BAILEY v. STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 27

OPINION FILED. Signed by Judge Robert B. Kugler on 3/19/18. (js)

UNPUBLISHED OPINION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

John BAILEY, Jr.,
Plaintiff,
v.
STATE OF NEW JERSEY DEPARTMENT
OF CORRECTIONS ATLANTIC COUNTY
JAIL, et al.,
Defendants.

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Civil No. 16-1835 (RBK/JS)
OPINION

KUGLER, United States District Judge:
This matter comes before the Court on Defendant Geraldine Cohen’s Motion for Summary
Judgment. (Doc. No. 21.) Because Plaintiff has presented no evidence to support a claim of a
constitutional deprivation by Defendant Cohen, Defendant’s motion is GRANTED.
I.

THE FACTS
Plaintiff John Bailey, Jr. was incarcerated as a pre-trial detainee in the Atlantic County

Justice Facility on March 18, 2015. (Pl. SUMF at ¶ 1.) On or around March 28, 2015, Plaintiff
claims he was restrained and assaulted in the minimum security Annex D of the Atlantic County
Justice Facility by four inmates: Jesus Silva, James Whitfield, Kadeem Sutton, and Travis
Williams. (Id. at ¶¶ 2, 9) Plaintiff, in his complaint, claims that “the assault began in the bathroom
when the above four inmates began beating Plaintiff with their fists, hit him on the side of the face
with broom sticks, and tripped him after they accused him of ‘being a snitch.’” (Compl. ¶ 4.) In
his deposition, Plaintiff clarified that Mr. Silva had slapped him in the face; the assailants
“surrounded me” and Silva “had the stick in his hand and he tapped me. He hit me with it.” (Pl.
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SUMF at ¶ 3.) Later that same night, the same four inmates hogtied Plaintiff by his wrists and
ankles, picked him up and carried him to his bunk, tied him down, choked him out until he was
unconscious, covered him with a sheet, and beat him. (Id. at ¶ 4.) A panning video camera in use
in Annex D shows the incident starting with the inmates wrestling at 10:55 p.m. (Id. at ¶ 5.) The
whole incident lasted about two minutes. (Id.)
Plaintiff never reported the incident to the guard on duty. (Id. at ¶ 6.) He never told the
guard on duty of the restraint and assault, and never told the guard on duty about the bathroom
incident. (Id. at ¶ 7.) Plaintiff acknowledges he never used the phone in his area to contact and
report the problem, though he indicated “he needed to speak with someone on a request form he
submitted to the Atlantic County Justice Facility.” (Id. at ¶ 7.) Eventually, the incident was reported
by another inmate two days later. (Id. at ¶ 8.) Internal Affairs then interviewed Plaintiff. (Id.)
During the incident, no blood was shed and no bones were broken, but Plaintiff maintains
his wrists were injured. (Id. at ¶ 11.) He likewise maintains he was injured from being choked to
unconsciousness and slapped. (Id.) Plaintiff also maintains he was emotionally traumatized by the
event. (Compl. ¶ 35.)
Plaintiff filed suit against several defendants. As relevant to this motion, he has sued
Geraldine Cohen, individually and in her official capacity as Warden of the Atlantic County Justice
Facility. Plaintiff’s complaint brings a 28 U.S.C. § 1983 claim of deliberate indifference under the
Eight Amendment (Count One); a § 1983 claim of “civil rights violations” under the Fourteenth
Amendment (Count Two); a claim seeking to impose liability under Monell v. Department of
Social Services, 436 U.S. 658 (1978) (Count Three); and “New Jersey State Claims” (Count Four).
Plaintiff has since withdrawn Count Two, the Fourteenth Amendment § 1983 claim. (Opp’n at 8.)

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With respect to Defendant Cohen, Plaintiff has not identified any policies or procedures
attributable to her. Plaintiff has not identified any evidence that could support a finding that
Geraldine Cohen had knowledge of the dangerous condition to which Plaintiff was exposed.
II.

JURISDICTION
This case comes within the Court’s federal-question jurisdiction pursuant to 28 U.S.C.

§ 1331, as Plaintiff has pleaded a federal cause of action. As the parties are not diverse, the state
law claims come within this Court’s discretionary supplemental jurisdiction. See 28 U.S.C. § 1367.
III.

THE SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the Court is satisfied that “there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine
dispute of material fact exists only if the evidence is such that a reasonable jury could find for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When a court weighs
the evidence presented by the parties, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at 255.
The burden of establishing the nonexistence of a “genuine issue” is on the party moving
for summary judgment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996).
The moving party may satisfy its burden either by “produc[ing] evidence showing the absence of
a genuine issue of material fact” or by “ ‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325.
If the party seeking summary judgment makes this showing, it is left to the nonmoving
party to “do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, to survive
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summary judgment, the nonmoving party must “make a showing sufficient to establish the
existence of [every] element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S. at 322. Furthermore, “[w]hen opposing summary
judgment, the nonmovant may not rest upon mere allegations, but rather must ‘identify those facts
of record which would contradict the facts identified by the movant.’” Corliss v. Varner, 247 F.
App’x 353, 354 (3d Cir. Sept. 17, 2007) (quoting Port Auth. of N.Y. and N.J. v. Affiliated FM Ins.
Co., 311 F.3d 226, 233 (3d Cir. 2002)).
In deciding the merits of a party's motion for summary judgment, the Court's role is not to
evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine
issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the fact
finder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
IV.

DISCUSSION
Constitutional claims against Defendant Cohen
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Cohen has been sued in both her personal and official capacity. See Kentucky v. Graham, 473 U.S.
159, 165–66 (1985) (“Personal-capacity suits seek to impose personal liability upon a government
official for actions he takes under color of state law.”).
Plaintiff has withdrawn his claim under the Fourteenth Amendment (Opp’n at 8), and the
parties agree Plaintiff was a pre-trial detainee. (Def. SUMF at ¶ 1; Pl. at SUMF ¶ 1 (“Plaintiff was
incarcerated as a pre-trial detainee”)). However, as Plaintiff was a pre-trial detainee, the Eighth
Amendment does not apply. As the Supreme Court has explained,
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“Eighth Amendment scrutiny is appropriate only after the State has complied with
the constitutional guarantees traditionally associated with criminal prosecutions
. . . [T]he State does not acquire the power to punish with which the Eighth
Amendment is concerned until after it has secured a formal adjudication of guilt in
accordance with due process of law.”
City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (citing Ingraham v. Wright,
430 U.S. 651, 671–672, n.40 (1977)). We therefore find that summary judgment on this claim is
appropriate, for as a pre-trial detainee, Plaintiff’s Eight Amendment rights could not have been
violated. See City of Revere, 463 U.S. at 244 (“Because there had been no formal adjudication of
guilt against [Defendant] at the time he required medical care, the Eighth Amendment has no
application.”).
Even if, however, we interpret Plaintiff’s “deliberate indifference” claim as pleading a
basis for relief that could provide a cognizable constitutional violation for a pre-trial detainee, we
find that Plaintiff has failed to present evidence sufficient to withstand summary judgment.
Plaintiff alleges that Cohen may be personally liable for violating his constitutional or
federal rights by way of “deliberate indifference,” apparently invoking a theory of supervisory
liability. Because vicarious liability and respondeat superior are not actionable under § 1983, City
of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989), Plaintiffs must show that Cohen, as a
supervisor, violated his constitutional rights. See Iqbal, 556 U.S. at 677 (“Absent vicarious
liability, each Government official, his or her title notwithstanding, is only liable for his or her own
misconduct.”). We note that a supervisor may only be liable if the failure to supervise led to her
subordinates violating a plaintiff’s constitutional rights. See Argueta v. U.S. Immigration &
Customs Enf't, 643 F.3d 60, 72 (3d Cir. 2011); A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det.
Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Plaintiff has not presented evidence that any of Cohen’s

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subordinates acted, or failed to act, in such a manner as to make out a constitutional violation. He
has likewise not presented any evidence showing Cohen’s direct involvement in his assault.
Plaintiff has likewise failed to establish a basis for supervisory liability. The Third Circuit
has articulated a four-part test for determining whether an official may be held liable on a claim
for a failure to supervise. “The plaintiff must identify a supervisory policy or practice that the
supervisor failed to employ, and then prove that: (1) the policy or procedures in effect at the time
of the alleged injury created an unreasonable risk of a constitutional violation; (2) the defendantofficial was aware that the policy created an unreasonable risk; (3) the defendant was indifferent
to that risk; and (4) the constitutional injury was caused by the failure to implement the supervisory
practice or procedure.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 317 (3d Cir. 2014), cert.
granted, judgment rev'd on other grounds sub nom. Taylor v. Barkes, 135 S. Ct. 2042 (2015).
Plaintiff has not identified a supervisory policy or practice that Defendant Cohen failed to employ.
He has not presented evidence that establishes an unreasonable risk of a constitutional violation.
He has not shown Cohen was aware or indifferent. He has also failed to present any evidence
indicating a policy led to his injuries, which appear to be mental trauma and chafed wrists. In short,
even taking the most expansive view possible of Plaintiff’s briefing and evidence, the “deliberate
indifference” claim of supervisory liability against Cohen fails. Insofar as the “Monell claim”
against Cohen is distinguishable from a claim of supervisory liability, Plaintiff’s claim fails for the
same reasons: he has not presented evidence of a policy, custom, practice, or a failure to train,
which would be cognizable under Monell. 436 U.S. at 691.

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State Law Claims
Although the Court has frankly no idea what statutory or common law authority “Count
IV—New Jersey State Claims” refers to, these claims are within the Court’s discretionary
supplementary jurisdiction. We will exercise that discretion. The state law claims are dismissed.
V.

CONCLUSION
For the reasons above, Defendant’s motion is GRANTED. An order follows.

Dated: March 19, 2018

/s Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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