SMITH et al v. GRANSDEN et al

Filing 75

OPINION. Signed by Judge Joseph E. Irenas on 11/3/2011. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GARRESSA SMITH as
Administratrix and
prosequendum of the estate of
Kashon Smith, a minor,
deceased, and CORINTHIA
MITCHELL as parent and natural
guardian for Kaysha Mitchell,
a minor, and Coron Mitchell, a
minor

HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 08-4517
(JEI/KMW)
OPINION

Plaintiffs,
v.
OFFICER DEAN GRANDSEN, et al.,
Defendants.

APPEARANCES:
RALPH A. POWERLL, ESQUIRE PC
Ralph A. Powell, Esq.
1900 Knight Circle
Yardley, PA 19067
Counsel for Plaintiffs
Ralph Raymond Kramer, Esq.
605 White Horse Pike
Haddon Heights, NJ 08035
Counsel for Defendant Officer Dean Grandsen
WEIR & PARTNERS LLP
John C. Eastlack, Jr., Esq.
The Liberty View Building
457 Haddonfield Road, Suite 310
Cherry Hill, NJ 08002
Counsel for Defendant City of Camden
OFFICE OF CAMDEN COUNTY COUNSEL
Howard Lane Goldbery
520 Market Street
Courthouse - 14th Floor
1

Camden, NJ 08102
Counsel for Defendants County of Camden and Camden County
Prosecutor’s Office
TAYLOR AND JAY, LLC
Stuart W. Jay
20 East Centre Street
Woodbury, NJ 08096
Counsel for Defendant Jeffrey Frampton
IRENAS, Senior District Judge:
This matter comes before the Court on Defendant Jeffrey
Frampton’s Motion for Summary Judgment.1

(Dkt. No. 56)

For the

following reasons the Motion will be denied.

I.
There are several witnesses to the events that gave rise to
this lawsuit; however, there are two distinctly different
accounts of those events.

For the purposes of this Motion, the

Court must resolve all factual discrepancies in favor of the
Plaintiffs.2
On the night of December 21, 2007, Officer Dean Grandsen was
a Camden City Police Officer on patrol near the 200 block of
Pfeiffer Street in Camden, New Jersey.

(Pl.’s Br. Opp.

Grandsen’s Sum. J. Mot., Dkt. No. 64 at 1)

1

At around 10:30 PM,

This is the second of three summary judgment motions.

2

In deciding a motion for summary judgment, the Court must construe the
facts and inferences in a light most favorable to the non-moving party.
Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).

2

Grandsen observed Kashon Smith, and his cousin, Kaysha Mitchell,
crossing the street towards the side yard of the home located at
200 Pfeiffer Street.

(Id. at 3)

By cutting through the side

yard, the two could arrive at a friend’s house located at 2114
Jones Street.

(Id. at 11)

Smith, aged sixteen, was carrying a

grill fork, appeared heavily intoxicated and was visibly upset
over what was later discovered to be romantic complications.
(Id. at 4)
Once Smith and Mitchell had reached the side yard, Grandsen
exited his vehicle, drew his duty weapon and engaged Smith.
at 5)
times.

(Id.

Grandsen ordered Smith to drop the grill fork several
(Id.)

Although Smith did not drop the fork as

instructed, Smith was not abusive or aggressive.

(Id.)

Witnesses located on the porch of 200 Pfeiffer pleaded with
Grandsen not to shoot Smith.
Smith was a danger.

(Id.)

(Id.)

They evidently did not think

At this point, Grandsen was

approximately nineteen feet from where Smith stood.

(Id.)

After repeating the order to drop the fork two to three
times, Grandsen shot Smith on the right-hand side of his torso.
(Id.)

Upon impact, Smith grabbed his torso and dropped the fork.

(Id. at 7)

Smith was still nineteen feet from Grandsen.

Grandsen again shot Smith in the torso at which point Smith
collapsed face-down in a mulch bed.

(Id.)

Grandsen approached

the bleeding Smith, handcuffed him and left Smith face-down in
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the mulch bed.

(Id. at 8)

At approximately 10:35 PM and shortly after the shooting,
supervising officer Defendant Jeffrey Frampton arrived on the
scene.
2)

(Pl.’s Br. Opp. Frampton’s Sum. J. Mot., Dkt. No. 65 at

Frampton ordered Officer Wright, the only other officer

present, to drive Grandsen to the hospital.

(Id. at 3)

Although

Frampton observed that Smith was handcuffed face-down and in need
of medical attention, Frampton waited ten more minutes to call
the paramedics and left Smith unattended.

(Id.)

Both

handcuffing Smith face-down and leaving him unattended were
violations of police protocol.

(Id.)

Frampton did not examine

Smith to determine the severity of the situation.

(Id. at 10)

No officer administered first aid to Smith or repositioned Smith
face-up.

(Id. at 4)

Kaysha and Coron Mitchell, cousins to Smith aged sixteen and
nine respectively, witnessed the entire episode in horror.
at 28)

(Id.

They saw Grandsen shoot Smith and about twenty-five to

thirty officers who eventually arrived at the scene do nothing
while Smith lay handcuffed face-down in the mulch.

(Id.)

At 10:51 PM, approximately sixteen minutes after Grandsen
shot Smith, the Basic Life Support Team (“BLST”) arrived.
at 4))

(Id.

BLST Marilyn Rodriguez noted that Smith was unconscious

and mulch was “preventing [Smith] from having a clear or patent
airway.”

(Id., Ex. 13 at 25)

Despite requests from the
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paramedics, police officers at the scene refused to remove
Smith’s handcuffs to facilitate medical treatment.
On the way to the hospital, no police officer accompanied
Smith in the ambulance pursuant to police protocol.

(Id. at 6)

As a result, the paramedics could not remove Smith’s handcuffs to
administer IV fluids.

(Id.)

Had a police officer accompanied

Smith in the ambulance, Smith could have been handcuffed to the
railing of the stretcher without compromising security.
7)

(Id. at

Smith could then have received potentially lifesaving IV

fluids.

(Id.)

At 10:55 PM, Smith arrived at Cooper University Hospital.
At this point, the trauma surgeon demanded that the handcuffs be
removed, which took an additional twenty minutes.
at 2)

(Id., Ex. 20

Smith did not receive IV fluids until 11:20 PM.

AM, Smith passed away.

At 12:04

According to Dr. David Flash, Smith’s

chances of survival were “markedly reduced by his being face down
with debris in his mouth thus drastically interfering with his
respiratory efforts, and by the lack of any fluid resuscitation
until he arrived at the hospital.”

(Id., Ex. 20 at 3)

Dr. Flash

further opined, “[h]ad Mr. Smith not had his airway obstructed
and had been given earlier intravenous fluids, there was a
possibility of survival.”

(Id.)

II.
5

“[S]ummary judgment is proper ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.’”

Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P.
56(c)).

In deciding a motion for summary judgment, the Court

must construe the facts and inferences in a light most favorable
to the non-moving party.

Pollock v. Am. Tel. & Tel. Long Lines,

794 F.2d 860, 864 (3d Cir. 1986).
“‘With respect to an issue on which the non-moving party
bears the burden of proof, the burden on the moving party may be
discharged by ‘showing’– that is, pointing out to the district
court – that there is an absence of evidence to support the
nonmoving party’s case.’”

Conoshenti v. Public Serv. Elec. &

Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex, 477
U.S. at 323).

The role of the Court is not “to weigh the

evidence and determine the truth of the matter, but to determine
whether there is a genuine issue for trial.”

Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986).

III.
In the Complaint, Plaintiffs allege three counts against
Frampton.

First, Plaintiffs allege a violation of 42 U.S.C. §
6

1983 for deliberate indifference.

Second, Plaintiffs allege

state law claims for wrongful death and survivorship.
2A:31.1 et seq.; N.J.S.A. § 2A:15-3.

N.J.S.A.

Third, Plaintiffs Kaysha

and Coron Mitchell allege negligent infliction of emotional
distress.

Frampton moves for summary judgment on all three

counts.

A.
With regard to the deliberate indifference claim, Defendant
argues qualified immunity.3
part inquiry.

Qualified immunity entails a two-

First, “[t]he threshold inquiry a court must

undertake in a qualified immunity analysis is whether plaintiff’s
allegations, if true, establish a constitutional violation.”
Hope v. Pelzer, 536 U.S. 730, 736 (2002).

Second, defendants may

nevertheless “be shielded from liability for civil damages if
their actions did not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”

Id. at 739.

Deliberate indifference to medical claims of pretrial state
detainees are analyzed under the Due Process Clause of the

3

Frampton also raises for the first time in his reply brief an Eleventh
Amendment defense to claims brought against Frampton in his official capacity.
That argument must be disregarded because it was not timely raised. See
TriState HVAC, LLP v. Big Belly Solar, Inc., 752 F.Supp.2d 517, 529 (E.D.Pa.
2010). The Court notes, however, that there is no argument that the claims
brought against Frampton in his personal capacity could not proceed.

7

Fourteenth Amendment.

In the Third Circuit, pretrial detainees

are afforded at least as much protection as deliberate
indifference claims of prisoners under the Eighth Amendment.
Natale v. Camden County Correctional Facility, 318 F.3d 575, 581
n.5 (3d Cir. 2003) (“[T]he Due Process Clause provides at a
minimum, no less protection than is provided by the Eighth
Amendment.”).

Therefore, if plaintiff can establish a deliberate

indifference claim under the Eighth Amendment, the Court need not
address the extent of any additional protection a pretrial
detainee is due.
Under the Eighth Amendment, a plaintiff must show: “1) a
serious medical need, 2) acts or omissions by . . . officials
that indicate deliberate indifference to that need.”4

Natale,

318 F.3d at 582; accord Estelle v. Gamble, 429 U.S. 97, 103-04
(1976).

Under § 1983, plaintiff cannot rely on a theory of

respondeat superior.

Instead, plaintiffs must show personal

involvement by “alleging personal direction, actual knowledge, or
acquiescence.”

See Askew v. Jones, 160 Fed.Appx. 140, 142 (3d

Cir. 2005).

4

In Hubbard v. Taylor, 399 F.3d 150, 159 (3d Cir.), the Court analyzed
the plaintiffs’ allegations of unconstitutional pretrial detention conditions
under the standard enunciated in Bell v. Wolfish, 441 U.S. 520 (1979). In
that line of cases the threshold issue was whether prison conditions were so
poor that it amounted to pre-conviction punishment. Bell, 441 U.S. at 541-43
(examining whether double bunks in a cell made to hold one prisoner
constituted cruel and unusual punishment.) By contrast, here, the claims are
for police officers’ deliberate indifference to the serious medical needs of a
pretrial detainee. Therefore, the Estelle line of cases more accurately
frames the instant issue.

8

To survive qualified immunity, Plaintiff must establish a
constitutional violation.

First, “[a] serious medical need may

fairly be regarded as . . . one so obvious that a lay person
would easily recognize the necessity for a doctor’s attention.”
Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979), aff’d, 649
F.2d 860 (3d Cir. 1987).

Here, Smith was shot twice, bleeding

and lying face-down in mulch.

There can be little doubt that

Smith’s medical need was a serious one.
Second, deliberate indifference can be proven by acts or
omissions.

Deliberate indifference exists when a plaintiff has a

serious need for medical care and officials ignore that evidence.
See Nicini v. Morra, 212 F.3d 798, 815 n.14 (3d Cir. 2000).
Deliberate indifference has also been found when “necessary
medical treatment is delayed for non-medical reasons.”

Natale,

318 F.3d at 582 (quoting Monmouth County Corr. Inst. Inmates v.
Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)).
Here, Frampton knew Smith was shot, handcuffed and lying
face-down in mulch.

Frampton did not reposition Smith face-up,

nor did he administer first aid.

Frampton did not even examine

or speak to Smith despite being one of the first officers on the
scene.

Frampton sent uninjured Officer Grandsen to the hosptial,

but waited ten minutes to call the paramedics for Smith.
Furthermore, Frampton did not ride with Smith in the ambulance or
direct another officer to do so.

As a result, Smith’s handcuffs

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were not removed and the medics could not administer IV fluids
until they reached the hospital.

These omissions are violations

of police protocol and evidence that a reasonable jury could
conclude constituted deliberate indifference.
Having established a claim, the qualified immunity analysis
must now turn to whether deliberate indifference was a clearly
established constitutional violation.

The purpose of this step

is to ensure that officials have adequate notice that their
actions are unlawful.

See Brosseau v. Haugen, 543 U.S. 194, 198

(2004).
Cases involving deliberate indifference in prison settings
date back at least thirty years.

See Estelle, 429 U.S. 97.

In

the Third Circuit, pretrial detainees have been afforded at least
the same level of rights as prisoners for over twenty years.
Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir. 1987).

See

There can be

little doubt that a reasonable official should have known that
deliberate indifference to the medical needs of a pretrial
detainee was a constitutional violation.

Accordingly, Frampton’s

Motion with respect to the § 1983 deliberate indifference claim
will be denied.

B.
With regard to Plaintiff’s claims for wrongful death and
survivorship under state law, Defendant argues a state law
10

corollary to qualified immunity.

See N.J.S.A. 59:3-3.

“A public

employee is not liable if he acts in good faith in the execution
or enforcement of any law.”

Id.

Good faith can be demonstrated

either by “objective reasonableness or that he behaved with
subjective good faith.”

Toto v. Ensuar, 196 N.J. 134, 146 (2008)

(internal quotations omitted).

“[I]mmunity would be defeated if

an official knew or reasonably should have known that the action
he took within his sphere of official responsibility would
violate the constitutional rights of the (plaintiff).”

Alston v.

City of Camden, 168 N.J. 170, 187 (2001) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 815 (1982).

The burden is on the

public employee to establish good faith.

Id.

Defendant only argues the existence of objective good faith
by relying on his qualified immunity arguments.

However, for the

same reasons that those arguments were not persuasive in the
context of qualified immunity, the arguments are unpersuasive to
establish objective good faith.

Specifically, Frampton knew or

should have known that his actions violated Smith’s due process
rights.

The Court will thus deny Frampton’s Motion with respect

to these state law claims.

C.
Plaintiff must establish four elements in a claim for
negligent infliction of emotional distress: “(1) the death or
11

serious physical injury of another caused by defendant’s
negligence; (2) a marital or intimate, familial relationship
between plaintiff and the injured person; (3) observation of the
death or injury at the scene of the accident; and (4) resulting
severe emotional distress.”
(1980).

Portee v. Jaffee, 84 N.J. 88, 101

Frampton argues that Plaintiffs have not carried their

burden under the first and fourth elements.
Under the first element, Frampton argues that Plaintiffs
have failed to establish that Frampton was the proximate cause of
Smith’s death. Frampton argues that the Complaint specifically
states that “Kashon Smith died as a result of two gunshot
wounds.”

(Compl., Dkt. No. 25 at ¶ 104)

The Court does not

think this fairly characterizes Plaintiffs’ allegations.
Taking the Complaint as a whole, Plaintiffs have alleged
several contributing factors that caused Smith’s death.

For

example, Plaintiffs have alleged that police officers refused to
remove Smith’s handcuffs to receive medical treatment.
at ¶ 103)

(See id.

Plaintiffs further allege that police officers knew

that Smith was lying face-down in mulch, which caused Smith to
lose consciousness.5

(See id. at ¶ 99)

Furthermore, Dr. Flash

opined that Smith’s chances were markedly reduced due to events
that transpired after Smith had been shot.

5

(Pl.’s Br. Opp.

As described supra, Plaintiffs have also pointed to record evidence
supporting these factual allegations.

12

Grandsen’s Sum. J. Mot., Ex. 20 at 3, Dkt. No. 64)

With regard

to causation, “[i]f there was any substantial possibility of
survival and the defendant has destroyed it, he is answerable.”
Evers v. Dollinger, 95 N.J. 399, 417 (1984) (quoting Hicks v.
United States, 368 F.2d 626, 632 (4th Cir. 1966)).

Accordingly,

Plaintiffs have carried their burden as to proximate cause.
Frampton also challenges whether Kaysha and Coron Mitchell
suffered severe emotional distress.

Specifically, Frampton

argues that each Plaintiff only saw mental health counselors for
a short period of time and that there is no objective evidence of
severe emotional distress.
Severe emotional distress is an amorphous concept with no
rigid boundaries.

Indeed, the first three elements to the cause

of action already substantially limit the types of harm to which
recovery is permissible.

“The harm we have determined to be

worthy of judicial redress is the trauma accompanying the
observation of the death or serious physical injury of a loved
one.”

Portree, 84 N.J. at 100.

The concept is “to protect a

plaintiff’s basic emotional stability.”

Id.

Psychological

treatment is not necessary to prove this element.

See Ortiz v.

John D. Pittenger Builder, Inc., 382 N.J.Super. 552, 564 (2004).
Here, Plaintiffs have presented evidence indicating some
psychological treatment in addition to symptoms relating to
emotional stability.

Kaysha has experienced nightmares, weight
13

loss, trouble sleeping, and feelings of guilt.
Grandsen’s Sum. J. Mot. at 28, Dkt. No. 64)

(Pl.’s Br. Opp.

Coron fears leaving

the house and has trouble speaking of the event even to trained
counselors.

(Id.)

A reasonable jury could find that these

Plaintiffs have sustained severe emotional distress.

Therefore,

Frampton’s Motion for Summary Judgment on the negligent
infliction of emotional distress claim will be denied.

IV.
For the foregoing reasons Defendant Frampton’s Motion for
Summary Judgment is denied.

Dated: 11/3/11
/s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.

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