THE ESTATE OF ALISSA MARIE ALLEN et al v. CUMBERLAND COUNTY et al

Filing 124

OPINION. Signed by Judge Jerome B. Simandle on 3/13/2018. (tf, )

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

THE ESTATE OF ALISSA MARIE
ALLEN, et al.,
Plaintiffs,

HONORABLE JEROME B. SIMANDLE

Civil Action No.
15-6273 (JBS-AMD)

v.
CUMBERLAND COUNTY, A. GARCIA,
RN, et al.,

OPINION

Defendants.

APPEARANCES:
Conrad J. Benedetto, Esq.
Melissa Yvette Hoffman, Esq.
LAW OFFICES OF CONRAD J. BENEDETTO
1814 East Route 70, Suite 350
Cherry Hill, NJ 08003
-andDanielle Marie Key, Esq.
John E. Kusturiss, Jr., Esq.
LAW OFFICES OF CONRAD J. BENEDETTO
1405 Chews Landing Road, Suite 21
Laurel Springs, NJ 08021
Attorneys for the Plaintiffs
Daniel Edward Rybeck, Esq.
John C. Eastlack, Jr., Esq.
Lilia Londar, Esq.
WEIR & PARTNERS, LLP
215 Fries Mill Road, Second Floor
Turnersville, NJ 08012
-andStephen D. Holtzman, Esq.
Jeffrey S. McClain, Esq.
HOLTZMAN & MCCLAIN, PC
524 Maple Avenue, Suite 200
Linwood, NJ 08221
Attorneys for Defendant A. Garcia, RN and non-party CFG
Health Systems

A. Michael Barker, Esq.
Vanessa Elaine James, Esq.
BARKER, GELFAND, JAMES & SARVAS
210 New Road, Suite 12
Linwood, NJ 08221
Attorneys for Defendant Corrections Officer Melanie Loatman

SIMANDLE, District Judge:
This matter comes before the Court on four separate
motions: (1) Plaintiff’s Motion for Leave to File a Second
Amended Complaint [Docket Item 61]; (2) Defendant Corrections
Officer Melanie Loatman’s responsive Cross-Motion to Dismiss
[Docket Item 66]; (3) Plaintiff’s Motion for Leave to File a
Third Amended Complaint [Docket Item 81] to add CFG Health
Systems as an additional defendant; and (4) Defendant Amber
Garcia, RN’s responsive Motion for Sanctions [Docket Item 89].
On August 18, 2015, Plaintiff Christine Allen, both as the
administrator of the estate of Alissa Marie Allen and in her own
right, filed a complaint in this Court against several
defendants, alleging a variety of claims arising from the
unfortunate death of Alissa Allen on March 22, 2015 in the
Cumberland County Jail. [Docket Item 1.] The First Amended
Complaint was filed with leave of the Court on February 8, 2016.
[Docket Item 14.]

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Plaintiff seeks to file the Second Amended Complaint to
state a claim against Defendant Loatman (“Loatman”) with
additional factual allegations so as to state a plausible claim
that Loatman bears liability in this case. [Docket Item 61.] In
response, Loatman opposes the motion on the grounds that
amendment would be futile as the Second Amended Complaint does
not state a claim against Loatman [Docket Item 65]. Loatman also
cross-moves for dismissal of the First Amended Complaint [Docket
Item 66] on the same grounds and relying on the same brief
[Docket Item 65]. Plaintiff filed a Response in Opposition to
the Cross-Motion to Dismiss [Docket Item 72]; Loatman filed a
Reply [Docket Item 73].
Separately, Plaintiff seeks to file the Third Amended
Complaint (incorporating the additional allegations against
Loatman), which adds allegations and claims against CFG Health
Systems, Inc. (“CFG”), the healthcare company that allegedly
contracted with Cumberland County to provide medical services at
the Cumberland County Jail and employed Defendant Amber Garcia,
RN (“Garcia”). [Docket Item 81.] Defendant Garcia and non-party
CFG filed a Response in Opposition [Docket Item 82]; Plaintiffs
did not submit a Reply.
In further response to Plaintiff’s Motion to File the Third
Amended Complaint, Defendant Garcia filed a Motion for

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Sanctions. [Docket Item 89.] Plaintiff filed a Response in
Opposition [Docket Item 98], and Garcia filed a Reply [Docket
Item 99].
The Court will first address the proposed Second Amended
Complaint with regard to Loatman, and then the proposed Third
Amended Complaint alongside the Motion for Sanctions.
For the reasons discussed below, the Court will deny
without prejudice the Motion for Leave to File the Second
Amended Complaint; grant the Cross-Motion to Dismiss the First
Amended Complaint; deny the Motion to File the Third Amended
Complaint; and deny the Motion for Sanctions.

I. FACTUAL AND PROCEDURAL BACKGROUND
The instant action arises out of the death of Alissa Marie
Allen on March 22, 2015 in the Cumberland County Jail. Her
mother, as administrator of Ms. Allen’s estate and in her own
right, is the named plaintiff in this action. Plaintiff claims
that “Defendants violated the rights of Alissa Marie Allen by
failing to keep her in a safe and secure environment where she
could be kept free from injury, harm, and death, and by failing
to provide her with adequate medical care and attention, in
violation of the Eighth Amendment to the United States

4

Constitution.” [Docket Item 62, Proposed Second Amended
Complaint (“SAC”), ¶ 2.]
A. Factual Background and Allegations
On March 20, 2015, Ms. Allen was arrested by Millville, New
Jersey police officers who transported her to and booked her
into the Cumberland County Jail in the early morning hours of
March 21, 2015. [Docket Item 14 at ¶¶ 14-15.] Plaintiff alleges
that Garcia and Loatman, among other jail personnel, “were
required to screen Ms. Allen not only for any physical problems,
but also to determine if Ms. Allen presented a risk for any
psychological problems, including suicide[,]” and “had a legal
duty to maintain a safe and suitable environment where Alissa
Marie Allen could be kept free from injury, harm and death.”
[SAC ¶¶ 15-16.]
Plaintiff alleges that Loatman “was the only correction
officer assigned to A-Pod where the decedent was housed at the
Cumberland County Jail during the overnight period on March 22,
2015.” Id. ¶ 17. Plaintiff alleges that Loatman began her shift
at approximately 12:35 AM on March 22, 2015; performed an
initial check of the inmates on A-Pod (including the decedent)
at approximately 12:40 AM, which took about five minutes.
Although the policy and procedures of the Cumberland County Jail
required that Loatman check the inmates every thirty minutes,

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Loatman failed to perform any checks (or rounds) of the inmates
in A-Pod for approximately five hours in the early morning of
March 22. Id. ¶¶ 18-21.
At approximately 5:00 AM, “Loatman assembled the diabetic
inmates and hydration inmates, those inmates who were brought
into the jail under the influence of drugs or alcohol, housed in
A-Pod and brought those inmates to the jail’s medical unit.” Id.
¶ 22. Although Ms. Allen was placed “on hydration upon her
initial intake” at the jail on March 20, 2015 (and had
previously been placed on hydration during a previous
incarceration at the jail “several days to a week before March
22, 2015”), Loatman failed to check whether Ms. Allen was on
hydration and did not bring her with the other hydration
inmates. Id. ¶¶ 23-25.
When Loatman arrived at the medical unit, she was informed
that Ms. Allen “was on hydration and needed to be brought to the
medical unit”; accordingly, at approximately 5:15 AM, Loatman
“went to retrieve Ms. Allen” from her cell to take her to the
medical unit for hydration and there observed her “hanging in
her jail cell.” Id. ¶¶ 26-28. An on-duty nurse pulled Ms. Allen
out of her cell at approximately 5:35 AM and tried to revive her
with CPR. Id. ¶ 29. Tragically, Ms. Allen was unable to be
revived. Id.

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Plaintiff further notes that emergency medical personnel
responding to a report of “cardiac arrest” reported Ms. Allen
“‘to have cool and mottled skin. Bruising consistent with
Lividity, noted in the legs, however BLS was unaware if Lividity
was in fact, present.’” Id. ¶¶ 30-31. Ms. Allen was pronounced
dead at the scene; her death certificate identified the
“immediate cause” of her death as “Hanging.” Id. ¶¶ 32-33.
Plaintiff also alleges that, as “a result of the events of
March 22, 2015, Defendant Loatman was suspended for 20 days on
charges of violating CCDOC Policy 3.02A, negligence in
performing duty; resulting in injury to persons or damage to
property”.” Id. ¶ 34. An incident report relating to the
suspension addressed to Loatman stated, “‘On March 22, 2015 you
failed to make physical checks every 30 minutes stated in the
General Post Orders. An inmate was found hanging and
unresponsive in her cell, resulting in her death. You had not
physically and visually checked on her in four hours and 50
minutes.’” Id. ¶ 35.
Plaintiff claims that Loatman (among others) “failed to
properly screen Alissa Marie Allen for any suicidal tendencies,
or any other psychological problems, and also failed to properly
monitor Alissa Marie Allen” thereby “breach[ing] their legal
duty to maintain a safe and suitable environment[,]” acting to

7

deprive Ms. Allen of “her rights, privileges, and immunities
secured by the Eighth and Fourteenth Amendments[.]” Id. ¶¶ 3637.
Plaintiff claims that Loatman is liable for federal
constitutional violations (Second Claim for Relief, id. ¶¶ 4551); violation of the New Jersey Civil Rights Act, N.J.S.A.
10:6-1 et seq. (Fourth Claim for Relief, SAC ¶¶ 58-61); wrongful
death (Fifth Claim for Relief, id. ¶¶ 62-67); and survival
action (Sixth Claim for Relief, id. ¶¶ 68-73).
B. Procedural Background
Plaintiff filed the initial complaint in this action on
August 18, 2015, against Cumberland County, Warden Robert
Balicki, and John Doe Corrections Officers 1-50. [Docket Item
1.]
On November 15, 2015, the Cumberland County Defendants
served their initial disclosures on Plaintiff, including, inter
alia, medical and intake records signed by Garcia, some of which
included the name and/or logo of CFG. [Docket Item 82 at 4.]
On January 18, 2016, Plaintiff filed a motion for leave to
file an amended complaint [Docket Item 12], which was granted on
February 3, 2016 [Docket Item 13]. The First Amended Complaint
was filed on February 8, 2016; in addition to Cumberland County
and Warden Balicki, it named Garcia, eight corrections officers,

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and John Doe Corrections Officers 9-50 as defendants. [Docket
Item 14.]
Garcia’s initial disclosures, including a certificate of
insurance coverage naming CFG as the insured and the Cumberland
County Jail as the certificate holder, were served on Plaintiff
on May 11, 2016. [Docket Items 82 at 5, 82-5 at 4.] No medical
defendants beside Garcia were ever impleaded as defendants; nor
were any medical defendants or employees or agents of CFG ever
impleaded as John Does.
On December 9, 2016, this case was consolidated for
discovery purposes only with three additional cases involving
suicides in the Cumberland County Jail: Estate of Hennis v.
Cumberland County, 16-cv-4216 (“Hennis”); Estate of Lewis v.
Cumberland County, 16-cv-3503 (“Lewis”); and Estate of Watson v.
Cumberland County, 16-cv-6578 (“Watson”). [Docket Item 57.]
Plaintiff’s counsel is the counsel of record for the plaintiffs
in each of the foregoing cases.
On November 15, 2016, the plaintiff in Lewis filed a motion
to amend the complaint to add CFG as a defendant. [Lewis, Docket
Item 18.] The motion was granted and the complaint was filed on
December 16, 2016. [Lewis, Docket Items 22 & 26.]

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On December 19, 2016, the plaintiff in Watson filed an
amended complaint naming CFG as a defendant (without seeking
leave of the court to amend). [Watson, Docket Item 19.]
Also on December 19, 2016, the plaintiff in Hennis filed a
motion to amend the complaint to name CFG as a defendant.
[Hennis, Docket Item 23.] That motion was granted on January 5,
2017 [Hennis, Docket Item 24] and the amended complaint filed on
January 11, 2017 (albeit not served on CFG until June 8, 2017)
[Hennis, Docket Item 25].
Also on December 19, 2016, Plaintiff’s counsel conducted
the deposition of Garcia. [Docket Item 82-6.] Garcia testified
that she worked for CFG as a registered nurse at the Cumberland
County Jail from March of 2014 to either March or November of
2015. Id. at 4-5.
The Court previously issued an Opinion and Order granting
partial summary judgment to Garcia on the claims of professional
negligence because Plaintiff failed to file an affidavit of
merit within the statutorily-prescribed time period under New
Jersey Law. Estate of Allen v. Cumberland County, 262 F. Supp.
3d 112 (D.N.J. 2017) [Docket Items 83 & 84].
On June 22, 2017, Plaintiff filed a Third Motion to Amend
or Correct the Complaint “to include CFG Health Systems, LLC as
a Defendant in the litigation.” [Docket Item 81-1 at 2.] The

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proposed Third Amended Complaint (“TAC”) [Docket Item 81-2]
states that “CFG Health Systems, LLC (‘CFG’), with corporate
offices located at 765 East Route 40, Building A-101, Marlton,
NJ 08053, contractually provides health care services to inmates
at the Cumberland County Jail.” [TAC ¶ 12.] The TAC then
includes allegations that “representatives and/or employees of
CFG” “were required to screen Ms. Allen not only for any
physical problems, but also to determine if Ms. Allen presented
a risk for any psychological problems, including suicide,”
“failed to properly screen Alissa Marie Allen for any suicidal
tendencies, or any other psychological problems, and also failed
to properly monitor Alissa Marie Allen[,]” thereby depriving her
of her constitutional rights and constituting deliberate
indifference. [TAC ¶ 16, 37-39.] She includes CFG and/or its
“representatives and/or employees” in her second [federal
constitutional violations, TAC ¶¶ 46-52], fourth [New Jersey
Civil Rights Act, TAC ¶¶ 59-62], fifth [wrongful death, TAC
¶¶ 63-68], sixth [survival action, TAC ¶¶ 69-74], and seventh
[negligence, TAC ¶¶ 75-79] claims for relief.

11

Defendant Garcia1 filed a brief in opposition to the motion
to file the TAC, in which she states that CFG was her “employer”
“at all times relevant.” [Docket Item 82 at 6.]
CFG subsequently filed the Motion for Sanctions pursuant to
Fed. R. Civ. P. 11 [Docket Item 89], to which Plaintiff
eventually filed a Response in Opposition [Docket Item 98] and
CFG filed a Reply [Docket Item 99].

2

II.

STANDARD OF REVIEW3

Federal Rule of Civil Procedure 15(a) permits a party to

amend his pleading before trial as a matter of course in limited
circumstances, or otherwise with the consent of the opposing
party or the court’s leave. Plaintiff filed his Motion to Amend
27 days after Defendant’s Motion to Dismiss, and was therefore
not within the 21-day window to amend as of right under Federal
Rule of Civil Procedure 15(a)(1). Rule 15(a)(2) permits

1

The Certification of Counsel attached to the brief in
opposition states that Attorney McClain is the Attorney “for
Defendant CFG Health Systems, LLC” [Docket Item 82-1 at 5];
although Attorney McClain also represents Garcia, CFG is not
currently a party to this action.
2 Although CFG is, as stated supra, not a party, the Motion for
Sanctions purports to be filed by CFG by and through Attorney
McClain. The docket sheet, however, reflects that Garcia filed
the Motion for Sanctions and the Reply.
3 The Court exercises jurisdiction over this action pursuant to
28 U.S.C. §§ 1331 & 1343(3) and pendent jurisdiction over
Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367.
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Plaintiff to amend “only with the opposing party's written
consent or the court's leave.” Fed. R. Civ. P. 15(a)(2).
Although “[t]he court should freely give leave when justice
so requires,” id, the decision to grant leave to amend a
complaint rests within the sound discretion of the trial court.
Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.
1983). The district court may deny leave to amend only if (a)
the moving party's delay in seeking amendment is undue,
motivated by bad faith, or prejudicial to the non-moving party;
or (b) the amendment would be futile, meaning that the
complaint, as amended, would fail to state a claim upon which
relief could be granted. Travelers Indem. Co. v. Dammann & Co.,
594 F.3d 238, 243 (3d Cir. 2010); Shane v. Fauver, 213 F.3d 113,
115 (3d Cir. 2000).
In assessing “futility,” the court applies the same
standard of legal sufficiency as applies under Fed. R. Civ. P.
12(b)(6). Shane, 213 F.3d at 115. In other words, the amended
complaint must be dismissed (or leave to amend ought not be
granted) if, accepting all well-pleaded allegations in the
complaint as true and viewing them in the light most favorable
to the plaintiff, a court concludes that the plaintiff has
failed to set forth sufficient facts to state a claim for relief
that is plausible on its face. Bell Atlantic Corp. v. Twombly,

13

550 U.S. 544 (2007); Fleisher v. Standard Ins. Co., 679 F.3d
116, 120 (3d Cir. 2012). Although a court must accept as true
all factual allegations in a complaint, that tenet is
“inapplicable to legal conclusions,” and “[a] pleading that
offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).  

III. ANALYSIS
A. Proposed Second Amended Complaint and Cross-Motion to
Dismiss First Amended Complaint as to Loatman
Plaintiff seeks to file a Second Amended Complaint pursuant
to Fed. R. Civ. P. 15(a) “that states with additional
specificity the allegations against Defendants in the
litigation,” and avers that “there has not been undue delay, the
existing defendants would not be prejudiced, and amending the
Complaint would not be futile.” [Docket Item 61-1 at 2.]
Plaintiff states that only a few months passed between the time
when Plaintiff was “permitted to file any amendments to the
Complaint in line with the Court’s scheduling Order” and when
she filed the instant motion; that she does not raise any
additional allegations against Defendants Cumberland County,
Warden Balicki, Garcia, and the individual Corrections Officers;
and that the proposed SAC “contains actionable claims against
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the same Defendants as in the original Complaint and the First
Amended Complaint” and “[t]hose claims are not futile.” Id. at
3.
Loatman opposes the motion for leave to file the SAC on the
grounds that amendment would be futile, as the SAC’s “proposed
amendments do not allege facts sufficient to overcome a R.
12(b)(6) motion to dismiss.” [Docket Item 65 at 8.]
Loatman argues, first, that the SAC “does not allege that
the decedent Allen had any history of psychological [problems]
or suicidal tendencies that should have been detected. . . .
Plaintiff’s entire case is premised upon the assumption that
because the decedent committed suicide, there must have been
something the defendants did wrong; to support the assumption,
Plaintiff does not allege one thing that any of the defendants
did wrong in the screening of Allen. Plaintiff only alleges that
the Defendants did the screening ‘improperly.’ This is the very
kind of ‘naked assertion’ that Ashcroft protects against.” Id.
at 10-11.
Loatman next argues that the allegations that the
Defendants failed to properly screen and failed to properly
monitor Ms. Allen fail to state a claim against Loatman, as
“Plaintiff alleges the same conduct from nine named defendants
plus numerous John Doe defendants.” Id. at 12. Loatman contends

15

that this renders these claims inadequate, citing Zampetis v.
City of Atlantic City, No. 15-1231 (NLH), 2015 U.S. Dist. LEXIS
169997, at *8-*12 (D.N.J. Dec. 21, 2015), and arguing that
“Plaintiff’s failure to specify, at least to some extent, which
defendant was responsible for what i[s] fatal to Plaintiff’s
case.” [Docket Item 65 at 12-14.]
Loatman then argues that, while the proposed SAC alleges
that Loatman had no part in the screening of the decedent but
does allege that Loatman failed to monitor her, the SAC fails to
state a claim against her for constitutional violations against
the decedent for failure to monitor her because such failure
does not rise to the level of deliberate indifference as is
required under precedential case law. Id. at 15-18. Because of
this, she argues, the constitutional violations pled by
Plaintiff in the SAC against Loatman fail to state a claim,
rendering amendment futile, and the Court should deny Plaintiff
leave to amend to file the SAC. Id. at 18.
Loatman finally argues that, because the pleadings in the
FAC are even weaker than those in the SAC, “any and all claims
against Loatman by Plaintiff in Plaintiff’s First Amended
Complaint should be dismissed, with prejudice, pursuant to
F.R.C.P. 12(c)[,]” as “[u]nder a R. 12(c) motion, the same
standards as a R. 12(b)(6) motion for failure to state a claim

16

are applied. See, e.g., Turbe v. Gov’t of V.I., 938 F.2d 427,
428 (3d Cir. 1991).” [Docket Item 65 at 19.]
In response, Plaintiff argues that “Loatman, through her
previous encounter with decedent Allen and her interaction with
other corrections officers and medical staff at the Cumberland
County Jail, knew that decedent Allen was suffering from drug
withdrawal and needed to be more closely monitored as she was on
hydration.” [Docket Item 72 at 16.] Loatman’s failure to check
on the decedent for almost five hours coupled with her “entries
in the Log Book every half hour that everything was fine[,]”
Plaintiff claims, “is exactly the kind of deliberate
indifference, i.e., disregard of an excessive risk to an
inmate’s health or safety that support[s] Plaintiff’s claims
against Defendant Loatman.” Id.
In reply, Loatman reiterates that, notwithstanding the
allegations that Loatman was deliberately indifferent to the
decedent’s hydration needs and drug withdrawal, the “pleadings
do not establish Loatman had any information regarding any
suicide risk for Allen[,]” as Plaintiff conceded the case law
requires. [Docket Item 73 at 10.]

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“The [Eighth] Amendment4 . . . imposes duties on [prison]
officials, who must provide humane conditions of confinement;
prison officials must ensure that inmates receive adequate food,
clothing, shelter, and medical care, and must ‘take reasonable
measures to guarantee the safety of the inmates.’” Farmer v.
Brennan, 511 U.S. 825, 832 (1994)(citing Hudson v. Palmer, 468
U.S. 517, 526-37 (1984)). “Our cases have held that a prison
official violates the Eighth Amendment only when two
requirements are met. First, the deprivation alleged must be,
objectively, sufficiently serious; a prison official’s act or
omission must result in the denial of the minimal civilized
measure of life’s necessities. For a claim (like the one here)
based on a failure to prevent harm, the inmate must show that he
is incarcerated under conditions posing a substantial risk of
serious harm.” Farmer, 511 U.S. at 834 (internal quotations and

4

The decedent in this case, as a pre-trial detainee, was not
protected by the Eighth Amendment, under the prevailing view,
because “the most accepted view” holds that “the amendment’s
proscription applies only after conviction.” Hampton v.
Holmesburg Prison Officials, 546 F.2d 1077, 1079 (3d Cir. 1976).
Rather, her claim is properly grounded in the Due Process Clause
of the Fourteenth Amendment. Id. at 1080. “[T]he Due Process
rights of a pretrial detainee are ‘at least as great as the
Eighth Amendment protections available to a convicted
prisoner.’” Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir.
1987)(citing City of Revere v. Massachusetts General Hospital,
463 U.S. 239, 244 (1983)). See also Palakovic v. Wetzel, 854
F.3d 209, 222 (3d Cir. 2017). Accordingly, the Court analyzes
her Due Process claim within the analytic framework provided by
Eighth Amendment jurisprudence.
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citations omitted). “The second requirement follows from the
principle that only the unnecessary and wanton infliction of
pain implicates the Eighth Amendment. To violate the Cruel and
Unusual Punishments Clause, a prison official must have a
sufficiently culpable state of mind. In prison-conditions cases
that state of mind is one of ‘deliberate indifference’ to inmate
health or safety[.]” Id. (citing, inter alia, Estelle v. Gamble,
429 U.S. 97, 106 (1976)(further citations omitted)). See also
Wilson v. Seiter, 501 U.S. 294, 303 (1991)(applying “deliberate
indifference” standard of Estelle to claims alleging inadequate
non-medical conditions of confinement as well as claims alleging
inadequate medical care).
“In the Eighth Amendment context, ‘deliberate indifference’
is ‘a subjective standard of liability consistent with
recklessness as that term is defined in criminal law.’ Nicini v.
Morra, 212 F.3d 798, 811 (3d Cir. 2000)(en banc). A prison
official is deliberately indifferent if the official ‘knows that
inmates face a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it.’
Chavarriaga [v. New Jersey Dep’t of Corrs.], 806 F.3d [210,] 229
[(3d Cir. 2015)].” Parkell v. Danberg, 833 F.3d 313, 335 (3d
Cir. 2016).

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“A plaintiff may demonstrate deliberate indifference by
showing that the risk of harm was longstanding, pervasive, welldocumented, or expressly noted by prison officials in the past
such that the defendants must have known about the risk. But the
plaintiff must show that the officials were aware of facts from
which the inference could be drawn that a substantial risk of
harm exists, and that they also drew the inference. It is not
enough merely to find that a reasonable person would have known,
or that the defendant should have known.” Id. (citations
omitted). “A pervasive risk of harm may not ordinarily be shown
by pointing to a single incident or isolated incidents, but it
may be established by much less than proof of a reign of
violence and terror.” Riley v. Jeffes, 777 F.2d 143, 147 (3d
Cir. 1985)(internal quotations omitted).
In the context of an Eighth Amendment claim regarding a
prisoner’s medical needs, “a failure to provide adequate care
that was deliberate, and motivated by non-medical factors is
actionable under the Eighth Amendment, but inadequate care that
was a result of an error in medical judgment is not.” Parkell,
833 F.3d at 337 (citing Durmer v. O’Carroll, 991 F.2d 64, 69 (3d
Cir. 1993))(internal quotations omitted).
A constitutional claim based on a prison or its official’s
failure to prevent a detainee’s suicide can be analyzed within

20

this rubric. “[A] vulnerability to suicide claim . . . is simply
a more specific articulation of the Eighth Amendment rule that
prison officials must not be deliberately indifferent to a
prisoner’s serious medical needs[.]” Mullin v. Balicki, 875 F.3d
140, 158 (3d Cir. 2017)(“Mullin II”). However, “[w]e cannot
infer from the prisoner’s act of suicide itself that the prison
officials have recklessly disregarded their obligation to take
reasonable precautions to protect the safety of prisoners
entrusted to their care.” Freedman v. City of Allentown, Pa.,
853 F.2d 1111, 1115 (3d Cir. 1988).
The Third Circuit has held that
when a plaintiff seeks to hold a prison official
liable for failing to prevent a detainee’s suicide, a
pre-trial detainee may bring a claim under the Due
Process Clause of the Fourteenth Amendment that is
essentially equivalent to the claim that a prisoner
may bring under the Eighth Amendment. Thus, whether a
pre-trial detainee or a convicted prisoner, a
plaintiff must show: (1) that the individual had a
particular vulnerability to suicide, meaning that
there was a ‘strong likelihood, rather than a mere
possibility,’ that a suicide would be attempted; (2)
that the prison official knew or should have known of
the individual’s particular vulnerability; and (3)
that the official acted with reckless or deliberate
indifference, meaning something beyond mere
negligence, to the individual’s particular
vulnerability.
Palakovic v. Wetzel, 854 F.3d 209, 223-24 (3d Cir. 2017)(citing
Colburn v. Upper Darby Twp., 838 F.2d 663, 669 (3d Cir.
1988)(“Colburn I”); Colburn v. Upper Darby Twp., 946 F.2d 1017,

21

1023 (3d Cir. 1991)(“Colburn II”); and Woloszyn v. Cty. of
Lawrence, 396 F.3d 314, 319-20 (3d Cir. 2005)).
This test “rest[s] primarily upon the Supreme Court’s
decision in Estelle v. Gamble” holding that deliberate
indifference to a serious medical need constitutes a violation
of the Eighth Amendment and that a “particular vulnerability to
suicide represents a serious medical need.” Woloszyn, 396 F.3d
at 319-20.
As to the first element, “[t]he requirement of a particular
vulnerability to suicide speaks to the degree of risk inherent
in the detainee’s condition. There must be a strong likelihood,
rather than a mere possibility, that self-inflicted harm will
occur.” Id. at 320 (citing Colburn II, 946 F.2d at 102324)(internal quotations omitted). More recently, the Third
Circuit has commented that “[o]ur statements in Woloszyn and
Colburn II requiring a plaintiff to demonstrate a ‘strong
likelihood’ of self-harm were never intended to demand a
heightened showing at the pleading stage by demonstrating . . .
that the plaintiff’s suicide was temporally imminent or somehow
clinically inevitable. A particular individual’s vulnerability
to suicide must be assessed based on the totality of the facts
presented.” Palakovic, 854 F.3d at 230.
As to the second element, the Third Circuit stated:

22

However, even where a strong likelihood of suicide
exists, it must be shown that the custodial officials
knew or should have known of that strong likelihood.
It is not necessary that the custodian have a
subjective appreciation of the detainee’s particular
vulnerability. Nevertheless, there can be no reckless
or deliberate indifference to that risk unless there
is something more culpable on the part of the
officials than a negligent failure to recognize the
high risk of suicide. Therefore, the “should have
known” element does not refer to a failure to note a
risk that would be perceived with the use of ordinary
prudence. It connotes something more than a negligent
failure to appreciate the risk of suicide presented by
a particular detainee, though something less than
subjective appreciation of that risk. The strong
likelihood of suicide must be so obvious that a lay
person would easily recognize the necessity for
preventative action; the risk of self-inflicted injury
must not only be great, but also sufficiently apparent
that a lay custodian’s failure to appreciate it
evidences an absence of any concern for the welfare of
his or her charges.
Woloszyn, 396 F.3d at 320 (quoting Colburn II, 946 F.2d at 102425)(internal quotations and citations omitted). See also
Palakovic, 854 F.3d at 230-31 (custodian need not have actually
known about detainee’s particular vulnerability). This level of
culpability is what is meant by “deliberate indifference” or
“reckless indifference.” Woloszyn, 396 F.3d at 321 (citing
Estelle, 429 U.S. at 104 and Farmer, 511 U.S. at 835). “A
factfinder may determine the actor’s knowledge through
‘circumstantial evidence’ or ‘may conclude that [an actor] knew
of a substantial risk from the very fact that the risk was
obvious.’” Aughenbaugh v. DeJulia, No. 3:09-cv-159, 2013 WL

23

12293453, at *9 (W.D.Pa. Mar. 27, 2013)(quoting Farmer, 511 U.S.
at 842). The Third Circuit, discussing Farmer, has stated that
“Farmer anticipated that a plaintiff could make out a deliberate
indifference case by showing that prison officials simply were
aware of a general risk to inmates in the plaintiff’s situation:
‘[I]f an Eighth Amendment plaintiff presents evidence showing
that a substantial risk of inmate attacks was longstanding,
pervasive, well-documented, or expressly noted by prison
officials in the past, and the circumstances suggest that the
defendant-official being sued had been exposed to information
concerning the risk and thus must have known about it, then such
evidence could be sufficient to permit a trier of fact to find
that the defendant-official had actual knowledge of the risk.’”
Beers-Capitol v. Whetzel, 256 F.3d 120, 131 (3d Cir.
2001)(quoting Farmer, 511 U.S. at 842-43 (further internal
quotations omitted)).
As to the third element, when assessing whether a defendant
showed deliberate indifference to a detainee’s risk of or
vulnerability to suicide, the Third Circuit has looked to the
definition of that term deriving from Farmer, 511 U.S. at 837,
which requires that the “official knows of and disregards an
excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn

24

that a substantial risk of serious harm exists, and he must also
draw the inference.” See also Urrutia v. Harrisburg Cty. Police
Dep’t, 91 F.3d 451, 456 (3d Cir. 1996); Vargo ex rel. Vargo v.
Plum Borough, 376 Fed. App’x 212, 216 (3d Cir. 2010)(“Finally,
the third prong recognizes that there must be a link between the
prison official’s knowledge and his disregard of the prisoner’s
particular risk. Although we have not developed the exact
contours of the third prong, we have suggested that it is
similar to the ‘deliberate indifference’ standard applied to a
claim brought under the Eighth Amendment, which requires the
plaintiff to prove that the prison official ‘know[s] of and
disregard[s] an excessive risk to inmate health and
safety.’”)(citing Woloszyn, 396 F.3d at 321; Beers-Capitol v.
Whetzel, 256 F.3d 120 (3d Cir. 2001)).
The Third Circuit has further stated that while the factual
scenarios elucidated in prior vulnerability-to-suicide claims
“provide helpful guidance in determining whether a case meets
the vulnerability to suicide standard, each case will present
unique circumstances and should be considered on its own facts.
A failure to track the precise contours of our prior caselaw
should not, by itself, compel a conclusion that a plaintiff has
failed to state a vulnerability to suicide claim.” Palakovic,
854 F.3d at 231 (reversing district court’s dismissal of

25

complaint where allegations did not describe, e.g., scenario
where “defendants should have known that the prisoner was a
suicide risk and failed to take necessary and available
precautions to protect the prisoner from self-inflicted wounds,”
as discussed in Freedman, 853 F.2d at 1115 (citing Colburn I,
838 F.2d at 674)).
The proposed Amended Complaint describes a fairly unusual
scenario, compared with much of the caselaw within this Circuit
involving jail suicides. In many cases, plaintiffs adequately
plead (or produce evidence sufficient to survive summary
judgment) the decedent’s particular vulnerability to suicide by
reference to, e.g., positive answers to relevant medical intake
questions, or otherwise obvious indicators of suicidality. See,
e.g., Palakovic, 854 F.3d at 230 (fellow inmates nicknamed
decedent “Suicide”); Colburn I, 838 F.2d at 670 (factual support
for allegations that decedent was a suicide risk and that
defendants had knew or should have known so where decedent had
allegedly, inter alia, interacted with police the previous day
after jumping from a window following an argument with her
boyfriend). Comparatively, courts are less likely to find,
however, deliberate indifference on the part of corrections
officials, frequently finding no “more than mere negligence[,]”
Freedman, 853 F.2d at 1117, or no unreasonable lapses or

26

omissions. See, e.g., Plasko v. City of Pottsville, 852 F. Supp.
1258, 1264 (E.D.Pa. 1994)(“failure to take decedent’s belt,
absent circumstances indicating detainee’s psychological needs,
was at most only a negligent omission”); Williams v. Borough of
West Chester, Pa., 891 F.2d 458, 466 (3d Cir. 1989)(same,
despite normal policy requiring belt removal); Hopson v.
Cheltenham Twp., No. 90-0587, at *7 (E.D.Pa. 1990 WL
102883)(CO’s “failure to perform timely cell-checks as required
by the department policy does not amount to deliberate
indifference, and can at worst be characterized as negligence”
where CO skipped two 30-minute checks, leaving decedent
unchecked for eighty minutes); Williams v. City of Lancaster,
Pa., 639 F. Supp. 377, 383-84 (E.D.Pa. 1986)(failure to check
inmates every 30 minutes, although against regulations, and
“decision to do . . . paperwork” “perhaps ill-advised” but not
evidence of “total indifference to decedent’s safety”; “even if
one check were missed on a regular basis, plaintiff has failed
to show how that hour-long gap is anything more than negligence”
as “brief departure from the jail regulations does not
automatically impinge upon prisoners’ constitutional rights”);
Dimitris v. Lancaster Cty. Prison Bd., No. Civ. A. 00-3739, 2002
WL 32348283, at *5-*7 (E.D.Pa. June 7, 2002)(finding negligence
rather than deliberate indifference); Mullin v. Balicki, No. 11-

27

247(MLC), 2016 WL 3021721, at *6 (D.N.J. May 25, 2016)(“Mullin
I”)(no evidence showing deliberate indifference where individual
defendant did not “deviate[] from [prison’s] policies, i.e.
act[] culpably, with respect to” decedent); Estate of Cills v.
Kaftan, 105 F. Supp. 2d 391, 399-400 (D.N.J. 2000)(low-level
employees’ decision to remove decedent from suicide watch
without consulting trained mental health professional not
evidence of deliberate indifference but evidence that
“Department’s underlying suicide policy was flawed for not
having a professional on staff to consult”). Cf. Counterman v.
Warren Cty. Corr. Fac., No. 03-1974(SRC), 2005 WL 5368398, at
*13 (D.N.J. Jan. 27, 2005)(collecting cases where absence of
guard at post while inmate is assaulted held to amount only to
negligence).
Courts have found the requisite allegations of deliberate
indifference, e.g., where a defendant disregarded the “excessive
risk” to the decedent’s “health and safety” sufficient to
constitute deliberate indifference where a defendant, despite
believing the decedent should be assessed by a psychiatrist and
knowing that the decedent never met with any psychologist or
psychiatrist, and herself having no licenses or certifications,
lowered the detainee’s Suicide Watch Level. Aughenbaugh, 2013 WL
12293453 at *10. See also Palakovic, 854 F.3d at 228 (plaintiffs

28

stated a claim as to deliberate indifference in general Estelle
claim rather than failure-to-prevent-suicide claim where “the
defendants permitted [decedent, who ultimately committed
suicide]--with his fragile mental health condition and history
of self-harm and suicide attempts--to be repeatedly subjected to
the harsh and unforgiving confines of solitary confinement”
thereby taking the plaintiffs’ claim “from the realm of mere
negligence to a potential claim of constitutional magnitude”);
Mullin II, 875 F.3d at 147, 159 (reports that individual CO
responded to decedent’s request to see “psych” with refusal and
suggestion that decedent “might as well kill himself” suggested
CO’s “awareness of, and indifference to, [decedent’s] condition”
supporting claim for liability under Eighth Amendment).5

5

Cf. Nami v. Fauver, 82 F.3d 63, 67-68 (3d Cir. 1996)(“It cannot
be wholly determined from the record whether in this case prison
officials actually displayed deliberate indifference.
Nonetheless, this complaint states that ‘letters have been
written to the [administration] concerning all matters set forth
in the complaint. All requests for administrative remedies were
refused.’ This suggests that the defendants were on actual
notice by plaintiffs’ reports of rape, violence and the other
conditions alleged in their complaint. By itself, such notice
may not equal proof of deliberate indifference; nevertheless, it
directly contradicts the district court’s tacit conclusion,
which has no support in the record, that plaintiffs could prove
no set of facts establishing deliberate indifference or
otherwise entitling them to relief. . . . Plaintiffs may be able
to allege in an amended complaint, for example, sufficient facts
to support a finding that some defendants displayed deliberate
indifference to certain harms, or that all officials were
deliberately indifferent to the possibility that the conditions
29

As to the first prong of the test, it appears undisputed
that the SAC does not plead Ms. Allen’s particular vulnerability
to suicide, beyond the allegation that she ultimately did commit
suicide. It does allege that she was undergoing opiate
withdrawal, but this is not sufficient. See, e.g., Mullin I,
2016 WL 3021721 at *5 (no strong likelihood of suicide despite
past suicide attempt); Colburn II, 946 F.2d at 1026-27 (court,
on that record, “unwilling to equate intoxication on the part of
a person taken into custody with ‘a particular vulnerability to
suicide’”).
As to the second prong of the test, although the SAC does
not currently so allege, the Court does discern some basis in
the caselaw to support the proposition that Plaintiff could
adequately allege that Loatman “should have known” of Ms.
Allen’s vulnerability, although she does not now do so. See
Palakovic, 854 F.3d at 222-23, 226, 230-31 (Third Circuit has
found custodians “to ‘know’ of a particular vulnerability to
suicide . . . where ‘they have had actual knowledge of an
obviously serious suicide threat, a history of suicide attempts,
or a psychiatric diagnosis identifying suicidal propensities’”
[quoting Colburn II] and finding that “the prison diagnosed [the

under which they housed the plaintiffs significantly increased
the possibility of such well-known harms as prison rape.”)

30

decedent] with an array of serious mental health issues and
placed him on a mental health roster, making it quite reasonable
to infer that prison officials had (or should have had)
knowledge of those diagnoses”; decedent disclosed prior suicide
attempts to prison officials, who “identified [him] as a
‘suicide behavior risk’ and rated him ‘Stability Rating D,’
diagnosed him with multiple, serious mental illnesses known to
heighten the risk of self-harm, and placed him on the ‘mental
health roster.’ [Plaintiffs] allege that all of this information
was set forth in [decedent’s] records, which the corrections
officers and medical staff must have--or, at the very least,
should have--reviewed when considering both his treatment and
whether or not to repeatedly place him in solitary confinement.
These facts, taken together, are sufficient to support a
reasonable inference that prison officials and medical personnel
knew or should have known of [decedent’s] particular
vulnerability to suicide”); Hopson, 1990 WL 102883 at *9
(genuine issue of material fact as to whether decedent was
agitated or upset upon arrest and COs’ observation of same, as
well as whether police knew decedent was intoxicated and had
been rejected by a loved one, coupled with proposed expert
testimony that “jail suicides are occurring nationwide and not
uncommon”).

31

The Court notes, however, that it is with respect to the
third prong that the SAC is the most plausibly-pled against
Loatman. Unlike a failure to monitor her charges for an hour
while other corrections officers were present, Williams v. City
of Lancaster, 639 F. Supp. at 383-84; or the skipping of two
thirty-minute checks, Hopson, 1990 WL 102883 at *7; Plaintiff
alleges that Loatman left Ms. Allen unchecked for nearly five
hours. The Court has no difficulty surmising that Plaintiff
could, during the discovery process, elicit testimony
establishing that Loatman was, in fact, subjectively aware of
the reasons corrections officers are required to monitor
inmates, that one of said reasons is suicide prevention, and,
accordingly, present a question of fact that Loatman’s failure
to so monitor the inmates on A-Pod rose beyond “mere negligence”
to “evidence[] an absence of any concern for the welfare of his
or her charges.” Woloszyn, 396 F.3d at 320.6

6

 Cf. Middleton v. United States Federal Bureau of Prisons, 658
Fed. App’x 167, 171-72 (3d Cir. 2016)(discussing “negligent
guard” theory regarding failure-to-protect claim under Federal
Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., where inmate
in Pennsylvania prison was beaten for ten minutes while guard
failed to monitor and was allegedly “lazy, inattentive, and
negligent”; court noted that the Second Circuit, “distinguishing
garden-variety human negligence from negligent acts involving an
element of judgment or choice, noted that if an official was
distracted, inattentive, or too lazy, that conduct would not
fall within the discretionary function exception” of the FTCA
(which precludes liability for “claims that are based on the
exercise or performance or the failure to exercise or perform a

32

Similarly, the Court can envision, as a general matter,
Plaintiff “demonstrat[ing] deliberate indifference by showing
that the risk of harm [by suicide] was longstanding, pervasive,
well-documented, or expressly noted by prison officials in the
past such that the defendant[] must have known about the risk.”
Parkell, 833 F.3d at 335. However, the general, obvious baseline
risk of inmate suicide seems not to have been sufficient to
demonstrate the elements of deliberate indifference in these
types of cases in the Third Circuit previously. The Court
understands that, where the lapses in judgment that allegedly
contributed to the suicide at issue are fairly minor or arguably
so, such an approach is sensible and comports with the notion
that mere negligence cannot constitute a constitutional
violation. However, it seems unlikely that prison officials, as
a matter of policy, could evince total indifference to the
general possibility of inmate suicide simply because those

discretionary function or duty on the part of a federal agency
or an employee of the Government, whether or not the discretion
involved be abused”(internal quotations omitted)) and quoted the
Seventh Circuit when it stated “that where ‘prison personnel
violate a mandatory regulation, the [discretionary function]
exception does not apply because there is no room for choice and
the action will be contrary to policy.’[citing Keller v. United
States., 771 F.3d 1021 (7th Cir. 2014)(further internal
quotations omitted)]”; court ultimately stated that, while it
did “not decide whether a ‘negligent guard’ theory can take some
conduct outside the discretionary function exception, we also
direct the District Court to consider whether such a theory
would apply to this case”). 
33

officials are unaware (and do not have reason to know) of any
individual inmate’s particular vulnerability to suicide. See,
e.g., Simmons v. City of Philadelphia, 947 F.2d 1042, 1068 (3d
Cir. 1991)(“In light of Colburn I and the related jurisprudence
concerning the rights of pretrial detainees, I think that the
basic standard that must be applied in determining whether the
City breached a constitutional duty toward intoxicated and
potentially suicidal detainees by means of a municipal policy or
custom is that which plaintiff has attempted to meet: whether
the City was deliberately indifferent to the serious medical
needs of this class of detainees.”).
The Court is also mindful of the fact that the “need for
discovery before testing a complaint for factual sufficiency is
particularly acute for civil rights plaintiffs, who often face
informational disadvantages.” Alston v. Parker, 363 F.3d 229,
233 n.6 (3d Cir. 2004)(citing Colburn I, 838 F.2d at 667). See
Martinez v. Warner, No. 07-3213, 2008 WL 2331957, at *9 (E.D.Pa.
June 5, 2008)(citing same sentence in Alston while assessing
motion to dismiss under Iqbal/Twombly standard).7

7See

also Haines v. Kerner, 404 U.S. 519, 520-21 (1972)(pro se
petitioner in § 1983 suit claimed physical injuries and
deprivation of procedural due process rights after being placed
in disciplinary solitary confinement; Court reversed District
Court’s dismissal pursuant to Fed. R. Civ. P. 12(b)(6) because
“[w]hatever may be the limits on the scope of inquiry of courts
into the internal administration of prisons, allegations such as
34

While the SAC does not adequately state a claim against
Loatman under the test for a vulnerability-to-suicide
constitutional claims as expressed in Palakovic, the Court does
not believe further amendment to be futile.
Accordingly, the Court will deny the motion to file the SAC
and grant the motion to dismiss the FAC’s constitutional claims
against Loatman without prejudice, but will grant leave to
Plaintiff to file a new motion for leave to amend, with a
proposed Amended Complaint that addresses the deficiencies noted
herein.8

B. Third Amended Complaint to Add Defendant CFG and Motion
for Sanctions
Plaintiff seeks to file the TAC in order to add CFG as a
defendant, claiming that “representatives and/or employees of
CFG” were responsible for failing to properly screen and monitor
Ms. Allen [TAC, Docket Item 81-2, ¶¶ 16, 37-39], exhibiting

those asserted by petitioner, however inartfully pleaded, are
sufficient to call for the opportunity to offer supporting
evidence”); Fantone v. Latini, 780 F.3d 184, 193 (3d Cir.
2015)(citing both Haines and Iqbal when assessing a complaint).
8 Any proposed Amended Complaint is subject to the constraints of
this Opinion and the obligation of pleading only such claims as
are premised upon “factual contentions hav[ing] evidentiary
support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further
investigation or discovery,” as required by Rule 11(b)(3),
together with the other provisions governing pleadings under
Rule 11.
35

deliberate indifference and breaching their legal duties to her.
Accordingly, Plaintiff seeks to add CFG to her second, fourth,
fifth, sixth, and seventh claims for relief. [TAC ¶¶ 46-52, 5979.] She claims that leave to file the TAC should be granted
pursuant to Fed. R. Civ. P. 15(a) because there is no undue
delay, as “only a few months have passed from the time
Plaintiffs were permitted to file any amendments to the
Complaint in line with the Court’s scheduling order”; because
“the amendment of the pleadings is not prejudicial to the
existing Defendants[,]” none of whom are subject to any
additional allegations; and because the TAC “contains actionable
claims against the same Defendants as in the original Complaint
and the First and Second Amended Complaints. Those claims are
not futile[.]” [Docket Item 81-1 at 3.]
Non-party CFG, by and through Attorney McClain, filed a
response in opposition. [Docket Item 82.] It argues that
amendment would, in fact, be futile because the TAC “violates
the Statute of Limitations.” Id. at 7.
The Court finds CFG’s arguments as to the statute of
limitations to be well-taken and will deny the motion for leave
to file the TAC on those grounds.
In New Jersey, the statute of limitations for personal
injury claims is two years. N.J.S.A. 2A:14-2. Here, Ms. Allen

36

passed away on March 22, 2014; accordingly, the limitations
period expired on March 22, 2016.9
Although N.J.S.A. 2A:14-2 may be tolled if a plaintiff uses
the New Jersey fictitious party rule in its pleadings before the
expiration of the limitations period, see R. 4:26-4, and
Plaintiff here did use the fictitious party rule to plead claims
against several John Doe Corrections Officers [Docket Items 1 &
14], that rule is not available “if, through the use of
diligence, [the plaintiff] should have known the defendant’s
identity prior to running of the statute of limitations.” Mears
v. Sandoz Pharms., Inc., 300 N.J. Super. 622, 629 (1997). The
proposed new party, CFG, is a health care provider and is not
within the Plaintiff’s definition of the John Doe Corrections
Officer defendants. The Court finds that the exercise of due
diligence would have revealed the identity of CFG as early as
November of 2015, when the Cumberland County defendants served
initial disclosures including medical intake forms containing
the name and/or logo of CFG (and Plaintiff used those
disclosures to amend the complaint to add Defendant Garcia by
name, as well as additional named corrections officers).
Amendment at that time would have been within the statute of

9

This period also applies to Plaintiff’s constitutional claims.
See Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993).
37

limitations period. Alternatively, Plaintiff’s counsel has
sought to add CFG as a defendant in parallel litigation for
another jail suicide case at the Cumberland County Jail as early
as November 15, 2016 [Estate of Lewis v. Cumberland County, No.
1:16-cv-03503, Docket Item 18], and in two other parallel cases,
in December of 2016 [Estate of Watson v. Cumberland County, No.
1:16-cv-06578, Docket Item 19; Estate of Hennis v. Cumberland
County, No. 1:16-cv-04216, Docket Item 23], after additional
rounds of disclosures suggesting CFG’s connection to the events
at issue in this matter. While moving for leave to amend to add
CFG in the instant case in December of 2016 would have been
outside the limitations period, Plaintiff would have been free
to argue, e.g., that the statute should be tolled pursuant to
the discovery rule, or a similar equitable argument. However,
the Court can discern no basis for Plaintiff’s counsel’s failure
to request leave of the Court to add CFG as a defendant to this
action for another six months, nor a basis to allow for tolling
of the statute of limitations period and, accordingly, cannot
say that there was no undue delay.
For those reasons, the Court will deny the motion to file
the Third Amended Complaint adding CFG as a defendant. This
action against CFG would be futile as it is time-barred.

38

Finally, Defendant Garcia filed a Motion for Sanctions,
stating that Plaintiff’s Motion for Leave to file the TAC was
frivolous under Fed. R. Civ. P. 11. [Docket Item 89.] While the
Motion was not well-taken and will not be granted, the Court
does not find that its filing was “wasteful” or “abusive,” see
Cohen v. Kurtzman, 45 F. Supp. 2d 423, 435 (D.N.J. 1999) and
will, as is within its discretion, deny the motion for
sanctions.

39

IV.

CONCLUSION
For the reasons discussed herein, Plaintiff’s motion to

file the Second Amended Complaint will be denied without
prejudice; Loatman’s cross-motion to dismiss the First Amended
Complaint as to her will be granted; Plaintiff’s motion to file
the Third Amended Complaint to add claims against a new
Defendant, CFG, will be denied; and Defendant Garcia’s motion
for sanctions will be denied. Plaintiff may file a new Motion
for Leave to File an Amended Complaint addressing the
deficiencies noted herein with respect to constitutional claims
against Defendant CO Loatman within thirty (30) days from the
date of entry of this Opinion and Order. The accompanying Order
will be entered.

March 13, 2018
Date

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

40