COOPER v. COUNTY OF CAMDEN et al
Filing
73
OPINION. Signed by Judge Noel L. Hillman on 5/11/2018. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILLIAM COOPER,
HONORABLE NOEL L. HILLMAN
Plaintiff,
1:15-cv-01244-NLH-JS
v.
OPINION
COUNTY OF CAMDEN, et al.,
Defendants.
APPEARANCES:
WILLIAM COOPER
186629C/974700
New Jersey State Prison
P.O. BOX 861
TRENTON, NJ 08625
Appearing pro se
PARKER MCKAY, P.A.
Elizabeth M. Garcia, Esq.
9000 Midlantic Drive, Suite 300
P.O. Box 5054
Mount Laurel, New Jersey 08054
Counsel for Defendant Peter Farlow Sr.
THE VIGILANTE LAW FIRM, P.C.
Jacqueline M. Vigilante, Esq.
99 North Main Street
Mullica Hill, New Jersey 08062
Counsel for Defendant John Vernon
THE OFFICE OF CAMDEN COUNTY COUNSEL
Anne E. Walters, Assistant County Counsel
520 Market Street, 14th Floor Camden, New Jersey 08102
Counsel for Defendants County of Camden, Camden County
Correctional Facility, Correctional Officer Nnakuru R.
Chukudi, and Warden Eric M. Taylor
HILLMAN, District Judge
This matter concerns claims by Plaintiff, appearing pro se, 1
arising from an alleged physical assault by three Camden County
Correctional Facility (“CCCF”) corrections officers while
Plaintiff was a pre-trial detainee.
All Defendants have moved
for summary judgment in their favor on all of Plaintiff’s claims
against them.
Plaintiff has not opposed Defendants’ motions. 2
1
Counsel for Plaintiff filed the original complaint in New
Jersey state court, and after the County of Camden removed the
action to this Court on February 17, 2015, Plaintiff’s counsel
withdrew as Plaintiff’s attorney on September 22, 2015.
Plaintiff’s two applications for pro bono counsel were denied on
October 23, 2015 and February 22, 2016. Plaintiff has remained
in pro se status since his counsel’s withdrawal, and at
Plaintiff’s request, discovery was extended until June 30, 2016.
Plaintiff has failed to answer any of Defendants’ discovery
requests. Plaintiff, however, was deposed as a witness in his
cellmate’s suit arising from the same incident. (See Sanders v.
County of Camden, 1:15-cv-01129-NLH-JS, administratively
terminated on October 16, 2017 pending consummation of
settlement, case closed on December 19, 2017.) Defendants have
provided the transcript of Plaintiff’s deposition in support of
their motions for summary judgment.
2
On September 13, 2017, the Court denied without prejudice
Defendants’ motions, and afforded Plaintiff 45 days to file an
opposition. (Docket No. 69.) On October 19, 2017, Plaintiff
filed a motion for an extension of time to file his opposition
(Docket No. 70), and the Court granted his request on October
23, 2017, providing him with an additional 45 days from the date
of the Order (Docket No. 72), thus making Plaintiff’s opposition
due on December 7, 2017. To date, Plaintiff has never filed an
opposition to Defendants’ motions, which were filed on January
30, 2017. Plaintiff has been in custody at his current facility
since August 21, 2015, and there are no notations on the docket
indicating that mail sent to Plaintiff at NJSP has been returned
as undeliverable. As set forth below, Plaintiff will be
2
For the reasons expressed below, Defendants’ motions will be
granted in part and denied without prejudice in part.
BACKGROUND
On January 26, 2013, Plaintiff, William Cooper, an AfricanAmerican Muslim, was a pre-trial detainee incarcerated at CCCF
in Unit Three North when the unit was placed on lockdown.
Plaintiff observed from his cell a corrections officer beat
another inmate who was in the shower when the lock-down was
called.
Plaintiff claims that he yelled out of his cell to the
corrections officer, “We see what you are doing,” “He is not
resisting,” and “We know who you are.”
Plaintiff claims that
the officer responded, “What are you trying to do, incite a
riot?”
During the early morning of January 27, 2013, Defendant
corrections officer John Vernon was informed of the incident.
Vernon enlisted Defendant corrections officers Peter Farlow and
Nnakuru Chukudi to accompany him to Unit Three North and speak
with the inmates in three cells associated with the threats
arising from the earlier incident.
After entering the first
cell, the officers visited Plaintiff’s cell, which he shared
with Craig Sanders.
Either before or while he opened the door
provided one last opportunity to respond to Defendants’ motions.
Fed. R. Civ. P. 56(e).
3
to Plaintiff’s cell, Vernon shouted for the men to get up and
face the wall.
out.
Sanders was on the top bunk and swung his legs
According to Plaintiff, Vernon grabbed Sanders and threw
him to the floor.
Plaintiff claims that Vernon beat up Sanders
while Chukudi held down Sanders’s legs.
Plaintiff further
claims that Farlow stood in the doorway in order to block the
video surveillance camera.
Plaintiff relates that he witnessed
the officers’ interactions with Sanders through a gap in the
sheet he had hanging up as a curtain covering the lower bunk.
Plaintiff claims that during Vernon’s altercation with
Sanders, Vernon lifted the curtain on Plaintiff’s bunk, pulled
him out of the bunk onto the ground, and kicked him in the back
of the head, causing his face to smash on the floor.
Plaintiff
claims that Vernon then resumed his assault on Sanders, and
commanded Plaintiff to return to his bunk, which he did.
Vernon denies kicking or otherwise interacting with
Plaintiff, and believes that Plaintiff remained in his bunk
during the entire incident.
Chukudi and Farlow state that they
did not see Vernon kick Plaintiff.
Plaintiff states that
neither Chukudi nor Farlow touched him during the incident.
Sanders states that he did not see Vernon kick Plaintiff, and
describes Plaintiff as having remained balled-up in the corner
of his bunk, whimpering, and never leaving his bunk before
Sanders was taken out of the cell.
4
Sanders further states that
when he returned to his bunk after his medical treatment,
Plaintiff told him that after Sanders left, the “officers”
returned and struck him in the nose but Plaintiff did not
specify which officer or officers hit him.
Plaintiff claims that he suffered a broken nose and was
bruised in the incident.
Plaintiff remained in his cell while
Vernon removed Sanders and took him to receive medical care.
Plaintiff did not seek medical attention that evening or the
next day for his alleged injuries. 3
Plaintiff also did not file
a grievance form about the incident.
Plaintiff has asserted numerous claims against the three
officers, CCCF, and its warden, Defendant Eric Taylor for
violations of the 4th, 5th, 8th, and 14th Amendments to the U.S.
Constitution, as well as for assault and battery and negligence
under New Jersey state law.
DISCUSSION
A.
Subject matter jurisdiction
This Court has jurisdiction over Plaintiff’s federal claims
under 28 U.S.C. § 1331, and supplemental jurisdiction over
Plaintiff’s state law claims under 28 U.S.C. § 1367.
3
About a year after the incident, Plaintiff sought medical
treatment for depression arising out of his arrest four years
prior, as well as the incident on January 27, 2013.
5
B.
Standard for Summary Judgment
Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate 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, 330 (1986); Fed. R. Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
outcome of the suit.
Id.
In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
v. Catrett, 477 U.S. 317, 323 (1986).
6
Celotex Corp.
Once the moving party has
met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is a
genuine issue for trial.
Id.
Thus, to withstand a properly
supported motion for summary judgment, the nonmoving party must
identify specific facts and affirmative evidence that contradict
those offered by the moving party.
57.
Anderson, 477 U.S. at 256-
A party opposing summary judgment must do more than just
rest upon mere allegations, general denials, or vague
statements.
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001).
In circumstances such as this one where a nonmoving party
fails to oppose the motion, Fed. R. Civ. P. 56(e) provides that
the court may: (1) give an opportunity to properly support or
address the fact; (2) consider the fact undisputed for purposes
of the motion; (3) grant summary judgment if the motion and
supporting materials — including the facts considered undisputed
— show that the movant is entitled to it; or (4) issue any other
appropriate order.
C.
Analysis
1.
Plaintiff’s claims against Defendants County of
Camden, Camden County Correctional Facility, Chukudi,
Farlow, and Warden Taylor
a) Individual Defendants
In order for Plaintiff to succeed on a claim against any
particular defendant, he must provide evidence showing how each
7
particular defendant acted to violate his civil rights.
Mere
status as an employer or supervisor without more is insufficient
for liability.
See Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1988) (citations omitted) (“A defendant in a civil
rights action must have personal involvement in the alleged
wrongs; liability cannot be predicated solely on the operation
of respondeat superior. Personal involvement can be shown
through allegations of personal direction or of actual knowledge
and acquiescence. Allegations of participation or actual
knowledge and acquiescence, however, must be made with
appropriate particularity.”); Parkell v. Danberg, 833 F.3d 313,
330 (3d
Cir. 2016) (citations omitted) (“[T]here are two
theories of supervisory liability, one under which supervisors
can be liable if they established and maintained a policy,
practice or custom which directly caused the constitutional
harm, and another under which they can be liable if they
participated in violating plaintiff's rights, directed others to
violate them, or, as the persons in charge, had knowledge of and
acquiesced in their subordinates' violations.”); Leang v. Jersey
City Bd. of Educ., 969 A.2d 1097, 1117 (N.J. 2009) (citations
omitted) (explaining that a person is subject to liability for
the common law tort of assault if he acts intending to cause a
harmful or offensive contact with the person of the other or a
third person, or an imminent apprehension of such a contact, and
8
a person is liable for the tort of battery if the plaintiff
shows a nonconsensual touching by the defendant); Townsend v.
Pierre, 110 A.3d 52, 61 (N.J. 2015) (quotations and citations
omitted) (explaining that to sustain a cause of action for
negligence, a plaintiff must establish four elements - (1) a
duty of care, (2) a breach of that duty, (3) proximate cause,
and (4) actual damages - and the plaintiff bears the burden of
establishing those elements by some competent proof).
As a primary matter, Plaintiff cannot maintain any claims
against CCCF because New Jersey correctional facilities, and
CCCF specifically, are not amenable to suit under § 1983.
See
Turner v. Camden Cty. Corr. Facility, 2017 WL 88976, at *1
(D.N.J. Jan. 10, 2017); Grabow v. Southern State Corr. Facility,
726 F. Supp. 537, 538–39 (D.N.J. 1989).
With regard to the County of Camden and Warden Taylor,
there is no evidence in the record to show that they acted in
any manner that caused Plaintiff’s alleged injuries on January
27, 2013.
Plaintiff has not pointed to a policy, practice or
custom which directly caused his constitutional harm, and he has
not shown how Warden Taylor participated in violating
Plaintiff's rights, directed others to violate them, or had
knowledge of and acquiesced in his subordinates' alleged
violations.
Thus, CCCF, the County of Camden, and Warden Taylor
are entitled to summary judgment on all of Plaintiff’s claims
9
against them.
Similarly, the record does not support Plaintiff’s claims
against Chukudi and Farlow.
did not strike him.
Plaintiff himself admits that they
The evidence also does not reveal that they
acted in a way to show they intended to cause harmful contact
with Plaintiff, or that they proximately caused his alleged
injuries.
The lack of personal involvement by Chukudi and
Farlow in Plaintiff’s alleged injuries is fatal to all of his
claims against them.
Accordingly, Chukudi and Farlow are
entitled to summary judgment in their favor as well. 4
2.
Plaintiff’s claims against Defendant Vernon
Plaintiff claims that during Vernon’s altercation with
Sanders, Vernon lifted the curtain on Plaintiff’s bunk, pulled
him out of the bunk onto the ground, and kicked him in the back
of the head, causing his face to smash onto the floor.
Plaintiff claims that Vernon then resumed his assault on
Sanders, and commanded the Plaintiff return to his bunk, which
he did.
4
To the extent that Plaintiff has asserted a claim for failure
to intervene against Chukudi and Farlow, such a claim also fails
because of a failure to articulate how Chukudi and Farlow could
have intervened to prevent the alleged strike by Vernon. See
Bistrian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012) (“[A]
corrections officer who fails to intervene when other officers
are beating an inmate may be liable on a failure-to-protect
claim if the officer had a realistic and reasonable opportunity
to intervene and simply refused to do so.”).
10
None of the evidence in the record thus far supports
Plaintiff’s account of what occurred as alleged in the
Complaint.
Vernon denies kicking or otherwise interacting with
Plaintiff, and he believes that Plaintiff remained in his bunk
during the entire incident.
Chukudi and Farlow state that they
did not see Vernon kick Plaintiff.
However, the testimony of
Vernon, Chukudi and Farlow, standing alone, would not warrant
summary judgment in Vernon’s favor, if that testimony is
countered by contrary evidence in the record.
In such a case it
would be for a jury and not the Court to assess the credibility
of Plaintiff’s and the officers’ testimony to determine which
version of events is to be believed. 5
5
See Marino v. Industrial
The Court notes that for Plaintiff's claims against the
individual defendants acting in their personal capacity, the
qualified immunity doctrine governs the analysis. “Qualified
immunity shields government officials from civil damages
liability unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.” Reichle v. Howards, 566 U.S. 658
(2012). In order to determine whether a government official is
entitled to qualified immunity, two questions are to be asked:
(1) has the plaintiff alleged or shown a violation of a
constitutional right, and (2) is the right at issue “clearly
established” at the time of the defendant's alleged misconduct?
Pearson v. Callahan, 555 U.S. 223, 236 (2009). Even though the
determination of whether an officer acted objectively reasonably
or made a reasonable mistake of law, and is thus entitled to
qualified immunity, is a question of law that is properly
answered by the court, not a jury, the Third Circuit has
recognized that a judge should not decide the objective
reasonableness issue until all the material historical facts are
no longer in dispute. Curley v. Klem, 499 F.3d 199, 211, 211
n.12 (3d Cir. 2007). To do this, “[a] judge may use special
jury interrogatories, for instance, to permit the jury to
11
Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson,
477 U.S. at 255) (explaining that in considering a motion for
summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor”).
The other undisputed – and if deemed admitted – facts in
the record, when considered in combination with the three
officers’ testimony, support summary judgment in Vernon’s favor.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Plaintiff’s bunk mate, Sanders, testified in his own lawsuit
against Vernon that he did not see Vernon kick Plaintiff.
Sanders also testified that he believed that Plaintiff remained
balled-up in the corner of his bunk, whimpering, and never left
his bed before Sanders was taken out of the cell.
This
testimony supports all three officers’ statements that Plaintiff
remained in his bunk during the entire altercation between
Vernon and Sanders, and it also supports that Vernon did not
resolve the disputed facts upon which the court can then
determine, as a matter of law, the ultimate question of
qualified immunity.” Id. In other words, “[w]hen the ultimate
question of the objective reasonableness of an officer's
behavior involves tightly intertwined issues of fact and law, it
may be permissible to utilize a jury in an advisory capacity,
... but responsibility for answering that ultimate question
remains with the court.” Id.
12
pause in his assault on Sanders in order to pull Cooper off his
bed, kick him, and send him back to his bunk.
Further discrediting Plaintiff’s allegations against Vernon
is Sanders’ testimony that Plaintiff told him that after Sanders
left, the “officers” returned and struck him in the nose, but he
did not specify which officer or officers hit him.
Also casting
doubt on Plaintiff’s claims against Vernon is his lack of
medical documentation to demonstrate that he was injured in the
way he claims.
In sum, all of the evidence in the record, which Plaintiff
has thus far failed to deny, refutes Plaintiff’s claims that
Vernon kicked him in the manner alleged by Plaintiff.
To be
clear, the Court does not find as fact that Vernon did not
strike Plaintiff, as such a finding would be an improper
function of this Court at the summary judgment stage.
Rather,
the Court finds that: (1) Plaintiff has filed to identify
specific facts and affirmative evidence that contradict those
offered by Vernon, Anderson, 477 U.S. at 256-57, and (2) if this
evidence is deemed unrefuted no genuine issue of material fact
remains and Vernon would be entitled to a judgment as a matter
of law, see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986);
Fed. R. Civ. P. 56(a).
While the Court believes that ruling in favor of Vernon now
would be consistent with the undisputed evidence currently in
13
the record and procedurally within the scope of both the letter
and spirit of Rule 56 we will proceed with caution.
The Court
believes, on the record as whole, that Plaintiff should be given
one last chance to respond under circumstances that make it
clear the danger of failing to do so.
The Court chooses this
path which Rule 56 allows, Fed. R. Civ. P. 56(e)(4), for several
reasons.
First, Plaintiff previously sought additional time to
respond.
Second, the Court is aware that in the parallel
Sanders case the Court denied Vernon’s motion for summary
judgment, relying in large part on the testimony of Cooper.
(Civil Action 15-1129, Docket No. 99 at 3-6, 21-23.)
Moreover,
in Sanders’ case and in this case, even though Vernon denies he
did anything wrong in his interactions with Sanders, and denies
that he struck Plaintiff, it is an undisputed fact that during
the Internal Affairs investigation, Vernon accepted a plea deal
of a demotion to sergeant and a three-month active suspension
and a three-month on-the-record suspension. (Docket No. 61-8 at
13; (Civil Action 15-1129, Docket No. 79-12 at 13-14.)
Both of
these facts suggest that officer misconduct of some kind by
Vernon occurred while Plaintiff was present in their joint cell.
Third, Plaintiff testified under oath in the related case
consistent with the allegations of his Complaint.
And fourth,
the Court’s previous Order granting Plaintiff leave to respond
14
out of time did not expressly notify Plaintiff that the Court
could consider Vernon’s assertion of undisputed facts as true if
Plaintiff did not respond to them in this case.
CONCLUSION
For the reasons expressed above, all Defendants except
Vernon are entitled to summary judgment in their favor on the
present record on Plaintiff’s claims against them.
The Court
will provide Plaintiff one last opportunity to properly file
opposition to Vernon’s motion for summary judgment.
Civ. P. 56(e)(1).
Fed. R.
Plaintiff is on notice that if he fails to do
so the Court will consider the facts as asserted by Vernon to be
undisputed for purposes of summary judgment and rule
accordingly.
Fed. R. Civ. P. 56(e)(2) and (3).
An appropriate
Order will be entered.
Date: May 11, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
15
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