HARGIS v. ATLANTIC COUNTY JUSTICE FACILITY

Filing 97

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 4/28/14. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MARLON D. HARGIS, JR.,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 10-1006 (JBS/JS)

v.
ATLANTIC COUNTY JUSTICE
FACILITY, ET AL.,

OPINION

Defendants.

APPEARANCES:
Salvatore J. Siciliano, Esq.
SICILIANO & ASSOCIATES, LLC
16 South Haddon Avenue
P.O. Box 25
Haddonfield, NJ 08033
Attorney for Plaintiff Marlon D. Hargis, Jr.
James T. Dugan, Esq.
ATLANTIC COUNTY DEPARTMENT OF LAW
1333 Atlantic Avenue
8th Floor
Atlantic City, NJ 08401
Attorney for Defendants Dennis Levinson (improperly pleaded
as Dennis Levison) and the Atlantic County Board of Chosen
Freeholders

SIMANDLE, Chief Judge:
I.

INTRODUCTION
Plaintiff Marlon D. Hargis, Jr., was a pretrial detainee

who was admitted to the Atlantic County Justice Facility
(“ACJF”) in 2009 with a gunshot wound. He alleges that his
constitutional rights under the Fourteenth Amendment were

violated as the result of being forced to live in overcrowded
and unsanitary conditions at ACJF, including sleeping on the
floor of his cell next to the toilet and being diagnosed with a
MRSA infection.
This matter comes before the Court on Defendants Dennis
Levinson and the Atlantic County Board of Chosen Freeholders’
second motion for summary judgment [Docket Item 94], which the
Court allowed following decision on certain pretrial motions
filed by Defendants. The Court previously issued an opinion and
order on Defendants first motion for summary judgment, which the
Court now vacates in part.
For the reasons discussed below, the Court will grant in
part and defer in part Defendants’ motion for summary judgment.
II.

BACKGROUND
A. Factual Background
The facts of this case are recounted in detail in the

Court’s July 10, 2013 opinion addressing Defendants’ first
motion for summary judgment. See Hargis v. Aramark Corr. Serv.,
LLC, Civ. 10-1006 (JBS/JS), 2013 WL 3465189 (D.N.J. July 10,
2013). The following facts are those necessary to provide
context for the instant motion.
Plaintiff was arrested on August 12, 2009 and at the time
of his arrest was suffering from a gunshot wound to his right
hip. Plaintiff was taken to AtlantiCare Regional Medical Center
2

where he was treated for the gunshot wound. Shortly thereafter,
Plaintiff was released into police custody and transported on
the same day to ACJF with his gunshot wound bandaged.
When Plaintiff arrived at ACJF, he was examined by medical
staff who provided specific instructions to sleep on a lower
level/lower bunk, not a “boat.” A boat is a plastic bed frame
with a mattress, sheets and blanket that sits on the floor and
is used as a third bunk in cells during periods of overcrowding.
Warden Geraldine Cohen and Lieutenant Steven Iuliucci were aware
of the policy of triple-celling.
Plaintiff was housed in the medical wing of the jail from
August 12, 2009 until August 16, 2009 due to his gunshot wound.
On August 16, 2009, Plaintiff was released into the general
population with no medical restrictions and assigned to a cell
with two other men already confined. As the newest man assigned
to the cell, Plaintiff was ordered to sleep in a boat in close
proximity to the cell toilet.
On September 4, 2009, after approximately three weeks of
sleeping on a boat, Plaintiff developed two boils which were
cultured and tested positive for methicillin-resistant
Staphylococcus aureus (“MRSA”).1 Prior to this, Plaintiff never

1

The Court has taken judicial notice, pursuant to Fed. R. Ev.
201, that MRSA is an abbreviation for methicillin-resistant
Staphylococcus aureus. Staphylococcus aureus is a species of
bacteria that causes serious suppurative infections and systemic
3

tested positive for MRSA nor experienced any MRSA related
symptoms. Plaintiff testified that he slept in a boat for
approximately ten to eleven months.
In light of Defendants’ second motion for summary judgment,
the parties have supplemented the record with the following
regarding Atlantic County’s form of government. Atlantic County
adopted the “County Executive Plan” form of government pursuant
to the Atlantic County Charter in 1974. (Pl. Ex. H [Docket Item
95-3.]) Under this form of government, all administrative or
executive functions are to be exercised by an elected county
executive and all legislative and investigative functions are to
be exercised by a board of elected freeholders. (Id.)
The Atlantic County Charter provides that the county
executive shall prepare and submit to the board an annual
operating budget and a capital budget and establish procedures
“to be followed by all county departments, offices and agencies
in connection therewith.” (Id.) The County executive is
obligated to “[s]upervise the care and custody of all county
property, institutions and agencies,” as well as to “[r]eview .
. . trends of county services . . . and programs of all boards,
disease, including impetigo bullosa, staphylococcal pneumonia
and staphylococcal scalded skin syndrome. It has developed a
resistance to nearly all classes of antibiotics and can also
produce toxins that cause food poisoning and toxic shock
syndrome. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1184, 1765 (32d ed.
2012).
4

commissions, agencies and other county bodies.” (Id.) Further,
the county executive “[s]hall supervise, direct and control all
county administrative departments.” (Id.)
Under the Atlantic County Charter, the board “[s]hall pass
. . . whatever ordinances and resolutions it deems necessary and
proper for the good governance of the county.” (Id.) The county
executive reports to the board and the board oversees the county
executive in the exercise of his or her executive powers. For
example, the board must approve the annual operating and capital
budgets prepared by the county executive. (Id.)
Dennis Levinson is Atlantic County’s County Executive.
Levinson certifies that he does not and has never established
policies and procedures for the operation of ACJF, and it is his
understanding that ACJF establishes its policies and procedures
with the guidance of the Attorney General Guidelines, New Jersey
Administrative Code 10A, and directives from the prosecutors’
office. (Certification of Dennis Levinson [Docket Item 94-2] ¶¶
13, 15.) Levinson is unaware of any constitutional violations at
ACJF and he has never met or encountered Plaintiff. (Id. ¶¶ 1819.)
B. Procedural Background
Plaintiff filed the instant action pro se pursuant to 42
U.S.C. § 1983 alleging that the Defendants subjected him to
unconstitutional confinement conditions and denied him access to
5

the Courts. [Docket Items 1 & 2.] The Court dismissed
Plaintiff’s access to courts claim, but permitted Plaintiff to
proceed with his conditions of confinement claim against John
Doe Warden/Director, the Atlantic County Health and Sanitation
Department, Aramark Correctional Service, LLC, the Atlantic
County Chief Fire Inspectors, County Executive Dennis Levinson,
and current and former members of the Atlantic County Board of
Chosen Freeholders.2 [Docket Item 5.]
Defendant Atlantic County Chief Inspectors was dismissed
with prejudice by way of Consent Order on November 19, 2012.
[Docket Item 63.] On March 1, 2013, Defendants Dennis Levinson
and the Atlantic County Board of Chosen Freeholders filed a
motion for summary judgment. [Docket Item 65.] By Order entered
July 10, 2013, the Court granted summary judgment to Defendants
as to claims against Defendants in their individual capacity.
However, the Court denied summary judgment as to claims against
2

Plaintiff’s Amended Complaint asserts claims against Dennis
Levinson (improperly pleaded as Dennis Levison), Alisa Cooper
(improperly pleaded as Mr. Cooper), James Curcio (improperly
pleaded as Mr. Circio), Frank Finnerty (improperly pleaded as
Mr. Finner), Joseph Kelly (improperly pleaded as Mr. Kelly),
Lawton Nelson (improperly pleaded as Mr. Nelson), Thomas Russo
(improperly pleaded as Mr. Russo), Susan Schilling (improperly
pleaded as Mr. Schilling), Frank Sutton (improperly pleaded as
Mr. Sutton), and Joseph Silipena (improperly pleaded as Mr.
Filipina). All but Dennis Levinson are current or former members
of the Atlantic County Board of Chosen Freeholders. Dennis
Levinson is County Executive for Atlantic County. On March 7,
2014, the Court ordered that the Atlantic County Board of Chosen
Freeholders be substituted on the docket for the individually
named freeholders. [Docket Item 93.]
6

Defendants in their official capacities. Additionally, the Court
dismissed without prejudice claims against Defendants Aramark
Correctional Service, LLC and Atlantic County Health and
Sanitation Department for failure to serve pursuant to Fed. R.
Civ. P. 4(m). The Court granted Plaintiff fourteen days to show
good cause why he failed to serve these defendants within the
specified time limit.3 Finally, the Court dismissed Plaintiff’s
claims against fictitious Defendant John Doe Warden/Director
pursuant to Fed. R. Civ. P. 21 because Plaintiff failed to amend
his complaint to name this fictitious defendant after discovery
was complete.
Subsequently, a jury trial was to commence on March 3,
2014. The Court heard oral argument on three motions in limine
filed by Defendants on March 4, 2014. The Court granted
Defendants’ first motion in limine [Docket Item 84] and
precluded Plaintiff from testifying regarding accepted
correctional practices requiring specialized knowledge. The
Court granted Defendants’ second motion in limine [Docket Item
85] and precluded Plaintiff from testifying as to medical
causation regarding his MRSA diagnosis. The Court denied
Defendants’ third motion in limine [Docket Item 86] and
permitted Plaintiff to testify regarding ACJF’s practice of

3

The Court noted that if Plaintiff failed to show cause, these
defendants will be dismissed with prejudice.
7

triple-celling pretrial detainees. Additionally, the Court
granted Defendants leave to file a renewed motion for summary
judgment, which the Court now addresses.
III. STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows 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). A dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is “material” only if it might affect the outcome
of the suit under the applicable rule of law. Id. Disputes over
irrelevant or unnecessary facts will not preclude a grant of
summary judgment. Id. The Court will view any evidence in favor
of the nonmoving party and extend any reasonable favorable
inferences to be drawn from that evidence to that party. Scott
v. Harris, 550 U.S. 372, 378 (2007).
The denial of a motion for summary judgment, such as the
July 10, 2013 Order in this case, is an interlocutory order.
Bines v. Kulaylat, 215 F.3d 381, 384 (3d Cir. 2000) (“As a
general rule, we have no jurisdiction under 28 U.S.C. § 1291 to
review interlocutory orders such as a denial of summary
judgment.”). “A district court retaining jurisdiction over a
case ‘possesses inherent power over interlocutory orders, and
8

can reconsider them when it is consonant with justice to do
so.’” Mainguth v. Packard, Civ. 05-0256, 2006 WL 1410737, at *1
(M.D. Pa. May 23, 2006) (quoting United States v. Jerry, 487
F.2d 600, 605 (3d Cir. 1973)).
IV.

DISCUSSION
Defendants assert two arguments in support of their second

motion for summary judgment. First, Defendants argue that
Defendants Dennis Levinson and the Atlantic County Board of
Chosen Freeholders are not policymakers with regard to the
alleged constitutional violations asserted by Plaintiff. Second,
Defendants argue that Plaintiff has failed to present sufficient
evidence that his conditions of confinement constituted
punishment under the Fourteenth Amendment.
Plaintiff responds that the customs which resulted in the
allegedly unconstitutional conditions of confinement were
promulgated by Defendants in their official capacities and
Defendants had the requisite culpability with regard to the
harms these customs could inflict on inmates at ACJF. Plaintiff
also argues that the totality of the circumstances at ACJF
amounted to excessive punishment in violation of the Fourteenth
Amendment.
A. Responsibility for conditions at Atlantic County Justice
Facility

9

The Court first addresses whether the Atlantic County Board
of Chosen Freeholders (“the Board”) and Dennis Levinson in his
official capacity as county executive are policymakers who may
be liable for the allegedly unconstitutional conditions of
confinement at ACJF. The Court concludes that the Board may not
be liable because there is no evidence that the Board was
responsible for establishing policy at ACJF and there is no
evidence that the Board was deliberately indifferent to the
conditions at ACJF. However, the Court construes Plaintiff’s
claims against Levinson in his official capacity as claims
against Atlantic County and finds sufficient evidence of a
county policy or custom to establish municipal liability.
It is well-established that municipal liability under §
1983 “may not be proven under the respondeat superior doctrine,
but must be founded upon evidence that the government unit
itself supported a violation of constitutional rights.”
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citing
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658
(1978)). As a consequence, a municipality is liable under § 1983
only when “execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the
injury.” Monell, 436 U.S. at 694; Pembaur v. City of Cincinnati,
475 U.S. 469, 483 (1986) (plurality opinion) (“[M]unicipal
10

liability under § 1983 attaches where—and only where—a
deliberate choice to follow a course of action is made from
among various alternatives by the official or officials
responsible for establishing final policy with respect to the
subject matter in question.”).
The Third Circuit has neatly defined “policy” and “custom”
for the purposes of municipal liability:
A policy is made “when a decisionmaker possess[ing] final
authority to establish municipal policy with respect to the
action issues a final proclamation, policy or edict.”
Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996)
(quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481,
106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion)).
A custom is an act “that has not been formally approved by
an appropriate decisionmaker,” but that is “so widespread
as to have the force of law.” [Bd. of County Comm’rs of
Bryan County v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382,
137 L.Ed.2d 626 (1997)].
Natale v. Camden County Correctional Facility, 318 F.3d 575, 584
(3d Cir. 2003). Both must be tied to the responsible
municipality.
There are three situations where acts of a government
employee may be deemed to be the result of a policy or
custom of the governmental entity for whom the employee
works, thereby rendering the entity liable under § 1983.
The first is where the appropriate officer or entity
promulgates a generally applicable statement of policy and
the
subsequent
act
complained
of
is
simply
an
implementation of that policy. The second occurs where no
rule has been announced as policy but federal law has been
violated by an act of the policymaker itself. Finally, a
policy or custom may also exist where the policymaker has
failed to act affirmatively at all, though the need to take
some action to control the agents of the government is so
obvious, and the inadequacy of existing practice so likely
to result in the violation of constitutional rights, that
11

the policymaker can reasonably be
deliberately indifferent to the need.

said

to

have

been

Id. (internal punctuation and citations omitted). Whether a
policy or a custom, “The plaintiff must also demonstrate that,
through its deliberate conduct, the municipality was the ‘moving
force’ behind the injury alleged.” Bd. of the County Comm’rs,
520 U.S. at 404. Thus, for a plaintiff to sufficiently allege
municipal liability under § 1983, they must present facts to
support a finding that a specific policy or custom caused the
alleged harm.
In the present case, claims against the Atlantic County
Board of Chosen Freeholders shall be dismissed because Plaintiff
has presented no evidence that the Board was responsible for
establishing policies with respect to the conditions at ACJF,
nor any evidence connecting the Board to the alleged
constitutional violations at ACJF. Plaintiff originally asserted
claims against current and former board members in their
official capacities. Recognizing that claims against individual
defendants in their official capacities are equivalent to claims
against the governmental entity itself, the Court ordered that
the Atlantic County Board of Chosen Freeholders be substituted
for the individually named defendants. See Kentucky v. Graham,
473 U.S. 159, 165-66 (1985) (“Official-capacity suits . . .
generally represent only another way of pleading an action

12

against an entity of which an officer is an agent.”) (quoting
Monell, 436 U.S. at 690); Bass v. Attardi, 868 F.2d 45, 51 (3d
Cir. 1989) (“Thus . . . the suit naming the members of the
Planning Board in their official capacities in effect makes the
Planning Board a defendant.”).
The Court previously concluded that “[t]he Board of Chosen
Freeholders is a legislative body and does not participate in
executive or administrative functions. The County Executive is
responsible for all administrative and executive functions . . .
. Plaintiff is not challenging any law passed by the Board and
there is no allegation or proof that the Board adopted a policy
or custom regarding the conditions of confinement at issue in
this case.” Hargis, 2013 WL 3465189, at *5. Further, the record
contains no evidence that the Board knew of or acquiesced in the
alleged constitutional violations at ACJF, nor any evidence that
the Board was deliberately indifferent to same.
Courts in the District of New Jersey have consistently
dismissed claims against boards of chosen freeholders where, as
here, plaintiff has presented no evidence of any personal
knowledge, acquiescence, or policymaking by the board. See
Seaforth v. Burlington Cnty. Jail, Civ. 09-3174 (RMB), 2010 WL
398452, at *3 (D.N.J. Jan. 28, 2010) (“Because Plaintiff’s
allegations do not show that the execution of a policy or custom
adopted by the Burlington County Board of Chosen Freeholders
13

inflicted the constitutional injury, the Complaint fails to
state a claim against the county or board of freeholders and
will be dismissed.”); Junne v. Atl. City Med. Ctr., Civ. 07-5262
(RMB), 2008 WL 343557, at *9-10 (D.N.J. Feb. 4, 2008)
(dismissing claims against county and its freeholders where
“Plaintiff merely assert[ed] a bald claim that these Defendants
have made some policies that resulted in a lack of medical
treatment” at ACJF); Jiles v. Burlington Cnty. Jail, Civ. 093910 (JBS), 2009 WL 2905441, at *6-7 (D.N.J. Sept. 8, 2009)
(dismissing claims against board of freeholders where Plaintiff
alleged “no facts suggesting that the denial of medical care . .
. was the result of a policy or custom of the [board]” and
alleged “merely that the [board] exercise[d] ‘control’ over the
[jail].”); McNeil v. Harvey, Civ. 04-5934 (RBK), 2005 WL
2237769, at *5 n.4 (D.N.J. Sept. 12, 2005) (dismissing claims
against county and its freeholders where Plaintiff “failed to
set forth any facts permitting the inference that the
complained-of conditions at the [jail] exist[ed] pursuant to an
official custom or policy.”).
Importantly, the present action is distinct from cases
where a board of chosen freeholders has taken custody of the
jails pursuant to N.J.S.A. § 30:8-19. See Ryan v. Burlington
Cnty., 674 F. Supp. 464, 467 (D.N.J. 1987), aff’d and remanded
sub nom., Ryan v. Burlington Cnty., N.J., 860 F.2d 1199 (3d Cir.
14

1988) (noting that “[r]esponsibility for county jails is
generally under the control of the county sheriff, N.J.S.A.
30:8–17, 18”). See also Ryan v. Burlington Cnty., N.J., 889 F.2d
1286, 1291 (3d Cir. 1989) (finding individual members of the
board of chosen freeholders were not entitled to absolute
immunity because the board had assumed control over the jail
from the sheriff’s office as part of an earlier settlement
agreement regarding overcrowded conditions and “the
implementation of the daily decisions involving the
administration of the Jail was not legislative, but
managerial”); Friedland v. Hayman, Civ. 06-2583 (RMB), 2008 WL
3887614, at *2 (D.N.J. Aug. 19, 2008) (granting summary judgment
to freeholders as to plaintiff’s failure to protect claim where
there was no evidence or allegation that the Monmouth County
Board of Chosen Freeholders had taken custody of the jails).
Here, unlike Ryan, there has been no settlement agreement
and there is no evidence or allegation that the Atlantic County
Board of Chosen Freeholders assumed an administrative role in
overseeing the day-to-day operation of ACJF. There is no
evidence of personal knowledge or acquiescence by any member of
the Board regarding the allegedly unconstitutional conditions at
ACJF. Further, there is no evidence that the conditions at ACJF
were the result of a policy or custom enacted by the Board or
that the Board was deliberately indifferent to the conditions at
15

ACJF. Therefore, the Atlantic County Board of Chosen Freeholders
cannot be liable under a theory of municipal liability.
The same cannot be said, however, for Plaintiff’s claims
against Dennis Levinson in his official capacity. As noted in
the Court’s previous decision, the Court construes claims
against Levinson in his official capacity as claims against
Atlantic County. See Kentucky v. Graham, 473 U.S. 159, 165-66
(1985) (“Official-capacity suits . . . generally represent only
another way of pleading an action against an entity of which an
officer is an agent.”) (quoting Monell, 436 U.S. at 690, n.55);
Hill v. Borough of Kutztown, 455 F.3d 225, 233 n.9 (3d Cir.
2006) (stating that claims under 1983 against former mayor in
his official capacity “are, effectively, identical to the § 1983
claims against the Borough”); Johnson v. Gannon, Civ. 09-0551,
2010 WL 1658616, at *3 (M.D. Tenn. Apr. 23, 2010) (construing
claims under section 1983 against county executive in official
capacity as claims against the county).
As noted previously, it is well established that in section
1983 cases, government entities may not be held vicariously
liable for the actions of their employees. Montgomery v. De
Simone, 159 F.3d 120, 126 (3d Cir. 1998) (citing Monell, 436
U.S. at 691-94). Rather, liability under section 1983 only
attaches where the municipality had in place a custom or policy,
which directly caused the constitutional deprivation. Id.
16

The Court declines to revisit its previous finding that “a
rational jury could conclude that Plaintiff’s constitutional
deprivation was the result of municipal custom or usage.”
Hargis, 2013 WL 3465189, at *12. Because the Court construes
Plaintiff’s claims as against the County, there is no need to
show that Levinson in his role as county executive was the final
decision-maker with regard to ACJF.4 It is sufficient that the
warden of ACJF who Defendants concede is responsible for the
day-to-day operations of the ACJF was aware of ACJF’s policy or
4

The present case is distinguishable from Bush v. Rendell, 2011
U.S. Dist. LEXIS 153528 (M.D. Pa. Dec. 19, 2011) cited by
Defendants, where the magistrate judge recommended dismissing
claims against the county defendants in their official
capacities because plaintiffs’ amended complaint pointed to a
state department of corrections policy or custom, and not a
policy or custom of the county. Bush, 2011 U.S. Dist. LEXIS
153528, at *14-15. In Bush, unlike here, “the gravamen of
plaintiffs’ allegations” against the commonwealth and county
defendants concerned their roles in effectuating plaintiffs’
transfer from a state correctional institution to a county jail.
Id. at *3. Further, the present action is not the type of case
like Minatee v. City of Philadelphia, 2011 U.S. Dist. LEXIS
103527 (E.D. Pa. Sept. 9, 2011) where there was no evidence of a
policy or custom enacted by policymakers with final decisionmaking authority. It is undisputed here that the warden was
aware of the overcrowded conditions at ACJF and the warden is
responsible for the day-to-day operations of ACJF. Defendants
cannot at once argue that the county executive and the Board
lack final decision-making authority by noting the
responsibility of the warden for policies at ACJF and deny that
a policy or custom adopted by the warden is sufficient to impose
liability on the county. Further, as noted in Duran v. Merline,
923 F. Supp. 2d 702 (D.N.J. 2013), “the Third Circuit has
recognized that such long-standing conditions of confinement may
reflect the existence of a custom for 1983 purposes.” Duran, 923
F. Supp. 2d at 717 (citing Anela v. City of Wildwood, 790 F.2d
1063, 1069 (3d Cir. 1986); Bowers v. City of Phila., Civ. 06–
3229, 2008 WL 5210256, *6 (E.D. Pa. Dec. 12, 2008)).
17

custom of overcrowding. The issue is whether a reasonable jury
could conclude that Plaintiff’s constitutional harms were caused
by the County’s custom of overcrowding its jail. Resolution of
this question requires the Court to consider the effect of its
ruling on Defendants’ motion in limine, precluding Plaintiff
from testifying as to the cause of his MRSA infection.
B. Punishment under the Fourteenth Amendment
Defendants reprise many of their arguments raised in their
first motion for summary judgment. The Court will only address
Defendants’ arguments to the extent the Court’s reasoning is
affected by its decision to preclude Plaintiff from testifying
as to the cause of his MRSA infection.
In addressing Defendants’ first motion for summary
judgment, the Court allowed Plaintiff’s claims to proceed
despite a lack of expert testimony. The Court reasoned that
“[i]t can reasonably be inferred that Plaintiff contracted MRSA
while in Defendants’ custody due to the unsanitary, overcrowded
cell arrangements that he describes, due to Defendants’
application of the new-man-in-the-boat policy in disregard of
medical orders. Such an inference is not compelled but it is
reasonably based upon common knowledge even without the aid of
expert witness testimony. Whether a jury is persuaded to agree
remains to be seen at trial.” (Id. at *23 n.7.).

18

However, the Court reconsidered this reasoning in granting
Defendants’ motion in limine to preclude Plaintiff from offering
lay testimony as to causation. The Court found that Plaintiff
may not offer lay testimony at trial as to medical causation
because causation of an infection such as MRSA is beyond the ken
of a lay jury and requires expert testimony.5 See Malles v.
Lehigh Cnty., 639 F. Supp. 2d 566, 581 (E.D. Pa. 2009) (granting
summary judgment to defendant where plaintiff presented no
expert report or other evidence that prison conditions caused
MRSA infection under deliberate indifference framework of the
Eighth Amendment); Hannah v. United States, 523 F.3d 597, 601-02
(5th Cir. 2008) (requiring expert testimony to establish the
applicable standard of care with respect to the treatment of
MRSA and to show how the care [plaintiff] received breached that
standard in medical malpractice action against the Federal
Bureau of Prisons); Lee v. Bureau of Prisons, Civ. 10-033, 2012
WL 1867345, at *4 (N.D. Tex. May 23, 2012) (noting in negligence
action that “the matters of whether [plaintiff] should have been
housed in [special housing unit] and whether such placement
could lead to the exposure to MRSA are not matters of common
knowledge or within the experience of a layman”); Lindsey v.
5

The Court also precluded Plaintiff from presenting as evidence
the medical articles identified in the JFPTO, including articles
from the Centers for Disease Control and Prevention and the Mayo
Clinic, because they are hearsay not within any exception to
Fed. R. Ev. 802.
19

Bowlin, Civ. 07-3067 (EFM), 2011 WL 723040, at *2 (D. Kan. Feb.
23, 2011) (requiring expert testimony to determine causal
connection between medical treatment and contraction of MRSA and
Hepatitis C in medical malpractice action against medical
personnel at federal prison). Accordingly, the Court granted
Defendants’ motion in limine and barred Plaintiff from offering
his opinion as to how he acquired MRSA, how it manifested, how
it is transmitted, and how it may affect him in the future.
Those are issues of expert opinion for a medical expert in the
field of infectious disease.
The Court remains guided by the Third Circuit’s decision in
Hubbard v. Taylor, 538 F.3d 229 (3d Cir. 2008), for the purposes
of the instant motion. In concluding that Plaintiff had
presented evidence of conditions worse than those imposed on
pretrial detainees in Hubbard, the Court emphasized that
Plaintiff was diagnosed with MRSA within the first three weeks
of sleeping on the boat. However, the Court now recognizes that
the present record is insufficient for a reasonable factfinder
to conclude that Plaintiff contracted MRSA as a result of the
allegedly unconstitutional conditions at ACJF or that
contracting MRSA was a substantial risk of the alleged
conditions at ACJF. This is not a case where prison officials
were deliberately indifferent to a MRSA outbreak at the jail.
See Duvall v. Dallas Cnty., Tex., 631 F.3d 203, 208 (5th Cir.
20

2011) (affirming jury verdict on conditions of confinement claim
where “[t]he jury heard evidence that the Jail experienced
around 200 infections per month” and “[t]he record also
establishe[d] that the County’s awareness of [serious outbreaks
of MRSA in the jail for at least three years] preced[ing]
[plaintiff’s] confinement.”). In fact, both parties at oral
argument on Defendants’ motions in limine expressly disclaimed
any evidence of other cases of MRSA at ACJF during the relevant
time period. Nor is the present record such that a jury could
determine that it is more likely than not that Plaintiff’s MRSA
was caused by the allegedly unconstitutional conditions at ACJF
and not the presence of bacteria in the dining hall, the
showers, the infirmary, a fellow inmate or visitor, or a preexisting condition such as the gunshot or the hospital treatment
for it. These are all plausible sources of MRSA infection, but
only one – contracting MRSA from overcrowded and unsanitary
triple-celling of a pretrial detainee recovering from a gunshot
wound – is actionable here as a constitutional violation.
Without expert testimony substantiating a causal link between
the allegedly unconstitutional conditions at ACJF and
Plaintiff’s MRSA diagnosis, Plaintiff is unable to show a
cognizable injury.
In Hubbard, the Third Circuit emphasized that the record
did not “substantiate Plaintiffs’ claims that the use of floor
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mattresses resulted in disease or the splashing of human waste
upon them.” Hubbard, 538 F.3d at 235. In contrast, Judge Renee
Bumb, in Duran, distinguished the conditions at ACJF from those
in Hubbard and noted that “Plaintiff has corroborated his claim
with letters, grievance forms, and his own affidavit. Plaintiff
also proffered evidence concerning additional problems such as
very limited recreational time (only once a week), extreme
noise, violence, and the spread of disease.” Duran v. Merline,
923 F. Supp. 2d 702, 716 (D.N.J. 2013). The present record is
not so developed and Plaintiff has made no such proffer.
Instead, in the absence of expert testimony regarding
Plaintiff’s MRSA diagnosis or the likelihood of contracting MRSA
in light of the alleged conditions at ACJF, the facts in the
present action are more akin to those in Tapp where plaintiff
failed to present evidence of injury caused by allegedly
unconstitutional conditions of confinement. Tapp v. Proto, 718
F. Supp. 2d 598, 618 (E.D. Pa. 2010), aff’d, 404 F. App’x 563
(3d Cir. 2010) (granting defendants motion for summary judgment
on plaintiff’s conditions of confinement claim based on triplecelling where plaintiff did “not allege that he suffered any
injuries other than general irritation from the triple-bunk
conditions”).6 In other words, conjecture or surmise about the

6

Further, in Keller, the Third Circuit in a non-precedential
case decided before Hubbard, affirmed a jury verdict rendered in
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source of Plaintiff’s infection would not suffice to carry
Plaintiff’s burden of proving medical causation at trial.
Additionally, the record remains unclear whether the County’s
custom of overcrowding its jail caused the alleged
constitutional harms.
In light of the foregoing, the Court will grant Plaintiff
leave to retain an expert and submit a medical expert report
regarding the cause of Plaintiff’s MRSA diagnosis, as well as
the likelihood of contracting MRSA in light of the alleged

plaintiffs’ favor on their unconstitutional conditions of
confinement claims. Keller v. Cnty. of Bucks, 209 F. App’x 201,
203 (3d Cir. 2006). Both plaintiffs were pre-trial detainees who
contracted MRSA which required them to be hospitalized during
their prison stays. Id. Evidence in the record established that
“filthy water pooled in the showers, water seeped into the
cells, clean laundry was not always readily available, the
mattresses were stained, and mildew grew on walls covered in
peeling paint.” Id. at 206. The trial court found that “[t]he
jury also had a more than sufficient basis for concluding that
Defendants through deliberate indifference allowed conditions in
the facility that were likely to cause disease, injury, or
suffering” and noted that defendants failed to take “necessary
steps to minimize the number of inmates affected, for example by
keeping the showers and food handling areas in a sanitary
condition and instructing inmates on how to avoid the spread of
infectious diseases.” Id. Nevertheless, the Third Circuit noted
that “the facts alleged here barely fulfill the minimum
requirements of a conditions of confinement claim, and caution
that situations of even slightly lesser magnitude would likely
be an abuse of discretion as a result of improper application of
law to fact.” Id. at 207. In the present case, the basis for
claiming deliberate indifference to basic sanitation needs is
considerably less than in Keller.
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conditions at ACJF.7 Rule 56(e)(1), Fed. R. Civ. P., provides
that “[i]f a party fails to properly support an assertion of
fact or fails to properly address another party’s assertion of
fact as required by Rule 56(c), the court may: (1) give an
opportunity to properly support or address the fact[.]” The 2010
Advisory Committee Notes to subdivision (e) state that
summary judgment cannot be granted by default even if there
is a complete failure to respond to the motion, much less
when an attempted response fails to comply with Rule 56(c)
requirements. Nor should it be denied by default even if
the movant completely fails to reply to a nonmovant’s
response. Before deciding on other possible action,
subdivision (e)(1) recognizes that a court may afford an
opportunity to properly support or address the fact. In
many circumstances this opportunity will be the court's
preferred first step.
Federal Civil Judicial Procedure & Rules 258 (Thomson Reuters,
2013 Revised Ed.). In the present case, because the Court’s
previous summary judgment opinion incorrectly implied that
Plaintiff’s claims could succeed without expert testimony, the
Court will grant Plaintiff leave to supplement the record within
45 days with an expert report expressing an opinion regarding
the cause of Plaintiff’s MRSA infection and the likelihood of
contracting MRSA in light of the alleged conditions at ACJF. If
Plaintiff has obtained no such expert’s report within the 45-day
period, the record on this summary judgment motion will be

7

Plaintiff’s counsel should consult Appendix H of the Local
Rules with regard to the process for seeking reimbursement for
certain litigation expenses from the pro bono fund.
24

complete. If Plaintiff timely furnishes such an expert’s report,
Defendants will be given 45 days to proffer a rebuttal expert’s
report if they choose to do so.
V.

CONCLUSION
Defendants’ motion for summary judgment will be granted in

part and deferred in part. The Court will grant Defendants’
motion to the extent Plaintiff asserts claims against the
Atlantic County Board of Chosen Freeholders. The Court will
defer Defendants’ motion as it pertains to Plaintiff’s claim
that the conditions of confinement at ACJF constituted
punishment under the Fourteenth Amendment. Plaintiff will be
granted 45 days, pursuant to Fed. R. Civ. P. 56(e)(1), in which
to furnish the Court, and opposing counsel, with an expert
report expressing an opinion regarding the cause of Plaintiff’s
MRSA infection and the likelihood of contracting MRSA in light
of the alleged conditions at ACJF. If so, Defendants will have
45 days thereafter to furnish a rebuttal expert’s report. An
accompanying Order will be entered.

April 28, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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