On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2922-06.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Carchman, Parrillo and Ashrafi.
Plaintiff Joseph Bernstein, administrator ad prosequendum of the estate of his son, Alexander Bernstein, appeals from the September 30, 2008 summary judgment dismissal of his state common law tort and federal civil rights lawsuit against the State of New Jersey, its Department of Corrections (DOC), East Jersey State Prison, and numerous DOC officials and employees (collectively, State defendants).*fn1 We affirm.
The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Seconds before 7:00 a.m. on May 5, 2004, plaintiff's decedent, Alexander Bernstein, was attacked and killed by a fellow inmate, Hassan Doss, during breakfast in the inmate dining room (IDR) at East Jersey State Prison. Doss had been sitting at a table, when he suddenly ran to where Bernstein was standing and began the attack. Bernstein was beaten for approximately four-and-one-half minutes before an emergency response team ended the incident.
As soon as he saw Doss attack, Sergeant John Cunningham, one of several corrections officers observing the mess hall from protective cages suspended above the mess hall floor,*fn2 immediately activated the riot bell, then used a bullhorn to direct Doss to end the attack. When Lieutenant James Mattia, the shift commander, heard the riot bell, he alerted the star sergeant as to the incident's location, and activated the riot alarm system. Video cameras were then directed at Doss. Upon hearing the riot bell, designated officers reported to the ready room.
Two emergency response teams, each manned by twelve officers and one supervisor, assembled and donned their protective equipment, which took less than one minute. Once the teams were ready, Lieutenant Cifelli gave Cunningham the order to open the gate. Sergeants Popowych and Mikulak lead the first team in while the second team remained in stand-by.*fn3
The first team secured Doss, and reached Bernstein at 7:05:18 a.m. The victim's dire condition was immediately apparent, and the shift commander was notified by radio to call for an ambulance. Medical personnel were sent in after the IDR was secured, placing Bernstein on a gurney at about 7:08:18 a.m., approximately eight minutes and thirty-five seconds after the attack began. The nurses escorted Bernstein to the institutional hospital, which is approximately fifteen feet from the IDR's exit, and CPR was initiated. At 7:24 a.m., the Woodbridge Township Ambulance Rescue Squad arrived. Treatment continued, and at 7:30 a.m., paramedics from JFK Hospital arrived. At 7:36 a.m., Bernstein was pronounced dead by Dr. Hershkowitz of Correctional Medical Services (CMS), the independent contractor that provided medical services for the DOC.
Doss had multiple incidents of "[s]pecific assaultive behavior," while in prison, including one in 1994 resulting in the hospitalization of a corrections officer. Two of eight incidents in 1999 involved Doss cutting fellow inmates with a razor. In 2000, Doss pushed a corrections officer to the floor.
Doss has a history of paranoia and hostility. He had been prescribed antipsychotic medication in September 2001, but from late December 2003, was taking the medication only sporadically, despite the intense efforts of CMS psychiatrist Donald Reeve and psychiatric social worker Valerie Yorker to get Doss on a regular routine, lest he become more irritable. Dr. Reeve, at first, did not seek emergency or forced medication because he found Doss had not "behaved in an aggressive, provocative, or paranoid manner in the last two months." However, on March 18, 2004, a DOC sergeant brought Doss to Dr. Reeve's office, because a "wing officer note[d] that Mr. Doss [was] withdrawn and hostile and [did] not appear himself." Because of this shift in behavior, Doss was placed on suicide watch for a short while and then returned to his prison cell. On April 2, 2004, Dr. Reeve ordered that Doss be involuntarily injected with medication every two weeks for thirty days, beginning April 9, 2004, although he was not diagnosed as either suicidal or homicidal. Doss was injected again on April 23, 2004 and the next injection was scheduled for May 6, 2004, the day after he attacked Bernstein. On April 29, 2004, it was reported that Doss "was very clear in stating that he knows how to control his anger and he would never do anything to harm anyone here and he is not trying to intimidate staff, etc." In his meeting with Dr. Reeve the next day, Doss reiterated that he had "no thoughts of hurting himself or anyone else."
The corrections officers who were deposed testified that they did not have access to, or knowledge of, Doss' medical records, nor did they have information that would suggest that Doss was planning an attack. Terrance Moore, the prison's former administrator, denied any knowledge of Doss' violent history, and said he was never approached with concerns over Doss. He said that the March 18, 2004 incident where an officer brought Doss for psychological evaluation was not a rare occurrence, as "[i]t's not out of the ordinary" for an inmate to be brought to the mental health department. According to Moore, CMS has an obligation to alert DOC when, in its opinion, an inmate may harm himself or others, and Moore was not aware of any such communication between CMS and prison staff.
Neither were Lieutenant James Mattia, the shift commander stationed in the center control room at the time of the attack, Lieutenant Cunningham, or Lieutenant Myron Popowych aware of any of Doss' psychological problems in the months leading up to the attack. In fact, Captain Thomas Kirk, the area lieutenant on second shift at the time of the attack, characterized Doss as a "[r]ather quiet inmate [who] kept to himself for the most part."
Plaintiff filed a sixteen-count complaint against the State, the DOC, East Jersey State Prison, as well as forty-three individual defendants, including the DOC Commissioner, his assistant, the prison administrator, assistant superintendent, assistant chief, supervisors and numerous corrections officers, alleging state common law tort claims sounding in negligence (Counts I-IX), federal civil rights claims arising under 42 U.S.C.A. § 1983 (Counts X-XIII), derivative claims (Counts XIVXV), and a claim for punitive damages. The basis of the complaint was that defendants' response to the attack was delayed by (1) a prison policy dictating supervision of the mess hall from protective cages above the floor rather than direct floor patrol and (2) a violation of a standing order by assembling two emergency response teams rather than one before interceding. Plaintiff alleged the consequent delay in treating Bernstein caused his death, and was the result of willful misconduct by the individual defendants. Plaintiff also sought to hold defendants liable for failing to remove inmate Doss from the prison's general population, as he suffered from psychological problems and had a history of violent behavior.*fn4
In support of this theory, plaintiff presented the expert report of Thomas A. Rosazza, who found that "[w]ith respect to the initiation of CPR, the response time was insufficient and below the standard of care of the American Correctional Association Standards which require a four minute response time when an inmate is in cardiac and/or respiratory arrest." The expert opined that "[h]ad officers been posted in the IDR they would have been in position to begin CPR immediately after separating Mr. Doss from Mr. Bernstein. . . ." In regards to the assembling of a second, stand-by team, Rosazza surmised that "[t]o the extent that assembling the second team delayed the initiation of CPR beyond four minutes, such would be a violation of the standard of care for an emergency response." The expert further stated that "[t]he policy of removing the officers from the floor may have addressed officer safety, but it disregarded inmate safety by denying the inmates the most effective deterrent to inmate misbehavior, i.e., officer presence."
Defendants answered the complaint and following discovery, fifteen individual defendants were dismissed by stipulation, and two successfully moved for summary judgment, which is not at issue here. Plaintiff also voluntarily dismissed with prejudice Counts I to V of his complaint against all defendants because of the immunities granted them in the New Jersey Tort Claims (TCA), N.J.S.A. 59:1-1 to 12-3. Additionally, plaintiff voluntarily dismissed with prejudice all remaining claims against the State, the DOC and East Jersey State Prison. The remaining twenty-two defendants, all prison corrections officers or supervisors, moved for summary judgment.
Following argument, the judge granted the motion, dismissing the complaint against the remaining defendants. Specifically, as to Counts VI through IX, which alleged negligence related to Doss' treatment,*fn5 the court found that since a public entity could not be held vicariously liable for the wrongful misconduct of an employee, under both N.J.S.A. 59:2-10 and Hayes v. Pittsgrove Twp. Bd. of Educ., 269 N.J. Super. 449 (App. Div. 1994), the State, DOC, and the East Jersey State Prison were entitled to summary judgment. The court also found that since defendants, DOC Commissioner Devon Brown, his Chief of Staff Charles Ellis, and Prison Administrator Moore had no direct involvement in the incident, they could not have been acting outside the scope of their employment or with willful misconduct, and therefore they were protected by the TCA. As for the rest of the State defendants, the judge found that
The plaintiff correctly asserts that the State Defendants violated a standing order, that being post order 30.108. . . . The plaintiff asserts that the violation was to prepare a second team as backup. . . .
. . . [T]he assembly of the back up team did not prevent or hinder the . . . first team from entering into the I.D.R. . . . [N]o rational fact finder could conclude that it was wilful [sic] misconduct to take the extra step of preparing two teams in the face of a volatile potential in the mess hall where there were 300 unrestrained inmate[s] immediately after a brutal and unexpected attack, the genesis of which was unknown to the prison officials.
Similarly, with respect to prison policy removing officers from the IDR floor to suspended cages, the judge found that "[t]his evidence would be relevant to negligence but no [rational] fact finder could reasonably conclude that the facility's choice to use cages was wilful [sic] misconduct. Instead [it] was a policy choice with which the plaintiffs disagree." And as for Doss' presence in the prison's general population, the court opined that "[t]he treatment exception in N.J.S.A. 59:6-4, does not apply here because the plaintiffs are not claiming a malpractice in Bernstein's medical treatment. Instead their claim is precisely the kind of claim that [is] immunized." Accordingly, the court concluded that the State employees were immune under the TCA from the negligence claims in Counts VI through IX.
Concerning Counts X through XIII, brought under 42 U.S.C.A. § 1983,*fn6 the judge, citing to Will v. Mich. Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed. 2d 45 (1989), found that § 1983 liability does not apply to a State, state agency, or state official acting in his or her official capacity. For defendants Brown, Ellis, Moore, and Acting Director of Custody Operations Joseph Ring, the judge found that "the only acts complained of were purely of their official capacities as high level officials of the department of ...