-26. Similarly, the plaintiff argues that the County Defendants' knowledge of Soto's prior conduct and their failure to act on that knowledge rises to the level of willful indifference to the plaintiff's rights and exposes the County Defendants to punitive damages under the New Jersey Law Against Discrimination and the Third Circuit's decision in Hurley. Id. at 27-28.

In short, the validity of all of the plaintiff's arguments depends on whether the County Defendants' knowledge of Soto's prior conduct was sufficient to put the County Defendants on notice that Soto had a proclivity to commit sexual assault. For the reasons discussed below, the Court finds that Soto's conduct prior to the alleged incident between Soto and the plaintiff cannot as a matter of law have put the County Defendants on notice that Soto might sexually assault a female coworker.

II. DISCUSSION

A. Standard for Summary Judgment

Summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In a summary judgment motion, the non-moving party receives the benefit of all reasonable doubts and any inferences drawn from the underlying facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the non-moving party bears the burden of proof at trial as to a dispositive issue, Rule 56(e) requires him to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Issues of material fact are genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Here, the County Defendants argue that there are no genuine issues of material fact in dispute that would preclude the Court from dismissing the plaintiff's claims against them as a matter of law. The plaintiff's argument is based on her claim that Soto's prior conduct, the County Defendant's knowledge of that conduct and their failure to act on that knowledge to protect the plaintiff from sexual assault at the hands of Soto raise genuine issues of material fact for the jury to decide. The plaintiff claims that a jury must determine whether the County Defendants' conduct was reasonable after learning about Soto's behavior. Under Fed.R.Civ.P. 56(e), the plaintiff must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In response to all of the County Defendants' arguments in support of their motion for summary judgment, the plaintiff has set forth Soto's prior conduct as a disputed material fact that would preclude judgment as a matter of law.

B. Plaintiff's Allegations of Soto's Prior Conduct

Because the plaintiff's arguments in opposition to the County Defendants' motion are premised on allegations regarding Soto's prior conduct, the plaintiff's claims that Soto demonstrated "assaultive/bizarre" behavior that should have put the County Defendants on notice that he was likely to commit sexual assault must be addressed in turn and considered separately and taken together to determine whether those incidents provided the County Defendants with notice of Soto's proclivity to commit sexual assault.

While the plaintiff refers repeatedly in her opposition papers to fifteen separate incidences of "bizarre" behavior by Sergeant Soto, she specifically discusses only eight in her brief. When questioned at the oral arguments held on July 27, 1999 regarding the number of incidents that she alleges provided the County Defendants with notice of Soto's proclivity for sexual assault, plaintiff's counsel referred the Court to Soto's deposition testimony where he stated that he has suffered approximately fifteen diabetic attacks both on the job and off duty. However, in her opposition papers, the plaintiff has only identified eight specific incidents in support of her claims against the County Defendants. See Plaintiff's Opposition at 8-9. Each of the eight alleged incidents will be addressed to determine whether those incidents, separately and taken together, provided the County Defendants with notice of Soto's predisposition to commit sexual assault.

1. The Sergeant Serini Incident

The plaintiff claims that on March 3, 1997, approximately one month before the assault on the plaintiff, Soto touched the breast of another female corrections officer at the Mercer County Detention Center while he suffered a diabetic attack. See Plaintiff's Opposition at 8. Specifically, the plaintiff claims:

  On or about March 3, 1997, Sgt. Soto without
  permission touched the breasts of another [Mercer
  County Detention Center] employee-Sgt. Maria Serini
  while on duty. Defendant Capt. Sapp, informally
  investigated this incident by speaking to Sgt. Serini
  but no disciplinary action was taken and no incident
  reports were written until after April 15, 1997. This
  formal [sic] investigation ended when Sgt. Serini
  refused to cooperate and told Captain Sapp that she
  would decide who could touch her breasts and who
  could not. A more thorough investigation was not
  conducted until after April 15, 1997. By that time
  Ofcr. Whitaker has been attacked and indicated to
  [the Mercer County Detention Center] that she would
  proceed with criminal and civil action

  against Sgt. Soto and [the Mercer County Detention
  Center].

Plaintiff's Opposition at 8 (citations omitted). The plaintiff's characterization of this incident in her opposition brief leads the reader to conclude that the incident with Sergeant Serini was strikingly similar to the incident with the plaintiff. However, the undisputed facts, the documentary evidence relied on by the plaintiff herself and the sworn testimony of Sergeant Serini belie the plaintiff's characterization and present an entirely different picture.

According to Sergeant Serini, as recounted on or about April 28, 1997, on or about March 3, 1997 she was in the area in which Soto was working at the jail and observed that Soto was agitated. See County of Mercer, Department of Public Care and Safety, Division of Corrections, Incident Report dated April 28, 1997 (the "Serini Incident Report") at 1, attached as Exhibit D to Defendants' Brief. The Serini Incident Report goes on to describe the following series of events:

  Lt. Barber stated to me "close the door[,]" Marvin
  just called and said "Soto is having a diabetic
  attack [and] he's acting strange [and] could be heard
  on the elevator.["] I watched Soto come through the
  first floor security gates [and] he looked very pale
  and disoriented. He was talking very loud[ly] and was
  not making any sence [sic]. I came to him and asked
  is he was o.k. [H]e replied "Hell no[,] I am hungry
  [and feeling sick.]" I was informed that an ambulance
  was called, so I than [sic] ordered [Corrections
  Officer] Lisowski to get Soto something to eat [and]
  I started to talk to Soto getting him soda [and]
  candy out of the machine because I went to touch his
  hands [and] they were very clammy and cold. Medical
  [department (Nurse Adams)] came down [and] checked
  his sugar level[,] which was "47" very low so I kept
  Soto busy and at one time he looked like he was going
  to pass out. So I went towards him and he went to
  grab onto me putting his hands on my chest. . . . At
  no time did I feel violated when Soto put his hands
  on my chest that evening. . . . That particular
  evening when this happened I did not think of
  anything other than saving Soto's life [and] not
  sexual contact.

Id. at 2.

Sergeant Serini's sworn deposition testimony similarly describes the March 3, 1997 incident between Serini and Soto, and characterizes the physical contact between her and Soto as incidental contact that occurred while she was administering medical treatment to him during a diabetic seizure — specifically when she initiated contact with Soto out of fear that he was losing consciousness and would injure himself. See Serini Deposition at 21-24, attached to Defendants' Brief as Exhibit D. Sergeant Serini again describes the diabetic reaction that Soto suffered on March 3, 1997. Id. Serini described the physical contact between her and Soto as follows: "He didn't actually touch me. When I[saw] him sort of like buckling down on his knees, I went to grab him under his arms and his hands was like on top of my shoulders and they stayed there until I sat him down." Id. at 41. Plaintiff's counsel then asked Serini if "any part of [Soto's] arms or hands actually touched [Serini's] breasts." Id. at 42. Serini replied "Not my breasts directly, I mean no." Id.

Contrary to the plaintiff's characterization of the March 3, 1997 incident between Serini and Soto, the physical contact that occurred between them appears to have been nothing more than incidental contact during the course of Serini coming to Soto's aid during a medical emergency. Moreover, there is nothing in the record before the Court that the physical contact between them was ever reported to the County Defendants before the April 28, 1997 Serini Incident Report, which was written almost two weeks after the incident between the plaintiff and Soto and almost two months after Soto's March 3, 1997 diabetic episode. Therefore, even if the contact between Serini and Soto was something more sinister than the undisputed evidence has shown, the County Defendants were not notified of the contact before the incident between Soto and the plaintiff.

2. The Nurse Adams "Hug"

Plaintiff next points to another incident of physical contact between Soto and two other female coworkers that occurred during his March 3, 1997 diabetic episode. See Plaintiff's Opposition at 8. Plaintiff claims that "[d]uring the March 3, 1997 incident, Sgt. Soto also `hugged' two other female employees of Mercer County Detention Center." Id. In support of her allegation that Soto "hugged" two other female employees on March 3, 1997, the plaintiff cites a May 1, 1997 incident report written by Kimberly Adams, R.N, attached to Plaintiff's Opposition as Exhibit N. In that incident report, Ms. Adams states that "Sgt Soto was being assessed for signs and symptoms of hypoglycemia. . . ." Adams Incident Report, Ms. Adams further states that Sergeant Soto hugged her, Serini and Nurse Crosland, and that at the time, Soto "was disoriented and unaware of his act to hug us." Ms. Adams attributed the contact between her and Soto as a result of the hypoglycemic reaction that he was having at the time. Id.

Again, the physical contact between Soto and the two nurses that responded to render medical assistance to Soto on March 3, 1997 appears to have been nothing more than incidental contact between a nurse and a patient who was in the throws of a diabetic episode triggered by low blood sugar. Moreover, the Adams incident Report relied on by the plaintiff is dated May 8, 1997 — three weeks after the incident between Soto and the plaintiff and more than two months after Soto's March 3, 1997 diabetic episode. There is no evidence before the Court that shows that the ...


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