SCANLON v. LAWSON et al

Filing 148

REDACTED OPINION. Signed by Judge Renee Marie Bumb on 1/16/2020. (tf, )

NOT FOR PUBLICATION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

EDWARD SCANLON, IV
Plaintiff

Civ. No. 16-4465 (RMB-JS)

v.
VALERIE LAWSON, et al.,

OPINION

Defendants
APPEARANCES:
Kevin T. Flood, Esq.
Law Office of Kevin T. Flood, Esq., LLC
181 Route 206
Hillsborough, New Jersey 08844
On behalf of Plaintiff
Daniel Edward Rybeck, Esq.
Weir & Partners, LLP
20 Brace Road, Suite 200
Cherry Hill, NJ 08034
On behalf of Defendants David Fuentes and Carol Warren
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.

This matter now
comes before the Court upon Defendants David Fuentes1 and Carol
Warren’s motion for summary judgment (“Defs’ Mot. for Summ. J.”,
ECF No. 112); Fuentes and Warren’s Brief in Supp. of Mot. for Summ.
J. (“Defs’ Brief,” ECF No. 112-2); Fuentes and Warren’s Statement
of Material Facts (“Defs’ SOMF,” ECF No. 112-1); Plaintiff’s Opp.
to Summ. J. Mot. (“Pl’s Opp. Brief,” ECF No. 130); Plaintiff’s
Reply to Statement of Material Facts (“Pl’s Reply to SOMF,” ECF
No. 130-1); Plaintiff’s Counter-statement of Material Facts (“Pl’s
SOMF,” ECF No. 130-5); Reply to Pl’s Opp. to Defs. Fuentes and
Warren’s Motion for Sum. J. (“Defs’ Reply Brief,” ECF No. 142);
and Response to Pl’s Counter-statement of Material Facts by Defs.
Fuentes and Warren (“Defs’ Reply to Pl’s SOMF,” ECF No. 142-1.)
Pursuant to Federal Rule of Civil Procedure 78(b), the Court
will determine the motion for summary judgment on the briefs
without oral argument. For the reasons set forth below, the Court
grants David Fuentes’ motion for summary judgment because it is
unopposed and grants Warren’s motion for summary judgment because
Plaintiff’s claims are barred by the statute of limitations.

Plaintiff does not oppose Fuentes’ motion for summary judgment.
(Pl’s Opp. Brief, ECF No. 130 at 9.)
1

2

I.

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

Law Division, Cumberland County on March 29, 2016, alleging civil
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 original complaint were Valeria Lawson
(“Lawson),”2

Felix

(“Balicki”),

Veronica

(“Barruza”),

and

Mickens

John

(“Mickens”),

Surrency

(“Surrency”),

and/or

Jane

Does

Robert

Balicki

Michael

Baruzza

1-45

(fictitious

individuals) and ABC Corps. 1-45 (fictitious corporations). (Id.
at 10-11.)

Plaintiff sued “Valerie” Lawson and Lawson corrected her name
to “Valeria” upon answering the complaint. (Answer, ECF No. 26
at 1.)
2

3

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

Attorney

General

of

New

Jersey,

entered

a

Notice

of

Appearance on behalf of Mickens. (Not. of Appearance, ECF No. 4.)
On August 3, 2016, 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
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 Lawson, and Lawson 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 to Plaintiff’s counsel.3 Plaintiff received

The Court resent the documents to Plaintiff’s counsel on May 25,
2017, after the correct address was provided. (Letter Order, ECF
No. 37.)
3

4

several extensions of time 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 (“JJC”); 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.)4 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 Lawson, Mickens and Burke.
(Substitution of Attorney, ECF No. 101).
4

5

amended

complaint

with

a

cross-claim

for

contribution

and/or

indemnification by the remaining defendants on February 15, 2018.
(Answer, ECF No. 85.) Fuentes and Warren filed the present motion
for summary judgment on August 15, 2019. (Defs’ Mot. for Summ. J.,
ECF No. 112.)
II.

THE AMENDED COMPLAINT
Plaintiff alleged the following in 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., ¶19, ECF No.
88.)

5

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. (Am. Compl., ECF No. 88, ¶¶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. (Id., ¶¶48-51.) 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.
(Am. Compl., ¶53, ECF No. 88.) 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., ¶¶62-69.)
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
supervisory

liability

of

their

subordinates’

violations

of

Plaintiff’s constitutional rights in violation of 42 U.S.C. § 1983.
(Id., ¶¶73-88.)
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
8

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
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

9

(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).
“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)).

10

Plaintiff does not oppose summary judgment on the tort claims
as to Warren. (Pl’s Brief, ECF No. 130 at 9.) Therefore, the Court
need address only the § 1983 and NJCRA claims against Warren.
B.

Undisputed Material Facts

The following material facts alleged by Warren are undisputed
by Plaintiff. (Pl’s Reply to SOMF, ECF No. 130-1.) Plaintiff
initiated this matter in New Jersey Superior Court on March 29,
2016, for alleged events occurring while he was a juvenile detainee
at the CCJDC between March 2, 2012 and March 5, 2012. (Defs’ SOMF
¶1, ECF No. 112-1; Ex. 1, ECF No. 113 at 1.)
Plaintiff was born on April 1, 1996. (Defs’ SOMF ¶2; Ex. 3 at
14:13-14, ECF No. 113 at 34.) Carol Warren was not named as a
defendant in the original complaint. (Defs’ SOMF ¶4, ECF No. 1121.) On October 26, 2017, Plaintiff filed an amended complaint,
adding Warren as a defendant.6
On February 15, 2018, Warren filed her answer to Plaintiff’s
amended complaint, which includes the affirmative defense that
Plaintiff’s

claims

are

barred

by

the

applicable

statute

of

limitations. (Defs’ SOMF ¶15; Answer, ECF No. 85.)

Warren asserts that Plaintiff filed the amended complaint on
March 28, 2018. (Defs’ SOMF, ¶10; ECF No. 112-1.) However,
Plaintiff filed a redacted amended complaint on the Court’s
electronic filing system on October 26, 2017, and filed an
unredacted copy of the same amended complaint on March 28, 2018.
(ECF Nos. 58, 88.)
6

11

C.

Statute of Limitations

Warren contends that Plaintiff’s § 1983 claims are barred by
the two-year statute of limitations. (Defs’ Brief at 10, ECF No.
112-2.) Plaintiff’s original complaint, which pertained only to
the events of March 2012, and did not name Warren as a defendant,
was filed on March 29, 2016. (Compl., ECF No. 1-1 at 8.) Plaintiff
filed an amended complaint on October 26, 2017, adding Warren as
a defendant
(Am. Compl., ECF
Nos. 58, 88.) Plaintiff turned eighteen-years-old and reached
legal adulthood on April 1, 2014, which caused his claims to accrue
on April 1, 2016. (Defs’ Brief at 10, ECF No. 112-2.) Plaintiff
did not sue Warren until October 26, 2017. (Am. Compl., ECF Nos.
58, 88.) Therefore, Warren argues that Plaintiff’s claims are
barred by the statute of limitations.

7

12

In his brief in opposition to summary judgment, Plaintiff did
not respond to Warren’s statute of limitations defense. (Pl’s Opp.
Brief, ECF No. 130.) Warren asserts that because Plaintiff did
not

set

defense,

forth

an

Warren

opposition

must

be

to

granted

the

statute

summary

of

limitations

judgment.

(Warren's

Reply Brief, ECF No. 142 at 3.)

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).8 Claims under the

8

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
commenced within two years next after the
cause of any such action shall have accrued…
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) (citing N.J.S.A. § 2A:14-2(a)).
“[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).
There is no dispute that Plaintiff was born on April 1, 1996.
Under New
Jersey law, the statute of limitations was “tolled” until he turned
eighteen on April 1, 2014. Therefore, any § 1983 and NJCRA claims
against Warren had to be filed by April 1, 2016. The amended
14

complaint, adding Warren as a defendant based on additional new
facts, was filed on 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). Although
Plaintiff did not argue that his claims against Warren relate back
to his

original complaint, filed on March 29, 2016, because

Plaintiff opposes summary judgment in favor of Warren 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).
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:

15

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, Plaintiff does not identify Warren
as a defendant

“The fictitious name designation [] must have appended to it
an

‘appropriate

description

sufficient

to

identify’

the

defendant.” DeRienzo v. Harvard Industries, Inc., 357 F.3d 348,
353 (3d Cir. 2004) (quoting Rutkowski v. Liberty Mut. Ins. Co.,
506 A.2d 1302, 1306–07 (N.J. Super. Ct. App. Div. 1986)). “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-

16

5947-12T3, 2015 WL 5009883, at *6 (N.J. Super. Ct. App. Div. Aug.
18, 2015).
The original complaint identified “John or Jane Does 6-15” as
Correctional Officers and Shift Commander at the CCJDC. (Compl.,
ECF No. 1-1, ¶¶21-22.) The original complaint did not describe any
actions or failure to act by a nurse at CCJDC. The allegations
against John and Jane Doe defendants were too vague to give Warren
notice or to help identify Warren 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.
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).
The claims against Warren were not added until the statute of
limitations expired, and Warren was not notified of the claims
against her until the amended complaint was served on her on
17

November 10, 2017. (Aff. of Service, ECF No. 78.) Warren did not
receive notice of this action within the limitations period, as
required for relation back under New Jersey Rule 4:9-3.
Moreover, the original complaint did not misidentify a party
that Warren should have known was her. 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.”) Thus, 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

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.

18

Fed. R. Civ. P. 15(c)(1)(C). This rule is inapplicable to Warren
because Plaintiff did not add Warren as a defendant based on a
mistake

concerning

her

identity.

Instead,

it

appears

that

Plaintiff learned of Warren’s involvement after the statute of
limitations

expired,

having

earlier

identified

only

John

Doe

Corrections Officers and Shift Commander as potential defendants.
Plaintiff’s claims against Warren do not relate back to the
original timely-filed complaint under Fed. R. Civ. P. 15(c)(1)(C).
IV. CONCLUSION
For the reasons discussed above, Defendants David Fuentes and
Carol Warren’s motion for summary judgment is granted and the
claims are dismissed with prejudice.

An appropriate order follows.

Date:

January 16,2020
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

19