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Ewing v. Cumberland County

United States District Court, D. New Jersey

March 25, 2015

MICHAEL ALAN EWING, Plaintiff,
v.
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

          For Michael Alan Ewing, Plaintiff: Martin P. Duffy, Esq., COZEN AND O'CONNOR, Cherry Hill, NJ.

         For Cumberland County and Cumberland County Department of Corrections, Defendants: John C. Eastlack, Jr., Esq., Daniel Edward Rybeck, Esq., WEIR & PARTNERS LLP, Cherry Hill, NJ.

         For Dale Sciore and Brad Pierce, Defendants: Arnold Robinson, Esq., ROBINSON & ANDUJAR, LLC, Millville, NJ.

         For Clint Ciangaglini, Defendant: Shanna McCann, Esq., CHANCE & MCCANN LLC, Woodstown, NJ.

         For Edwin Pratts, Defendant: Linda A. Galella, Esq., RICHARDSON, GALELLA & AUSTERMUHL, Woodbury, NJ.

         For Estate of Kevin Still, Defendant: Michael Louis Testa, Sr., Esq., Justin Robert White, Esq., TESTA HECK SCROCCA & TESTA, PA, Vineland, NJ.

         For Joshua Minguela, Defendant: Salvatore J. Siciliano, Esq., SICILIANO & ASSOCIATES, LLC, Haddonfield, NJ.

         For Drew Ford, Defendant: Patrick J. Madden, Esq., Timothy R. Bieg, Esq., MADDEN & MADDEN, PA, Haddonfield, NJ.

         For John Fazzolari, Defendant: Douglas E. Burry, Esq., SAPONARO & SITZLER, Mt. Holly, NJ.

         For Vineland Township, Vineland Police Department, James Day, and Steven Houbary, Defendants: Judson B. Barrett, Esq., BARRETT AND PAVLUK, LLC, Ocean, NJ.

          OPINION

         HONORABLE JEROME B. SIMANDLE, Chief United States District Judge.

         Table of Contents

I. INTRODUCTION

II. BACKGROUND

A. Factual Background

1. Arrest and Transport to Vineland Police Department and

Cumberland County Jail

2. Incident in the Processing room during Plaintiff's first

trip to the CCDOC (Day, Ciangaglini, Minguela)

3. Incident in the CCDOC control room and strip search room

during Plaintiff's second visit (Houbary, Pratts, Still,

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 McCauley

8. Training on the use of force at Cumberland County Jail

9. Internal investigations into excessive force at Cumberland

County Jail

10. Plaintiff's expert report of Dr. Randall McCauley

11. Notice of Claim

B. Procedural Background

III. STANDARD OF REVIEW

IV. ANALYSIS

A. Claims against Cumberland Correctional Officers

1. Summary judgment is not warranted against Plaintiff's

§ 1983 claim of excessive force

2. Minguela is not entitled to qualified immunity

3. Plaintiff's state law claims are not barred by the NJTCA

4. Defendants Pratts, Still, Minguela, Ford, Fazzolari, and

Ciangaglini are not entitled to summary judgment on

Plaintiff's assault and battery claim

5. Fazzolari and Pratts are not entitled to summary judgment

on Plaintiff's claim of intentional infliction of emotional

distress

6. Defendants Pratts, Still, Minguela, Ford, Fazzolari, and

Pierce are not entitled to summary judgment on Plaintiff's

conspiracy claim

B. Claims against Cumberland County and CCDOC

1. Cumberland County is not entitled to summary judgment on

Plaintiff's failure to train and failure to investigate

claims

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 judgment on

the § 1983 claim of failure to train and the common law claim

of negligent training

2. 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 Houbary 88

IV. CONCLUSION

         I. INTRODUCTION

         This is 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.

         Plaintiff brought suit against the individual officers involved, as well as against Cumberland County, the Cumberland County Jail, Vineland Township (" City of Vineland" or " Vineland" ),[1] and the Vineland Police Department, alleging constitutional violations under the Fourteenth Amendment and various state tort claims.

         The 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 action.

         II. BACKGROUND

         A. Factual Background

         Because 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.

         1. Arrest and transport to Vineland Police Department and Cumberland County Jail

         At 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.)

         Police 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.)

         Plaintiff 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.)

         At the 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.)

         Day 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.)

         2. Incident in the processing room during Plaintiff's first trip to the CCDOC (Day, Ciangaglini, Minguela)

         Defendant 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 " N" ).

         Nurse 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.)

         Plaintiff 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.[2]

         Defendant 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.)

         Day 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. 159:9-161:4.)

         Plaintiff 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.)

         3. Incident in the CCDOC control room and strip search room during Plaintiff's second visit (Houbary, Pratts, Still, Fazzolari, Sciore, Pierce, Minguela, Ford)

         Vineland 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.)

         At the 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.

         Houbary brought Plaintiff to the rear control room, where three correctional officers, Defendants Edwin Pratts, Kevin Still, and John Fazzolari were waiting to process Plaintiff.

         Pratts 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.)

         Pratts 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.)

         Pratts 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.)

         Pratts, 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.)

         Houbary 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.)

         Before 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.)

         Plaintiff 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.

         One 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.)[3] 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.

         4. Use of Force reports

         The 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 " irate." (Id.)

         Ford 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] 107:5-16.)

         Defendant 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.

         Pierce's 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].)

         5. Defendants' statements

         The 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.

         There 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.)

         According 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.)

         6. Plaintiff's injuries

         Plaintiff 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.)

         After 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.)

         Approximately 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.)

         Brown-Carter 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 Dep. 46:24-49:2.)

         Later 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.)

         Plaintiff 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.)

         Because 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.)

         Nurse 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.)

         7. Expert reports of Dr. Fred Simon and Dr. Randall McCauley

         Plaintiff 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]).

         Plaintiff's 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.

         8. Training on the use of force at Cumberland County Jail

         The New 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.[4] Cumberland County Jail has adopted the AG Policy. (Sciore Dep. 29:19 -- 31:14; Saunders Dep. [Docket Item 237-41] 88:25-89:11.)

         There 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.)

         Glenn 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.)

         Sciore 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.)[5]

         The CCDOC keeps a training log showing officers' attendance at training sessions. (Training Log [Docket Item 237-42]; Counter SMF ¶ 173.)[6] 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.[7] 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.)

         Pursuant 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.[8] (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 ...


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