United States District Court, D. New Jersey
March 25, 2015
MICHAEL ALAN EWING, Plaintiff,
CUMBERLAND COUNTY, CUMBERLAND COUNTY DEPARTMENT OF CORRECTIONS, LIEUTENANT DALE SCIORE, SERGEANT CLINT CIANGAGLINI, SERGEANT BRAD PIERCE, CORRECTIONAL OFFICER EDWIN PRATTS, THE ESTATE OF CORRECTIONAL OFFICER KEVIN STILL, CORRECTIONAL OFFICER JOSHUA L. MINGUELA, CORRECTIONAL OFFICER DREW FORD, CORRECTIONAL OFFICER JOHN FAZZOLARI, VINELAND TOWNSHIP, VINELAND POLICE DEPARTMENT, POLICE OFFICER JAMES DAY, POLICE OFFICER STEVEN HOUBARY, Defendants
Michael Alan Ewing, Plaintiff: Martin P. Duffy, Esq., COZEN
AND O'CONNOR, Cherry Hill, NJ.
Cumberland County and Cumberland County Department of
Corrections, Defendants: John C. Eastlack, Jr., Esq., Daniel
Edward Rybeck, Esq., WEIR & PARTNERS LLP, Cherry Hill, NJ.
Dale Sciore and Brad Pierce, Defendants: Arnold Robinson,
Esq., ROBINSON & ANDUJAR, LLC, Millville, NJ.
Clint Ciangaglini, Defendant: Shanna McCann, Esq., CHANCE &
MCCANN LLC, Woodstown, NJ.
Edwin Pratts, Defendant: Linda A. Galella, Esq., RICHARDSON,
GALELLA & AUSTERMUHL, Woodbury, NJ.
Estate of Kevin Still, Defendant: Michael Louis Testa, Sr.,
Esq., Justin Robert White, Esq., TESTA HECK SCROCCA & TESTA,
PA, Vineland, NJ.
Joshua Minguela, Defendant: Salvatore J. Siciliano, Esq.,
SICILIANO & ASSOCIATES, LLC, Haddonfield, NJ.
Drew Ford, Defendant: Patrick J. Madden, Esq., Timothy R.
Bieg, Esq., MADDEN & MADDEN, PA, Haddonfield, NJ.
John Fazzolari, Defendant: Douglas E. Burry, Esq., SAPONARO &
SITZLER, Mt. Holly, NJ.
Vineland Township, Vineland Police Department, James Day, and
Steven Houbary, Defendants: Judson B. Barrett, Esq., BARRETT
AND PAVLUK, LLC, Ocean, NJ.
JEROME B. SIMANDLE, Chief United States District Judge.
A. Factual Background
1. Arrest and Transport to Vineland Police Department
Cumberland County Jail
2. Incident in the Processing room during
trip to the CCDOC (Day, Ciangaglini, Minguela)
3. Incident in the CCDOC control room and strip
during Plaintiff's second visit (Houbary, Pratts,
Fazzolari, Sciore, Pierce, Minguela, Ford)
4. Use of Force reports
5. Defendants' Statements
6. Plaintiff's injuries
7. Expert reports of Dr. Fred Simon and Dr. Randall
8. Training on the use of force at Cumberland County
9. Internal investigations into excessive force at
10. Plaintiff's expert report of Dr. Randall
11. Notice of Claim
B. Procedural Background
III. STANDARD OF REVIEW
A. Claims against Cumberland Correctional Officers
1. Summary judgment is not warranted against
§ 1983 claim of excessive force
2. Minguela is not entitled to qualified immunity
3. Plaintiff's state law claims are not barred by
4. Defendants Pratts, Still, Minguela, Ford,
Ciangaglini are not entitled to summary judgment on
Plaintiff's assault and battery claim
5. Fazzolari and Pratts are not entitled to summary
on Plaintiff's claim of intentional infliction of
6. Defendants Pratts, Still, Minguela, Ford,
Pierce are not entitled to summary judgment on
B. Claims against Cumberland County and CCDOC
1. Cumberland County is not entitled to summary
Plaintiff's failure to train and failure to
2. Plaintiff's common law claims are not
precluded by the New
Jersey Tort Claims Act
C. Claims against the Vineland Defendants
1. The City of Vineland is entitled to summary
the § 1983 claim of failure to train and the
common law claim
of negligent training
2. The Court will grant summary judgment on
§ 1983 claim for failure to intervene against
Officer Day but
deny summary judgment on the claim against Officer
a case involving excessive force against Plaintiff Michael
Ewing by correctional officers at the Cumberland County
Correctional Facility and police officers of the Vineland
Police Department. After Ewing was arrested in Vineland, New
Jersey for disorderly conduct, he was processed and sent to
the Cumberland County Jail, where he was beaten by
correctional officers. He suffered multiple traumatic
injuries, fractures, and a concussion.
brought suit against the individual officers involved, as
well as against Cumberland County, the Cumberland County
Jail, Vineland Township (" City of Vineland" or
" Vineland" ), and the Vineland Police Department,
alleging constitutional violations under the Fourteenth
Amendment and various state tort claims.
individual officers and entity Defendants have filed nine
motions for summary judgment seeking the dismissal of
Plaintiff's § 1983 and state law claims. Because
there is a genuine dispute as to whether Cumberland County
correctional officers used excessive force against Plaintiff
and whether the jail failed to adequately investigate and
train officers in the use of force, the Court will deny the
Cumberland County Defendants' motions for summary
judgment. The Court will, however, grant the Vineland
Defendants' motion for summary judgment for all Vineland
Defendants except Steven Houbary, and will dismiss the City
of Vineland (named as Vineland Township), the Vineland Police
Department, and Vineland Police Officer James Day from this
Plaintiff suffers from memory problems allegedly related to
post-traumatic stress and recalls very little of what
happened to him, the following facts are taken primarily from
other sources in the record.
Arrest and transport to Vineland Police Department and
Cumberland County Jail
around 11 p.m. on the evening of June 30, 2008, the Vineland
police arrived at a Comfort Inn in Vineland, New Jersey,
where Plaintiff was staying, in response to a disorderly
persons call. Plaintiff, who was in the area because of a
temporary job, had gotten into an argument with the clerk of
the hotel, which prompted the clerk to call the police. The
clerk refused to let Plaintiff into his room, so Plaintiff
went to sleep near some trees behind the hotel. (Pl.
Counterstatement of Facts (" Counter SMF" ) [Docket
Item 237] ¶ ¶ 6-11.)
Officer William Bontcue of the Vineland Police Department
arrived at the scene and was told that Plaintiff was in the
back of the hotel. (Bontcue Dep. 1 [Docket Item 237-4]
93:20-94:13.) According to Bontcue, Plaintiff was lying on
the ground but was not acting disorderly. (Id.
94:17-96:2.) Bontcue called to Plaintiff, who then got up and
became " quite agitated." When Bontcue could not
get him to calm down, Bontcue told Plaintiff that he was
under arrest for disorderly conduct. (Bontcue Dep. 2 [Docket
Item 221-8] 48:2-51:24.) After Plaintiff pushed Bontcue into
a parked van, Bontcue released his police dog from his car.
Bontcue and the dog pushed Plaintiff to the ground and
another police officer who had arrived on the scene, Officer
Michael Fransko, handcuffed Plaintiff. (Bontcue Dep. 2
52:20-55:12.) Plaintiff was bitten by the police dog and was
pepper sprayed during this encounter. (Minguela Statement of
Material Facts (" Minguela SMF" ) [Docket Item
221-1] ¶ ¶ 12-13.)
was taken to the Vineland Police Department for processing,
where he was pepper sprayed a second time for spitting at
police officers. (Shaw Dep. [Docket Item 221-8] 20:24-21:5;
Minguela SMF ¶ 16.) He was then taken to the hospital to
be cleared for dog bites. As he was being secured into a
stretcher by Defendant Officer James Day and Officer Shaw to
go to the hospital, Plaintiff spit in Shaw's face. Shaw
then struck Plaintiff with his hand, and Plaintiff fell off
the stretcher and onto the pavement. Plaintiff sustained a
cut over his left eye. (Shaw Dep. 66:12-25; Minguela SMF
¶ ¶ 17-18; Counter SMF ¶ ¶ 22-23.)
hospital, Plaintiff was given two sedatives and cleared for
transport to the Cumberland County Correctional Facility
(" CCDOC" or " Cumberland County Jail" ),
where he was to be held. Correctional officers at the
Cumberland County Jail were told that Plaintiff was coming
and that he was " belligerent" and "
irate" and was " trying to fight with
officers." (Pratts Dep. [Docket Item 237-8] 157:17-23;
Still Dep. [Docket Item 237-10] 214:4-23.)
transported Plaintiff to the CCDOC. He stated that it was the
practice of the Vineland Police Department to assign the most
junior police officer to transport prisoners to the jail. He
had transported prisoners to jail before but had received no
formal training on the proper procedures for bringing a
prisoner to jail. He learned the procedures during his time
shadowing another officer following his graduation from the
police academy. (Day Dep. 34:18-35:22; 114:10-115:25.)
Incident in the processing room during Plaintiff's first
trip to the CCDOC (Day, Ciangaglini, Minguela)
Day brought Plaintiff to a CCDOC processing cell. Defendants
Sergeant Clint Ciangaglini and correctional officer
Lisa-Brown Carter were in the room. Defendant Joshua Minguela
observed from an outside monitor. Day testified that
Plaintiff appeared sedated and calm, and was having some
difficulty standing because of the sedatives. (Day Dep.
[Docket Item 237-6] 134:1-135:7; CCDOC Video.) Minguela
stated that Plaintiff was " acting in an irate
manner." (Minguela Use of Force report [Docket Item
237-13].) Nurse Moore, who was called into the processing
cell to examine Plaintiff, did not observe any injuries to
Mr. Ewing other than to his left eye. (See Deposition of
Moore at page 17, lines 15-25, attached as Exhibit "
Moore refused to accept Plaintiff into the jail because he
did not have medical clearance for an abrasion over his left
eye. (Moore Dep. [Docket Item 237-14] 15:11-21.) Ciangaglini
testified that Plaintiff was still in Day's custody while
Plaintiff was in the processing cell, but Day was under the
belief that Plaintiff was in the custody of CCDOC.
(Ciangaglini Dep. 170:15-24; Day Dep. 154:15-18.)
had to go to the hospital to get a medical clearance before
being admitted as an inmate. Nurse Moore, Day, and Minguela
all testified that Sergeant Ciangaglini then brought
Plaintiff, who was handcuffed, to his feet and forcefully
pushed him into the closed door of the cell. (See Day Dep.
147:6-211; Minguela Dep. at page 162:14-24; Moore Dep.
19:24-20:4; see also Deposition of Carter at page 75, lines
5-8 and page 76, lines 6-8, attached as Exhibit "
L" ). Minguela and Day believed that Ciangaglini's
use of force was " excessive" and " not
necessary." (Minguela Dep. [Docket Item 237-15]
163:21-164:6.) Minguela, Day, and Carter did not report the
incident to their supervisors.
Ciangaglini denies pushing Plaintiff into the door. According
to Ciangaglini, he was assisting Plaintiff, who was still
sedated, with walking to the door of the processing cell.
Plaintiff " was face to face with the door until
[Ciangaglini] ordered to have the door open."
Ciangaglini stated that Plaintiff made no contact with the
door. (Ciangaglini Dep. [Docket Item 172:5-174:9.)
escorted Plaintiff out of the jail and transported him back
to the hospital to get hospital clearance. Day did not recall
Plaintiff complaining of being in pain. (Day Dep.
was examined by Dr. Dominic Diorio at Bridgeton Division of
South Jersey Hospital. Dr. Diorio indicated in his medical
chart that Plaintiff did not report being in any pain and did
not appear to be suffering from any injuries, including
external injuries. Everything appeared to be normal. (Diorio
Dep. [Docket Item 237-20] 28:20-34:18.)
Incident in the CCDOC control room and strip search room
during Plaintiff's second visit (Houbary, Pratts, Still,
Fazzolari, Sciore, Pierce, Minguela, Ford)
police officer Steven Houbary relieved Defendant Day and took
Plaintiff back to Cumberland County Jail to be admitted. Day
did not tell Houbary about the earlier incident with
Ciangaglini. (Day Dep. 165:15-167:8.)
time Plaintiff entered the jail with Houbary, the midnight
shift officers were on duty. Defendant Lieutenant Dale Sciore
was the Shift Commander and held the most senior position. He
supervised the other officers as well as the Sergeants.
Defendants Sergeants Ciangaglini and Brad Pierce were the
Shift Supervisors. (Pierce Dep. 22:9-23:2.) Ciangaglini and
Pierce were responsible for the day-to-day operations and for
supervising the officers.
brought Plaintiff to the rear control room, where three
correctional officers, Defendants Edwin Pratts, Kevin Still,
and John Fazzolari were waiting to process Plaintiff.
was the " Issue Officer" that day and was in charge
of the intake process. As part of the intake process, inmates
undergo a pat search and strip search. Pratts received
training on pat downs and strip searches during his
orientation training but recalled that the training was
" real short" and did not go into any depth. He did
not receive training on how to be an Issue Officer. (Pratt
Dep. 60:3-12; 63:7-15.)
did not follow the Jail's pat search procedures, which
required an inmate to first remove his shoes and socks before
the search. He did not know the Jail had a policy on how to
conduct a pat search. (Pratts Dep. [Docket Item 237-8]
109:25-111:10.) Pratts told Plaintiff to turn towards the
wall, spread his legs, and place both hands on the wall. He
ordered Plaintiff to take off his shoes without removing his
hands from the wall. (Pratts Dep. 224:19-225:2.) Houbary had
never seen another inmate being asked to remove his shoes in
this manner. (Houbary Dep. 99:17-21.) Houbary thought that
the pat-down procedure was a little different that day
because " [u]sually the nurse is called down" to
examine the prisoner before a pat-down begins and no nurse
was called down for Plaintiff. (Houbary Dep. 87:14-22.)
Houbary also noticed that there were more than the normal
number of officers in the room. (Houbary Dep. 95:4-24.)
testified that Plaintiff was " irate" and initially
refused to take his shoes off. (Pratts Dep. 225:11-20.) The
CCDOC surveillance video shows Plaintiff attempting to comply
with Pratts' order by using his foot to take his shoe
off. (CCDOC Surveillance Video, Ex. B of Ciangaglini Br.
[Docket Item 226], sent to the Court.) In the process of
trying to take off his shoe, Plaintiff's foot touched
Defendant Pratts' leg. (Houbary Dep. 102:1-20.) Pratts
then used physical force to bring Plaintiff to the ground.
(Houbary Dep. 96:16-97:3.) Houbary " wasn't looking
at exactly what was happening," and only saw Pratts
" in his peripheral vision." (Houbary Dep.
94:2-9.). He didn't clearly see whether Plaintiff had
kicked Pratts and testified, " I was looking at
everything peripheral, and I seen them take him to the
ground." Id. 96:13-15; 102:12.)
Still, and Fazzolari then carried Plaintiff to the strip
search room. Defendant Minguela and Defendant Drew Ford were
also ordered to go to the strip search room. In total, five
correctional officers were in the room with Plaintiff. In
addition to those officers, Sergeants Sciore and Pierce went
into the strip search room at the beginning but left after
approximately two minutes. Sciore left the room and continued
with his duties as Shift Commander. (Sciore Dep. 167:14;
170:3-7.) Pierce went back into the room later on and
observed one officer with his knee in Plaintiff's back as
Plaintiff was face down on the ground while Still was trying
to remove his pants. (See CCDOC Surveillance Video; Pierce
Dep. [Docket Item 230-3] 125:23-129:14.)
did not go into the strip search room but he followed the
officers to the strip search room to see what was happening.
(Houbary Dep. 109:13-22.). He testified that he observed
Plaintiff from outside the room because he had not yet been
told that he could leave the jail. Houbary believed that
until he was excused to leave the jail, Plaintiff was still
partially his responsibility. Pierce escorted Houbary out of
the building a few minutes later. (Houbari Dep. 104:4-21.)
Houbary left, he saw Plaintiff in the strip search room
complying with orders to remove his shoes and socks. (Houbary
Dep. 108:2-23; Counter SMF ¶ 94.) Pierce and Sciore, who
left the strip search room with Houbary at around the same
time, also testified to seeing Plaintiff comply with orders.
(Pierce Dep. 112:2-113:25; Sciore Dep. 170:2-7.)
was escorted out of the room approximately six and a half
minutes later by Pratts, Minguela, Fazzolari, and Ford. He
was taken to the medical unit. There is no surveillance
camera in the strip search room.
inmate whose cell was close to the strip search room, David
Pagan, was woken up by correctional officers in the early
morning of July 1 and ordered to mop up " a lot of
blood" from the area near the strip search room. (Pagan
Statement [Docket Item 237-26], at 3-5.) He stated that there
was " a whole puddle" of blood " as big as [a]
basketball ring" which he had to mop up. Pagan found
bloodied clothing, including a white shirt that was "
full of blood," which he had to throw away.
(Id.) The surveillance video shows Pagan using a mop
to clean up the floor. The video also shows him leaving the
area with a black garbage bag.
Use of Force reports
five Defendants who were in the strip search room filled out
Use of Force reports documenting the force they allegedly
used on Plaintiff. The Use of Force reports state that
Plaintiff was being irate while in the strip search room and
would not comply with a search; that Pratts took down
Plaintiff because Plaintiff " kicked" Pratts; that
Minguela gave Plaintiff a one second burst of pepper spray
when he did not comply with the strip search; and that
Plaintiff was taken down a second time and handcuffed after
he turned towards Fazzolari with a raised, closed fist. (Use
of Force reports [Docket Item 237-13].) Minguela, Still, and
Pratts refer to the take down in the rear control room as a
" minimal force" take down. Fazzolari refers to the
take down in the strip search room as a " minimal
force" take down." (Id.) Four of the five
reports contained the same misspelling of the word "
testified that at the time, Cumberland County Jail had a
policy requiring officers' Use of Force reports to match.
He also testified that officers had to rewrite reports that
did not match. (Ford Dep. 295:5-10.) He testified that he
discussed the content of the report with the other officers
involved " so that way [the] reports are similar in
detail, just to get down time lines, actions." (Ford
Dep. 293:25-294:4.) Victor Bermudez, a correctional officer
at CCDOC, recalled being told by one of the correctional
officers involved in the incident that he was asked to
re-write his report. Bermudez did not recall why the report
had to be changed. (Bermudez Dep. [Docket Item 237-28]
Pierce reviewed the officers' reports and wrote his own
Use of Force report one hour before he visited Plaintiff in
his cell. Pierce's report indicates that it was done at
5:45 a.m., 15 minutes before Minguela's report was
completed and 40 minutes before Ford's report was
completed. (Compare Pierce Use of Force report [Docket Item
237-39] with Minguela and Ford Use of Force reports [Docket
Item 237-13]; Pl. Counter SMF ¶ 159.) Pierce stated in
the report that Plaintiff was cleared by Nurse Moore and had
been placed in a transitional holding cell for observation.
At 5:45 a.m., however, Plaintiff had not yet been cleared.
report was consistent with the officers' reports. He
testified that because he was not present during the
incident, he took what his officers told him " at face
value." (Pierce Dep. [Docket Item 237-21] 236:10-14.)
Pierce concluded that the force used on Plaintiff by his
officers was " justified." (Pierce Use of Force
Report [Docket Item 237-39].)
Defendants' accounts of the incident during deposition
were similar to what was in their Use of Force reports.
Defendants testified that Plaintiff was acting belligerent,
was cursing and spitting at the officers, and was making
offensive gestures. They testified that Minguela pepper
sprayed Plaintiff and that a take down was performed in order
to get Plaintiff to comply with the strip search.
were some inconsistencies with the Use of Force report. Ford
and Pratts testified that all five officers participated in
the take down in the strip search room, while Still testified
that only Pratts, Minguela, and Fazzolari were involved.
(Compare Ford Dep. 250:6-13 and Pratts Dep. 244:20-245:3 with
Still Dep. 268:15-24.)
to Minguela, Plaintiff fell from a bench he was standing on
in the room, at which time Fazzolari, Minguela, Still, and
Pratts grabbed his legs and arms. (Minguela Dep.
199:17-200:23.) Pierce testified that there were no benches
in the strip search room. (Pierce Dep. [Docket Item 237-21]
146:4-147:9.) Ford and Fazzolari did not recall any officers
being injured from the encounter in the strip search room.
(Ford Dep. 265:20-266:1; Fazzolari Dep. 150:20-151:2.) Ford
testified that they did not find any weapons on Plaintiff
during the strip search. (Ford Dep. 266:6-8.)
was taken to the medical unit and examined by Nurse Moore.
She observed that Plaintiff looked " beaten up" or
" roughened up." She heard Plaintiff say to the
officers, " Y'all didn't have to beat me like
that." (Moore Dep. 26:23-27:5; 28:22-29:10.) Moore
observed that Plaintiff had an injury to his right eye that
he did not have the first time she saw him. (Moore Dep.
25:19-26:4.) She also heard Defendant Still say to another
correctional officer that Still didn't lay a hand on
Plaintiff. (Moore Dep. 35:13-14.)
the medical exam, Plaintiff was taken to a transitional
holding cell. Sergeant Pierce saw Plaintiff in the early
morning of July 1, and Plaintiff complained to Pierce of
being in pain. (Pierce Dep. [Docket Item 237-21] 226:8-13.)
He was given some Motrin. (Id.)
an hour and a half later, Lisa Brown-Carter, another
correctional officer, found Plaintiff lying on the floor of
his cell. (Brown-Carter Dep. [Docket Item 237-12] 41:3-5.)
She recalled Plaintiff saying, " Help me, help me, I
can't breathe," and that he was dizzy. (Id.
42:12-13; 45:1-2.) Brown-Carter noticed that Plaintiff's
right eye appeared shut. (Id. 45:8-10.)
took Plaintiff to the medical unit and helped him undress for
the doctor. She noticed bruising on Plaintiff's lower
back, " scrapes on his rib area," and a mark the
shape of a footprint on Plaintiff's back. (Brown-Carter
that morning, Victor Bermudez, a correctional officer, was
sent to retrieve Plaintiff from a holding cell for a matter
related to Plaintiff's case. He described Plaintiff as
" battered up." Plaintiff was limping and one side
of his face was " swollen and black and blue."
(Bermudez Dep. [Docket Item 237-28] 134:16-135:3.) Plaintiff
had trouble breathing. (Id. 136:11-13.) When
Bermudez asked Plaintiff what had happened, Plaintiff said
that he couldn't remember. (Id. 140:3-4.)
Bermudez also recalled Plaintiff turning a " gray-green
color," which Bermudez had seen before in three inmates
who had died. (Id. 135:8-23.) Bermudez "
knew" that individuals who turned that color were "
not getting enough blood," and advised Lieutenant Susan
Luciano, the Shift Commander that day, to take Plaintiff to
the hospital. (Id. 138:4-139:6.)
was taken to South Jersey Regional Medical Center in an
ambulance. The EMT report noted that Plaintiff " had
severe bruising on his abdomen area and severe bruising on
his back and a perfect foot print on his lower left
shoulder." It also stated that Plaintiff's "
leg and buttocks was bruised from a[sic] dog bites that did
not puncture the skin." (EMT Report [Docket Item
237-32].) Plaintiff told the EMT that he " was beat up
by the police department and sprayed with maced[sic] and then
the dog was let loose on him." (Id.)
of his injuries, Plaintiff was transported by helicopter to
Cooper Hospital Trauma Center for medical treatment. He was
in hemodynamic shock and was admitted to the intensive care
unit on a ventilator. (See Cooper Hospital Discharge Summary
[Docket Item 237-35].) Cooper Hospital records indicate that
Plaintiff had suffered numerous injuries, including a
lacerated kidney and renal artery which caused internal
bleeding, fracture of the bones around his right eye,
multiple fractured ribs, a fractured jaw bone, and a
concussion. (See Cooper Hospital Summary Sheet [Docket Item
237-37].) He was at the hospital for ten days. (See Cooper
Hospital Discharge Summary.)
Moore testified that when Pratts returned to Cumberland
County Jail for his shift the next day, he told her that she
" knew what to say" if people began to ask
questions. (Moore Dep. 47:7-48:8.)
Expert reports of Dr. Fred Simon and Dr. Randall
submitted expert testimony from Dr. Fred Simon, a board
certified General Surgeon who practices Acute Care Surgery.
Simon opined that Plaintiff's injuries, " [o]ther
than the dog bites and abrasion over his left eye, . . . were
caused by brute aggressive blunt trauma in the Cumberland
County Jail." Simon stated that the injuries "
require significant force," and " could not have
been caused by the 'take down' seen in the
[surveillance] video and the second 'take down'
described in the Use of Force Reports that occurred in the
strip search room." (Simon Letter [Docket Item 237-31]).
expert Dr. Randall McCauley, a Professor Emeritus of
Criminology at Indiana University of Pennsylvania, opined
that with a multiple officer take down, the harm suffered by
Plaintiff would be minimized.
Training on the use of force at Cumberland County
Jersey Attorney General's Use of Force Policy (" AG
Policy" ) requires every law enforcement agency to hold
trainings twice a year on the appropriate use of force and
deadly force. Cumberland County Jail has adopted the
AG Policy. (Sciore Dep. 29:19 -- 31:14; Saunders Dep. [Docket
Item 237-41] 88:25-89:11.)
is conflicting evidence on CCDOC's compliance with the AG
policy at the time of Plaintiff's assault. Minguela,
Ford, and Fazzolari, did not recall receiving use of force
training other than during their initial two-week training at
the Jail and training at the police academy, which they were
required to complete within one year of hire. (See Pratts
Dep. 75:13-16-81:5-9; Minguela Dep. 32:12-33:12; 46:13-22;
Ford Dep. 57:3-9; Fazzolari Dep. 83:12-85:12.)
Saunders, the Warden at Cumberland County Jail at the time of
the incident, stated that in 2008, correctional officers did
not receive any use of force training other than during the
initial academy and jail trainings. (Saunders Dep. 84:10-14.)
testified that CCDOC provided use of force training to its
officers twice a year as part of the bi-annual firearms
re-certification. However, Pratts and Ciangaglini did not
remember ever reviewing use of force policies during
fire-arms re-certification, and Minguela testified that he
was " sure" that they did not review use of force
training during the semi-annual firearms recertification.
(Compare Sciore Dep. 29:8-30:22 with Minguela Dep.
52:17-53:25; Ford Dep. 60:17-61:6; Pratts Dep. 80:22-81:4;
Ciangaglini Dep. 117:11-14.) Ford did not recall whether this
was ever done. (Ford Dep. 60:14-61:6.)
CCDOC keeps a training log showing officers' attendance
at training sessions. (Training Log [Docket Item 237-42];
Counter SMF ¶ 173.) The training log indicates that of
the five correctional officers who in the strip search room,
only Still had received training which included training on
use of force within six months of the July 30, 2008 incident
because he was a new hire. Sergeants Pierce and Ciangaglini
and Lieutenant Sciore had last attended training which
included use of force training approximately nine years
before the incident. (Id.) Captain Michael Palau,
the head of the Internal Affairs and training unit, testified
that the training log did not reflect all of the training the
officers at the jail may have received. (Palau Dep. [Docket
Item 237-25] 123:17-124:2.)
to New Jersey law, Cumberland County Jail also required new
hires to attend academy training, which included a training
on use of force, within one year of their hire. (CCDOC Policy
5.2 [Docket Item 237-22].) Correctional officers who were not
academy trained within one year were not allowed to work at
the jail without a waiver from the State. Glenn Saunders, the
warden at CCDOC at the time of the incident, stated that the
academy training " did not always happen" within
the one-year period. Four of the five officers who were in
the strip search room -- Still, Pratts, Minguela, and
Fazzolari -- had not been academy-trained at the time of the
incident. (Pratt Dep. 67:25-68:10; Minguela Dep.
31:11-19.) Pratts, Minguela, and Fazzolari
received waivers from the one-year requirement.
and Pratts did not believe they were properly trained at the
time of the incident. Pratts stated that he did not feel
ready to be a corrections officer until after he finally
received his academy training, because it was there that
correctional officers were shown " everything, exactly
how to understand the policies and procedures." (Pratts
Dep. 62:10-21.) Likewise, Minguela testified, " [T]o
this day, I don't think anybody in this facility should
work intake or issue without being academy trained."
(Minguela Dep. 165:23-25.)
Internal investigations into excessive force at Cumberland
CCODC policy required correctional officers to fill out
statements on the use of force each time they used physical,
mechanical, or deadly force on an inmate. These statements
would be reviewed by a shift supervisor, who would determine
whether the force was justified or not justified. The shift
supervisor's report and determination would then be
reviewed by the captain, the Professional Standards Officer
(" PSO" ) in the internal affairs unit, and the
Warden. (Saunders Dep. 78:4-81:12; Palau Dep. [Docket Item
237-25] 199:24-200:7.) In Plaintiff's case, the captain
did not sign off on Pierce's Use of Force report,
suggesting that he either did not forward it on or did not
receive it. (Saunders Dep. 81:15-82:17.) The report also does
not indicate that it was reviewed by either the PSO or the
Susan Luciano, a retired correctional officer who worked for
Cumberland County Jail for 25 years, testified that she would
write up incident reports whenever she received credible
information from inmates that they had been beaten up by
guards, yet she never saw any investigation into the reports
she submitted nor did she ever see any officers being
disciplined for the incidents. (Luciano Dep. [Docket Item
237-27] 37:11-39:21.)Luciano stated that her supervisor,
Captain Lamcken called her a " troublemaker" and
would tell her, in sum and substance, " [y]ou're a
pain in the ass, you know, just mind your own business, you
know, do you have to write everything up." She
testified, " I'm a firm believer in if there's
something wrong then you need to report it. An a lot of
people say, well, if you don't see it, you know, it will
go away, or if you don't write it down, it will go away,
and I couldn't do that." (Luciano Dep. 54:24-56:3.)
Walter Wroniuk, who was assigned to the Internal Affairs and
training unit at the time of the incident, testified that the
CCDOC did not have a formal mechanism in place to monitor and
track complaints against individual correctional officers.
Moreover, past complaints made against a particular officer
did not factor into any new investigation into excessive
force by that officer. Wroniuk Dep. 91:12-21; 136:6-12.)
Plaintiff's expert report of Dr. Randall
submitted expert testimony from Dr. Randall McCauley, a
Professor Emeritus of Criminology at Indiana University of
Pennsylvania. McCauley reviewed Use of Force reports at
Cumberland County Jail that were filed between 2003 and 2013.
He concluded that the Use of Force reports were not reviewed
according to the jail policy by all necessary parties. From
2003 to 2004, the reports were reviewed by the shift
supervisor, the captain, the PSO, and the Warden. The Warden
did not review any reports after 2004. The PSO signed off on
less than half of the reports in 2007 and reviewed no reports
that were filed after 2008. He opined that there was a "
steady decline in review and accountability below the
Jail's standards" beginning in 2005, and that the
Jail " violated its own policies and procedures as well
as good and accepted corrections practice" by not having
the designated personnel review each Use of Force report.
(Id. ¶ ¶ 29-30.)
noted an increase in the amount of force being used by
correctional officers between the years 2003 and 2008. Out of
364 reported incidents of force at Cumberland County Jail,
investigations were opened by the Internal Affairs unit only
six times. (Id. ¶ ¶ 34-35.) The use of
force was deemed " unjustified" three times.
(McCauley Aff. [Docket Item 237-17].) McCauley opined that
based on his review of the excessive force allegations
contained in the Use of Force reports, the jail should have
opened investigations into " far more" incidents.
(Id. ¶ 36.) He opined that the jail's
practice of conducting deficient or no internal affairs
investigations " reflects a complete indifference to the
safety, security, and well-being of its personnel and
inmates." (McCauley Letter Report [Docket Item 237-17],
at 56.) Defendants dispute the conclusions reached in
also reviewed the Vineland Police Department's training
practices. He concluded that the Vineland Police Department
failed to provide adequate training to police officers on the
appropriate procedures to be followed for transporting
prisoners to the jail, and that the failure was contrary to
accepted police practice. (Id. at 56.) McCauley
reviewed the particular police actions in this case and
concluded that had Officer Day been properly trained in
procedures involving transfer of prisoner custody, he would
have known that Plaintiff was still in his custody when
Ciangaglini pushed Plaintiff into the door. (Id. at
Notice of claim
was represented by Brian Chacker, Esq. from July 2008 to July
2010. On July 25, 2008, Chacker sent a letter to the Vineland
Police Department notifying them that he had been retained to
represent Plaintiff in a claim against the Vineland Police
Department arising from the June 30, 2008 incident. (Ex. C to
Chacker Aff. [Docket Item 237-48].) The Vineland Police
Department subsequently requested that Chacker complete a
Notice of Claim form. (Id. Ex. E.) The letter
stated, " Upon receipt of completed Notice of Claim
form, your claim will be processed." (Id.)
Chacker returned the form by letter dated December 3, 2008.
In the section in which he was supposed to list the names of
City employees involved, Chacker wrote, Vineland Police
Department, Cumberland County Dept. of Corrections. The
specific identifies of the [assailant] is unknown at[sic]
this time." In the negligence claim section, Chacker
wrote, " Excessive use of force by the Police Officers
and Correctional Officers." (Id. Ex. F.)
Vineland did not follow up with Chacker regarding his claim.
(Chacker Aff. ¶ 16.)
9, 2008, Chacker faxed a letter to Warden Saunders at
Cumberland County Jail. The letter stated that Chacker's
office had been retained to represent Plaintiff " in
connection with severe and permanent injuries that he
sustained as a result of an incident with either Vineland
Police Officers or Officers from the Cumberland County
Department of Corrections on June 30, 2008." The letter
asked Cumberland County Jail not to deny him access to his
client at Cooper Hospital. The letter also requested copies
of surveillance video from the prison, " as this
incident took place either in the Vineland Police Station or
the Cumberland County Department of Corrections." (Ex. A
to Chacker Aff.) Chacker later spoke to Sergeant Wroniuk in
the Internal Affairs unit at Cumberland about visiting
Plaintiff at the hospital, and faxed a confirmatory letter
the same day. (Chacker Aff. ¶ ¶ 8-9; Ex. B to
filed his Complaint in October 2009, asserting claims against
Cumberland County, Cumberland County Department of
Corrections, Pratts, Still, Ford, Minguela, Fazzolari,
Pierce, Sciore, Ciangaglini, and two other correctional
officers who have since been dismissed from the
suit. Plaintiff also named as defendants
the City of Vineland, the Vineland Police Department, and the
two Vineland police officers, Day and Houbary.
Plaintiff's claims revolve around his treatment inside
the Cumberland County Jail; he does not bring any claims
related to his arrest by Vineland police officers outside the
September 2013, Plaintiff filed an Amended Complaint alleging
state law claims as well as constitutional claims under 42
U.S.C. § 1983. [Docket Item 116.] Against the
remaining eight individual correctional officers at
Cumberland County Jail, Plaintiff asserts claims under §
1983 for excessive force and malicious prosecution, as well
as state law claims of assault and battery, intentional
infliction of emotional distress, conspiracy, and invasion of
privacy. With respect to Vineland police officers Day and
Houbary, Plaintiff asserts a claim of failure to intervene
under § 1983. Finally, Plaintiff asserts § 1983 and
state law claims against the entity Defendants, Cumberland
County, Cumberland County Department of Corrections, the City
of Vineland, and the Vineland Police Department, for failure
to properly train individual officers, and failure to
investigate excessive force claims.
various Defendants have filed nine motions for summary
judgment to dismiss all claims. The Cumberland Defendants
filed a single motion to address the claims against
Cumberland County and CCDOC. The individual Cumberland
correctional officers have each filed briefs to address the
claims against the officers. The Vineland Police Department,
the City of Vineland, and the two Vineland police officers,
Day and Houbary, have filed a single brief to dismiss all
claims against them. The Cumberland Defendants oppose summary
judgment for the Vineland Defendants.
STANDARD OF REVIEW
summary judgment, the moving party bears the initial burden
of demonstrating that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); accord Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). Once a properly supported motion for
summary judgment is made, the burden shifts to the non-moving
party, who must set forth specific facts showing that there
is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986) . In reviewing a motion for summary judgment, the
court is required to examine the evidence in light most
favorable to the non-moving party, and resolve all reasonable
inferences in that party's favor. Hunt v.
Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143
L.Ed.2d 731 (1999); Wishkin v. Potter, 476 F.3d 180,
184 (3d Cir. 2007).
factual dispute is material when it " might affect the
outcome of the suit under the governing law," and
genuine when " 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). The non-moving party
" 'need not match, item for item, each piece of
evidence proffered by the movant,'" but must simply
present more than a " mere scintilla" of evidence
on which a jury could reasonably find for the non-moving
party. Boyle v. Cnty. of Allegheny Pennsylvania, 139
F.3d 386, 393 (3d Cir. 1998) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986)). Where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party," no genuine issue for trial exists and summary
judgment shall be granted. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986) (citation omitted).
Claims against Cumberland Correctional Officers
Sciore, Pierce, Pratts, Still, Ford, and Fazzolari have filed
individual motions for summary judgment which raise
substantially similar arguments. First, they argue that
Plaintiff's § 1983 claim must be dismissed because
the force used against Plaintiff was not excessive as a
matter of law. They also argue that Plaintiff's tort
claims are barred by the New Jersey Tort Claims Act's
90-day notice requirement. Defendants also contend that they
are entitled to summary judgment even if the NJTCA does not
bar Plaintiff's claims because defendants have not
engaged in any offensive contact or wrongful act to make out
common law claims of assault and battery and conspiracy. In
addition, Pratts and Fazzolari argue that they are not liable
for a claim of intentional infliction of emotional distress.
Ciangaglini seeks only partial summary judgment. He seeks to
dismiss all claims against him except for the § 1983
excessive force claim and the assault and battery claim.
Defendant Minguela seeks to dismiss the common law claims
only on the basis of failure to comply with the NJTCA's
notice requirement; he does not make any substantive
arguments against Plaintiff's common law claims. In
addition, Minguela argues that he is entitled to qualified
immunity on Plaintiff's § 1983 claim of excessive
contends that substantial evidence exists that Defendants
used excessive force against Plaintiff in violation of his
constitutional rights, and that Defendants are jointly liable
under the " concert of action" exception and the
" alternative liability" exception. Next, he argues
that his state law claims should not be dismissed because he
substantially complied with the NJTCA's notice exception
and because Defendants never notified Plaintiff of any
insufficiency with Plaintiff's notice. He argues that the
evidence supports a claim for assault and battery against the
five correctional officers in the strip search room; and that
all individual Cumberland officers are liable for conspiracy
because they attempted to cover up the truth about how
Plaintiff had been beaten. He contends that there is also
sufficient evidence to support a claim of intentional
infliction of emotional distress because Plaintiff developed
post-traumatic stress disorder and depression as a result of
Defendants' conduct. Finally, Plaintiff argues that
Minguela is not entitled to qualified immunity because, given
the severity of Plaintiff's injuries, a reasonable
officer would have known that the force used violated
Plaintiff's clearly established constitutional rights.
Summary judgment is not warranted against Plaintiff's
§ 1983 claim of excessive force
U.S.C. § 1983 provides a civil remedy against any person
who, acting under color of state law, deprives another of
rights protected by the U.S. Constitution. The statute
provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . . .
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 . . . .
42 U.S.C. § 1983. Section 1983 does not create
substantive rights; it merely provides a remedy for
deprivations of rights established elsewhere in the
Constitution or federal laws. Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). To establish § 1983
claim, a plaintiff " must demonstrate a violation of a
right secured by the Constitution and laws of the United
States and that the deprivation was committed by a person
acting under color of state law." Id. (quoting
Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d
The Eighth Amendment standard applies to Plaintiff's
excessive force claim
asserts a § 1983 claim of excessive force by
correctional officers, and the Court must first determine the
constitutional right that is implicated. Estate of Smith
v. Marasco, 318 F.3d 497 (3d Cir. 2003). Both parties
agree that plaintiff was a pretrial detainee when he was
injured, and the Court must determine whether the
correctional officers' actions should be analyzed under
the Due Process Clause of the Fifth Amendment or the more
stringent Eighth Amendment standard for cruel and unusual
punishment, which applies to inmates who have been
convicted. The distinction is significant:
whereas the Fifth Amendment's Due Process Clause
prohibits any form of punishment, the Eighth Amendment only
prohibits punishment that is cruel and unusual, or force that
is imposed " maliciously and sadistically to cause
harm." Hudson v. McMillian, 503 U.S. 1, 7, 112
S.Ct. 995, 117 L.Ed.2d 156 (1992); Whitley v.
Albers, 475 U.S. 312, 321, 106 S.Ct. 1078, 89 L.Ed.2d
particular, the inquiry under the Due Process Clause is
whether Defendants' use of force was rationally related
to a legitimate non-punitive government purpose or when it
was excessive in light of that purpose. Bell v.
Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d
447 (1979); Stevenson v. Carroll, 495 F.3d 62, 68
(3d Cir. 2007) (quoting Rapier v. Harris, 172 F.3d
999, 1005 (7th Cir. 1999)). Under the Eighth Amendment
standard, the plaintiff must demonstrate that the force used
was applied maliciously and sadistically to cause harm and
not in a " good-faith effort to maintain or restore
discipline." Hudson v. McMillian, 503 U.S. 1,
7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The excessive force
inquiry must be guided by several factors: (1) the need for
the application of force; (2) the relationship between the
need and the amount of force that was used; (3) the extent of
the injury inflicted on the plaintiff; (4) the extent of the
threat to the safety of staff and inmates, as reasonably
perceived by the officers responsible; and (5) the efforts
made to temper the severity of a forceful response. Whitley
475 U.S. at 321.
question of whether the Fifth or Eighth Amendment standard
applies to a pre-trial detainee's claim of excessive
force is not settled. Traditionally, a person who has
not been convicted has " federally protected liberty
interests that are different in kind from those of sentenced
inmates." Cobb v. Aytch, 643 F.2d 946, 962 (3d
Cir. 1981) (en banc). He is entitled to the right to remain
at 'liberty,' which is guaranteed by the Fourteenth
Amendment. Id. at 957 (" Unlike sentenced
prisoners, who . . . must look to state law for the
protection of their personal liberties, pretrial detainees
have liberty interests firmly grounded in federal
constitutional law." )
with this principle, the Supreme Court in Bell v.
Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d
447 (1979), drew a distinction between pretrial detainees and
inmates who have been sentenced. The Court reasoned that a
pre-trial detainee " may not be punished prior to an
adjudication of guilt in accordance with due process of
law." Id. at 353; see also Hubbard v.
Taylor, 399 F.3d 150, 166 (3d Cir. 2005) (" [I]t is
clear that plaintiffs here are not within the ambit of the
Eighth Amendment's prohibition against cruel and unusual
punishment. . . . They are not yet at a stage of the criminal
process where they can be punished because they have not as
yet been convicted of anything." (internal quotations
and citations omitted)). By contrast, a sentenced inmate has
already been tried and convicted and stands in a different
category. They " may be punished, although that
punishment may not be 'cruel and unusual' under the
Eighth Amendment." Id. at 535 n.16.
this distinction, Plaintiff, who had just been arrested that
day, should be afforded the greater constitutional protection
that is offered by the Due Process Clause. See, e.g.,
Stevenson v. Carroll, 495 F.3d 62, 67-68 (3d Cir.
2007) (analyzing pretrial detainee's claim under the Due
Process Clause); Sylvester v. City of Newark, 120
Fed.Appx. 419, 423 (3d Cir. 2005) (analyzing pretrial
detainee's claim under the Fourteenth Amendment because
prior to a formal adjudication of guilt, the state " has
not acquired 'the power to punish with which the Eighth
Amendment is concerned.'" (citing Ingraham v.
Wright, 430 U.S. 651, 671-72 n.40, 97 S.Ct. 1401, 51
L.Ed.2d 711 (1977))).
Court, however, must also be guided by Fuentes v.
Wagner, 206 F.3d 335 (3d Cir. 2000), which controls in
this Circuit. In Fuentes, the plaintiff, a pretrial detainee,
brought a § 1983 claim arguing that placing him in a
restraint chair for eight hours after he engaged in a
physical fight with correctional officers constituted
excessive force. The Third Circuit held that the Eighth
Amendment's cruel and unusual punishment standard, not
the due process standard, governed the plaintiff's claim.
206 F.3d at 344. The Court made a distinction between cases
involving excessive force and those challenging a
detainee's conditions of confinement, noting that
excessive force claims against prison guards should be
subject to the more stringent standard when those claims
arise in the context of a prison disturbance. 206 F.3d at
courts in this Circuit have followed Fuentes and evaluated a
pre-trial detainee's claim of excessive force under the
standard of cruel and unusual punishment. See, e.g.,
Drumgo v. Brown, 525 Fed.Appx. 125, 128 (3d Cir. 2013)
(applying Eighth Amendment cruel and unusual punishment
standards to a pretrial detainee's excessive force claim
against correctional officers); Everett v. Nort, 547
Fed.Appx. 117, 121 (3d Cir. 2013); Johnson v. King,
2013 WL 1903301, at *2 (D.N.J. May 7, 2013); Athill v.
Speziale, 2009 WL 1874194, at *8 (D.N.J. June 30, 2009).
And the Third Circuit has recently examined Fuentes and
affirmed the distinction between a detainee's excessive
force claim and a claim challenging prison conditions. See
Bistrian v. Levi, 696 F.3d 352, 374-75 (3d Cir.
2012) (holding that the cruel and unusual punishment standard
set forth in Fuentes did not apply to a pre-trial
detainee's claim that his prolonged administrative
segregation was excessive in light of non-punitive purpose).
argues that Fuentes does not control in the present case
because force was not used in the context of a prison riot.
Plaintiff cites to Jackson v. Phelps, 575 Fed.Appx.
79 (3d Cir. 2014), in which the Court applied the due process
standard to an excessive force claim because the detainee was
" effectively immobilized" in handcuffs, foot
shackles, and a padlock, and posed no safety threat to the
prison guards who beat him up. Id. at 80, 83.
Court finds Jackson instructive. There is a significant
distinction between using force to quell a prison riot or to
stop violence from spreading, and using force when there is
no real emergency. Like the detainee in Jackson , Plaintiff
was by himself when he was approached by correctional
officers. Although he was not handcuffed or shackled, the
threat he posed was minimized by the fact that he was unarmed
and surrounded by five correctional officers. Plaintiff was
also beaten in a closed room; there is little evidence to
suggest that he was in danger of escaping or that Defendants
were acting to prevent a disturbance from spreading. In
Fuentes, the court noted that a more rigorous standard
applied in the context of a prison riot, because guards in
such cases must react to unpredictable, spontaneous, and
rapidly changing events and cannot " be expected to draw
such precise distinctions between classes of inmates when
those guards are trying to stop a prison disturbance."
Fuentes, 206 F.3d at 347. Those concerns are absent in this
case. Here, five correctional officers took an unarmed man
inside a secure room for a routine strip search, before the
man had even been properly admitted to the general prison
population, and beat him. Nothing in the record suggests that
the force used against Plaintiff arose out of a true
emergency situation. Plaintiff was in the booking process
when this violence occurred, preliminary to his being held on
a disorderly persons offense, still accompanied by an officer
of the arresting department. Given these particular facts,
the Due Process Clause appears to be the more appropriate
standard by which to evaluate Plaintiff's claim of
excessive force. The Due Process Clause permits reasonable
restraint upon liberty as the jail admissions process is
undertaken; it does not allow infliction of punishment,
excessive or not.
of which standard applies, pretrial detainees " are
entitled to at least as much protection as convicted
prisoners, so the protections of the Eighth Amendment would
seem to establish a floor of sorts." Kost v.
Kozakiewicz, 1 F.3d 176, 188 n.10 (3d Cir. 1993); cf.
Hubbard v. Taylor, 399 F.3d 150, 166-67 (3d Cir.
2005) (noting that in conditions-of-confinement cases, Eighth
Amendment standard establishes a floor below which treatment
of pretrial detainees cannot sink, and does not preclude the
application of a more protective due process standard). The
Court believes that the Fifth Amendment standard should
control in this case, but it will deny summary judgment on
both Fifth and Eighth Amendment grounds because even under
the Eighth Amendment's " cruel and unusual
standard," a reasonable jury could find on the evidence
presented that Defendants' use of force was imposed
" maliciously and sadistically to cause harm."
There is a genuine dispute of material fact over whether
Defendants' use of force was excessive
does not remember what happened to him at the CCDOC. He
argues, however, that given the life-threatening injuries he
suffered after being in the strip search room, a reasonable
jury could conclude that Defendants' use of force in the
room violated his constitutional rights. Plaintiff has
presented more than sufficient evidence to raise a genuine
issue of material fact whether Defendants used excessive
facts are not in dispute. Plaintiff was examined at South
Jersey Hospital immediately before going to Cumberland, and
the doctor who examined him noted that he had no visible
injuries aside from the dog bite and cut on his left eye, and
did not appear to have any internal injuries. Plaintiff was
then transported to Cumberland and subject to what was
supposed to be a pat down and strip search. He was unarmed
when he submitted to a strip search in a room with five
correctional officers. Multiple witnesses in the jail
testified to Plaintiff's physical condition after the
strip search. Nurse Moore, who examined Plaintiff immediately
after the strip search, observed that Plaintiff looked "
beaten up." She heard him say to the officers, "
Y'all didn't have to beat me like that."
Defendant Pierce, who visited Plaintiff early the next
morning, stated that Plaintiff complained of being in pain.
Lisa-Brown Carter and Victor Bermudez observed bruises on
Plaintiff's body, and recalled that Plaintiff was limping
and had trouble breathing.
injuries are also not disputed. Plaintiff nearly died from
the encounter. He had to be airlifted to a specialized trauma
center, went into hemodynamic shock along the way, and had to
be admitted into the intensive care unit on a ventilator.
Healthcare workers observed severe bruising on his body and
an imprint of a footprint on his left shoulder. He suffered
multiple fractured ribs, a lacerated kidney and renal artery
which caused internal bleeding, fractured bones around his
right eye, a fractured jaw bone, and a concussion. He was
hospitalized for ten days. Based simply on the severity of
Plaintiff's injuries and the fact that he was unarmed in
the presence of five correctional officers, a reasonable jury
could find that Defendants' use of force was excessive.
See, e.g., Smith v. Mensinger, 293 F.3d 641, 649 (3d
Cir. 2002) (" Punching and kicking someone who is
handcuffed behind his back and under the control of at least
six prison guards as he is being thrown into cabinets and
walls is 'repugnant to the conscience of mankind,'
absent the extraordinary circumstances necessary to justify
that kind of force." (quoting Hudson v.
McMillian, 503 U.S. 1, 10, 112 S.Ct. 995, 117 L.Ed.2d
156 (1991))); Williams v. Twp. of W. Deptford, 2008
WL 1809134, at *5 (D.N.J. Apr. 22, 2008) (" This Court
concludes that it would have been clear to a reasonable
police officer that three male officers lifting a woman in
the air and throwing her on the ground with force sufficient
to break a femur bone is unreasonable where that individual
is alone, unarmed, outnumbered by police eight to one."
Smith, 293 F.3d at 648, Defendants argue that the severity of
Plaintiff's injuries is insufficient to impose liability.
But Smith is inapposite, for it held only that " de
minimis injuries do not necessarily establish de
minimis force." 293 F.3d at 648-49. This is not a
case where the plaintiff's injuries were de
minimis. Smith's holding that a claim of excessive
force is possible with even minor injuries counsels against a
grant of summary judgment in a case such as this one, where
the injuries Plaintiff sustained were life-threatening. In
fact, the law is clear that " the extent of injury
suffered by [the] inmate" is a factor in establishing an
excessive force claim under the Eighth Amendment. Hudson
v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d
156 (1992); see also Sharrar v. Felsing, 128 F.3d
810, 822 (3d Cir. 1997) (noting that " the fact that the
physical force applied was of such an extent as to lead to
injury is indeed a relevant factor to be considered as part
of the totality." ).
argues that as a matter of law, the force used was in
accordance with protocol and was justified under the
circumstances. The Court disagrees, because there is ample
evidence in the record contradicting the evidence Defendants
claim is undisputed. Defendants first argue that the force
was not excessive. For support, they point to correctional
officers' testimony that they gave Plaintiff a one-second
burst of pepper spray and performed two take downs using
" minimal force." A reasonable jury, however, could
find that Plaintiff's severe injuries could not have been
caused by the force described by Defendants. That view finds
support in the evidence. Plaintiff's expert, Dr. McCauley
opined that with a multiple officer take down, the harm
suffered by Plaintiff would be minimized. Similarly, Dr.
Simon testified that Plaintiff's injuries were "
caused by brute aggressive blunt trauma" and could not
have been caused by the take downs alone.
also argue that the force was justified under the
circumstances. They point to testimony that Plaintiff was
biting, kicking, and spitting, but that too is disputed. In
contrast to Defendants' testimony, Houbary observed
Plaintiff in the strip search room complying with orders to
remove his shoes and socks. (SMF ¶ 93.) A reasonable
jury could also give little credence to the officers'
testimony because their statements contradict each other. For
example, Ford and Pratts testified that all five correctional
officers took Plaintiff down in the strip search room, but
Still testified that he and Ford were not involved at all,
and Minguela testified that Plaintiff merely fell from a
bench. The jury could also refuse to credit the Use of Force
statements because of Cumberland's policy requiring that
officers' statements had to match. Finally, the Court
rejects Defendants' bald statement that the Court must
accept the officers' testimony as true since Plaintiff
cannot recall what happened or name the individual officers
who were involved. Defendants should not benefit from
Plaintiff's lack of memory when Plaintiff has put forward
evidence showing that his memory problems were caused by
Defendants' purportedly unlawful conduct.
Plaintiff's excessive force claim turns on which of two
conflicting stories best captures what happened, summary
judgment is not permitted in Defendants' favor. "
[T]hat is as it should be. When a plaintiff proffers evidence
that the official subdued her with a chokehold even though
she complied at all times with his orders, while the official
proffers evidence that he used only stern words, a trial must
be had." Saucier v. Katz, 533 U.S. 194, 216,
121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (Ginsburg,
concurring). In this case, the factual disputes go directly
to the amount of force used. Viewing the evidence provided to
the Court in the light most favorable to the Plaintiff, as
this Court must, a reasonable factfinder could conclude,
based on the severity of Plaintiff's injuries, that
Defendants applied force unnecessarily and wantonly to
inflict pain. The Court will accordingly deny summary
Court will also reject Defendants' argument for summary
judgment in favor of Officers Still and Ford because there is
no evidence that they were active participants in the strip
search room. It is undisputed that Still and Ford were in the
strip search room the entire time when Plaintiff was beaten.
Based on the severity of Plaintiff's injuries, a
reasonable jury could infer that Still and Ford assisted in
the beating, and the extent of each officer's
participation is a factual dispute to be resolved by the fact
finder. See Smith, 293 F.3d at 650 (declining to dismiss
excessive force claim against certain defendant officers
because plaintiff was not sure whether they participated in
his assault, because officers were in the vicinity when
assault occurred, creating a genuine issue of material fact
as to their participation); Perez v. City of Camden,
2014 WL 4681037, at *10 (D.N.J. Sept. 22, 2014) (declining to
dismiss excessive force claim against officers where each
officer was present during arrest; admitted to using some
force against plaintiff, and plaintiff alleged that at least
one officer present used excessive force).
Pierce and Sciore were not in the strip search room the whole
time, they may also be held responsible under a reasonable
view of the facts. As correctional officers, Defendants were
responsible for Plaintiff's safety and had a duty to
protect him from violence. Farmer v. Brennan, 511
U.S. 825, 834-36, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
Pierce and Sciore were present in the strip search room for
approximately two minutes. If a jury concluded that even one
of the officers in the room used excessive force against
Plaintiff, it could also reasonably conclude that Pierce and
Sciore knew of and failed to intervene in the assault. Still
and Ford, who were in the strip search room for the entire
time, could likewise be found liable for failure to
intervene. See Smith, 293 F.3d at 650-51 (holding that
correctional officer who ignored a realistic opportunity to
intervene in another officer's use of excessive force is
liable under the Eighth Amendment) (citing Miller v.
Smith, 220 F.3d 491, 495 (7th Cir. 2000)); Skrtich
v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002)
(holding that correctional officer present at the scene
" and who fails to take reasonable steps to protect the
victim of another officer's use of excessive force can be
held personally liable for his nonfeasance."
Minguela is not entitled to qualified immunity
Minguela alone argues that he is entitled to qualified
immunity. The doctrine of qualified immunity " balances
two important interests -- the need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably."
Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct.
808, 172 L.Ed.2d 565 (2009). Under this doctrine, government
officials are immune from liability for civil damages as long
as their conduct " 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, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982);
Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d
Cir. 2010). Qualified immunity will not, however, act as a
shield for " the official who knows or should know he is
acting outside the law." Butz v. Economou, 438
U.S. 478, 506-07, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). In
each case, the government's interests must be balanced
against the citizens' interest in vindicating their
constitutional rights, as well as the public interest in
holding officials accountable " when they exercise power
irresponsibly." Pearson, 555 U.S. at 231.
qualified immunity claim is traditionally analyzed in two
steps. First, the court must decide whether the facts
alleged, taken light most favorable to the plaintiff, makes
out the violation of a constitutional right. Saucier v.
Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272
(2001). Next, the court must examine whether the right at
issue was " clearly established" such that a
reasonable official would have known that his conduct was
the Supreme Court held in Pearson that the two-prong Saucier5
sequence should " no longer be regarded as
mandatory," the Court will nonetheless begin by
addressing the traditional first prong. See Poe v.
Leonard, 282 F.3d 123, 133 (2d Cir. 2002) (officers'
intentional violation calls for proper Saucier sequence to
provide guidance on what the law requires).
mainly on his own testimony that he used a one-second burst
of pepper spray on Plaintiff after giving Plaintiff three
verbal warnings to comply with a search, Minguela contends
that his conduct did not amount to excessive force. For
reasons already discussed above, the Court finds that the
facts, in the light most favorable to Plaintiff, are
sufficient to make out a constitutional violation. The fact
that Plaintiff suffered life-threatening injuries after
facing five correctional officers in an isolated room while
unarmed, coupled with the fact that none of the officers were
injured, indicates that officers in the room used force
beyond what was necessary for a take down, in a manner that
was intended to inflict pain. Minguela's version of
events is contradicted by other evidence, and the Court,
drawing all inferences in light most favorable to Plaintiff,
holds that Plaintiff has satisfied the first Saucier prong.
second prong is also satisfied. It was clearly established at
the time Plaintiff was beaten that prisoners were protected
from excessive force and wanton beatings that exceed
correctional officers' good-faith efforts to maintain
discipline and order. See Hudson v. McMillian, 503
U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); Whitley
v. Albers, 475 U.S. 312, 321, 106 S.Ct. 1078, 89 L.Ed.2d
251 (1986); Klaitz v. New Jersey, 2008 WL 111277, at
*7 (D.N.J. Jan. 9, 2008). A reasonable officer at the time
would also have known that using enough force against an
isolated, unarmed inmate to cause severe, life-threatening
injuries was excessive. See Giles v. Kearney, 571
F.3d 318, 327-28 (3d Cir. 2009) (" No reasonable officer
could agree that striking and kicking a subdued, nonresisting
inmate in the side, with force enough to cause a broken rib
and collapsed lung, was reasonable or necessary under
established law." ); Kounelis v. Sherrer, 529
F.Supp.2d 503, 527 (D.N.J. 2008) (declining to find qualified
immunity because a reasonable prison official would have
understood that beating a prison inmate without justification
violated the Eighth Amendment). The law in this Circuit was
also clear that a correctional officer who ignores a
realistic opportunity to intervene in another officer's
use of force violates a prisoner's constitutional rights.
Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir.
2002). Under reasonable inferences from the facts favorable
to Plaintiff, no reasonable officer could have believed that
this use of force and failure to prevent unwarranted injury
by others using excessive force was constitutional.
Therefore, Minguela is not entitled to qualified
Plaintiff's state law claims are not barred by the
the exception of Defendant Minguela, all of the individual
Cumberland Defendants allege that Plaintiff's state law
claims are barred by the New Jersey Tort Claims Act's
(" NJTCA" ) notice requirement. Plaintiff argues
that the July 9, 2008 letter sent by his former attorney,
Brian Chacker, to the Warden at Cumberland County Jail
complied or substantially complied with the requirement.
NJTCA requires notice of a claim of injury against a public
entity to be presented within ninety days of the accrual of
the cause of action. A plaintiff is barred from recovering
damages from a public entity if " he fail[s] to file his
claim with the public entity within ninety (90) days . . .
." N.J.S.A. 59:8-8. Providing such notice within 90 days
achieves several goals. It allows the public entity time to
review the claim and to promptly investigate the facts and
prepare a defense; provides them an opportunity to settle
meritorious claims before bringing suit; grants them an
opportunity to correct the conditions which gave rise to the
claim; and allows them to inform the State in advance as to
the expected liability. Velez v. City of Jersey
City, 180 N.J. 284, 850 A.2d 1238, 1242 (N.J. 2004).
notice of claim must be presented to the Attorney General or
the agency involved in the alleged wrongful act. The notice
must include, among other things, (1) the name and address of
the claimant; (2) the address for sending communication about
the claim (2) the date, place, and other circumstances of the
occurrence which gave rise to the claim; (3) a general
description of the known injury, damage, or loss incurred
" so far as it may be known at the time" ; (4) the
name of the public entity, employee, or employees causing the
injury; and (5) the amount claimed as of the date of
presentation of the claim. N.J.S.A. 59:8-4.
case, Plaintiff's claim against the Cumberland defendants
accrued on July 1, 2008; under the NJTCA, the filing was due
on September 29, 2008. Plaintiff's previous attorney,
Brian Chacker, faxed a letter to the Saunders, the Warden at
Cumberland County Jail on July 9, 2008, informing Saunders
that he was representing Plaintiff " in connection with
severe and permanent injuries that he sustained as a result
of an incident with either Vineland Police Officers or
Officers from the Cumberland County Department of Corrections
on June 30, 2008." The letter sought approval from the
Warden to visit Plaintiff at the hospital and asked the
Warden to preserve surveillance tapes at the police station
and Cumberland County Jail. Mr. Chacker then communicated by
phone with Sergeant Wroniuk about visiting Plaintiff at the
hospital and faxed a letter confirming the visit. Defendants
argue that Plaintiff's state law claims must be dismissed
because Plaintiff never filed a notice of claim under the
Court agrees with Plaintiff that the doctrine of substantial
compliance should apply in this case. The equitable doctrine
of substantial compliance prevents the barring of legitimate
claims due to technical defects. Lebron v. Sanchez,
407 N.J.Super. 204, 970 A.2d 399, 406 (N.J. Super. Ct.App.
Div. 2009); Henderson v. Herman 373 N.J.Super. 625,
862 A.2d 1217 (N.J. Super. Ct.App. Div. 2004). The doctrine
provides that technical notice defects will not defeat a
valid claim as long as the notice that given "
substantially satisfies the purposes for which notices of
claims are required." Lebron, 970 A.2d at 405-06
(quoting Lameiro v. W. N.Y. Bd. of Educ., 136
N.J.Super. 585, 347 A.2d 377, 379 (N.J. Super. Ct. Law Div.
1975); see also Johnson v. Does, 950 F.Supp. 632,
635 (D.N.J. 1997).
letter provided essentially the same information required
under N.J.S.A. § 59:8-4. The letter gave the full name
of Plaintiff, and the letterhead showed the name and address
of Plaintiff's counsel to which correspondences could be
sent. The letter noted that the incident occurred on July 30,
and involved correctional officers from Cumberland. Mr.
Chacker's request for preservation of surveillance tapes
notified Defendants that the incident occurred at the jail.
The letter further stated that Plaintiff suffered "
severe and permanent injuries" as a result of the
incident. Although the letter did not state specific
injuries, the jail was fully aware of the extent of
Plaintiff's injuries and treatment since it had guards
posted at the hospital and Plaintiff remained in the
Warden's custody. Defendants argue that notice was not
satisfied because the letter was not mailed via certified
mail as required under N.J.S.A. 59:8-10(a). The Court does
not find this argument persuasive. N.J.S.A. 59:8-10(b)
specifically provides an exception to the certified mail
requirement if the claim " is actually received at an
office of the State or local public entity within the time
prescribed for presentation thereof." It is clear in
this case that Defendants received notice of Plaintiff's
claim by fax on July 9th, which is well within the 90-day
Chacker's letter, along with his subsequent communication
with Sergeant Wroniuk about representing Plaintiff with
respect to the injuries he sustained and visiting Plaintiff
at the hospital, served the purpose of the notice
requirement. The communications made Defendants aware of an
incident for which they could be liable and gave enough
detail for them to begin investigations and to find the
correctional officers who were involved. The nature and
severity of Plaintiff's injuries also gave Defendants
notice of potential damages so that they could inform the
facts in this case are similar to another in which the New
Jersey court found substantial compliance. In Dambro v.
Union Cnty. Park Comm., 130 N.J.Super. 450, 327 A.2d 466
(N.J. Super. Ct. Law Div. 1974), counsel for a plaintiff who
injured himself while swimming in a park sent a letter to the
borough's police department " advising of his
representation of plaintiff in connection with injuries
sustained as a result of an accident which occurred two days
before at the swimming area." The police responded by
sending a police report of the incident and a hospital report
indicating that the plaintiff had broken his neck. 327 A.2d
at 467. The court held that counsel's letter to the
police department complied with the NJTCA's notice
requirement even though it did not have the exact name of the
public entity which caused the injury, and, like
Plaintiff's letter in this case, lacked any statement of
damages. Id. at 471 (commenting that " [a] lack
of stated damages will not bar plaintiff's cause of
action if the amount of damages is not known at the time of
the presentation of the claim." ). Because the police
department was on notice of the injury and the nature of the
plaintiff's claim, the legislative and remedial goals of
the notice requirement were satisfied. Id. As in
Dambro, the extent and permanency of Plaintiff's injuries
were not known at the time the claim letter was filed.
factors weigh against providing the relief Plaintiff seeks.
There is no evidence that Defendants were prejudiced by not
having more information. Nothing suggests that Defendants
could have better prepared for Plaintiff's suit or
negotiated a settlement had Plaintiff's counsel provided
a statement of damages or more specific detail about his
injuries, of which they were likely already aware. Nor is
there any evidence that Plaintiff's counsel acted
unreasonably or delayed in providing information.
Plaintiff's counsel was as specific in his letter about
identifying the responsible public employees as he could be
under the circumstances and the addressee, the Cumberland
County Jail's Warden, was in a superior position to that
of Plaintiff in determining the identities of the alleged
assailants. Counsel sent Defendants a letter informing them
of a potential suit nine days after the incident. They did
not hear from Defendants after the hospital visit and
justifiably believed that the letter was sufficient.
the Court also agrees with Plaintiff that equitable estoppel
prohibits Defendants from bringing this notice argument as a
defense. Plaintiff's complaint was filed in October 2009,
yet Defendants waited until August 2014 to file summary
judgment motions asserting that Plaintiff failed to comply
with the notice requirement. In the interim, they obtained
complete discovery, creating the impression that they were
waiving the notice requirements. Had Defendants informed
Plaintiff after the filing of the complaint that the notice
was deficient, Plaintiff would still have had time apply for
permission to file a late notice of claim. Hill v. Bd. of
Educ. of Middletown Twp., 183 N.J.Super. 36, 443 A.2d
225, 228 (N.J. Super. Ct.App. Div. 1982) (holding that
equitable estopped prevented defendant from raising
noncompliance with notice requirement as an argument, because
defendants failed to raise the issue until two and a half
years after complaint was filed and progression of case
suggested that argument had been waived).
these reasons, the Court holds that Plaintiff's state law
claims are not barred by the NJTCA's notice requirement.
Defendants' dismissal motion on this ground is denied.
asserts state law claims of assault and battery, intentional
infliction of emotional distress, and conspiracy. Because
Plaintiff concedes that he will not be pursuing either a
malicious prosecution or invasion of privacy claim, the Court
will dismiss those claims against the individual Defendants.
(Pl. Cumberland Officers Br. at 41 n.28.)
Defendants Pratts, Still, Minguela, Ford, Fazzolari, and
Ciangaglini are not entitled to summary judgment on
Plaintiff's assault and battery claim
argues that Pratts, Still, Minguela, Ford, and Fazzolari are
liable to Plaintiff for assault and battery, and that
Ciangaglini is also liable for pushing Plaintiff into the
door in the processing room.
individual is liable for the common law tort of assault if
(a) he acts intending to cause a harmful or offensive contact
with the person, or an imminent apprehension of such a
contact, and (b) the person is thereby put in such imminent
apprehension. Leang v. Jersey City Bd. of Educ., 198
N.J. 557, 969 A.2d 1097, 1117 (N.J. 2009) (citing
Wigginton v. Servidio, 324 N.J.Super. 114, 734 A.2d
798 (N.J. Super. Ct.App. Div. 1999). The New Jersey Supreme
Court has held that " [a]ny non-consensual touching is a
battery," and that such a cause of action is established
by " proof of an unauthorized invasion of the
plaintiff's person, even if harmless." Perna v.
Pirozzi, 92 N.J. 446, 457 A.2d 431, 439 (N.J. 1983); see
also Russo Farms, Inc. v. Vineland Bd. of Educ., 144
N.J. 84, 675 A.2d 1077, 1087 (N.J. 1996); Kelly v. Cnty.
of Monmouth, 380 N.J.Super. 552, 883 A.2d 411, 415 (N.J.
Super. Ct.App. Div. 2005).
is more than sufficient evidence for a reasonable jury to
infer that Defendants' contact with Plaintiff in the
strip search room amounted to assault and battery.
Defendants' argument, that the contact was neither "
harmful" nor " offensive," fails in the face
of undisputed evidence of Plaintiff's extensive injuries.
See Lewis v. Williams, at *6 (D.N.J. Apr. 22, 2008)
(denying summary judgment on prisoner's assault and
battery claim against correctional officers where prisoner
alleged that officers repeatedly struck his head and neck
with a closed fist and caused injuries severe enough to
require treatment at hospital). Moreover, a reasonable
factfinder could find from the uncontroverted facts that the
contact was non-consensual, particularly in light of
Plaintiff's statement to Defendants, " Y'all
didn't have to beat me up that way." As the Court
has already explained above, a reasonable jury could find
evidence in the record which substantially undermines the
veracity of Defendants' testimony about what happened.
Ciangaglini does not move for summary judgment on
Plaintiff's assault and battery claim, and the Court
finds that summary judgment is not warranted because there is
a material dispute whether Ciangaglini slammed Plaintiff
against the door in the processing room, and whether
Ciangaglini's use of force was excessive and done for the
purpose of inflicting pain. (Ciangaglini Reply Br. [Docket
Item 258], at 3 n.1.) Accordingly, the Court will allow
Plaintiff to proceed on this claim against all six
Fazzolari and Pratts are not entitled to summary judgment on
Plaintiff's claim of intentional infliction of emotional
Fazzolari and Pratts move to dismiss on the merits of
Plaintiff's claim of intentional infliction of emotional
distress. The Court will deny Fazzolari and Pratts'
motion and permit this claim to proceed.
of intentional infliction of emotional distress requires a
plaintiff to establish intentional and outrageous conduct by
the defendant, proximate cause, and distress that is severe.
Taylor v. Metzger, 152 N.J. 490, 706 A.2d 685, 694
(N.J. 1998); Buckley v. Trenton Sav. Fund Soc'y,
111 N.J. 355, 544 A.2d 857, 863 (N.J. 1988).
has proffered evidence from which a reasonable jury could
find all elements of this claim. First, as the Court has
explained above, the nature and severity of Plaintiff's
injuries is more than enough for a reasonable jury to
conclude that Defendants' conduct was intentional or at
the very least reckless. Defendants' conduct was also
outrageous in character. The evidence suggesting that five
correctional officers, which included Fazzolari and Pratts,
intentionally beat up an unarmed pretrial detainee causing
his near death is without question an extreme and "
utterly intolerable" act in any civilized community, and
goes " beyond all possible bounds of decency."
Buckley, 544 A.2d at 863. Because Plaintiff has come forth
with evidence that he sustained permanent psychological
injuries, including post-traumatic stress syndrome, as a
direct result of the assault, the remaining elements are
provable to a reasonable jury as well. See Subbe-Hirt v.
Baccigalupi, 94 F.3d 111, 115 (3d Cir. 1996) (reversing
dismissal of intentional infliction of emotional distress
claim where plaintiff suffered from stress, including
post-traumatic stress disorder); Kane v. Chester Cnty.
Dept. of Children, Youth and Families, 10 F.Supp.3d 671,
693 (E.D. Pa. 2014) (allegation of post-traumatic stress
disorder is sufficient to satisfy requirement of showing
severe emotional distress).
Defendants Pratts, Still, Minguela, Ford, Fazzolari, and
Pierce are not entitled to summary judgment on
Plaintiff's conspiracy claim
argues that Defendants engaged in a conspiracy to "
cover up the truth of what its Correctional Officers had
actually done to Defendant." (Pl. Cumberland Officers
Br., at 40.)
Jersey, a civil conspiracy is " a combination of two or
more persons acting in concert to commit an unlawful act, or
to commit a lawful act by unlawful means." Banco
Popular N. Am. v. Gandi, 184 N.J. 161, 876 A.2d 253, 263
(N.J. 2005). The principal element of a conspiracy is an
agreement between the parties to inflict a wrong against or
injury upon another person, and an overt act that results in
damage. Morgan v. Union Cnty. Bd. of Chosen
Freeholders, 268 N.J.Super. 337, 633 A.2d 985, 998 (N.J.
Super. Ct.App. Div. 1993). " The gravamen of a
conspiracy action is not the conspiracy itself but the
underlying wrong which, absent the conspiracy, would give a
right of action." Bd. of Educ. v. Hoek, 38 N.J.
213, 183 A.2d 633, 646 (N.J. 1962); see also Middlesex
Concrete Prods. v. Carteret Indus. Ass'n, 37 N.J.
507, 181 A.2d 774, 779 (N.J. 1962).
judgment is not appropriate on a claim of conspiracy against
Defendants Pratts, Still, Minguela, Ford, and Fazzolari.
There is evidence that all five correctional officers
conspired to cover up their actions by submitting Use of
Force reports that significantly downplayed the amount of
force they used against Plaintiff in the strip search room.
The five reports recounted that Pratts and Fazzolari each
took Plaintiff down once, and Minguela gave Plaintiff a
one-second burst of pepper spray. Based on the medical
treatment Plaintiff received as a result of the incident, and
the severity of Plaintiff's physical and psychological
injuries, a reasonable juror could conclude that
Defendants' statements about the force used on Plaintiff
were false. Nurse Moore testified that when Pratts returned
to Cumberland County Jail for his shift the next day and
learned that Plaintiff had been airlifted to Cooper Hospital
for his injuries, he told her that she " knew what to
say" if people began to ask questions. A reasonable
inference could be made that the reports were falsely written
to try to cover up what happened. There was also evidence
that Defendants entered into an agreement together. The five
statements Defendants submitted were nearly identical in
describing certain conduct that is unlikely given the other
evidence in the record. Moreover, four of the five reports
contained the same misspelling of the word "
irate." A juror could reasonably conclude based on this
evidence that Defendants acted in concert to falsify the Use
of Force reports.
is also not entitled to summary judgment. There are
irregularities in the way Pierce reviewed the officers'
Use of Force reports before deeming the force "
justified." First, he determined that the
Defendants' use of force was justified without attempting
to get a statement from Plaintiff. He also wrote his report
before even receiving two of the officers' statements. In
addition, the evidence suggests that he misrepresented at
least one piece of information in the report. Pierce stated
in the report that Plaintiff was cleared by Nurse Moore and
had been placed in a transitional holding cell for
observation, but Plaintiff had not yet been cleared at the
time Pierce completed the report. Finally, Pierce's Use
of Force report reiterated the statements of his officers,
even though he was likely aware of what had happened in the
strip search room. Although these irregularities could
suggest that Pierce was merely sloppy or incompetent or
superficial, a reasonable jury could also conclude that
Pierce was aware of and covered up the fact that his officers
used excessive force against Plaintiff. See Morgan,
633 A.2d at 998-99.
Court will dismiss the conspiracy claim against Sciore and
Ciangaglini. Although Plaintiff brings a conspiracy claim
against all Defendants, Plaintiff's brief makes no
mention of either Sciore or Ciangaglini and how they are
liable. (Pl. Cumberland Officers Br. 38-40.) There is no
evidence in the record that Ciangaglini was present or even
aware of the incident in the strip search room, nor is there
any evidence that he participated in, knew, or acquiesced in
an agreement to cover up the beating. Likewise, Plaintiff has
pointed to nothing in the record implicating Sciore in the
conspiracy to cover up the incident. Accordingly, the Court
will dismiss the conspiracy claim against Sciore and
Claims against Cumberland County and CCDOC
brings a claim under § 1983 against Cumberland County
and Cumberland County Department of Corrections for failure
to train and failure to investigate claims of excessive
force. The parties agree that Cumberland County Department of
Corrections should be dismissed as a defendant in the §
1983 claim because it is not a proper institutional
party-defendant. See Vuocolo v. Clinton Cnty. Corr.
Facility, 2013 WL 572444, at *4 (M.D. Pa. Jan. 24, 2013)
(stating that § 1983 " expressly limits liability
to persons who violate constitutional rights, a
limitation that courts have construed as not reaching county
jails as institutions." ); Thomas v. Wilbert,
2011 WL 91001, at *6 (D.N.J. Jan. 11, 2011) (dismissing
county correctional institution from § 1983 case because
it was not a proper defendant); Grabow v. S. State Corr.
Facility, 726 F.Supp. 537, 538-39 (D.N.J. 1989) (New
Jersey Department of Corrections and state prison facilities
are not " persons" under § 1983). The Court
will therefore enter an order dismissing Cumberland County
Jail from the case.
and other government entities may be sued under § 1983
for constitutional rights violations, but the entity is not
liable under the doctrine of respondeat superior for
the misconduct of its employees. Monell v. Dep't of
Soc. Servs. of City of New York, 436 U.S. 658, 690--692,
98 S.Ct. 2018, 56 L.Ed.2d 611, (1978). Instead, to prevail on
a Monell claim, a plaintiff must first establish that the
municipality had a policy or custom that deprived him of his
constitutional rights. Pelzer v. City of
Philadelphia, 656 F.Supp.2d 517, 531 (E.D. Pa. 2009)
(citing Bd. of the County Comm'rs of Bryan County v.
Brown, 520 U.S. 397, 403--404, 117 S.Ct. 1382, 137
L.Ed.2d 626, (1997)). In other words, the plaintiff must show
that the municipality, through one of its policymakers,
affirmatively proclaimed the policy, or acquiesced in the
widespread custom, that caused the violation. Watson v.
Abington Twp., 478 F.3d 144, 155--156 (3d Cir. 2007). A
plaintiff may show the existence of a policy when a
decision-maker with final authority issues an official
proclamation, policy, or edict." Bielevicz v.
Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). Custom may be
established by showing that a given course of conduct, "
although not specifically endorsed or authorized by law, is
so well-settled and permanent as virtually to constitute
law." Id.; see also Watson, 478 F.3d at 155-56.
In other words, custom may be established by proving
knowledge of, and acquiescence to, a practice. Fletcher
v. O'Donnell, 867 F.2d 791, 793--94 (3d Cir. 1989).
of the existence of an unlawful policy or custom is not
enough to maintain a § 1983 action. A plaintiff must
additionally prove that the policy or custom was the
proximate cause of the injuries suffered. Watson, 478 F.3d at
156; Losch v. Borough of Parkesburg, 736 F.2d 903,
910 (3d Cir. 1984). To establish causation, the plaintiff
must demonstrate a " plausible nexus" or "
affirmative link" between the custom and the specific
deprivation of constitutional rights at issue. Bielevicz, 915
F.2d at 850. And, " [a]s long as the causal link is not
too tenuous, the question whether the municipal policy or
custom proximately caused the constitutional infringement
should be left to the jury." Id. at 851; see
also Merman v. City of Camden, 824 F.Supp.2d 581,
589 (D.N.J. 2010).
argues that Defendant Cumberland County had a custom of
failing to train the correctional officers in the appropriate
use of force and failing to properly investigate incidents of
officer misconduct, particularly instances of excessive
force. Plaintiff argues that Defendants are liable under 42
U.S.C. § 1983 because the institutional failures at
CCCDOC were linked to the beatings Plaintiff received from
the correctional officers, in violation of his constitutional
right to be free from excessive force. Plaintiff also argues
that Defendants are liable under a theory of respondeat
superior for violations of state common law.
denies that excessive force was used in violation of the
CCDOC's policies. They also argue that even if
Plaintiff's constitutional rights were violated, no
evidence supports that the harm was caused by Defendant's
failure to train and to investigate. Defendant further argues
that the New Jersey Tort Claims Act bars Plaintiff's
state law claims because Defendant cannot be held liable for
the willful misconduct of its employees.
Cumberland County is not entitled to summary judgment on
Plaintiff's failure to train and failure to investigate
1983 liability may be imposed on a government entity that has
a policy or custom of failing to train, manifesting
deliberate indifference to the violation of constitutional
rights. Where the policy " 'concerns a failure to
train or supervise municipal employees, liability under
section 1983 requires a showing that the failure amounts to
'deliberate indifference' to the rights of persons
with whom those employees will come into contact.'"
Carter v. City of Philadelphia, 181 F.3d 339, 357
(3d Cir. 1999) (quoting City of Canton v. Harris,
489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
Additionally, plaintiff must show a causal link: " the
identified deficiency in a city's training program must
be closely related to the ultimate injury." Canton, 489
U.S. at 391; see also Thomas v. Cumberland Cnty.,
749 F.3d 217, 222 (3d Cir. 2014).
indifference is a " stringent standard of fault,
requiring proof that a municipal actor disregarded a known or
obvious consequence of his action." Bd. of Cnty.
Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410,
117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Ordinarily,
deliberate indifference for purposes of failure to train is
demonstrated by a " pattern of similar constitutional
violations by untrained employees." Connick v.
Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1360, 179 L.Ed.2d
417 (2011). A pattern of violations puts municipal
decision-makers on notice that a new program is necessary,
and " [t]heir continued adherence to an approach that
they know or should know has failed to prevent tortious
conduct by employees" can establish the deliberate
indifference necessary to trigger municipal liability. Bryan
Cnty., 520 U.S. at 407.
in certain situations, the need for training is "
'so obvious' that failure to do so could properly be
characterized as 'deliberate indifference' to
constitutional rights," even without a pattern of
constitutional violations. Canton, 489 U.S. at 390 n. 10. A
municipality may be liable after a single incident when the
violation of constitutional rights is a " highly
predictable consequence of failing to equip  officers with
specific tools to handle recurring situations." Bryan
Cnty., 520 U.S. at 408-09; Connick v. Thompson, 563
U.S. 51, 131 S.Ct. 1350, 1361, 179 L.Ed.2d 417 (2011) (a
single incident may trigger municipal liability where
unconstitutional consequences for failure to train are "
patently obvious" ).
has marshalled a number of facts to support his claim that
Cumberland County failed to train its correctional officers
on the use of force. The evidence shows -- and Defendant does
not appear to dispute -- that the CCDOC failed to meet the
state-mandated timelines for completing use of force
trainings. This appears to have been a habitual shortcoming,
including for most officers who are defendants herein. In
addition, the training logs reveal that specific training on
the use of force was rarely, if ever, held before the events
in this case unfolded. Minguela, Ford, and Fazzolari, did not
recall receiving use of force training other than during
their initial two-week training at the Jail and training at
the police academy. While Sciore stated that officers
reviewed the use of force policy during firearms
re-certification training twice a year, no one else could
recall that happening. Based on these facts, a
reasonable jury could conclude that in 2008, Cumberland
County provided no periodic training at all on the
appropriate use of force. At the very least, the record shows
that there is a factual dispute over how frequently use of
force training was held.
has also presented evidence that the trainings at CCDOC were
inadequate and untimely. For instance, Pratts, the Issue
Officer the day Plaintiff was brought in, stated that he
never received any training in how to be an Issue Officer and
had " minimal training" in pat downs and strip
searches. Several officers testified that they did not feel
like they had received adequate training in how to be a
correctional officer. In addition, there appeared to be a
pattern of providing late trainings at the police academy.
Plaintiff presented evidence that some officers waited
between one and a half to three years before attending the
required academy training. Defendants frequently requested
waivers from the State to delay the officers' academy
training, even though academy training was far more thorough
than the in-house training and was, in two officers'
opinions, essential to understanding the rules and procedures
correctional officers had to follow. Academy training also
included important training on the use of force.
need for use of force training in a jail is obvious, as it is
highly predictable that failure to understand its appropriate
use would result in injury to inmates and officers alike. A
reasonable jury could conclude based on the frequent daily
interactions between jailers and inmates that there was a
high likelihood constitutional violations might recur if
training was not provided. Because it was patently obvious
that failure to provide training on the use of force would
result in excessive force, the evidence is sufficient for a
reasonable juror to conclude that Defendant's failure to
train amounted to deliberate indifference. See Thomas, 749
F.3d at 225-26 (finding summary judgment inappropriate on a
failure to train claim where potential for conflict in prison
was high and lack of training on de-escalation and
intervention could establish deliberate indifference);
Berg v. Cnty. of Allegheny, 219 F.3d 261 (3d Cir.
2000) (failure to provide protective measures and fail safes
against mistake in warrant-issuing procedures precluded
summary judgment); Pelzer v. City of Philadelphia,
656 F.Supp.2d 517, 535-36 (E.D. Pa. 2009) (denying summary
judgment on failure to train claim where evidence showed that
City provided no guidelines and offered little training to
police officers in how to conduct foot pursuits).
evidence is also sufficient to sustain a " causal
link" between the lack of training and the injuries
Plaintiff sustained at the hands of correctional officers. At
the time of the incident, four of the five officers in the
strip search room (Still, Pratts, Minguela, and Fazzolari)
had not yet received training from the academy; and three
(Still, Pratts, and Minguela) were supposed to have already
received training, but Defendant had delayed it by requesting
waivers from the State. According to the training log, none
of the officers had attended a specific training on the use
of force. Ciagnolini, Pierce, and Sciore, who were the
commanding officers at the time, likewise had little
training. In fact, the three of them had not had use of force
training (or trainings of any kind, for that matter) in the
eight years before this incident. It is patently obvious that
the officers' ignorance of the rules on how and when to
use force against a prisoner might have contributed to their
transgression of those rules. Defendant's argument, that
there is no causal link between the failure to train and the
excessive use of force against Plaintiff, thus cannot be
similar reasons, the Court will permit the failure to
investigate claim to proceed, since Plaintiff has shown more
than a " mere scintilla" of evidence from which a
jury could conclude that Defendants' procedures were
inadequate to protect from misuse of force. Although
Defendant had a policy of reviewing Use of Force reports to
determine whether correctional officers acted appropriately,
the reports were not used to root out misconduct. Officers
who were present were required to write reports with accounts
that matched, and reports were sent back if they gave
conflicting facts. Ford testified that in this case, all five
correctional officers collaborate on the events inside the
strip search room before submitting their identical reports
to Pierce. The reports themselves were frequently not
reviewed by the required personnel after 2004, and the Warden
did not regularly review the reports.
the vast majority of the reviews concluded that the use of
force was justified. Few internal investigations into
excessive force ever resulted from the Use of Force reports,
even though an analysis of the reports showed that
investigations were warranted in far more cases.
Plaintiff's expert, Dr. McCauley, noted that out of the
364 reports of force submitted in 11 years, Defendants
investigated only six incidents and found only three
incidents of excessive force. Lieutenant Wroniuk from the
Internal Investigations unit testified that the jail had no
formal procedures in place to track complaints against
individual officers, and did not take into consideration past
misconduct when faced with a complaint of excessive force
against that officer. In short, there were no real procedures
in place to detect and prevent problematic behavior by
particular officers. Even though the use of force went up
steadily in the five years leading up to the incident in this
case, the deficiencies in review persisted. A jury could
reasonably conclude that the procedures in place were little
more than a rubber stamp to justify officer conduct,
including conduct that crossed the line into excessive force.
could also conclude that there was a culture of ignoring and
failing to investigate misconduct. When Sergeant Ciangaglini
pushed Plaintiff against a door using force that appeared to
be excessive, neither Minguela nor Brown-Carter reported the
incident because Ciangaglini was their superior officer.
Lieutenant Pierce testified that when there was a claim of
misconduct, he took his officers at their word when they
reported what had happened. Even before he visited
Plaintiff's holding cell, Pierce had written his Use of
Force report and had concluded that the use of force was
justified. Although Plaintiff's injuries were severe and
should have raised some suspicion, no effort was made to
preserve physical evidence for a future investigation.
as discussed above, Luciano testified that she would
frequently report incidents of misconduct, including
incidents of excessive force, to her supervisor, but that her
reports were consistently ignored. Indeed, her supervisor,
Captain Lamcken called her a " troublemaker" and
told her to " mind her own business." Luciano's
testimony suggests that Defendants knew of past problems with
officer misconduct against inmates and, rather than
investigate these claims, looked the other way. Dr. McCauley,
Plaintiff's expert, testified that Defendant's
practice of conducting few investigations and ignoring
complaints of excessive force amounted to a " complete
indifference to the safety, security, and well-being of its
personnel and inmates."
reasonable jury could conclude based on the evidence above
that Defendant's deliberate indifference was the moving
force behind Plaintiff's injury. See Bielevicz,
815 F.2d at 851 (" If the City is shown to have
tolerated known misconduct by police officers, the issue
whether the City's inaction contributed to the individual
officers' [unlawful action against the plaintiff] is a
question of fact for the jury." ); Beck, 89 F.3d at
974-76 (reversing grant of summary judgment on municipal
liability claim where evidence showed that investigatory
procedures into police misconduct were inadequate; there was
no formalized tracking of complaints for individual officers;
and there were civilian complaints of officer violence);
Merman v. City of Camden, 824 F.Supp.2d 581, 591
(D.N.J. 2010) (denying summary judgment on claim of
inadequate investigations and finding persuasive the fact
that there was a significant number of civilian complaints
against officers and a comparatively small number of
disciplinary sanctions). Summary judgment will be denied.
Plaintiff's common law claims are not precluded by the
New Jersey Tort Claims Act
Jersey Tort Claims Act (" NJTCA" ) imposes
liability for a public entity " for injury proximately
caused by an act or omission of a public employee within the
scope of his employment in the same manner and to the same
extent as a private individual under like circumstances.
N.J.S.A. 59:2-2(a). Section 59:2-2(a) of the NJTCA expressly
adopts the general concept of vicarious liability for public
entities. Hoag v. Brown, 397 N.J.Super. 34, 935 A.2d
1218, 1230 (N.J. Super. Ct.App. Div. 2007); Tice v.
Cramer, 133 N.J. 347, 627 A.2d 1090, 1094 (N.J. 1993).
The NJTCA also provides that a public entity is " not
liable for the acts or omissions of a public employee
constituting a crime, actual fraud, actual malice, or willful
misconduct." N.J.S.A. 59:2-10. Thus, there can be no
vicarious liability by a public entity for intentional torts
committed by its employees. Defendant Cumberland County
argues that Plaintiff's common law claims against the
municipality are barred by the NJTCA because Cumberland
County, as a public entity, cannot be held liable for the
willful misconduct of its employees. (Def. Br. 20-21.)
Cumberland County is not entitled to summary judgment on this
ground. As Plaintiff correctly points out, the NJTCA does not
immunize Defendant from liability for its employees'
negligent or grossly negligent conduct. See Graham v.
Huevel, 2011 WL 1256607, at *10 (D.N.J. Mar. 28, 2011)
(noting that a " claim for negligent supervision is an
independent claim for direct liability, rather than one for
vicarious liability under a theory of respondeat
superior." ); Hoag, 935 A.2d at 1230 (same).
Plaintiff's theory, that Defendant is liable for its
employees' failure to properly supervise subordinates on
the day Plaintiff was beaten, states a claim of negligent
supervision that is not barred by the NJTCA. Plaintiff
additionally states a claim of negligent failure to train. As
Defendant does not otherwise challenge the sufficiency of
Plaintiff's state law claims, the Court will permit
Plaintiff's claims of negligent supervision and failure
to train to proceed.
Claims against the Vineland Defendants
parties agree that Vineland Police Department should be
dismissed as a defendant in the § 1983 claim because it
is not a proper institutional party-defendant. Accordingly,
an Order will be entered to dismiss the Vineland Police
respect to the remaining parties, Defendants argue that the
§ 1983 claim against the City of Vineland ("
Vineland" ) for failure to train must be dismissed
because the evidence does not support that Defendant Vineland
failed to train its officers, and because there is no causal
nexus between Defendant's failure to train and
Plaintiff's injury. Defendants additionally argue that
Plaintiff's state law claims against Vineland for
negligent training must be dismissed because Plaintiff did
not file a timely Notice of Claim pursuant to N.J.S.A.
respect to the § 1983 claim against Day and Houbary for
failure to intervene, Defendants argue that the claim must be
dismissed because Day and Houbary did not have a realistic
opportunity to intervene to prevent the violation of
Plaintiff's rights. Defendant Cumberland County filed
an opposition to the Vineland Defendants' motion for
summary judgment, arguing that factual disputes remain as to
whether Plaintiff's injuries were the result of
The City of Vineland is entitled to summary judgment on the
§ 1983 claim of failure to train and the common law
claim of negligent training
argues that Vineland failed to train its police officers on
the proper procedures for transporting prisoners to the jail.
Day testified that Vineland's custom was to assign the
most junior officers to transport prisoners to the jail, and
that as the junior officer on duty that day, the task was
left to him to bring Plaintiff to Cumberland County Jail. Day
also testified that he received no specific in-house training
on transportation and exchange procedures; he learned how to
transport prisoners only during the months he spent shadowing
other officers following his graduation from the police
academy. The opinion of Plaintiff's expert, Dr. McCauley,
was that the Vineland Police Department's training on
transporting and exchanging prisoners was inadequate.
discussed above, to prove a § 1983 constitutional
violation for failure to train, the plaintiff must show that
the defendant's conduct amounted to deliberate
indifference, which, absent a pattern of similar
constitutional violations by untrained employees, "
require[es] proof that a municipal actor disregarded a known
or obvious consequence of his action." Bd. of Cnty.
Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410,
117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). In addition, the
plaintiff must show an " affirmative link" between
the failure to train and the specific constitutional
violation that occurred. Bielevicz v. Dubinon, 915
F.2d 845, 850 (3d Cir. 1990). Although there is some evidence
that Defendant failed to provide adequate training, that
dispute is not material because the evidence does not link
the lack of training of Vineland officers to the
constitutional harm of which Plaintiff complains. Plaintiff
has not presented sufficient evidence for a reasonable
factfinder to conclude that Defendant Vineland's failure
rose to the level of deliberate indifference. Nor has is
there enough evidence in the record for a rational jury to
find a causal connection between Defendant's failure to
train and the injuries Plaintiff suffered.
the lack of formal police training in this particular area of
the transport of detainees does not create an obvious risk
that a prisoner would be beaten by correctional officers at
the receiving institution. Not knowing the specific
procedures for presenting an inmate to the jail does not
generally pose an obvious danger to the inmate's health
and safety. The process of transport and exchange requires a
police officer to bring a prisoner to the jail and leave him
in the custody of correctional officers, and there is no
reason for a police officer to suspect that correctional
officers would mistreat an inmate. Thus, ignorance of the
exact method by which an exchange of custody takes place at
the Cumberland County Jail does not create a high risk of
harm of which Defendant Vineland should have known.
Plaintiff has not specified what additional training could
have prevented the harm that occurred. See Woloszyn v.
Cnty. of Lawrence, 396 F.3d 314 (3d Cir. 2005) (failure
to identify specific training that could reasonably have
identified the prisoner's suicidal tendencies was fatal).
Plaintiff notes that without training, Day mistakenly
believed that Plaintiff was in Ciangaglini's custody when
they were in the processing room and consequently did not
speak up when excessive force was being used. But Day
testified that this was only one of the reasons why he did
not say anything to Ciangaglini; he also stayed silent
because he was " brand new" and because
Ciangaglini, a Lieutenant at the time, outranked him. More
significantly, Day and Houbary both testified that they knew
their obligations to report officer misconduct. Day stated
that he " should have" said something to
Ciangaglini and confirmed that his law enforcement training
required him to speak up to an officer when he sees that
officer using excessive force. (Day Dep. 154:9-157:12.)
Similarly, Houbary confirmed that based on his training, it
was his responsibility to report the use of excessive force
by another officer. (Houbary Dep. 36: 1-21.) In other words,
it was clear that Day and Houbary knew what they were
supposed to do in the present situation, whether or not they
received formal training. Thus, even if Day and Houbary had
been properly trained on transporting prisoners, there is no
reason to believe it would have made a difference in how they
reacted to the Cumberland Defendants' conduct.
Plaintiff has not shown that Vineland ignored an "
obvious risk" of constitutional violations, or that
there is a causal link between Vineland's failure to
provide formal training on prison transport and the injuries
Plaintiff suffered at the jail, the Court will grant summary
judgment on Plaintiff's claim against Vineland under 42
U.S.C. § 1983 for failure to train. For similar reasons,
the Court will grant summary judgment on Plaintiff's
common law claim of negligent training. Both claims will
The Court will grant summary judgment on Plaintiff's
§ 1983 claim for failure to intervene against Officer
Day but deny summary judgment on the claim against Officer
alleges that Day and Houbary are liable under § 1983 for
failure to intervene to prevent the deprivation of
Plaintiff's constitutional rights. " It is clear
that one who is given the badge of authority of a police
officer may not ignore the duty imposed by his office and
fail to stop other officers who summarily punish a third
person in his presence or otherwise within his
knowledge." Byrd v. Brishke, 466 F.2d 6, 11
(7th Cir. 1972). Under this principal, when a police officer
fails to intervene when a constitutional violation such as a
beating takes place in his presence, he may be liable under
§ 1983 for violating the victim's Eighth Amendment
rights. Smith v. Mensinger, 293 F.3d 641, 650 (3d
Cir. 2002) (citing Byrd v. Clark, 783 F.2d 1002,
1007 (11th Cir. 1986)); Putman v. Gerloff, 639 F.2d
415, 423 (8th Cir. 1981).
police officer has a duty to take reasonable steps to protect
a victim from another officer's use of excessive force,
but liability does not attach in all cases. An officer is
liable for failing to intervene only if he saw the beating
and there was a " realistic and reasonable opportunity
to intervene." Mensinger, 293 F.3d at 650.
Generally, the constitutional violation must have occurred in
the officer's presence. Clark, 783 F.2d at 1007; Brishke,
466 F.2d at 11 (liability for failure to intervene exists
only if the beating occurred in the officer's presence or
was otherwise within his knowledge).
evidence shows that Defendant Day witnessed Ciangaglini
forcefully push Plaintiff's face into the door of a
processing room during Plaintiff's first trip to
Cumberland County Jail. Minguela, who observed the incident
from a monitor, believed that Ciangaglini used "
excessive" force against Plaintiff. Day also admitted
that he thought the use of force was " excessive."
As Ciangaglini does not seek summary judgment on
Plaintiff's § 1983 claim of excessive force, the
Court assumes for purposes of this motion that
Ciangaglini's conduct violated Plaintiff's rights
under the Fifth and Eighth Amendments.
the Court finds that Day is entitled to summary judgment,
because even assuming a constitutional violation had
occurred, no reasonable jury could find that there was a
reasonable opportunity for Day to intervene before Plaintiff
was mistreated by Ciangaglini. Day did not know that
Ciangaglini would push Plaintiff into the door, and nothing
in the record suggests that Day knew Ciangaglini was about to
use excessive force when he took Plaintiff by the arm to
escort him out of the room. The evidence of record describes
an instantaneous, perhaps impulsive shove by Ciangaglini, to
which Day was only a witness. Even if Day had wanted to
intervene, the evidence is insufficient as a matter of law to
show that he had any opportunity to do so. See
O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d
Cir. 1988) (finding no liability where blows were struck too
quickly for an officer to intercede); Sullivan v.
Warminster Twp., 765 F.Supp.2d 687, 701-02 (E.D.Pa.
2011) (finding that officers had no realistic or reasonable
opportunity to intervene because they were far from where the
constitutional deprivation took place and could not
reasonably have reached area to prevent harm).
the Court finds that the § 1983 claim against Day should
be dismissed, the question of damages against Day is moot.
Court will allow Plaintiff's failure to intervene claim
against Houbary to proceed. Houbary was not in the strip
search room when Plaintiff was beaten by the correctional
officers, nor does the record show that he witnessed
correctional officers use inappropriate force against
Plaintiff in the strip search room.
argues, however, that Houbary should have stayed at the jail
because there were signs that Plaintiff's safety was at
risk. For example, Houbary testified that there were more
than the normal number of officers in the room for
Plaintiff's pat-down and strip search, and the way Pratts
performed his pat-down of Plaintiff in the control room was
unusual. Houbary noticed that the nurse was not called down
to examine Plaintiff before the strip search. He also
indicated that Pratt's take down of Plaintiff may not
have been justified, because he did not see Plaintiff kick
Pratts. Although he did not go into the strip search room,
Houbary followed the officers when they took Plaintiff to the
strip search room because he wanted to see what was
supplemental briefing, Plaintiff cites Floyd v. City of
Detroit, 518 F.3d 398 (6th Cir. 2008) and Curley v.
Suffern, 268 F.3d 65 (2d Cir. 2001), for the proposition
that an officer may be liable for failing to act to prevent
the use of excessive force where the officer " had
reason to know" that excessive force will be used. See
Floyd, 518 F.3d at 406 (police officer who fails to act to
prevent the use of excessive force may be held liable where
officer " had reason to know that excessive force would
be or was being used" and had both the opportunity and
the means to prevent the harm from occurring); Curley, 268
F.3d at 72 (" Failure to interceded results in liability
where an officer observes excessive force is being used or
has reason to know that it will be." ); see also
Hicks v. Norwood, 640 F.3d 839, 843 (9th Cir. 2011)
(reciting rule in Floyd); Turner v. Scott, 119 F.3d
425, 429 (6th Cir. 1997). Plaintiff argues that the unusual
behavior of the correctional officers should have alerted
Houbary to the risk that Plaintiff would be subject to
excessive force, and Houbary's failure to stay in the
jail to protect Plaintiff therefore violated Plaintiff's
has raised a material factual dispute whether Houbary had
reason to believe that Plaintiff's safety was in jeopardy
when Houbary left the jail. Even though Houbary testified
that he did not fear for Plaintiff's safety when he left
(Houbary Dep. 135:7-12), a reasonable factfinder could reject
this statement based on other evidence in the record. Here,
immediately after Plaintiff was taken down in a manner
Houbary believed might not have been justified, Houbary
witnessed numerous officers grab Plaintiff and take him into
a strip search room. Particularly when Plaintiff is given the
benefit of all reasonable inferences, a reasonable fact
finder could conclude that Houbary should have known that
Plaintiff would probably be mistreated, and that Houbary had
an opportunity to prevent it by insisting on staying by
Plaintiff's side until the strip search was completed. A
reasonable jury could find from the evidence that
Houbary's intervention, or even his mere personal
presence, would have prevented the beating that Plaintiff
alleges occurred in the strip search room. The Court will
accordingly deny summary judgment on Plaintiff's §
1983 claim against Houbary for failure to intervene.
foregoing reasons, the Court will dismiss Cumberland County
Department of Corrections as a party in the case and deny the
motion for summary judgment by Cumberland County.
Plaintiff's § 1983 claims against Cumberland County
for failure to train and failure to investigate, and common
law claims for negligent training and negligent supervision
will be allowed proceed. The Court will also deny the motions
for summary judgment by Defendants Ciangaglini, Pratts,
Still, Fazzolari, Ford, Minguela, Sciore, and Pierce.
However, the Court will dismiss the conspiracy claim against
Sciore and Ciangaglini.
the Vineland defendants, the Court will dismiss the Vineland
Police Department as a party in the case and grant summary
judgment on all counts for Defendants City of Vineland, and
Officer Day. Summary judgment will be denied on
Plaintiff's § 1983 claim against Houbary for failure
to intervene. The accompanying Order will be entered.
matter having come before the Court on Defendants'
Motions for Summary Judgment [Docket Items 217, 218, 219,
220, 221, 223, 224, 226, 227]; the Court having considered
the submissions of the parties in support thereof and
opposition thereto and having held oral argument; for the
reasons stated in the Opinion of today's date; and for
good cause shown;
this 25th day of March, 2015 hereby
that Defendant Edwin Pratt's Motion for Summary Judgment
[Docket Item 217] be and hereby is DENIED; and it is further
that Defendant Drew Ford's Motion for Summary Judgment
[Docket Item 218] be and hereby is DENIED; and it is further
that Defendant Kevin Still's Motion for Summary Judgment
[Docket Item 220] be and hereby is DENIED; and it is further
that Defendant Joshua Minguela's Motion for Summary
Judgment [Docket Item 221] be and hereby is DENIED; and it is
that Defendant Defendants Brad Pierce and Dale Sciore's
Motion for Summary Judgment [Docket Item 223] be and hereby
is GRANTED with respect to the claim of conspiracy against
Dale Sciore and DENIED with respect to all other claims; and
it is further
that Defendant Clint Ciangaglini's Motion for Partial
Summary Judgment [Docket Item 226] be and hereby is DENIED;
and it is further
that Defendant John Fazzolari's Motion for Summary
Judgment [Docket Item 227] be and hereby is DENIED, and it is
that Vineland Police Department and Cumberland County
Department of Corrections be DISMISSED from the case; and it
that Defendants Cumberland County's Motion for Summary
Judgment [Docket Item 224] be and hereby is DENIED; and it is
that Defendants James Day, Steven Houbary, and Vineland
Township's Motion for Summary Judgment [Docket Item 219]
be and hereby is GRANTED with respect to the claims against
Day and Vineland Township; and DENIED with respect to the
claim against Steven Houbary for failure to intervene under
42 U.S.C. § 1983; and it is further
that Defendants James Day and Vineland Township be DISMISSED
from the case.
Although Plaintiff named " Vineland
Township" as a defendant, Vineland is not a township but
is a city in Cumberland County, New Jersey. The parties
clarified at oral argument that City of Vineland was the
appropriate name for the defendant, and the Court will
therefore refer to " Vineland Township" as the
" City of Vineland" or " Vineland"
throughout this opinion.
Minguela did not report the incident to
anyone because he was " the youngest involved in that
situation at the time" and felt like " a
puppet." He stated that he " did not have the
proper training that [he] was supposed to have at the time
and [he] kind of just went off of what [his]
supervisors told [him]." (Minguela Dep. 165:5-17.) Day
admitted that he should have said something to Ciangaglini
but did not because he was " brand new,"
Ciangaglini outranked him, and he believed Plaintiff was in
Ciangaglini's custody at the time. (Day Dep. 154:15-18;
150:23-154:6.) Carter did not report the incident because
Ciangaglini was her supervisor and she did not want any
repercussions. (Carter Dep. [Docket Item 237-12]
Plaintiff included a transcript of a taped
statement Pagan made in July 2008 with the Cumberland County
Prosecutor's office. Defendants object that Pagan's
testimony is hearsay, as Pagan was not deposed in connection
with this case. Pagan's statement about what he saw
and did is not hearsay, and is largely confirmed by the video
evidence. As Pagan could conceivably be used as a witness at
trial, the Court will accept his testimony in deciding these
summary judgment motions.
The " Training Requirements" of
the AG Policy states:
Every law enforcement agency is required to conduct
and document semi-annual training for all officers on the
lawful and appropriate use of force and deadly force. This
training must be designed to reflect current standards
established by statutory and case law, as well as
statewide, county and individual agency policy. It should
include but not necessarily be limited to the use of force
in general, the use of physical and mechanical force, the
use of deadly force, and the limitations that govern
the use of force and deadly force.
(Attorney General's Use of Force Policy [Docket
Item 237-40], at 7.)
Still, Pratts, Fazzolari, and Minguela did
not attend firearms training at any time before the incident.
(Counter SMF ¶ 184.)
The Training log shows some entries
for " Training" which does not specify
whether use of force training was included.
Ford's last training on use of force
occurred nearly five years before the incident. Pratts had
attended a training session two years before the incident.
Two officers, Fazzolari and Minguela, had been trained
approximately one year before the incident. Still attended a
training three months before the incident. (Training Log
[Docket Item 237-42]; Counter SMF ¶ 173.)
Correctional officers who have not yet
completed police academy training are on probationary status
and are considered " recruits." (Minguela Dep.
Waivers from this requirement could be
granted at the request of the CCDOC.
Correctional Officers Marvin Church and
Rena Miller were voluntarily dismissed from the suit on
August 14, 2014. [Docket Item 222.]
In July 2009, Fazzolari, Ford, Minguela,
Still and Pratts were indicted by a grand jury for aggravated
assault, official misconduct, falsifying records, obstructing
justice, and conspiracy in connection with the June 30, 2008
incident. The Court stayed this case in 2010 pending
resolution of the Cumberland County officers' criminal
cases. In April 2013, a verdict in favor of defendant Kevin
Stills was entered in the case. Thereafter, the Cumberland
County Prosecutor dismissed the criminal charges
against the remaining indicted defendants, namely Pratts,
Minguela, Ford, and Fazzolari. (Pl. Mot. to Amend [Docket
Item 112] ¶ ¶ 9-10.) This Court lifted the stay in
The Court does not discuss whether the
Fourth Amendment should apply to Plaintiff's claim of
excessive force because Plaintiff was beaten after an arrest
but before being admitted to the general prison population
and before a judicial determination of probable cause. See,
e.g., Catherine T. Struve, The Conditions of Pretrial
Detention, 161 U. Pa. L.Rev. 1009 (2013) (arguing that Graham
v. Connor's objective reasonableness test under the
Fourth Amendment is more appropriate for excessive force
claims arising in pre-judicial detention). That argument was
not briefed by either party and the Court will decline to
address it. See Aetna Health Inc. v. Davila, 542
U.S. 200, 212, 124 S.Ct. 2488, 159 L.Ed.2d 312, (2004)
(deeming an argument waived when the " [r]espondent did
not identify this possible argument in their brief in
The law in this area among circuits is
split, and the question of what standard applies in a §
1983 excessive force claim brought by a pretrial detainee is
currently before the Supreme Court. See Kingsley v.
Hendrickson, 744 F.3d 443 (7th Cir. 2014), cert.
granted, 135 S.Ct. 1039, 190 L.Ed.2d 908, 2015 WL 213653
(Jan. 15, 2015).
The Court also notes that in this
particular case, where there is evidence of inadequate
oversight and accountability over the conduct of correctional
officers, there is a higher risk that officers with little
training on use of force will use inappropriate levels of
force to subdue pretrial detainees. The use of a subjective
Eighth Amendment recklessness or malice standard is not
well-suited to curbing jailhouse violence where officers'
subjective sense of reasonableness may be distorted.
Although the Court will permit the §
1983 claim of excessive force against Defendant
Ciangaglini to proceed, the Court notes that Plaintiff does
not allege that he suffered any harm from being pushed
against the door by Ciangaglini. Plaintiff's § 1983
claim for compensatory damages will be limited to $1
exemplary damages unless Plaintiff can prove at trial that he
was injured as a result of Ciangaglini's conduct.
The Court notes that the second prong may
also be met because any violation of the Eighth
Amendment's prohibition against force " maliciously
and sadistically to cause harm" may be considered a
clearly established constitutional violation. See Skrtich
v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002)
(holding that " a defense of qualified immunity is not
available in cases alleging excessive force in violation of
the Eighth Amendment, because the use of force
'maliciously and sadistically to cause harm' is
clearly established to be a violation of the
Constitution" ); Thomas v. Ferguson, 361
F.Supp.2d 435, 442 n.7 (D.N.J. 2004) (noting that "
[m]alicious and sadistic use of force is always in
violation of clearly established law." ); see also
Beers--Capitol v. Whetzel, 256 F.3d 120, 142 n.15
(3d Cir. 2001) (in excessive force case, holding that "
to the extent that the plaintiffs have made a showing
sufficient to overcome summary judgment on the merits, they
have also made a showing sufficient to overcome any claim to
qualified immunity." ).
At oral argument, counsel for Defendant
Ciangaglini argued that he never received notice because he
personally did not receive the letter sent to Cumberland
County. However, the NJTSA does not require Plaintiff to
serve the individual employee. The statute explicitly
provides that service " upon the public entity shall
constitute constructive service upon any employee of that
entity." N.J.S.A. 59:8-10(c). Thus, whether or not
Ciangaglini ever received Plaintiff's letter notice to
Cumberland County is immaterial to whether Plaintiff has
satisfied the notice requirement.
Plaintiff clarified at oral argument that
he does not make a claim of assault and battery against
Defendants Pierce and Sciore.
It does not appear that the twice-yearly
requirement was cumbersome for Defendant. Indeed, the
training log reveals that Defendants had no trouble with
being punctual in their firearms re-certification.
The Court will not consider
Defendant's argument that they failed to receive proper
notice of claims, as it was not raised in Defendant's
opening brief. See Bayer AG v. Schein Pharm., Inc.,
129 F.Supp.2d 705, 716 (D.N.J. 2001).
The Court sought additional briefing and
on the narrow question of whether law enforcement officers
have a duty to intervene when the officer has reason to
believe excessive force will be used on a victim in the
future. Following oral argument, the parties submitted
supplemental briefing, and the Court has considered only the
portions of briefs relevant to this question. As the Court
did not request additional briefing on any other issue, the
parties' submissions outside this topic were not
Because Plaintiff has no other common law
claims against Vineland, the Court need not decide whether
Plaintiff's tort claim is barred by the New Jersey Tort
Cumberland argues that summary judgment
should be denied because there are disputed issues of fact
over whether Day failed to intervene during Plaintiff's
first encounter near his hotel with officers from Vineland.
As Plaintiff's claims against Day relate only to his
failure to intervene at the jail and not to the earlier
incident, whether Day failed to intervene at the hotel is
immaterial to resolving his liability in this case.