United States District Court, D. New Jersey
J. Benedetto, Esq. Law Offices of Conrad J. Benedetto and
Frank Rocco Schirripa, Esq. John Anthony Blyth, Esq. Hach
Rose Schirripa & Cheverie LLP Counsel for Plaintiff
McCain, Esq. Chance & McCain LLC Counsel for Defendants
Cumberland County, Cumberland County Correctional Facility,
and Warden Robert Balicki
Robert White, Esq. Testa Heck Testa & White, PA Counsel
for the Individual Corrections Officer Defendants
L. HILLMAN, U.S.D.J.
case concerns an assault that Plaintiff Frank Lee, an inmate
formerly incarcerated at Cumberland County Correctional
Facility in Bridgeton, New Jersey, suffered at the hands of
other inmates within his cell block. In the Complaint,
Plaintiff alleges that the correctional officer defendants on
duty during the assault were deliberately indifferent to
Plaintiff in failing to intervene and failing to provide
medical care in violation of the Eighth Amendment; conspired
to deprive Plaintiff of his constitutional rights pursuant to
42 U.S.C. § 1985, and violated common law conspiracy and
the New Jersey Civil Rights Act. The Complaint also asserts a
Monell claim against Cumberland County and Warden Robert
issue are Defendants' Motions for Summary Judgment, which
are ripe for adjudication. See ECF Nos. 61 (County Motion),
62 (Individual Defendants Motion). The Court has
subject-matter jurisdiction over this case pursuant to 28
U.S.C. § 1331, as this case concerns a federal question.
For the reasons that follow, the Court will grant the Motion.
2013, Plaintiff, Frank Lee was involved a robbery in
Fairfield Township, New Jersey. ECF No. 61-3 at 1. Plaintiff
was eventually arrested and was detained in the Cumberland
County Jail in February of 2014. Id. During his time
of incarceration, Plaintiff was a pre-trial detainee awaiting
trial. Id. From approximately April 2014 to January
2015, he was housed in C Block, which is a dormitory with
individual cells. Id. C Block consists of a day room
in the middle with cells on either side. Id.
Plaintiff did not like the “atmosphere of C
Block.” Id. Specifically, he did not like that
his cell block was populated by “youth” and
“wild” guys. Id. at 2. The residents of
C Block also tended to be “cliquey, ” but he was
not part of any clique. Id. There are no guards in C
Block, which is supervised indirectly. Id.
to his testimony, Plaintiff claims that he had no problem
with any of the other residents of C Block while he was
housed there prior to the assault. Id. He described
his relationship with the other inmates of the block as
“mutual” which means that “there's no
positive and no negative.” Id. Plaintiff
admitted at his deposition that to his knowledge, no
corrections officers or jail staff ever observed issues
between him and other inmates in C Block. Id.
Plaintiff admitted at deposition that prior to the assault,
no one said anything to make him concerned and he did not say
anything that would make any other inmate upset. Id.
Plaintiff testified that in the weeks or days before the
assault he never told anyone at the jail anything about the
other inmates in C Block, nor made complaints about the other
inmates in C Block and testified that he was not afraid of
the inmates in C Block. Id. Plaintiff also admitted
that he did not have a problem with any of the corrections
officers at the jail. Id.
day of the attack, Plaintiff was playing a card game with
Obidiah Taylor, Cornell Tarte and Troy Domini. Id.
He testified that “as we were playing cards it just
felt awkward” and his partner, “he played
disinterested.” Id. He said that he felt
“boxed in” during the game so he stood up, and
“the game wasn't like it normally was, we all just
quit.” Id. He testified that he felt
vulnerable at that moment, but he didn't tell anyone that
because he felt “there was no reason to.”
Id. Lee testified that after the card game another
inmate “splash[ed”] him with hot water from
behind.” Id. He was not sure who did this.
Id. Plaintiff testified that someone then took a
swing at him but missed. He was unsure who swung at him.
this time, he said that CO Cimino was somewhere in the
vicinity “down the hall.” Id. at 4.
Plaintiff testified that CO Cimino could see inside C Block
and that he “looked directly at him and waving my hand,
” but Cimino did not intervene. Id. Lee
testified that the time between him waiving at CO Cimino and
the rest of the attack was “maybe about five
seconds.” Id. He testified that he believed
that CO Cimino was under the misimpression that the activity
in C Block was just horseplay between inmates. Id.
video footage captured the inside of C Block from the outside
of C Block's gate beginning at 9:30:30. Id. Per
Plaintiff's testimony he had already been splashed with
water by the time he can be seen in the video at 9:31:27.
Id. In the CCTV video of this incident, Plaintiff is
walking around the cell block following the attempted
“splashing” and attempted punch at 9:31:27.
Id. Per Plaintiff's testimony he believes he
waved down CO Cimino after the hot water was splashed
sometime before 9:31:27, and certainly in the approximately
two-minute time frame between 9:30:30 and 9:32:33.
Id. Plaintiff stated that he was trying to figure
out what was going on at frame 9:31:53. Id. On the
CCTV video, Plaintiff can be seen communicating with the
other inmates trying to determine what is happening at
9:31:53. Id. In the video, he is then punched in the
back of his head by another inmate believed to be Cornell
Tarte at 9:32:33. Id. Per the video and
Plaintiff's testimony, the fight ensues after inmate
Tarte's punch in the back of the head. Id. Per
the CCTV video, the inmates start retreating to their cells
at 9:33:08. Id.
Plaintiff's testimony and the CCTV footage, CO Cimino
appears at the gate outside of C Block at 9:33:26.
Id. Plaintiff agrees that the inmates begin going
back into their cells at 9:33:49. Id. In the CCTV
video, Tarte and Plaintiff then wrestle and Plaintiff goes to
the ground. Id. at 5. Most of the other inmates then
join the fight and punch and kick Plaintiff. Id.
Plaintiff testified that “I didn't hear anything
while I was on the ground. I just covered myself up. But I
did see officers at the gate. I didn't hear them say
anything, so no.” Id.
stated that CO Cimino responded and began shooting pepper
spray into the cell block. Id. Plaintiff stated that
he “didn't realize until, like the blows
weren't as many as they were before, that at some point
after the CO's were at the gate that some of the inmates
had gone back into their cells.” Id. On the
CCTV video, Officer Cimino can first be seen, after pepper
spraying the inmates in C Block, at 9:33:26. Id.
Sergeant Mendibles can also be seen responding and looking
into the cell block at 9:33:59. Id. CO Cimino
authored a subject/witness record form at 9:40 p.m.
memorializing that he observed the whole block “jumped
on Frank Lee. I began to pepper spray all inmates involved in
the fight. I, Officer Cimino handcuffed inmate Obadiah
Taylor.” Id. From the CCTV video, it appears
that all of the inmates were suffering from the effects of
the pepper spray at 9:33:16. Id. However, it can be
seen from the CCTV video that Obadiah Taylor and Troy Donini
continued to punch and beat him. Id.
Cumberland County Jail Supervisors' Reports from January
9, 2015, reflect that the code was called for this event in C
Block occurred at 9:35 p.m., that the medical department at
the jail determined that Plaintiff would need to be
transported to the hospital at 9:45 p.m., and that Lee was
“TOT [turned over to] Inspira Hospital” at 9:55
p.m. Id. Reports were authored by the following
CO's at the following times: CO's Luciano (9:40
p.m.); Ramirez (9:30 p.m.); Rittilies (9:30 p.m.); Hill (9:39
p.m.); T. Brown (9:40 p.m.); Roscoe (9:40 p.m.); Reichner
(9:36 p.m.); Crawford (9:36 p.m.); J. Brown (9:40 p.m.);
Carter (9:36 p.m.); Mendibles (10:00 p.m.); Cimino (9:40
p.m.); Floyd (9:40 p.m.). Id. at 6.
employee of CFG, the jail's in-house medical provider,
completed their “Off-Site Emergency Health Services
Form” for Lee's emergency room visit to Inspira
Hospital at 10:00 p.m. on January 9, 2015, for a left eyebrow
laceration and left eye swelling. Id. Progress notes
completed by CFG at 10:30 p.m. indicate that before Plaintiff
went to Inspira his laceration was covered and head wrapped
at the jail. Id. Physician's orders from these
same jail records reflect a note at 10:30 p.m. that Plaintiff
was seen by Dr. Pettis and Nurse Sosa and was “sen[t]
via custody to Inspira-Vineland.” Id. Per
CFG's records, after arriving at the jail's
infirmary, Plaintiff was sent almost immediately to the
testified and the medical records support that he first went
to a local hospital, Inspira Hospital, and then onto Cooper
in Camden where he was treated for his left orbit fractures
and head injury. Id. At the hospital, he received
stitches and medication for pain and he was returned to the
hospital to have his stitches removed. Id.
returning to the jail from the hospital, Plaintiff was moved
to a new cell block where the jail tried to keep him apart
from the C Block. Id. at 6-7. After Plaintiff
returned to the jail, he continued to get medical care from
the jail's medical provider, CFG, who is not a party to
this lawsuit. Id. at 7.
testified and interviews conducted by Internal Affairs at the
Jail confirmed that Plaintiff did not want to press any
charges against his attackers. Id. Per
Plaintiff's own testimony, the jail staff did take
measure to prevent Plaintiff from coming into contact with
them in the future. Id. He confirmed at his
deposition that he is not claiming that he was ever subjected
to any excessive force by any CO. Id. Plaintiff
testified that he believes that the fact that the jail allows
the inmates access to hot pots, which he called
“stingers” is a policy which caused his injury,
since he testified to his belief that they were no longer
allowed in state prison. Id. Despite Plaintiff's
testimony that he had suffered burns, Cooper Hospital records