WHITE v. TAYLOR et al
OPINION. Signed by Chief Judge Jerome B. Simandle on 5/27/2014. (dmr)(n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
Civil No. 10-5485 (JBS/AMD)
ERIC TAYLOR, et al.,
Mr. Kashief White
116 Blackwood Clementon Rd.
Clemonton, NJ 08021
Plaintiff Pro Se
Matthew J. Behr, Esq.
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN
200 Lake Drive East, Suite 300
Cherry Hill, NJ 08002
Attorney for Defendants Aramark, Inc., Aramark Correctional
Services, LLC, and Dietician Carey
Anne E. Walters, Esq.
Office of County Counsel
Courthouse, 14th Floor
520 Market Street
Camden, NJ 08102
Attorney for Defendants Warden Eric Taylor, Deputy Warden
Christopher Fossler, Deputy Warden Anthony Pizzaro, Rodney
Greco, Camden County and Camden County Freeholders
SIMANDLE, Chief Judge:
This matter is before the Court on two motions for summary
judgment brought by the Camden County Defendants 1 [Docket Item
66] and the Aramark Defendants (collectively, “Aramark”) 2 [Docket
Item 68]. The motions are unopposed.
This action, brought by Plaintiff Kashief White, pro se,
concerns conditions of confinement in the Camden County
Correctional Facility (“CCCF”) in Camden, N.J., and the
nutritional sufficiency of meals that the Aramark Defendants
served to Plaintiff while he was a pretrial detainee there from
2008 to 2010. Plaintiff alleges that CCCF was overcrowded and
understaffed, unsanitary and unsafe. He alleges that the County
was deliberately indifferent to the rights of the detainees and
the County instituted or acquiesced to policies or practices in
violation of his Fourteenth Amendment rights and rights secured
by the New Jersey Constitution and other state law. He also
alleges that the Aramark Defendants served meals in an
unsanitary fashion and failed to provide him with an adequate
The Camden County Defendants include Camden County, Warden Eric
Taylor, Deputy Warden Christopher Fossler, Deputy Warden Anthony
Pizzaro, Rodney Greco, and the Camden County Freeholders.
The Aramark Defendants include Aramark, Inc., Aramark
Correctional Services, LLC, and Dietician Carey.
diet, thereby violating his Due Process rights under the
The two groups of Defendants separately move for summary
judgment on several grounds. Of primary importance, Defendants
argue that Plaintiff fails to allege or provide evidentiary
support for injuries he sustained as a result of the complainedof conduct. For the reasons explained below, the Court will
grant both motions.
A. Facts 3
The background of this case has been discussed at length in
previous opinions, which are incorporated herein. See White v.
Taylor, No. 10-5485, 2013 WL 4595885, at *1-*2 (D.N.J. Aug. 28,
2013), ECF No. 54; White v. Taylor, No. 10-5485, 2013 WL
1412300, at *1-*2 (D.N.J. Apr. 5, 2013), ECF No. 40; Cook v.
Taylor, No. 10–2643, 2012 WL 4959519, at *1-*2 (D.N.J. Oct. 16,
These motions are unopposed. Twice the Court warned Plaintiff
that if he did not file opposition, all factual assertions in
the motions would be deemed admitted, and twice the Court
granted Plaintiff extensions of time in which to file. [Docket
Items 71 & 73.] Those deadlines for opposition expired two weeks
ago. Because Plaintiff does not oppose these motions, all
factual assertions contained in the motions for summary judgment
are deemed admitted. The Court will refer to these facts as
Plaintiff was confined at CCCF at least from December 2008
through April 2010 as a pretrial detainee. 4 (Plaintiff’s Answers
to First Set of Interrogatories (County Ex. C) ¶ 8 [Docket Item
66-3]; Aramark Ex. A [Docket Item 68-6].) Upon admission to the
CCCF, all inmates at the CCCF are issued an “Inmate Handbook”
that includes a section on inmate grievances detailing the
procedures to be followed. (Certification of Albert Hickson, Jr.
¶ 3 (County Ex. F) [Docket Item 66-6].) Plaintiff filed no
grievances while he was incarcerated at the CCCF. (Hickson
Certification ¶ 4.)
In his Amended Complaint, Plaintiff asserts that (1)
overcrowding forced him to sleep on the floor next to the toilet
(Am. Compl. [Docket Item 44-1] at 9-10); (2) he has been exposed
to boils and contagious diseases due to inadequate cleaning
supplies and failure to isolate contagious inmates (id. at 10,
16); (3) inmates wait days or weeks to receive medical treatment
due to insufficient medical staff (id. at 10); (4) the facility
co-mingles convicted inmates and pretrial detainees (id. at 16);
There is some disagreement about the dates of Plaintiff’s
confinement. His answer to interrogatories states that he was
confined from April 2008 through October 2010. (County Ex. C. ¶
8) His most recent Amended Complaint, filed after he answered
interrogatories, states that he was confined from December 2008
to April 9, 2010. (Am. Compl. [Docket Item 63] at 5.) A
certification of a CCCF corrections officer states that
Plaintiff was incarcerated from May 2008 to April 2010. (County
Ex. F [Docket Item 66-6] ¶ 4.)
(5) his cell reached temperatures exceeding 90 degrees and his
sink was running and clogged (id. at 15-16.). He asserts:
“plaintiff has suffered serious emotional and physical injuries,
and has suffered real and measurable monetary damages,” but he
does not specify the injury or provide any additional factual
detail about the harm suffered. (Id. at 17.)
Plaintiff also alleges that the meals he was served were
different from the listed menu and the portions were
nutritionally deficient. (Id. at 11-12.) He asserts, for
instance, that breakfast consisted of two teaspoons of scrambled
eggs, three teaspoons of oatmeal, and two slices of bread. (Id.
at 11.) He alleges that dinner the same day consisted of three
carrot sticks (the “size of a french fry”), three teaspoons of
beans and rice, and two slices of bread. (Id.) He alleges that
he “suffered starvation, significant weight loss; depression;
fatigue; unrelenting and painful stomach cramps; excessive gas;
strained bowel movements and constipation . . . .” (Id. at 13.)
Plaintiff also alleges that the contamination from unclean food
trays has led him to suffer “several bouts of uncontrolable
[sic] viomiting [sic] at least 2 to 3 times per month,
throughout his period of confinement at the CCCF.” (Id. at 15.)
B. Procedural history
Plaintiff and many other detainees and inmates brought
virtually identical suits complaining of the general conditions
at CCCF, as well as the unsanitary meal presentation and
inadequate nutrition. See Cook, 2012 WL 4959519, at *1. The
cases were consolidated for a time, but eventually deconsolidated because the Court was unable to locate pro bono
counsel willing to accept appointments to represent the
plaintiffs. [Docket Item 12.] After de-consolidation, the
Aramark Defendants filed a motion to dismiss on March 6, 2012
[Docket Item 14], which Plaintiff did not oppose. The Court
dismissed claims against the Aramark Defendants in all cases
except Plaintiff’s, because before the Court decided the motion,
the Court terminated Plaintiff’s case without prejudice for
failure to comply with L. Civ. R. 10.1(a). 5 [Docket Item 24.] See
Simmons v. Taylor, No. 10–1192, 2012 WL 3863792, at *4 (D.N.J.
Sept. 5, 2012) (dismissing claims); Cook, 2012 WL 4959519, at *2
(same); Kunst v. Taylor, No. 10–1608, 2012 WL 5451275, at *3
(D.N.J. Nov. 5, 2012) (same).
Plaintiff reemerged six weeks later to file a notice of
change of address. [Docket Item 26.] Six months after that,
Plaintiff moved to reopen his case. [Docket Item 28.] Over
Aramark’s objection, the Court reopened Plaintiff’s case and
L. Civ. R. 10.1(a) requires parties to advise the Court of any
change of address within seven days of such a change. In this
case, mail sent to Plaintiff by the Court was returned as
undeliverable from July 2011 to May 2012. (See Docket Items 13,
21, & 25 (documenting undeliverable mail).)
reinstated Aramark’s motion to dismiss. [Docket Items 14 & 30.]
Plaintiff simultaneously filed opposition and an incomplete
motion to amend the Complaint. [Docket Item 35.] After
permitting Plaintiff to refile, the Court granted the motion to
amend as to Plaintiff’s Fourteenth Amendment Due Process Clause
claim against the Aramark Defendants, because Plaintiff alleged
that the small meal portions did not provide him adequate
nutrition and resulted in physical injuries, White, 2013 WL
4595885, at *5, but the Court denied Plaintiff’s motion to add a
conspiracy claim against both the Aramark Defendants and the
County Defendants. Id. at *5-*6.
By letter on January 23, 2014, Matthew J. Behr, Esq.,
counsel for Aramark, notified the Court that he was having
difficulty communicating with Plaintiff, that Plaintiff was not
answering Defendants’ discovery requests, and that legal
correspondence sent to Plaintiff was returned as undeliverable.
[Docket Item 61.] The Court mailed a letter to Plaintiff
requesting that he to explain why he had not answered
Defendants’ requests and why he did not update his address with
the Court. [Docket Item 62.] Plaintiff never responded to the
Court’s letter but, approximately one week later and
approximately five months after the Court granted in part his
previous motion to amend, filed a new motion to amend his
The Court denied Plaintiff’s motion to amend on the grounds
of undue delay, prejudice to Defendants, and futility. [Docket
Item 69.] In a separate Order, the Court sua sponte granted
Plaintiff two additional weeks to file opposition, despite the
fact that Plaintiff’s opposition papers were six and eight weeks
overdue. [Docket Item 71.] The Court warned of the consequences
of failing to file opposition: “the motions will be deemed
unopposed and all factual assertions by Defendants will be
deemed admitted.” [Id.]
Plaintiff did not file opposition, but one day after the
two-week extension expired, the Court received a letter from
Plaintiff saying he was unaware that any motions had been filed.
[Docket Item 72.] The Court observed that the Scheduling Order
entered on November 19, 2013, put Plaintiff on notice that
summary judgment motions would be due by February 7, 2014, and
warned Plaintiff “that if he desires to litigate this case, he
must adhere to Court deadlines and Orders and must remain aware
of developments in his case.” [Id. at 3.] The Court also
observed that Plaintiff, upon receiving the Court’s Order
granting him an extension to file, could have sought copies of
the motion from the Clerk of Court. [Id. at 4.] Nevertheless,
the Court provided Plaintiff with copies of the motions and
granted Plaintiff an additional two weeks to file opposition,
again warning that if he failed to file opposition, the motions
would be deemed unopposed and all factual assertions by
Defendants would be admitted. [Id.]
Plaintiff never filed opposition.
In its current form, Plaintiff’s Amended Complaint contains
the following causes of action: (1) violations of the Fourteenth
Amendment against the Aramark Defendants; (2) violations of Due
Process rights against the Aramark Defendants under the New
Jersey Constitution, the New Jersey Administrative Code, and the
New Jersey Tort Claims Act; (3) violations of the Fourteenth
Amendment against the individual County Defendants, pursuant to
42 U.S.C. § 1983; and (4) violations of the Fourteenth Amendment
against the County, pursuant to 42 U.S.C. § 1983.
III. Standard of Review
A court shall grant summary judgment “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). Rule 56 “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Marten v. Godwin,
499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)). “If a party fails to
properly support an assertion of fact . . . , the court may . .
. grant summary judgment if the motion and supporting materials
-- including the facts considered undisputed -- show that the
movant is entitled to it[.]” Fed. R. Civ. P. 56(e)(3).
A party opposing summary judgment must adduce evidence,
such as an affidavit from a competent witness or authentic
documents, that would be admissible if the case were tried, and
that party cannot rest on his complaint or mere allegations in
briefs, for pleadings and briefs are not admissible evidence.
See Fed. R. Civ. P. 56(c)(1)-(4); Lamont v. N.J., 637 F.3d 177,
182 (3d Cir. 2011) (reaffirming that a party opposing summary
judgment “must point to evidence -- whether direct or
circumstantial -- that creates a genuine issue of material fact,
and may not rely simply on the assertion that a reasonable jury
could discredit the opponents’ account”) (quotation marks and
alterations omitted); Devito v. Zucker, Goldberg & Ackmerman,
LLC, 908 F. Supp. 2d 564, 572 (D.N.J. 2012) (stating that the
nonmovant “may not rest upon the mere allegations, speculation,
unsupported assertions or denials of its pleadings”) (citing
Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001));
AstraZaneca Pharm. LP v. Teva Pharm. USA, 567 F. Supp. 2d 683,
691 (D.N.J. 2008) (“the non-moving party may not simply rest on
its pleadings, but must offer admissible evidence that
establishes a genuine issue of material fact”) (citing Celotex
Corp., 477 U.S. at 323).
IV. Motion for Summary Judgment by the County Defendants
The Court is “required to raise issues of standing sua
sponte if such issues exist.” Addiction Specialists, Inc. v.
Twp. of Hampton, 411 F.3d 399, 405 (3d Cir. 2005). Here,
Plaintiff seeks a “[d]eclaratory judgment that all defendants
violated plaintiff’s 14th amendment rights.” (Am. Compl. at 21.)
However, Plaintiff is no longer incarcerated at CCCF. [Docket
Item 1 at 1.] Claims for declaratory relief by prisonerplaintiffs are rendered moot when the plaintiffs are no longer
confined in the complained-of facility. See Johnson v.
Wenerowicz, 440 F. App’x 60, 62 (3d Cir. 2011) (“Johnson’s
requests for injunctive and declaratory relief against the named
DOC defendants were rendered moot by his transfer”) (citing
Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003), Preiser v.
Newkirk, 422 U.S. 395, 401 (1975), and Abdul-Akbar v. Watson, 4
F.3d 195, 206 (3d Cir. 1993)). Accordingly, the County is
entitled to summary judgment to the extent Plaintiff’s claims
seek declaratory relief, because Plaintiff lacks standing to
bring those claims.
Plaintiff also lacks Article III standing for most of his
confinement claims because he does not allege, let alone make a
showing with admissible evidence of, “an injury in fact that is
. . . actual or imminent, not conjectural or hypothetical.”
Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 425 (3d
Cir. 2013) (ellipsis in original); In re Franklin Mut. Funds Fee
Litig., 388 F. Supp. 2d 451, 460-61 (D.N.J. 2005) (holding that
a plaintiff “can bring suit against a party only if the
plaintiff personally suffered an injury and that injury is
traceable to that party”). The County argues that summary
judgment is appropriate because Plaintiff fails to provide
evidence of any injury. (See County Mot. at 9 (“Plaintiff has
failed to provide any evidence to support his claims of unsafe
and unhealthy prison conditions, or that he suffered any damages
as a result of the alleged conditions.”).)
Plaintiff pleads that he was forced to sleep on the floor
on a thin mattress, but does not allege any resulting injury.
(Am. Compl. at 9-10.) He alleges that the CCCF provided
inadequate cleaning supplies, and he claims that he “has been
exposed to boils as an outbreak has occurred on his living
housing unit,” but he does not allege that he contracted any
disease or was harmed by this condition. (Id. at 10). He pleads
that an inadequate medical staff forces inmates to wait days or
weeks before receiving treatment, but does not allege that he
waited days or weeks to receive treatment, or that he was
injured by any delay due to inadequate staffing. (Id.) He also
claims that understaffing of the maintenance crew resulted in
delayed responses to “clogged toilets, heat, air conditioning,
and other malfunctions,” but does not specify an associated
injury. (Id. at 15.) Plaintiff alleges that the CCCF failed to
isolate inmates with contagious diseases, and that he was
exposed to highly contagious diseases on a daily basis, but does
not allege an injury or that he contracted any disease as a
result of the failure to isolate inmates. (Id. at 16.) Finally,
Plaintiff alleges that he, as a pretrial detainee, was housed
with convicted prisoners, but alleges no resulting injury. (Id.
at 16.) Plaintiff asserts, without elaboration, that he “has
suffered serious emotional and physical injuries, and has
suffered real and measurable monetary damages.” (Id. at 17.)
Plaintiff has not presented any evidence of any of his claims,
as he failed to oppose the motion for summary judgment.
Plaintiff’s allegations are not sufficient to maintain this
suit, because the lack of an alleged injury-in-fact deprives
Plaintiff of Article III standing to bring these claims.
Moreover, “vague and indefinite allegations are inadequate to
establish injury-in-fact . . . .” Pa. Dep’t of Pub. Welfare v.
Sebelius, 674 F.3d 139, 156 (3d Cir. 2012). Plaintiff’s bald
assertion that he “suffered serious emotional and physical
injuries,” without any evidence supporting this claim, is
insufficient to create a genuine issue of material fact as to
whether he sustained an injury and insufficient to preclude the
entry of summary judgment. Therefore, the Court will grant the
County’s motion for summary judgment on Counts III and IV. 6
VI. Motion for Summary Judgment by the Aramark Defendants
A. Plaintiff lacks standing for declaratory relief against
the Aramark Defendants
For the reasons explained supra, Part V, the Aramark
Defendants are entitled to summary judgment on Plaintiff’s
claims seeking declaratory relief, because Plaintiff is no
longer incarcerated and lacks standing.
Plaintiff does have Article III standing to bring claims
for money damages against the Aramark Defendants because he
alleges physical injuries resulting from his inadequate diet and
unsanitary meal service. (See Am. Compl. at 13 (“plaintiff
suffered starvation, significant weight loss; depression;
fatigue; unrelenting and painful stomach cramps; excessive gas;
strained bowel movements and constipation”); id. at 15 (“several
bouts of uncontrolable [sic] viomiting [sic] at least 2 to 3
times per month”).) Accordingly, the Court will consider the
substance of Plaintiff’s claims and the Aramark Defendants’
arguments in favor of its unopposed motion for summary judgment.
B. Plaintiff fails to prove constitutional injuries
The Court need not address the County’s other arguments in
favor of summary judgment.
Plaintiff alleges that the Aramark Defendants violated his
Fourteenth Amendment due process rights when they failed to
provide a nutritionally adequately diet and provided meals in an
unsanitary manner. (Am. Compl. at 17-18.) His brings this claim
pursuant to 42 U.S.C. § 1983.
In the Court’s previous opinion addressing the nearly
identical cases brought by other detainees at the CCCF, the
Court recited the governing legal standard for Fourteenth
Amendment claims by pretrial detainees:
The Due Process Clause of the Fourteenth Amendment
prohibits punishment of a pretrial detainee prior to
an adjudication of guilt in accordance with due
process of law. See Bell v. Wolfish, 441 U.S. at 535.
The Third Circuit summarized the conditions of
confinement standard under Bell as follows:
[A] particular measure amounts to punishment
when there is a showing of express intent to
punish on the part of detention facility
officials, when the restriction or condition
is not rationally related to a legitimate
nonpunitive government purpose, or when the
restriction is excessive in light of that
Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007)
(citation and internal quotation marks omitted).
Thus, the Third Circuit has “distilled the Supreme
Court's teachings in Bell into a two-part test. We
must ask, first, whether any legitimate purposes are
served by these conditions, and second, whether these
conditions are rationally related to these purposes.”
Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)
(citation and internal quotation marks omitted).
Moreover, the Fourteenth Amendment standard of
Amendment's cruel and unusual punishments standard,
contains both an objective component and a subjective
components. As the Supreme Court explained in
Wilson v. Seiter, 501 U.S. 294, 111 S. Ct.
2321, 115 L. Ed. 2d 271 . . . (1991), the
objective component requires an inquiry into
whether “the deprivation [was] sufficiently
serious” and the subjective component asks
sufficiently culpable state of mind[.]” Id. at
298 . . . . The Supreme Court did not abandon
this bipartite analysis in Bell, but rather
allowed for an inference of mens rea where the
restriction is arbitrary or purposeless, or
where the restriction is excessive, even if it
would accomplish a legitimate governmental
Stevenson, 495 F.3d at 68.
Cook, 2012 WL 4959519, at *4-*5.
The Aramark Defendants argue that Plaintiff has failed to
provide evidentiary support for his claims and to substantiate
his physical injuries. (Aramark Mot. [Docket Item 68-5] at 910.) Citing Nickles v. Taylor, No. 9-313, 2010 WL 1949447, at *3
(D.N.J. May 14, 2010), Aramark argues that “[c]onclusory
allegations without evidence is not sufficient to support the
allegations.” (Aramark Mot. at 9.) Aramark asserts that
“plaintiff did not have any health problems,” as documented on a
“Confidential Medical Record for Inmate Transfers.” (Id. at 10;
Aramark Ex. D.) The form, which appears to have been completed
in April 2009, 7 indicates that Plaintiff was not taking
medication; that he was not undergoing any treatment; that he
had no mental health problems; that he did not wear dentures or
partials and was not undergoing dental care; and that he had no
allergies, among other information. (Aramark Ex. D.) The section
of the form describing Plaintiff’s “Conditions” is blank,
permitting the inference that Plaintiff did not complain of any
medical problems at the time. 8 (Id.) Plaintiff has offered no
argument in response.
Plaintiff’s transfer form is the only evidence of
Plaintiff’s medical condition in the record. It provides support
for Aramark’s unchallenged assertion that Plaintiff did not have
any health problems as a result of his diet, at least several
months into his detainment at the CCCF. The Court has provided
Plaintiff extra time and opportunity to respond to this motion
for summary judgment and warned about the consequences of
failing to file opposition. The Court will deem Aramark’s
assertion that Plaintiff did not have any health problems as
The form lists the inmate transfer date as April 9, 2009.
(Aramark Ex. D.) The medical personnel completing the form
signed and dated the form on April 8, 2009. (Id.) However, the
form also lists that Plaintiff had a “PPD Test” on November 30,
2009, more than seven months after the date on the signature
As stated above, it is undisputed that Plaintiff did not file
any grievances during his detention at CCCF.
admitted. Therefore, Plaintiff fails to satisfy the objective
component of the due process inquiry, as he has no evidence of a
sufficiently serious deprivation. His allegations, while serious
on their face, have not been substantiated by any testimonial or
documentary evidence, and he bears the burden at trial of
proving his allegations. Accordingly, the Court will grant
Aramark’s motion for summary judgment on the Fourteenth
Plaintiff also purports to bring a claim under the New
Jersey Constitution. Aramark reasonably construes this claim as
asserting a violation of the New Jersey Civil Rights Act
(“NJCRA”), N.J.S.A. 10:6-1, et seq. Courts have consistently
analyzed the NJCRA “nearly identically to Section 1983.” Endl v.
N.J., --- F. Supp. 2d. ---, No. 12-3564, 2014 WL 1050738, at *5
(D.N.J. Mar. 13, 2014); see also Gonzalez v. Auto Mall 46, Inc.,
Nos. L-2412-09 & L-216-10, 2012 WL 2505733, at *4 (N.J. Super.
Ct. App. Div. July 2, 2012), cert. denied, 213 N.J. 530 (2013).
Accordingly, for the reasons that Plaintiff’s Fourteenth
Amendment claim fails, his claim under the New Jersey
Constitution also fails.
C. Plaintiff cannot maintain a claim under the New Jersey
Administrative Code 10A:4-3.1
Plaintiff claims that his conditions of confinement violate
N.J.A.C. 10A:4-3.1. The provision notifies inmates of their
rights and responsibilities, including, for instance “nutritious
meals, proper bedding and clothing, a laundry schedule for
cleanliness of same, an opportunity to shower regularly,
sufficient warmth, proper ventilation . . . .” N.J.A.C. 10:A43.1(a)(4).
Aramark argues that this particular “Administrative Code
provision does not provide for a private cause of action.
Plaintiff has set forth this cause of action through the
Fourteenth Amendment and the New Jersey Constitution. Therefore,
this claim must be dismissed.” (Aramark Mot. at 12.) Aramark
provides no legal support for its position. New Jersey courts
and at least one court in this District have entertained claims
under N.J.A.C. 10A:4-3.1. See Allah v. Hayman, No. 08-1177, 2011
WL 1322186, at *4 (D.N.J. Apr. 1, 2011) (dismissing the claim
for lack of sufficient factual allegations), appeal dismissed as
frivolous, 422 F. App’x 632 (3d Cir. 2011); Bryant v. Dep’t of
Corr., 2006 WL 59819, (N.J. Super. Ct. App. Div. Jan. 12, 2006)
(rejecting the petitioner’s appeal under N.J.A.C. 10A:4-3.1(a)
based on the substantive record). Without the benefit of any
briefing on the issue, the Court declines to rule that a private
right of action to enforce N.J.A.C. 10A:4-3.1 does not exist.
Assuming without deciding that a private right of action
does exist, Aramark is still entitled to summary judgment. As
discussed above, the Amended Complaint alleges that Plaintiff
suffered physical injuries from his inadequate diet and
unsanitary food service, but the only medical evidence in the
record refutes that claim, and Aramark’s contention that
Plaintiff suffered no physical harm as a result of his diet is
undisputed. Therefore, Plaintiff cannot maintain a claim under
N.J.A.C. 10A:4-3.1, and the Court will grant summary judgment in
favor of Aramark.
D. Aramark is entitled to summary judgment on the New
Jersey Tort Claims Act claim
Plaintiff alleges that Aramark’s conduct is actionable
under the New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:1-1,
et seq. (Am Compl. at 18.) The TCA provides that a “public
entity is liable for injury proximately caused by an act or
omission of a public employee within the scope of his employment
in the same manner and to the same extent as a private
individual under like circumstances.” N.J.S.A. 59:2-2(a). The
act defines “public entity” as “the State, and any county,
municipality, district, public authority, public agency, and any
other political subdivision or public body in the State.”
N.J.S.A. 59:1-3. The term “public employee” means “an employee
of a public entity,” but the word “employee” specifically
excludes an independent contractor. Id. The act defines “injury”
as “death, injury to a person, damage to or loss of property or
any other injury that a person may suffer that would actionable
if inflicted by a private person.” Id.
Aramark argues that (1) the TCA is not a separate cause of
action and Plaintiff fails to allege underlying tort claims
against Aramark; (2) the TCA is inapplicable because Aramark is
not a public entity within the meaning of the statute; and (3)
Plaintiff failed to provide a notice of claim under N.J.S.A.
59:8-8. 9 (Aramark Mot. at 12-15.)
Aramark is not a “State, . . . county, municipality,
district, public authority, public agency, . . . [or] other
political subdivision or public body in the State,” and
therefore is not a public entity within the meaning of the TCA.
See N.J.S.A. 59:1-3; Vanchieri v. N.J. Sports & Exposition
Auth., 104 N.J. 80, 85 (1986) (holding that a contractor
responsible for providing permanent posts and guards to the
state sports and exposition authority was not entitled to invoke
the protections of the TCA because the contractor did not fit
within the meaning of “public entity”). A party may qualify as
state actor for purposes of § 1983, even if that party does not
Aramark’s contention that Plaintiff may not maintain an action
under the TCA without establishing a permanent loss of a bodily
function is without support. (Aramark Mot. at 15-16.) The
provision quoted by Aramark, N.J.S.A. 59:9-2(d) plainly limits
the award of special damages for “pain and suffering” to
circumstances where a plaintiff sustained a permanent loss of a
bodily function. However, that provision does not purport to
limit the availability of any damages to those situations.
qualify as a public entity for purposes of the TCA. See Tice v.
Cramer, 133 N.J. 347, 374-75 (1993) (“Whatever the congruency of
the two kinds of claims may or may not be, we note their
independence from each other.”).
The conclusion that Aramark is not a public entity does not
end the inquiry. Private companies are liable under ordinary
tort principles. Here, however, Plaintiff has not articulated
any common law tort claims that he pursues, nor does Plaintiff
oppose Aramark’s contention that Plaintiff does not bring any
tort causes of action. (Aramark Mot. at 12.) Accordingly,
Plaintiff cannot maintain any tort claims against Aramark.
Even if the Court assumed that Aramark qualified as a
public entity under the TCA, Aramark would be entitled to
summary judgment because Plaintiff does not plead or provide
evidence of compliance with the notice of claim requirements of
the TCA, N.J.S.A. 59:8-8, 10 and Plaintiff does not oppose
Aramark’s contention that Plaintiff failed to comply with that
requirement. (Aramark Mot. at 13-14.) Moreover, as discussed
above, Plaintiff does not meet his evidentiary burden of
creating a genuine issue of material fact as to whether he
sustained an injury as a result of his diet, and therefore
“The claimant shall be forever barred from recovering against
a public entity or public employee if: (a) The claimant failed
to file the claim with the public entity within 90 days of
accrual of the claim . . . .” N.J.S.A. 59:8-8(a).
Plaintiff cannot maintain an action under the TCA. See N.J.S.A.
59:2-2 (providing that a “public entity is liable for injury
proximately caused by an act or omission of a public employee .
. .”) (emphasis added).
For the reasons explained above, the Court will grant
summary judgment in favor of Aramark on Counts I and II.
Given Plaintiff’s failure to oppose the motions for summary
judgment despite receiving multiple opportunities, and because
the record supports the entry of summary judgment, the Court
will grant both motions for summary judgment by the County
Defendants and the Aramark Defendants. An accompanying Order
will be entered.
May 27, 2014
s/ Jerome B. Simandle
JEROME B. SIMANDLE
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