SCANLON v. LAWSON et al

Filing 146

Redacted OPINION. Signed by Judge Renee Marie Bumb on 1/15/20. (dd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

EDWARD SCANLON, IV
Civ. No. 16-4465 (RMB-JS)

Plaintiff
v.

OPINION

VALERIA LAWSON, et al.,
Defendants
APPEARANCES:
KEVIN T. FLOOD, Esq.
181 Route 206
Hillsborough, NJ 08844
On behalf of Plaintiff

MICHAEL EZRA VOMACKA, Esq.
New Jersey Office of the Attorney General
Richard J. Hughes Justice Complex
25 Market St., P.O. Box 112
Trenton, NJ 08625
On behalf of Defendants Valeria Lawson, Felix Mickens
and William M. Burke
BUMB, United States District Judge
Plaintiff Edward Scanlon IV brought this action under 42
U.S.C. § 1983, the New Jersey Civil Rights Act (“NJCRA”) § 10:62; and the New Jersey Tort Claims Act (“NJTCA”) § 59:1-1 et seq.
As to Defendant William M. Burke, Plaintiff alleges he failed to
monitor

the

Cumberland

County

Juvenile

Detention

Center

for

compliance with its Manual of Standards, leading to violations of
Plaintiff’s constitutional rights. This matter now comes before

the Court upon Defendants Felix Mickens, William M. Burke, and
Valeria Lawson’s Motion for Summary Judgment (collectively “the
JJC Defendants”) (“JJC Defs’ Mot. for Summ. J.,” ECF No. 119);
Brief on Behalf of the Juvenile Justice Comm. Defs’ Mot. for Summ.
J. on Claims of Plaintiff Scanlon and Cross-Claims (“JJC Defs’
Brief,” ECF No. 119-2); JJC Defendants’ Statement of Material Facts
Not in Dispute (“JJC Defs’ SOMF,” ECF No. 119-3); Pl’s Opposition
to Summ. J. Motions (“Pl’s Opp. Brief, ECF No. 130); Reply to SOMF
by DAG Michael Vomacka (“Pl’s Reply to SOMF,” ECF No. 130-3); and
Pl’s Counter-statement of Material Facts (ECF No. 130-5); and JJC
Def’s Letter Brief in Further Support of Summ. J. (“JJC Defs’ Reply
Brief,” ECF No. 140).
Pursuant to Federal Rule of Civil Procedure 78(b), the Court
will determine the motion for summary judgment on the briefs
without oral argument. Plaintiff does not oppose summary judgment
in favor of Valeria Lawson and Felix Mickens on all claims and
does not oppose summary judgment in favor of William M. Burke on
the New Jersey tort claims. (Pl’s Opp. Brief, ECF No. 130 at 9.)
Plaintiff opposes summary judgment on the Section 1983 and NJCRA
claims against Burke. For the reasons set forth below, the JJC
Defendants’ motion for summary judgment is granted.
I.

BACKGROUND
Plaintiff filed this action in the New Jersey Superior Court,

Law Division, Cumberland County on March 29, 2016, alleging civil
2

rights violations under 42 U.S.C. § 1983; the New Jersey Civil
Rights Act (“NJCRA”), § 10:6-2, and tort claims under the New
Jersey law, N.J.S.A. §§ 59:1-1 et seq. (Compl., ECF NO. 1-1 at 818.) The defendants to the action were Valeria Lawson (“Lawson”),1
Felix Mickens (“Mickens”), Robert Balicki (“Balicki”), Veronica
Surrency

(“Surrency”),

Michael

Baruzza

(“Baruzza”),

and

John

and/or Jane Does 1-45 (fictitious individuals) and ABC Corps. 145 (fictitious corporations). (Id. at 8.)

Defendants removed the action to this Court on July 22, 2016.
(Notice of Removal, ECF No. 1.) On July 29, 2016, Gregory R. Bueno,

Plaintiff sued “Valerie” Lawson and Lawson corrected her name
to “Valeria” upon answering the complaint. (Answer, ECF No. 26
at 1.)
1

3

Deputy

Attorney

General

of

New

Jersey,

entered

a

Notice

of

Appearance on behalf of defendant Mickens. (Not. of Appearance,
ECF No. 4.) On August 3, 2016, defendants Balicki, Surrency and
Baruzza, represented by Patrick J. Madden, Esq., filed an answer
to the original complaint, and a cross-claim for contribution and
indemnification against defendants Lawson and Mickens. (Answer,
ECF No. 6.)
On September 28, 2016, Plaintiff sought an order for release
of records from the State of New Jersey, Department of Children
and Families (“DCF”), and the Court granted the request, subject
to in camera review prior to disclosure to Plaintiff. (Order, ECF
No. 18.) On December 12, 2016, the Court entered a Discovery
Consent Confidentiality Order. (Order, ECF No. 23.)
On December 22, 2016, Gregory R. Bueno, Deputy Attorney
General, filed a Notice of Appearance and Waiver of Service on
behalf of defendant Lawson, and filed an answer to the original
complaint on January 9, 2017. (Notice of Appearance, ECF No. 24;
Waiver of Service, ECF No. 25; Answer, ECF No. 26.) On May 9, 2017,
the Court completed in camera review of discovery documents and
sent the documents concerning the subject of the complaint to
Plaintiff’s counsel.2 Plaintiff received several extensions of time

The Court resent the documents to Plaintiff’s counsel on May 25,
2017, after the correct address was provided. (Letter Order, ECF
No. 37.)
2

4

to file a motion to amend the complaint, and filed a motion to
amend the complaint on July 21, 2017, and a corrected motion on
July 26, 2017. (ECF Nos. 39-44.)
The motion to amend was granted on October 20, 2017. (Order,
ECF No. 56.) Plaintiff filed a redacted amended complaint on
October 26, 2017 and later filed an unredacted amended complaint.
(Am. Compl., ECF Nos. 58, 88.) The amended complaint added claims
against

William

M.

Burke

(“Burke”)

Supervisor,

Compliance

Monitoring Unit, New Jersey Juvenile Justice System; Bobby Stubbs
(“Stubbs”)

Senior

Juvenile

Detention

Officer

at

CCJDC;

David

Fuentes (“Fuentes”) Juvenile Detention Officer at CCJDC; Harold
Cooper (“Cooper”) Senior Juvenile Detention Officer at CCJDC;
Wesley Jordan (“Jordan”) Juvenile Detention Officer at CCJDC; and
Carol Warren LPN (“Warren”), at CCJDC. (Am. Compl., ECF No. 88,
¶¶28-32.)
Burke, Lawson and Mickens, represented by Gregory R. Bueno,
Deputy Attorney General, filed an answer to the amended complaint
on December 26, 2017. (Answer, ECF No. 74.)3 Jordan, represented
by Justin R. White, Esq, filed an answer to the amended complaint
on February 6, 2018. (Answer, ECF No. 84.) Warren and Fuentes,
represented by Daniel E. Rybeck, Esq., entered an answer to the

On October 10, 2018, Michael Vomacka, Deputy Attorney General,
was substituted as counsel for defendants Lawson, Mickens and
Burke. (Substitution of Attorney, ECF No. 101).
3

5

amended

complaint

with

a

cross-claim

for

contribution

and/or

indemnification by the remaining defendants on February 15, 2018.
(Answer, ECF No. 85.) The JJC Defendants filed the present motion
for summary judgment on August 15, 2019. (JJC Defs’ Mot. for Summ.
J.,” ECF No. 119.)
II.

THE AMENDED COMPLAINT
Plaintiff was born on April 1, 1996, and was a minor at all

relevant times alleged in the amended complaint. (Am. Compl., ECF
No. 88, ¶19.)

6

Lawson,

Mickens

and

Burke

of

the

New

Jersey

JJC

“were

responsible for ensuring that the JJC complies with state and
federal law.” (Id., ¶¶21 22, 23.) Balicki, Warden of CCJDC and
Baruzza, Division Head of CCJDC, are also named as defendants.
(Id., ¶¶25-27.)
In Count One, Plaintiff alleges violations of substantive due
process for excessive use of force, inhumane conditions, lack of
health care and failure to protect from harm under 42 U.S.C. §
1983. (Id., ¶¶36-43.) Count Two of the amended complaint is for
the same conduct in violation of the New Jersey Civil Rights Act,
N.J.S.A. § 10:6-2. (Id., ¶¶44-47.)

7

For the Count Three, Plaintiff alleges negligence under New
Jersey state law. (Am. Compl., ¶¶48-51, ECF No. 88.) In Count Four,
Plaintiff alleges
Defendants’ actions and failure(s) to act
constituted
a
failure
to
act
and/or
discipline,
which
proximately
caused
a
violation of plaintiffs’ civil rights to
procedural and substantive due process with
violations
are
made
actionable
by
the
N.J.C.R.A.
Defendants knew or should have known of the
violation of plaintiffs’ rights, and acted and
failed to act so as to permit the violation of
plaintiffs’
rights
intentionally
and/or
recklessly and with deliberate indifference.
Defendants owed Plaintiff a duty of care under
common law and under N.J.S.A. §2A:4A-21 and
N.J.A.C. §§ 13:95-8.9, 13:101-1.1
Defendants Breach[ed] Those Duties by their
Acts and Omissions.
Defendants’ breach of duty was the proximate
cause
of
Plaintiff’s
physical
and
psychological injuries.
(Id., ¶¶53-57.)
Count Five is for punitive damages under New Jersey law. (Id.,
¶¶58-61.) Counts Six and Seven are for intentional and negligent
infliction of emotional distress under New Jersey law. (Id., ¶¶6269.) Count Eight is alleged against Jordan, Stubbs and Fuentes for
excessive

force

in

violation

of

the

Fourth

and

Fourteenth

Amendments. (Id., ¶¶70-72.) Counts Nine and Ten are alleged against
Balicki, Surrency, Cooper, Baruzza, Burke, Lawson and Mickens for

8

supervisory

liability

of

their

subordinates’

violations

of

Plaintiff’s constitutional rights in violation of 42 U.S.C. § 1983.
(Am. Compl., ¶¶73-88, ECF No. 88.)
III. DISCUSSION
A.

Summary Judgment Standard of Review

Summary Judgment is proper where the moving party “shows that
there is no genuine dispute as to any material fact,” and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Daubert v. NRA Group, LLC, 861 F.3d 382, 388 (3d
Cir. 2017). “A dispute is “genuine” if ‘a reasonable jury could
return a verdict for the nonmoving party,’” Baloga v. Pittston
Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019) (quoting Santini
v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “[A] fact is
‘material’ where ‘its existence or nonexistence might impact the
outcome of the suit under the applicable substantive law.’” Id.
(citing Anderson, 477 U.S. at 248).
The burden then shifts to the nonmovant to show, beyond the
pleadings, “‘that there is a genuine issue for trial.” Daubert,
861 F.3d at 391 (quoting Celotex Corp. v. Catrett, 447 U.S. 317,
324 (1986) (emphasis in Daubert)). “With respect to an issue on
which the non-moving party bears the burden of proof, the burden
on the moving party may be discharged by ‘showing’—that is,
pointing out to the district court—that there is an absence of
9

evidence to support the nonmoving party’s case.” Conoshenti v.
Public Serv. Elec. & Gas, 364 F.3d 135, 145–46 (3d Cir. 2004)
(quoting Celotex, 477 U.S. at 325).
A party asserting that a fact cannot be or is
genuinely disputed must support the assertion
by:
(A) citing to particular parts of
materials in the record, including
depositions, documents, electronically
stored
information,
affidavits
or
declarations, stipulations (including
those made for purposes of the motion
only),
admissions,
interrogatory
answers, or other materials; or
(B) showing that the materials cited do
not establish the absence or presence of
a genuine dispute, or that an adverse
party cannot produce admissible evidence
to support the fact.
Fed. R. Civ. P. 56(c)(1).
If a party fails to properly support an
assertion of fact or fails to properly address
another party's assertion of fact as required
by Rule 56(c), the court may:
(1) give an opportunity to
support or address the fact;
(2) consider the fact
purposes of the motion;

properly

undisputed

for

(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.
Fed. R. Civ. P. 56(e).

10

“At the summary judgment stage, facts must be viewed in the
light most favorable to the nonmoving party only if there is a
‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S.
372, 380 (2007) (citing Fed. Rule Civ. Proc. 56(c)). The court’s
role is “‘not ... to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for
trial,’” Baloga, 927 F.3d at 752 (quoting Anderson, 477 U.S. at
249)).
Plaintiff does not oppose summary judgment on the tort claims.
(Pl’s Brief, ECF No. 130 at 9.) Therefore, the Court need address
only the § 1983 and NJCRA claims against Burke.
B.

Statute of Limitations

Burke

contends

that

Plaintiff’s

claims

brought

under

42

U.S.C. § 1983 and the New Jersey Civil Rights Act are subject to
a two-year statute of limitations.

(JJC Defs’ Brief, ECF No. 119-

2 at 15.) All of Plaintiff’s claims accrued on April 1, 2014, when
he reached the age of majority, eighteen. (Id.) The statute of
limitations for Plaintiff’s claims expired on April 1, 2016, two
years after he reached the age of majority. (Id. at 17.) Burke
asserts that Plaintiff’s claims against him are barred by the
applicable statute of limitations because they were filed after
April 1, 2016. (Id. at 18.)
Plaintiff first sought to add Burke as a defendant by motion
filed on July 21, 2017. (Id.) In his motion to amend, Plaintiff
11

noted that the amended complaint added new facts and six new
defendants, including William M. Burke. (Id., citing Mot. to Amend,
ECF No. 42.) Plaintiff’s motion to amend was granted on October
20, 2017, and the amended complaint was filed on October 26, 2017.
(Order, ECF No. 56; Am. Compl., ECF No. 58.) Thus, Plaintiff’s
claims against Burke were filed after the April 1, 2016 statute of
limitations period. (JJC Defs’ Brief,” ECF No. 119-2 at 19.)
Plaintiff did not respond to Burke’s statute of limitations
defense. (Pl’s Opp. Brief, ECF No. 130.) In reply, Burke notes
that

Plaintiff

should

relate

does
back

not
to

contend

the

that

original

his

amended

complaint,

and

pleading
even

if

so, the evidence does not support relation back. (Id. at 4-7.)
Burke states that Plaintiff did not provide him with notice
of his claims until after the limitations period expired. (Id. at
6.) The amended complaint was filed October 26, 2017, and summons
were only requested on November 6, 2017. (Id., citing ECF No. 58,
60.)
Further, Plaintiff’s claims against Burke are grounded in the
theory that he was unaware the county facility was failing to
comply

with

portions

of

the

Manual

of

Standards,

or

he

was

deliberately indifferent as to policies adopted in the Manual.
(Reply Brief at 6-7, ECF No. 140.) Plaintiff’s original complaint,
however, does not contain this theory of liability against Burke.
(Id. at 7.)
12

In his motion to amend, Plaintiff specifically noted that the
amended complaint: “adds facts, 6 new defendants (William M. Burke
(aka Bill Burke), Bobby Stubbs, David Fuentes, Harold Cooper,
Wesley Jordon, Carol Warren), and 3 new causes of action; Section
1983

Excessive

Force-Eighth

Count,

Section

1983

Supervisory

Liability-Ninth Count, and Section 1983 Unlawful Policy, Custom,
Practice, Inadequate Training-Tenth Count.” (Am. Compl., at 8, ECF
No. 88.) Burke

contends that

Plaintiff fails to provide any

explanation for seeking to add claims against him in 2017 for
conduct that occurred in 2011 and 2012. (Id.)
C.

Analysis

Plaintiff’s federal claims are brought under 42 U.S.C. § 1983.
Section 1983 does not create substantive rights but provides a
remedy for violation of federal rights. Dique v. New Jersey State
Police,

603

F.3d

181,

185

(3d

Cir.

2010).

Such

claims

are

characterized as personal injury claims, and state law provides
the statute of limitations. Id. (citing Cito v. Bridgewater Twp.
Police Dep't, 892 F.2d 23, 25 (3d Cir. 1989)). Under New Jersey
law, personal injury torts are subject to a two-year statute of
limitations. Id. (citing N.J.S.A. § 2A:14-2).5 Claims under the

5

N.J.S.A. § 2A:14-2, provides, in pertinent part:
Every action at law for an injury to the person
caused by the wrongful act, neglect or default
of any person within this State shall be
13

New Jersey Civil Rights Act are also subject to a two-year statute
of limitations. Lapolla v. County of Union, 157 A.3d 458, 465 (N.J.
Super. Ct. App. Div. 2017).
“[T]he accrual date of a § 1983 cause of action is a question
of federal law that is not resolved by reference to state law.”
Wallace v. Kato, 549 U.S. 384, 388 (2007). A claim accrues “when
the plaintiff knew or should have known of the injury upon which
its action is based.” Kach v. Hose, 589 F.3d 626, 634 (3d Cir.
2009) (quoting Sameric Corp. v. City of Philadelphia, 142 F.3d
582, 599 (3d Cir. 1998) (citation omitted)).
“The general rule is that state tolling principles also govern
§ 1983 claims.” Id. at 639 (citing Hardin v. Straub, 490 U.S. 536,
539, (1989)); Island Insteel Sys. v. Waters, 296 F.3d 200, 210 n.
4 (3d Cir. 2002)). In New Jersey, the statute of limitations for
personal injury claims is tolled until a minor reaches the age of
majority, age eighteen. See N.J.S.A. § 2A:14-21; N.J.S.A. § 9:17B1; Standard v. Vas, 652 A.2d 746, 749 (N.J. Super. Ct. App. Div.
1995) (confirming that the tolling period ends upon a claimant’s
eighteenth birthday).
Plaintiff was born on April 1, 1996.

Under New Jersey law, the statute of

commenced within two years next after the
cause of any such action shall have accrued…
14

limitations was “tolled” until he turned eighteen on April 1, 2014.
Therefore, any action against Burke had to be filed by April 1,
2016. The amended complaint, adding Burke as a defendant based on
additional new facts, was not filed until October 26, 2017.
1.

Relation back under FRCP 15(c)(1)(A)

“Rule 15(c) of the Federal Rules of Civil Procedure governs
when an amended pleading ‘relates back’ to the date of a timely
filed original pleading and is thus itself timely even though it
was filed outside an applicable statute of limitations.” Krupski
v. Costa Crociere S. p. A., 560 U.S. 538, 541 (2010). Plaintiff
did not argue that his claims against Burke relate back to his
original complaint, filed on March 29, 2016. However, because
Plaintiff opposes summary judgment in favor of Burke on the Section
1983 and NJCRA claims, the Court will address whether the amended
complaint relates back to the original complaint for statute of
limitations purposes.
An amendment can relate back to the date of the original
pleading when the law that provides the applicable statute of
limitations allows relation back, and the amendment asserts a claim
or

defense

that

arose

out

of

the

conduct,

transaction,

or

occurrence set out in the original pleading. Fed. Rule Civ. P.
15(c)(1)(A),(B).

15

New Jersey Court Rule 4:26-4 applies to actions in which
fictitious parties are named when the defendant’s true name is
unknown to the plaintiff. It provides:
if the defendant's true name is unknown to the
plaintiff, process may issue against the
defendant under a fictitious name, stating it
to be fictitious and adding an appropriate
description sufficient for identification.
Plaintiff shall on motion, prior to judgment,
amend the complaint to state defendant's true
name, such motion to be accompanied by an
affidavit stating the manner in which that
information was obtained.
If, however, defendant acknowledges his or her
true name by written appearance or orally in
open court, the complaint may be amended
without notice and affidavit. No final
judgment shall be entered against a person
designated by a fictitious name.
N.J. Ct. R. R. 4:26-4.
In the original complaint, the only reference to a defendant
employed by the New Jersey JJC is “Defendants ‘John and/or Jane
Doe 1-5’ member[s] of Juvenile Classification Committee, Juvenile
Justice

Commission,

P.O.

Box

1097,

Trenton,

NJ

08625-0107.”

(Compl., ¶17, ECF No. 1-1.) In the amended complaint, Plaintiff
identifies Burke as a supervisor of the compliance monitoring unit,
New Jersey JJC. (Am. Compl., ¶23, ECF No. 88.)
“The fictitious name designation [] must have appended to it
an

‘appropriate

description

sufficient

to

identify’

the

defendant.” DeRienzo, 357 F.3d at 353 (quoting Rutkowski v. Liberty
Mut. Ins. Co., 209 N.J.Super. 140, 506 A.2d 1302, 1306–07 (1986)).
16

“The purpose of providing a sufficient description under Rule 4:26–
4 is two-fold: it gives notice of the cause of action while also
helping to identify the unknown defendant. Descriptions which are
too vague or broad fail to achieve these goals.” Miles v. CCS
Corp., No. A-5947-12T3, 2015 WL 5009883, at *6 (N.J. Super. Ct.
App. Div. Aug. 18, 2015). The original complaint identified “John
and Jane Doe” members of the Juvenile Classification Committee of
the JJC without alleging what such persons did or failed to do. In
any event, Burke was not a member of the Juvenile Classification
Committee. The description was too vague to give notice or to help
identify Burke as a defendant for purposes of Rule 4:26-4.
New Jersey also has a general relation back rule, New Jersey
Court Rule 4:9-3.
New Jersey's general relation back rule,
provides that an amendment changing the party
against whom a claim is asserted relates back
to the date of the original complaint if: (1)
it arose out of the same transaction or
occurrence set forth in the original pleading;
(2) the proposed defendant received notice of
the institution of the action within the
limitations period such that the party will
not be prejudiced in maintaining a defense;
and (3) the proposed defendant knew or should
have known that, but for the misidentification
of the proper party, the action would have
been brought against him or her. Arroyo v.
Pleasant Garden Apartments, 14 F.Supp.2d 696,
701 (D.N.J.1998) (citing Viviano v. CBS, Inc.,
101 N.J. 538, 503 A.2d 296, 304 (1986)).
Monaco v. City of Camden, 366 F. App'x 330, 334 (3d Cir. 2010).

17

Burke did not receive notice of the
action within the limitations period. The claims against Burke
were not added until the statute of limitations expired, and Burke
was not notified until the amended complaint was served on him on
November 20, 2017. (Aff. of Service, ECF No. 80.) Moreover, the
original complaint did not misidentify a party that Burke should
have known was brought against him. See Otchy v. City of Elizabeth
Bd. of Educ., 737 A.2d 1151, 1155 (N.J. Super. Ct. App. Div. Oct.
15, 1999) (“[a] misnomer occurs where the correct party is already
before the court, but the name in the complaint is deficient in
some respect.”)

The amended complaint does not relate back to the

original complaint under New Jersey Court Rule 4:9-3.
2.

Relation back under FRCP 15(c)(1)(C)

Under federal law, an amendment can relate back to the date
of the original pleading when
(C) the amendment changes the party or the
naming of the party against whom a claim is
asserted, if Rule 15(c)(1)(B) is satisfied and
if, within the period provided by Rule 4(m)
for serving the summons and complaint, the
party to be brought in by amendment:
(i) received such notice of
action
that
it
will
not
prejudiced in defending on
merits; and
18

the
be
the

(ii) knew or should have known that
the action would have been brought
against it, but for a mistake
concerning
the
proper
party's
identity.
Fed. R. Civ. P. 15(c)(1)(C). At the time the original pleading was
filed, Rule 4(m) provided 120 days to serve the summons and
complaint. (Fed. R. Civ. P. 4, effective December 1, 2015).
“Rule 15(c)(1)(C)(ii) asks what the prospective defendant
knew or should have known during the Rule 4(m) period, not what
the plaintiff knew or should have known at the time of filing her
original complaint.” Krupski, 560 U.S. at 548. “The only question
under Rule 15(c)(1)(C)(ii) … is whether [the added party] knew or
should have known that, absent some mistake, the action would have
been

brought

against

him.”

Krupski,

560

U.S.

at

549.

reasonableness of the mistake is not itself at issue.” Id.
A prospective defendant who legitimately
believed that the limitations period had
passed without any attempt to sue him has a
strong interest in repose. But repose would be
a windfall for a prospective defendant who
understood, or who should have understood,
that he escaped suit during the limitations
period
only
because
the
plaintiff
misunderstood a crucial fact about his
identity.
...
When
the
original
complaint
and
the
plaintiff's conduct compel the conclusion that
the failure to name the prospective defendant
in the original complaint was the result of a
fully informed decision as opposed to a
19

“The

mistake concerning the proper
identity,
the
requirements
15(c)(1)(C)(ii) are not met.
Krupski, 560 U.S. at 550-52.

Pursuant

defendant's
of
Rule

to

the

Third

Circuit’s

decision in Varlack v. SWC Caribbean, Inc.,6 “the plaintiff's lack
of knowledge of a particular defendant's identity can be a mistake
under

Rule

15(c)(3)(B).”

Singletary

v.

Pennsylvania

Dep't

of

Corr., 266 F.3d 186, 201 (3d Cir. 2001). Notice to the newly named
defendant may be imputed by sharing an attorney with an original
defendant or by an identity of interest with an originally named
defendant. Id. at 196-97.
Burke shares an attorney with Lawson and Mickens, who were
timely served with the original complaint. However, because Burke
was not a member of the JJC Classification Committee, the only JJC
defendants identified in the original complaint by the fictitious
names “John and Jane Doe,” there was nothing to put Burke on notice
that he would have been named a defendant but for Plaintiff’s
inability

to

discover

his

name.

Therefore,

Plaintiff

is

not

entitled to relation back under Rule 15(c)(1)(C). For the sake of
completeness, in the alternative, the Court will address the merits
of Plaintiff’s claims against Burke.
C.

Alternatively, Burke Is Entitled to Summary Judgment on
the Merits of Plaintiff’s Section 1983 and NJCRA Claims
1.

6

Supervisory Liability

Varlack, 550 F.2d 171, 174 (3d Cir. 977).
20

and supervisory
liability for such violations.

Therefore,
his claims arise under the Fourteenth Amendment. See A.M. ex rel.
J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572,
584 (3d. Cir. 2004.) A juvenile detainee has a liberty interest in
his personal security and well-being. Id. at 579 (citing Youngberg
v. Romeo, 457 U.S. 307, 315-19 (1982)).
In 2009, the Supreme Court held that state officials are
liable only for their own unconstitutional actions, not for those
of their subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
The

Third

Circuit

considered

whether

Iqbal

abolished

§

1983

supervisory liability in its entirety and decided that it did not.
Barkes v. First Corr. Med., Inc., 766 F.3d 307, 319 (3d Cir. 2014),
cert. granted, judgment rev'd sub nom. Taylor v. Barkes, 135 S.
Ct. 2042 (2015).
In the Third Circuit, “there are two theories of supervisory
liability, one under which supervisors can be liable if they
established and maintained a policy, practice or custom which
21

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.” Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5
(3d

Cir.

2010).

A

plaintiff

may

establish

a

claim

based

on

knowledge and acquiescence if the supervisor knew about a practice
that caused a constitutional violation, had authority to change
the practice, but chose not to. Parkell v. Danberg, 833 F.3d 313,
331 (3d Cir. 2016).
“[T]o establish a claim against a policymaker under § 1983 a
plaintiff must allege and prove that the official established or
enforced

policies

constitutional

and

violation.”

practices
Parkell,

directly
833

F.3d

causing

at

331

the

(quoting

Chavarriaga v. New Jersey Dept. of Corrections, 806 F.3d 210, 223
3d Cir. 2015.) An official is not “‘enforcing,’ ‘maintaining,’ or
‘acquiescing in’ a policy merely because the official passively
permits his subordinates to implement a policy that was set by
someone else and is beyond the official's authority to change.”
Id.
To

establish

supervisory

liability

for

violation

of

a

plaintiff’s constitutional rights based on a practice or custom,
a plaintiff may rely on evidence showing the supervisor “tolerated
past or ongoing misbehavior.” Argueta v. U.S. Immigration & Customs
22

Enf't, 643 F.3d 60, 72 (3d Cir. 2011) (quoting Baker v. Monroe
Township, 50 F.3d 1186, 1191 n. 3 (3d Cir. 1995) (citing Stoneking
v. Bradford Area Sch. Dist., 882 F.2d 720, 724–25 (3d Cir. 1989)).
Typically, a plaintiff must show “a prior incident or incidents of
misconduct by a specific employee or group of employees, specific
notice of such misconduct to their superiors, and then continued
instances of misconduct by the same employee or employees.” Id. at
74; see Wright v. City of Philadelphia, 685 F. App'x 142, 147 (3d
Cir.), cert. denied sub nom. Wright v. City of Philadelphia, Pa.,
138

S.

Ct.

360

acquiescence

in

constitutes

the

(2017)
a

(“a

custom

longstanding

‘standard

stems

practice

operating

from
or

procedure’

policymakers’
custom

which

of

local

the

governmental entity”) (quoting Jett v. Dallas Indep. Sch. Dist.,
491 U.S. 701, 737 (1989)). A supervisor’s conduct occurring after
the alleged constitutional violation cannot be shown to have caused
the violation. Logan v. Bd. of Educ. of Sch. Dist. of Pittsburgh,
742 F. App'x 628, 634 (3d Cir. 2018).
Failure to supervise and failure to train are subcategories
of policy or practice liability. Barkes, 766 F.3d at 316. There is
a four-part test for determining whether a supervisor is liable
under the Eighth Amendment based on a policy or practice:
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
23

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, 766 F.3d at 317 (quoting Sample v. Diecks, 885 F.2d 1099,
1118 (3d Cir. 2014).
Similarly, to establish liability for failure to train,
the
plaintiff
must
show
(1)
municipal
policymakers know that employees will confront
a particular situation; (2) the situation
involves a difficult choice or a history of
employees mishandling; and (3) the wrong
choice by an employee will frequently cause
deprivation of constitutional rights.
Logan, 742 F. App'x at 632–33 (internal quotations omitted).
Culpability for a deprivation of constitutional rights is at its
most tenuous where a claim turns on a failure to train. Connick v.
Thompson, 563 U.S. 51, 61 (2011). When “policymakers are on actual
or constructive notice that a particular omission in their training
program causes [] employees to violate citizens' constitutional
rights, the [policymakers] may be deemed deliberately indifferent
if the policymakers choose to retain that program.” Connick, 563
U.S. at 61 (quoting Bd. of County Com’rs of Bryan Cty, Okl., v.
Brown, 520 U.S. 397, 407 (1997)).
“A pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary’ to demonstrate deliberate
indifference for purposes of failure to train.” Id. at 62 (quoting
24

Bryan Cty., 520 U.S. at 409. To prove causation on a failure to
train theory of liability, the plaintiff must also show “‘the
injury [could] have been avoided had the employee been trained
under a program that was not deficient in the identified respect.’”
Thomas v. Cumberland Cty., 749 F.3d 217, 226 (3d Cir. 2014)
(quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989)).
In an extraordinary case, “a [] decision not to train certain
employees about their legal duty to avoid violating citizens'
rights may rise to the level of an official government policy for
purposes of § 1983.” Connick, 563 U.S. at 61. “Single-incident”
liability may arise where the constitutional violation was the
“obvious” consequence of failing to provide specific training. Id.
at 63-64. To establish such a claim, frequency and predictability
of a constitutional violation occurring absent training might
reflect deliberate indifference to a plaintiff’s constitutional
rights. Id. at 64 (citing Bryan Cty., 520 U.S. at 409.)
2.

Undisputed Material Facts

Burke moves for summary judgment based on the following
undisputed facts.7

25

The JJC is responsible for ensuring that Detention Centers
follow the Manual of Standards for County Juvenile Detention
Centers. (SOMF ¶13; Ex. E at 4-5, ECF No. 119-9.) The JJC assigned

Letter sent by Plaintiff did not make reference to the State or
any office, department, division, bureau, board, commission or
agency of the State[,]” Plaintiff replies “the Tort Claims notice
did notice the Department of Risk Management, C/O Tort and Contract
Unit (see first page of September 18, 2012 Letter to Department of
Risk Management, attached to Vomacka Cert. as Exhibit J.”) (Pl’s
Reply to JJC Defs’ SOMF, ECF No. 130-3, ¶¶17, 59.)
26

two employees to make random and routine visits to detention
centers to ensure that the Manual of Standards was being followed.
(SOMF ¶14, ECF No. 119-3; Ex. E at 5-6, ECF No. 119-9; Ex. F at 6,
ECF No. 119-10.)
Burke was a supervisor of the compliance monitoring unit for
the JJC. (SOMF ¶32; Ex. I at 4-5, ECF No. 119-13.) Burke never met
Plaintiff nor did he know who he was. (SOMF ¶33; Ex. H at 14:1317, 18:11-14, ECF No. 119-12.)

Burke did not have knowledge of specific policies of
juvenile

facilities,

and

was

not

involved

in

the

day-to-day

operations of county juvenile detention centers. (SOMF ¶36; Ex. I
at 11.)
In 2011 and 2012, Defendant Burke did not receive standard
operating procedures for CCJDC. (SOMF ¶38; Ex. H at 98:10-15.)8 In
2011 and 2012, Burke did not write, approve or reject CCJDC
policies. (SOMF ¶¶38-39; Ex. H at 98:20-23.)
In opposition to summary judgment, Plaintiff offered the
following evidence of Burke’s liability. Burke worked for the

The JJC Defs’ Exhibit H, excerpts from Burke’s deposition
transcript, is missing page 98. Page 98 can be found in Plaintiff’s
Ex. HH, ECF No. 130-10 at 65.
8

27

juvenile

monitoring

unit

of

the

New

Jersey

Department

of

Corrections and supervised the unit which did program evaluations
of facilities. (Counter-statement of Material Facts ¶¶70, 71, 73,
ECF No. 130-5; Exhibit HH at T7:1-17, T9:10-22,

T21:18-21, ECF

No. 130-10 at 38.) Burke’s duties included performing program
evaluations to ensure the detention centers were complying with
the Manual of Standards and performing physical inspections. (Pl’s
Counter-statement of Material Facts, ¶74, ECF No. 130-5; Exhibit
HH at T10:1-7, ECF No. 130-10 at 43.)
Compliance with the Manual of Standards included standards
regarding the use of force. (Id., ¶75; Exhibit HH at T10:12-19.)
Burke interviewed juveniles in juvenile detention facilities but
he never met or interviewed Plaintiff. (Id., ¶¶76, 77; Exhibit HH
at T12:14-17, T14:13-15.) If there was a violation of the Manual
of Standards, Burke would submit it to the detention center, which
would have to provide him an ‘action plan’ on how they were going
to address those violations. (Id., ¶178; Exhibit HH at T19:14-21;
T21:7-22:5.)
Burke conducted his annual review of the CCJDC in November or
December of 2011, and noted in his report that the program was run
well and there were no issues. (Id., ¶181; Exhibit HH at T27:720.)

28

According to Burke, there was no policy
or procedure in place to determine if juveniles were being abused
by the guards. (Id., ¶182; Exhibit HH at T32:21-33:11.)
3.

Analysis

Plaintiff alleges three underlying constitutional violations
upon which he seeks to hold supervisors liable under § 1983;

Second, it is undisputed that Burke was not a policymaker nor
did he enforce policies for the CCJDC. (JJC Defs’ SOMF ¶¶38-39;
Ex. H at 98:20-23.)

29

Burke was not a
policymaker who could be held liable under such theories of
liability.9

Plaintiff, however, did not submit any
evidence that Burke was involved in the investigation. In any

Plaintiff also submitted evidence of improper use of
administrative lockdown (Pl’s Counter-Statement of Material Facts
¶¶240-281, ECF No. 130-5); however, Plaintiff did not raise any
such claims in his amended complaint and it is immaterial to this
action.
9

30

event,

evidence

of

misconduct

post-dating

an

alleged

constitutional violation cannot establish the proximate cause
element of supervisory liability. Logan, 742 F. App'x at 634.
Without

evidence

of

Burke’s

own

misconduct

causing

the

alleged constitutional violations, Plaintiff is instead asserting
supervisory liability based on a subordinate’s constitutional
violations. The Supreme Court has clearly stated there is no such
liability under Section 1983. Iqbal, 556 U.S. at 676 (2009).
Therefore, Burke is entitled to summary judgment.
IV. CONCLUSION
For the reasons discussed above, the JJC Defendants’ motion
for summary judgment is granted and the claims against them are
dismissed with prejudice.

An appropriate order follows.

Date:

January 15,2020
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

31