SCANLON v. LAWSON et al

Filing 156

OPINION (REDACTED). Signed by Judge Renee Marie Bumb on 2/21/2020. (dmr)

NOT FOR PUBLICATION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
(REDACTED)

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

PATRICK JOSEPH MADDEN, Esq.
Madden & Madden, PA
108 Kings Highway East, Suite 200
P.O. Box 210
Haddonfield, NJ 08033
On behalf of Defendants Robert
Surrency and Michael Baruzza

Balicki,

Veronica

BUMB, United States District Judge
This matter comes before the Court upon Defendants Robert
Balicki,

Veronica

Surrency

and

Michael

Baruzza’s

motion

for

summary judgment (Defs Balicki, Surrency and Baruzza’s Mot. for
Summ. J., ECF No. 115); Brief in Supp. of Summ. J. (“Defs’ Brief,
ECF No. 116); Statement of Material Facts in Supp. of Summ. J.
(“Defs’ SOMF,” ECF No. 116-1); Plaintiff’s Opposition to Summary

Judgment Motions (“Pl’s Opp. Brief,” ECF No. 130); Plaintiff’s
Reply to Statement of Material Facts in Support of Motion for
Summary Judgment (“Pl’s Reply to SOMF,” ECF No. 130-2); Plaintiff’s
Counter-statement of Material Facts (“Pl’s CSOMF,” ECF No. 1305); Reply Brief of Defs. Robert Balicki, Veronica Surrency and
Michael Baruzza (“Defs’ Reply Brief,” ECF No. 143); and Defs.
Veronica Surrency, Robert Balicki and Michael Baruzza’s Response
to Pl’s Counter-statement of Material Facts (“Resp. to Pl’s CSOMF,”
ECF No. 143-2.)
Pursuant to Federal Rule of Civil Procedure 78(b), the Court
will determine the motion for summary judgment on the briefs
without oral argument.
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,”) 1
(“Balicki”),

Felix
Veronica

Mickens

(“Mickens”),

1

Balicki

(“Surrency”),

Surrency

Robert
Michael

Baruzza

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

(“Baruzza”),

and

individuals)

and

John
ABC

and/or
Corps.

Jane

1-45

Does

1-45

(fictitious

(fictitious

corporations).

(Compl., ECF No. 1-1 at 8.) The action arose out of incidents
alleged

to

have

occurred

at

the

Cumberland

County

Juvenile

Detention Center (“CCJDC”) in March 2012. (Id.) Plaintiff alleged
[O]n or about March 2, 2012 through March 5,
2012, Plaintiff was made to fight other
inmates at the Cumberland County Detention
Center whereby he suffered serious injuries
solely for the enjoyment and entertainment of
Cumberland County Detention guards, who were
instead responsible to safeguard the minor.
(Id., ¶3.) Plaintiff also alleged he had numerous mental and
behavioral disabilities and generally that he was subject to
physical and psychological abuse and depravation of medication at
the CCJDC. (Id. at 11-10, ¶¶2, 14, 26.)
Defendants removed the action to this Court on July 22, 2016.
(Notice of Removal, ECF No. 1.) On August 3, 2016, Balicki,
Surrency and Baruzza, represented by Patrick J. Madden, Esq., filed
an

answer

to

contribution
(Answer,

ECF

the
and
No.

original

complaint,

indemnification
6.)

Plaintiff

and

against
filed

a

a

cross-claim

Lawson
motion

and
to

for

Mickens.
amend

the

complaint on July 26, 2017. (ECF No. 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
3

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” or “Officer Jordan”) Juvenile Detention
Officer

at

CCJDC;

and

Carol

Warren

LPN

(“Warren”

or

“Nurse

Warren”), at CCJDC. (Am. Compl., ECF No. 88, ¶¶28-32.) Balicki,
Baruzza and Surrency filed the present motion for summary judgment
on August 15, 2019. (Defs’ Mot. for Summ. J., ECF No. 115.)
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.)

Prior

to

the

incidents

alleged,

Plaintiff

was

diagnosed with numerous mental and behavioral disabilities. (Id.,
¶20.)

He

was

committed

to

the

New

Jersey

Juvenile

Justice

Commission (“JJC”) following his adjudication of delinquency. (Am.
Id., ¶1.) 2 Throughout his commitment, Plaintiff alleges that he
was subjected to excessive use of force during unlawful room

2

Discovery revealed that Plaintiff was a detainee not yet
adjudicated delinquent at all relevant times alleged in the
complaint. (Pl’s CSOMF, ¶¶11-12, ECF No. 130-5; Ex. M, ECF No.
130-8 at 100-101.)
4

extractions, physical and psychological abuse and deprivation of
medication. (Am. Compl., ¶¶2, 3, ECF No. 88.)
On May 21, 2011, Stubbs, Senior Juvenile Detention Officer at
CCJDC, ordered Juvenile Detention Officers Jordan and Fuentes to
remove Plaintiff from his room. (Id., ¶¶4, 28, 29, 31.) Plaintiff
was charged with aggravated assault for injuring Jordan and Fuentes
during the room extraction on May 21, 2011. (Id., ¶¶4-5.) Jordan
received a notice to appear in court regarding the incident. (Id.,
¶6.) Jordan asked Surrency, Division Head at CCJDC, and Senior
Juvenile Detention Officer Cooper whether there was a “No Contact
Order” in place for Plaintiff, and they told him “no.” (Id., ¶¶6,
26, 30.)
In March 2012, Plaintiff alleges that he was forced to fight
other inmates at CCJDC for Jordan’s entertainment. (Id., ¶8.) On
March 2, 2012, Plaintiff reported to Nurse Warren at CCJDC, and
she noticed a bruise or bruises on Plaintiff’s lower extremities
but she did not report the injuries to any supervisor. (Id., ¶¶7,
32.) Plaintiff saw Warren again on March 5, 2012, and she noticed
more injuries on his body and, this time, notified a supervisor.
(Id., ¶9.)
Plaintiff alleges 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,

5

and Baruzza, Division Head of CCJDC, are also named as defendants.
(Am. Compl., ¶¶25-27, ECF No. 88.)
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.)
In 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 which
violations
are
made
actionable
by
the
N.J.C.R.A.
Defendants knew or should have known of the
violation of plaintiff’s rights, and acted and
failed to act so as to permit the violation of
plaintiff’s
rights
intentionally
and/or
recklessly and with deliberate indifference.
(Id., ¶¶53, 54.) 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,
6

Lawson

and

Mickens

for

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 of Arguments

As an initial matter, Plaintiff does not oppose summary
judgment in favor of Baruzza on all claims. (Pl’s Opp. Brief, ECF
No. 130 at 9.) Further, Plaintiff does not oppose summary judgment
on

the

tort

claims

in

favor

of

Balicki

and

Surrency.

(Id.)

Therefore, the Court need address only the Section 1983 and NJCRA
claims against Balicki and Surrency.
The NJCRA, N.J.S.A. 10:6-2(c), was modeled on 42 U.S.C. §
1983, and courts have repeatedly construed NJCRA claims as nearly
identical to § 1983, using § 1983 jurisprudence as guidance for
the analogous NJCRA claims. See Trafton v. City of Woodbury, 799
F.Supp.2d 417, 443-44 (D.N.J. June 29, 2011) (collecting cases)).
Because the parties have not identified any differences between
the § 1983 and NJCRA claims, the Court will address the claims
together, guided by § 1983 jurisprudence.
Defendants assert there is nothing in the record that shows
that any of the defendants directly participated in violating
Plaintiff's rights, directed others to violate them, or, as the
person

in

charge,

subordinates'

had

knowledge

violations.

(Defs’
7

of

and

Brief,

acquiesced
ECF

No.

116

in
at

their
11.)

Therefore, Defendants can only be liable if Plaintiff can establish
that they established a policy, practice or custom which directly
caused the constitutional harm to plaintiff. (Id. at 10-11.)
Balicki,

the

warden,

and

Surrency,

a

division

head,

did

not

directly supervise Jordan and were quite removed in the chain of
command. (Id. at 12 citing Defs’ SOMF, ¶50; Ex. V, ECF No. 116-6
at 3-4.)
As to Plaintiff’s policy claims, Defendants contend Plaintiff
cannot show their deliberate indifference to a known risk that a
juvenile detention officer would permit juveniles to fight each
other under his supervision. (Defs’ Brief, ECF No. 116 at 13.)
Defendants contends that evidence does not show a pattern of such
abuses nor does it show that Defendants had knowledge of any such
incident occurring. (Id. at 13-14.)
Moreover, Defendants anticipated that Plaintiff would argue
they should have enacted policies to prevent bullying of juveniles
with special needs and they maintain that there is nothing in the
record

suggesting

Plaintiff’s

injury

was

caused

by

his

susceptibility to bullying. (Id.) Instead, Defendants argue this
was a unique situation where a juvenile detention officer permitted
two juveniles to “go body to body” with each other to resolve their
differences. (Id.) The risk of harm that this would occur was not
so obvious to Defendants that they were deliberately indifferent

8

for failing to enact a policy that would have prevented it. (Defs’
Brief, ECF No. 116 at 14.)
In

opposition,

Plaintiff

asserts

there

is

evidence

that

Balicki and Surrency were responsible for developing policies and
procedures for the CCJDC. (Pl’s Opp. Brief, ECF No. 130 at 51.)
Incident

reports

involving

Plaintiff

provided

notice

that

Plaintiff was continuously: 1) removed from rooms; 2) placed in
24-hour lock down; 3) had issues with other residents; and 4) had
severe behavior problems. (Id. at 53.) Plaintiff asserts “there is
absolutely no evidence that Balicki [and] Surrency … did anything
to correct the numerous issues affecting [Plaintiff.]” (Id.)
Plaintiff

also

contends

Surrency

and

Balicki

were

deliberately indifferent to his serious mental health needs by
housing him, for several months, on D-wing with the worst violent
juvenile offenders. (Id. at 50.) In sum, Plaintiff argues there is
a genuine factual dispute as to whether Surrency and Balicki failed
to establish policies to address his mental health needs and
protect him from harm. (Id.)
B.

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
9

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.” Id. 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 323).
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

10

(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).
“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

742,

752

(3d

Cir.

2019)

(quoting

Anderson, 477 U.S. at 249)).
C.

Failure to Provide Proper Medications

Plaintiff brings his failure to supervise claims against
Surrency and Balicki in their individual and official capacities. 3

3

A § 1983 claim against a municipal officer in his or her official
capacity is treated like a claim against the municipality itself.
Monell v. Dep’t of Social Services of City of New York, 436 U.S.
658, 690 n. 55 (1978). “It is well established that in a § 1983
case a city or other local governmental entity cannot be subject
to liability at all unless the harm was caused in the
implementation of ‘official municipal policy.’” Lozman v. City of
Riviera Beach, Fla., 138 S. Ct. 1945, 1951 (2018) (quoting Monell,
436 U.S. at 691)). “Official municipal policy includes the
decisions of a government's lawmakers, the acts of its policymaking
officials, and practices so persistent and widespread as to
practically have the force of law.” Connick v. Thompson, 563 U.S.
51, 61 (2011) (citations omitted).
While it is true, that Balicki and Surrency were not final-policy
makers for the Manual of Standards, the record contains evidence
11

Plaintiff alleged Defendants failed to provide him with proper
medications throughout his commitment to the CCJDC. (Pl’s Opp.
Brief, ECF No. 130 at 24-25.)
A

juvenile

detainee

has

a

Fourteenth

Amendment

liberty

interest in his personal security and well-being. A.M. ex rel.
J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572,
579 (3d Cir. 2004). To determine whether Defendants violated this
right, the Court must decide “‘what level of conduct is egregious
enough to amount to a constitutional violation and ... whether
there is sufficient evidence that [the Defendants'] conduct rose
to that level.’” A.M. ex rel. J.M.K., 372 F.3d at 579 (quoting
Nicini v. Morra, 212 F.3d 798, 809 (3d Cir. 2000) (alterations in
A.M. ex rel. J.M.K.)) A substantive due process violation “may be
shown by conduct that ‘shocks the conscience.’” Id. (quoting County
of

Sacramento

v.

Lewis,

523

U.S.

833,

846-47

(1998)).

The

deliberate indifference standard is employed to determine whether,
in the custodial setting of a juvenile detention center, the
defendants

were

deliberately

indifferent

to

the

plaintiff’s

personal security and well-being. ” A.M. ex rel. J.M.K., 372 F.3d
at

579.

Whether

the

conduct

of

the

defendants

“shocks

the

conscience” depends on the circumstances of any given case. Id.
1.

Standard for Supervisory Liability

that they had authority to make written policies and procedures
for the CCJDC.
12

In 2009, the Supreme Court held that state officials are
liable

in

their

individual

capacities

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
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

and

practices
13

directly

causing

the

constitutional

violation.”

Parkell,

833

F.3d

at

331

(quoting

Chavarriaga v. New Jersey Dept. of Corrections, 806 F.3d 210, 223
3d Cir. 2015.) When the supervisory liability is 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 Enforcement, 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)).
For practice or custom liability, a plaintiff must typically
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 (2017)
(“a custom stems from policymakers’ acquiescence in a longstanding
practice

or

custom

which

constitutes

the

‘standard

operating

procedure’ of the local 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).

14

To establish liability on a claim that a supervisory defendant
failed to create proper policy, the plaintiff must “(1) identify
the specific supervisory practice or procedure that the supervisor
has failed to employ, and show that (2) the existing custom and
practice

without

the

identified,

absent

custom

or

procedure

created an unreasonable risk of the ultimate injury, (3) the
supervisor was aware that this unreasonable risk existed, (4) the
supervisor was indifferent to the risk, and (5) the underling's
violation resulted from the supervisor's failure to employ that
supervisory practice or procedure.” Brown v. Muhlenberg Township,
269 F.3d 205, 216 (3d Cir. 2001).
2.

Undisputed Material Facts

Based on Plaintiff’s deposition testimony, Defendants seek
summary judgment on Plaintiff’s claim of supervisory liability for
failure to provide him with his proper medications. (Defs’ Brief,
ECF No. 116 at 15-16.) Plaintiff testified as follows:
Q: Were you getting meds when you were at the
Cumberland County Youth Facility?
A:

Yes.

Q: Any issues getting your meds there?
A: No.
(Defs’ SOMF, ¶49.)
In

opposition

to

summary

judgment,

Plaintiff

argues

the

following facts create a disputed issue of material fact regarding

15

his claim that he was not provided his prescribed medications.
(Pl’s Opp. Brief, ECF No. 130 at 26-27.) On March 23, 2011, an
officer gave Plaintiff a pill that was crushed. (Pl’s CSOMF, ¶28,
ECF No. 130-5; Ex. NN, ECF No. 130-11 at 2.) On July 21, 2011,
Plaintiff’s father complained that Plaintiff’s medication was sent
with him to court. (Id., ¶30; Ex. NN, ECF No. 130-11 at 3.) Nurse
Warren acknowledged that Plaintiff’s father always called with
concerns about Plaintiff’s medications. (Id., ¶31; Ex. II at
T34:10-20, ECF No. 130-10 at 79.) When Plaintiff was transferred
to Capitol Academy on May 25, 2012, Plaintiff’s father counted
Plaintiff’s

medications

and

found

the

following

medications

missing: 48 pills of Vyvance, 87 pills of Tryleptal, 148 pills of
Invega, and 38 pills of Lexapro. (Id., ¶¶36-37; Ex. A, ECF No.
130-8 at 2.)
3.

Analysis

The Court holds that Plaintiff has not established a genuine
issue

of

disputed

fact

that

Defendants

were

deliberately

indifferent to Plaintiff’s need for his prescribed medications.
The fact that a pill was crushed on one occasion, that Plaintiff
was given his medications to take to court on one occasion, and
the disappearance of pills when Plaintiff was transferred from
CCJDC to Capitol Academy on May 25, 2012, would not permit a
reasonable jury to conclude that Surrency and Balicki had knowledge
of and acquiesced in a failure to provide Plaintiff with his
16

prescribed

medications

throughout

his

stay

at

CCJDC

or

that

Defendants were aware of a custom of a failing to provide Plaintiff
with his medications and did nothing. See Ledcke v. Pennsylvania
Dep’t of Corr., 655 F. App’x 886, 889 (3d Cir. 2016) (per curiam)
(district court properly dismissed supervisory liability claims
where plaintiff failed to demonstrate any supervisory defendants
were involved in alleged unconstitutional conduct or that they
directly caused constitutional harm by establishing a policy,
practice or custom).
Indeed, Plaintiff’s own testimony that he had no issues with
getting his medication is contrary to his contention that there
was

a

pattern

of

failing

to

make

certain

that

he

took

his

prescribed medications. Further, while it is troubling that pills
were missing when Plaintiff was transferred to Capitol Academy,
there is nothing in the evidence to explain why the pills were
missing or to suggest Balicki and/or Surrency had any reason to
know the pills were missing. Thus, Plaintiff has not shown that
Balicki

and

Surrency

were

deliberately

indifferent

to

a

substantial risk that Plaintiff was not receiving his prescribed
medications. Accordingly, Balicki and Surrency, in their official
and individual capacities, are entitled to summary judgment on the
§ 1983 and NJCRA claims for failure to provide Plaintiff his
prescribed medications.

17

D.

Room Extractions and Excessive Force

In his amended complaint, Plaintiff alleged he was subjected
to excessive force when he was removed from his room on May 21,
2011. In his opposition to Defendants’ motion for summary judgment,
he alleged he was subject to improper use of room extractions.
(Pl’s Opp. Brief, ECF No. 130 at 36-37.)
1.

Elements of Fourteenth Amendment Excessive Force
Claim

Plaintiff, as a detainee not yet adjudicated as delinquent,
has a Fourteenth Amendment right to be free from excessive use of
force. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015)
(stating pretrial detainee has a right under the Due Process Clause
to be free from excessive force that amounts to punishment). To
state a Fourteenth Amendment excessive force claim, a pretrial
detainee must show “that the force purposely or knowingly used
against him was objectively unreasonable.” Kingsley, 135 S. Ct. at
2473-74.
Objective reasonableness is determined “from the perspective
of a reasonable officer on the scene, including what the officer
knew at the time, not with the 20/20 vision of hindsight.” Id. at
2473 (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). “A court
must also account for the ‘legitimate interests that stem from
[the

government's]

need

to

manage

the

facility

in

which

the

individual is detained,’ appropriately deferring to ‘policies and

18

practices that in th[e] judgment’ of jail officials ‘are needed to
preserve

internal

order

and

discipline

and

to

maintain

institutional security.’” Kingsley, 135 S. Ct. at 2473-74 (quoting
Bell v. Wolfish, 441 U.S. 520, 540 (1979)). Courts should consider
the following factors:
[1] the relationship between the need for the
use of force and the amount of force used; [2]
the extent of the plaintiff’s injury; [3] any
effort made by the officer to temper or to
limit the amount of force; [4] the severity of
the security problem at issue; [5] the threat
reasonably perceived by the officer; and [6]
whether the plaintiff was actively resisting.
Robinson v. Danberg, 673 F. App'x 205, 209 (3d Cir. 2016) (quoting
Kingsley, 135 S. Ct. at 2473).
2.
Fuentes,

Undisputed Material Facts
who

was

injured

during

the

May

21,

extraction, authored the following Incident Report.
On that above date and time, [Plaintiff] was
banging and kicking his door on A-Wing.
Officer Jordan repeatedly asked [Plaintiff]
what [was] wrong. [Plaintiff] continued to
kick the door harder and cuss Officer Jordan
out using racial remarks. Supervisor Stubbs
then came down to [Plaintiff’s] room to try to
talk to him. [Plaintiff] continued to kick the
door and cuss at Supervisor Stubbs also and
using racial remarks. Supervisor Stubbs then
instructed Officer Jordan and Officer Fuentes
to cuff and remove [Plaintiff] from the room
and place him in a D-Wing room. [Plaintiff]
then became physically combative and struck
Officer Jordan and Officer Fuentes in the face
as they physically restrained and cuffed
[Plaintiff]. Officer Fuentes and Officer
Jordan then walked [Plaintiff] up to room
19

2011

room

#221A on D-Wing. Supervisor Stubbs
removed the cuffs from [Plaintiff].

then

(Defs’ SOMF, ¶43; Ex. Y, ECF No. 130-9 at 6.) (alterations added).
Jordan also wrote an Incident Report about the May 21, 2011
room extraction.
At the above date and time, I (Mr. Jordan)
asked [Plaintiff] why was he punching and
kicking the door and walls in his room. He did
not respond to my question, so, I call Mr.
Stubbs and he asked [Plaintiff] the same
question why he was punching and kicking the
door and walls, and he did not respond to him.
So, Mr. Stubbs told [Plaintiff] if you keep
kicking the door you are going to go upstairs
and [Plaintiff] kept on kicking the door. Mr.
Stubbs told Mr. Fuentez (sic) and myself (Mr.
Jordan) to escort [Plaintiff] to a room on DWing. While entering into [Plaintiff’s] room
he kicked me on the leg and punched me in the
face calling me a nigger while throwing his
punches. I (Mr. Jordan) grabbed [Plaintiff]
and placed him on his bed[,] while placing
[Plaintiff] on the bed Mr. Fuentez (sic) and
myself (Mr. Jordan) fell to the floor from
[Plaintiff’s]
bed.
While
escorting
[Plaintiff] to his new room upstairs on D-Wing
I (Mr. Jordan) felt a sharp pain in my neck
and back.
(Ex. Y, ECF No. 130-9 at 5) (alterations in brackets added;
alterations in parentheses in original). Plaintiff testified that,
during his time at CCJDC, he had numerous altercations wherein he
hit juvenile detention officers but they never hit him back or
caused him any injuries. (Defs’ SOMF ¶¶44-47; Ex. B. at T40:5-417, ECF No. 116-3 at 33.)

20

Defendants do not dispute the following assertions made by
Plaintiff in his Counter-statement of Material Facts, at least
insofar as the deposition testimony speaks for itself. (Defs’
Response to Pl’s CSOMF, ECF No. 143-2.) Surrency knew that room
extractions occurred at CCJDC and Plaintiff was involved in a
number of them. (Pl’s CSOMF ¶228, ECF No. 130-5; Ex. EE at T70:617, ECF No. 130-9 at 204.) There was no specific policy governing
under what circumstances an officer should remove a juvenile from
his room by force; any force used was guided by the general policy
on the use of force. (Pl’s CSOMF ¶220; Ex. EE at T:74:3-75:6, ECF
No. 130-9 at 205.) The decision to remove a special needs juvenile
from his room was at the discretion of the supervisor in charge at
the time. (Pl’s COSMF ¶231, Ex. EE at T75:7-76:1, ECF No. 130-9 at
205.)
The doors on the rooms in the A and B-wings could easily be
kicked open. (Id., ¶232; Ex. EE at T77:3-19, ECF No. 130-9 at 206.)
According to Surrency, the doors on the second floor were heavy
and secure and would not open if kicked, which was a reason why
Plaintiff would be removed from his room on A-wing. (Id., ¶¶23334, Ex. EE at T80:24-81-14, ECF No. 130-9 at 206-07.)
3.

Analysis

The exact basis for Plaintiff’s excessive force claim is
unclear.

It would appear, by virtue of his allegation that there

is no policy governing when a juvenile detention officer should
21

physically remove a juvenile with mental health disorders from his
room,

that

Plaintiff

is

arguing

any

force,

under

such

consider

the

circumstances, is excessive. 4
Excessive

force

claims

require

courts

to

totality of the circumstances surrounding the use of force. The
record

is

undisputed

that

on

May

21,

2011,

Plaintiff

was

unresponsive to verbal attempts to talk to him about why he was
punching and kicking the doors and walls, an attempt by the
officers to avoid using force. Plaintiff does not dispute that he
did not stop his behavior when warned that he would be moved to
another wing.
It is true that some use of force, therefore, was objectively
reasonable to protect Plaintiff from hurting himself, destroying
property or breaking the door open, and allowing him to access
other

juveniles

in

the

area.

Reasonable

officers

might

have

perceived a need to remove Plaintiff from his room based on these
concerns.

Furthermore,

Plaintiff

physically

attacked

Officer

Jordan when he approached, a fact he does not dispute, requiring
the officers to physically restrain and handcuff Plaintiff in order
to move him to another room.

4 If the Court has misconstrued or misunderstood Plaintiff’s
claim, he may file a motion for reconsideration under Local
Civil Rule 7.1(i).
22

Based on the above undisputed material facts, the Court finds
that it was not objectively unreasonable to restrain and handcuff
Plaintiff

in

order

to

remove

him

from

his

room.

The

Court

recognizes that Plaintiff was diagnosed with a number of mental
and behavioral disorders, including mild mental retardation. Yet,
the

record

indicates

that

many

of

the

juvenile

inmates

with

Plaintiff had mental and behavioral disorders. At the end of this
Court’s analysis, this Court does not find a constitutional injury.
As such, Balicki and Surrency are not liable in their individual
or official capacities. See Marable v. W. Pottsgrove Twp., 176 F.
App'x 275, 283 (3d Cir. 2006) (municipality is not liable for
officers’ actions when officers did not inflict a constitutional
injury).
E.

Failure to investigate other incidents, including those
prior to March 2, 2012

Plaintiff contends Surrency and Balicki failed to investigate
whether there were incidents, prior to March 3, 2012, where Jordan
encouraged Plaintiff or other juveniles to “go body to body” to
resolve their differences. As part of this claim, Plaintiff also
maintains there were no policies or procedures requiring a nurse
to report injuries that were observed on a juvenile detained at
the CCJDC. (Pl’s CSOMF, ¶193, ECF No. 130-5 at 31; Exhibit II at
T27:4-28:2, ECF No. 130-10 at 77.) Nurse Warren did not notify
Surrency that she observed bruising on Plaintiff on March 2, 2012.

23

(Ex. EE at T127:17–24, ECF No. 130-9 at 218.) Plaintiff also
submits evidence suggesting that neither DCF nor Internal Affairs
expanded their investigations beyond Plaintiff’s fights on March
3 and March 4, 2012. (Pl’s CSOMF, ¶¶325-46; Ex. Q, p. 001-019, ECF
No. 130-8 at 143-162; Ex. P, p.001-002, ECF No. 130-8 at 117-18.)
Defendants counter with Plaintiff’s testimony that the only
occasions when Plaintiff fought other juveniles under Jordan’s
supervision were on March 3 and 4, 2012. (Defs’ Reply Brief, ECF
No. 143 at 10.) On March 5, 2012, Nurse Warren reported Plaintiff’s
injuries to Surrency, who ordered the investigation that led to
Jordan’s discipline. (Defs’ Reply Brief, ECF No. 143 at 10.)
The undisputed material facts show that Nurse Warren referred
Plaintiff to a nurse practitioner or doctor for further evaluation
of an injury to his shin on March 2, 2012. (Ex. II at T26:1229:5.) There is nothing in the record suggesting how Plaintiff
sustained the injury on his shin. Plaintiff did not tell the nurse
how he hurt his shin.
In an interview with DCF, Plaintiff said the incidents on
March 3 and March 4, 2012 were the first time he went “body to
body” with another resident, and he had never seen another resident
go “body to body” before this. (Ex. Q, ECF No. 130-8 at 150.)
According to Supervising Officer Tara Butler, after seeing a nurse
about his injuries on March 5, 2012, and telling her that his
injuries were caused by officers when they removed him from his
24

room, Plaintiff then told Butler the “actual truth,” that he went
“body to body” with other juvenile residents on March 3 and March
4, 2012, with Officer Jordan’s permission.
A policy requiring medical staff to report all juvenile
injuries to a supervisor would not have led to discovery of
Jordan’s alleged misconduct because Plaintiff did not sustain the
bruise to his shin on March 2, 2012, or on any previous occasion,
by going “body to body” with other juvenile residents. Further,
Plaintiff did not tell the nurse how he bruised his shin on March
2, 2012, but he did confess after March 5, 2012 that he sustained
the bruises to his body fighting other juveniles on March 3 and
March 4, 2012 under Jordan’s supervision. As the record stands,
there is no evidence of a pattern or practice of juvenile detention
officers permitting juveniles to fight each other. This case is
distinguishable
affirmative

link

from

cases

between

where

prior

plaintiffs

inadequate

demonstrated

investigations

an
into

complaints and the subsequent injuries suffered by the plaintiffs
when the misconduct continued. See Merman v. City of Camden, 824
F.Supp.2d 581, 593-94 (D.N.J. 2010) (collecting cases); cf. Huaman
v. Sirois, No. 13CV484 (DJS),2015 WL 5797005 at *11-13 (D. Conn.
Sept. 30, 2015) (32 excessive force complaints over 12-year span
without disciplinary action was inadequate to show a custom of
deliberate indifference to constitutional rights); see also Brown
v. New Hanover Twp. Police Dep’t, 2008 WL 4306760, at *15 (E.D.
25

Pa. Sept. 22, 2008) (“Rather than reciting a number of complaints
or offenses, a Plaintiff must show why those prior incidents
deserved discipline and how the misconduct in those situations was
similar to the present one.”)
For

these

reasons,

Plaintiff

has

not

established

facts

sufficient for a jury to find a constitutional violation based on
failure

to

investigate

other

instances

of

staff

permitting

juveniles to fight each other.
F. Staffing Ratios and Failure to Train
Plaintiff
Plaintiff’s

contends

Surrency

constitutional

and

injuries

Balicki

based

on

are

liable

deficiencies

for
in

staffing and training. (Pl’ Opp. Brief, ECF No. 130 at 42.)
Plaintiff submits that CCJDC employees were permitted to work
before receiving any type of law enforcement training. (Pl’s CSOMF
¶294, ECF No. 130-5 at 48; Ex. EE at T115:8-15; 118:22, ECF No.
130-9 at 215-16.) Officers at CCJDC received on the job training;
then they went to the Sea Girt training academy. (Id., ¶295, Ex.
EE at T116:21-117:3, ECF No. 130-9 at 215-16.) Surrency stated in
her

deposition,

“[t]here

is

no

special

training

that

anyone

receives before they’re allowed to supervise a group of juveniles,
except from what we go through with agency training on the job.”
(Id. ¶297; Ex. EE at T119:3-7, ECF No. 130-9 at 216.)
According to Balicki, he could not always get training for
CCJDC officers at the academy, so he had to train them at CCJDC.
26

(Id., ¶301; Ex. FF at T59:20-60:5, ECF No. 130-10 at 18.) The JJC
did not mandate specific training, only that officers were to have
24 hours of training. (Id., ¶311;; Ex. HH at T86:2-19, ECF No.
62.) The

CCJDC

was

also

understaffed

at

times,

likely

while

Plaintiff was a resident. (Id., ¶319; Ex. JJ at T61:16-63:16, ECF
No. 130-10 at 106.) The staffing ratios should have been eight
juveniles to one guard during the day and sixteen juveniles to one
guard at night. (Pl’s SCOMF, ¶318, ECF No. 130-5; Ex. JJ at T61:1663:16, ECF No. 130-10 at 106.)
Defendants

contend

there

is

no

evidence

that

CCJDC

was

insufficiently staffed or that any juvenile detention officer was
rebuked for failing to supervise the residents. (Defs’ Reply Brief,
ECF

No.

143

inadequate

at

13-14.)

training,

In

response

Defendants

to

Plaintiff’s

maintain

Plaintiff

claim
has

of
not

demonstrated that the lack of a specific training program caused
Jordan

to

permit

juveniles

to

fight

each

other

under

his

supervision. (Id. at 14.) Defendants note that Jordan recalled
reviewing the Manual of Standards, which mentions being vigilant
to resident safety. (Id.) Additionally, Jordan recalled receiving
training

in

2010

entitled

“Recognizing

a

Person

with

Mental

Illness.” (Id.) Jordan also testified that he understood fighting
between juveniles was not permitted. (Id.)
2.

Analysis of staffing ratio claim

27

Plaintiff has garnered evidence that CCJDC was understaffed
at unspecific times and might have been understaffed at times when
Plaintiff was committed to the CCJDC. Unlike A.M. ex rel. J.M.K., 5
where

there

was

evidence

linking

understaffing

to

specific

instances of inability to adequately supervise residents, the
evidence submitted by Plaintiff is too tenuous to establish that
Balicki

and

Surrency

were

deliberately

indifferent

to

a

substantial risk that understaffing would result in Officer Jordan
permitting juveniles to fight each other. Thus, the Court turns to
Plaintiff’s allegation that his injuries were caused by Balicki
and Surrency’s failure to train staff.
2.

Failure to Train Standard of Law

“A pattern of similar constitutional violations by untrained
employees

is

indifference

‘ordinarily
for

purposes

necessary’
of

to

failure

demonstrate
to

train.”

deliberate
Connick

v.

Thompson, 563 U.S. 51, 62 (2011) (quoting 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)).

5

372 F.3d at 581.
28

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 Board of County Com’rs of Bryan County,
Okl. v. Brown, 520 U.S. 397, 409 (1997)).
4.

Analysis of failure to train claim

Plaintiff has not shown a pattern of juvenile detention
officers

permitting

differences.
identified

The

was

juveniles

only

that

to

deficiency

employees

fight
in

were

to

training
permitted

resolve
that
to

their

Plaintiff

work

before

attending Sea Girt Academy, and received only 24 hours of on the
job training. What is more, Jordan testified that the academy
taught “rather be tried by 12 than carried by 6,” meaning that it
is “your life over their life [sic].” The policy for dealing with
aggressive juveniles at the CCJDC, according to Jordan, was “[l]et
the kids beat you up and they’ll figure it out later.” (Ex. KK at
T16:15-21, ECF No. 130-10 at 113.)

29

Based on Jordan’s testimony, and absent evidence showing a
pattern of constitutional injuries resulting from a failure to
employ a specific training program, Plaintiff has not established
a causal link between a specific training deficiency and Jordan’s
alleged misconduct. Therefore, Balicki and Surrency, in their
official

and

individual

capacities,

are

entitled

to

summary

judgment on the § 1983 and NJCRA claims for failure to train.
G.

Lack of Policy For No Contact Orders

Plaintiff seeks to hold Balicki and Surrency liable for
failing to require a No-Contact Order between a juvenile and a
corrections

officer

when

the

juvenile

had

been

charged

with

assaulting that officer. (Pl’s Opp. Brief, ECF No. 130-5 at 52;
Pl’s CSOMF, ¶321; Ex. EE at T105:24-108:17, ECF No. 130-9 at 213.)
CCJDC did not put a No-Contact Order in place after Jordan charged
Plaintiff, in a criminal action, with assaulting him on May 21,
2011. (Id., ¶324; Ex. Q, ECF No. 130-8 at 156.)
Defendants contend there is no evidence that this lack of a
“no contact order” was a factor in Jordan permitting Plaintiff to
go “body to body” with other residents in March 2012. (Defs’ Reply
Brief, ECF No. 143 at 14.) Additionally, they argue it would
severely hamper the ability to staff a correctional facility if
there was a policy requiring a No-Contact Order every time a
juvenile assaulted a corrections officer. (Id.)
1.

Undisputed Material Facts
30

The undisputed material facts show that on May 27, 2011,
Tammie

D.

criminal

Pierce
charge

of
of

the

Juvenile

fourth

degree

Justice

Commission

aggravated

assault

filed

a

against

Plaintiff for punching Jordan in the face in the course of his
duties on May 21, 2011. (Ex. QQ, ECF No. 130-11 at 18.) In his
deposition, Jordan does not remember when he became aware of the
crime charges but during the internal affairs investigation about
the March 2012 fights, he recalled asking Surrency, two weeks prior
to the March 2012 fights,

whether there was a no contact order in

place between himself and Plaintiff. (Ex. KK at T39:17-T42:13, ECF
No.

130-10

at

119-20.)

Jordan

specifically

recalled

another

incident where there were charges by an officer against a juvenile
and there was a no contact order in place at CCJDC. (Ex. SS (video)
at 25:25 to 27:07).
Surrency stated there was no policy at CCJDC requiring a no
contact order between a juvenile and an officer the juvenile was
charged with assaulting. (Ex. EE at T108:3-110:11.) Balicki agreed
that there was no written policy in the manual, but he thought it
would have been a good idea to have a no contact order between a
juvenile and the officer with whom the juvenile was charged with
assaulting.

(Ex.

FF

at

T58:23-T59:16.)

The

charge

against

Plaintiff by Jordan was not resolved until April 23, 2012, when
the charges were dismissed with a plea. (Ex. M, ECF No. 130-8 at
101.)
31

2.

Analysis

The Court holds that a reasonable jury could conclude, on
this

record,

that

Surrency

and

Balicki

were

deliberately

indifferent to a substantial risk of harm to a juvenile resident,
by the failure to have a no contact order, while criminal charges
were pending disposition, between a juvenile and the officer whom
the juvenile assaulted. A jury could find that, after learning a
no contact order was not in place, Jordan retaliated or held an
animus against Plaintiff by arranging for him to fight other
juveniles. Retaliation by corrections officers against inmates who
assaulted them creates an obvious risk of retaliation absent a no
contact

order,

particularly

during

the

pendency

of

criminal

charges when tensions are high and, as here, where the officer had
been reprimanded for excessive force against a juvenile in the
past. 6
A jury could also find that CCJDC had placed no contact orders
in similar situations, and that Balicki thought it was a good idea.
Certainly, a no contact order between Jordan and Plaintiff from
May 21, 2011 and April 23, 2012, when the charges were dismissed
upon a plea, 7 would have prevented the March 2012 instances where

6

See 2003 formal reprimand of Wesley Jordan, Ex. U, ECF No. 1308 at 188.
7

See Ex. M, ECF No. 130-8 at 14.
32

Jordan

facilitated

the

fights

between

Plaintiff

and

other

juveniles. See Heggenmiller v. Edna Mahan Correctional Institution
for Women, 128 F. App’x 240, 247 (3d Cir. 2005) (vigorously
enforced no contact order was a reasonable step in protecting
inmates from sexual contact by correctional officers.)
Defendants

assert

qualified

immunity

in

their

individual

capacities. There are unknown facts concerning the failure to issue
a no contact order that are jury issues. For example, in the
internal affairs interview, Jordan stated that there was a no
contact order between an officer and a juvenile with whom that
officer had filed an assault charge. Although Surrency states there
was no written policy requiring a no contact order, it is not known
whether there was a general practice of issuing no contact orders
and if so, what factors were considered in issuing a no contact
order and why was Jordan’s situation different. Also unknown is
why Jordan questioned Surrency, two weeks before the March 2012
fighting incidents, whether there was a no contact order in place.
Unresolved issues of material fact preclude the grant of qualified
immunity to Surrency and Balicki in their individual capacities.
See Barton v. Curtis, 497 F.3d 331, 335 (3d Cir. 2007) (qualified
immunity is question for a jury where relevant historical facts
are disputed).
Furthermore, Plaintiff also sued Surrency and Balicki in
their official capacities. (Am. Compl. ¶¶25-26, ECF No. 58.)
33

Although the Court agrees with Defendants that they are not final
policymakers with respect to the Manual of Standards, the record
shows that Balicki had final authority to make written policies
and procedures specific to the CCJDC. See supra note 3.
In fact, in his deposition, Balicki says he was charged with
updating CCJDC’s outdated policies when he was hired in 2008 or
2009. (Ex. FF at T17:3-24:23, ECF No. 130-8 at 8.) He delegated
that responsibility to Surrency. (Id.) According to Surrency, the
policy changes to the 1989 CCJDC policies and procedures were never
made because it was announced that CCJDC would close in 2015. (Ex.
EE at T26:21-28:3, ECF No. 130-9 at 193.) Therefore, because
Plaintiff sued Balicki and Surrency in their official capacities,
which, legally, is the same as suing the county, and because
Balicki had final policy-making authority with respect to the
CCJDC, which he delegated to Surrency, the Monell claim may proceed
to trial. See Board of County Com’rs of Bryan County, Okl. v.
Brown,

520

U.S.

397,

410

(1997)

(single

incident

municipal

liability may be found where a municipal actor disregarded a known
or obvious consequence of his action). There is no qualified
immunity for § 1983 Monell claims. Defendants are not entitled to
summary judgment on the failure to protect claim based on their
failure to institute a policy requiring no contact orders between
a juvenile and an officer with whom there are criminal assault
charges pending.
34

H.

24-Hour Administrative Lock Downs

Plaintiff submits that Surrency and Balicki are liable for
the improper use of 24-hour administrative lock down (a/k/a room
restriction) to punish him. Defendants counter that Plaintiff did
not raise the issue of 24-hour administrative lock down in his
amended complaint or answers to interrogatories, nor is there
mention of it in his deposition transcript. (Defs’ Reply Brief,
ECF No. 143 at 12.) Furthermore, the Manual of Standards permitted
a 24-hour room restriction as a last resort when a juvenile’s
behavior posed a substantial threat to himself, others or property.
(Pl’s Ex. BB, Manual of Standards § 13:92-7.4, ECF No. 130-9 at
81.)
1.

Undisputed material facts

Surrency stated in her deposition that juveniles were not
locked down for punitive reasons at CCJDC. (Ex. EE, T84:12-17, ECF
No. 130-9 at 207.) However, Surrency knew Plaintiff was placed in
24-hour lock down for acting out in class on March 22, 2012. (Ex.
W, ECF No. 130-8 at 194.) It was the custom at CCJDC to put
Plaintiff in 24-hour lock down for acting out in class. (Ex. EE,
T94:18-96:11, ECF No. 130-9 at 210.) According to Balicki, there
were no policies regarding whether a juvenile with mental and
behavioral issues should be put in lock down. (Ex. FF, T32:1333:5, ECF No. 130-10 at 11-12.)

35

According to the Manual of Standards governing CCJDC during
the relevant time period, a child should only be placed in lock
down

if

his/her

behavior

posed

a

substantial

threat

to

himself/others or property. (Ex. HH, T50:7-22; T56:1-25, ECF No.
130-10 at 53-54.) Lock down was not for punitive purposes, but to
gain control of a juvenile who was acting out, and should not
exceed 24 hours. (Ex. BB, ECF No. 130-9 at 81.) Placing a juvenile
in lock down for refusing school was a violation of the Manual of
Standards. (Ex. HH, T50:7-22; T56:1-25, ECF No. 130-10 at 53-54.)
Despite the provisions of the Manual of Standards, CCJDC has
a resident rooms and regulations form, one of which was signed by
Plaintiff on January 27, 2012. (Ex. CC, ECF No 130-9 at 92-93.)
The form advised of a 72-hour lock down as punishment for Class A
violations, which included Acting Out in Class, Refusing School,
Hindering Head Count, Off Limits, Gambling, and Tampering with
Locks. (Id.)
2.

Analysis

Defendants are correct that Plaintiff’s first allegation of
improper

use

of

24-hour

administrative

lock

down

was

in

his

opposition to Defendants’ motion for summary judgment. The fact
that

Plaintiff

generally

alleged

“inhume

conditions

of

confinement” in the amended complaint does not make this claim
timely. The only “conditions” that Plaintiff described in the
amended complaint were deprivation of his medication, improper
36

room extractions, and failure to protect him against Officer Jordan
permitting him to fight other juveniles.
Defendants were not timely notified of Plaintiff’s claim that
subjecting him to 24-hour lock down violated his constitutional
rights. See Jones v. Treece, 774 F. App’x 65, 67 (3d Cir. 2019)
(“a plaintiff generally ‘may not amend his complaint through
arguments in his brief in opposition to a motion for summary
judgment’”) (quoting Shanahan v. City of Chicago, 82 F.3d 776, 781
(7th Cir. 1996)). The statute of limitations expired two days after
Plaintiff filed the original complaint on March 29, 2016. By the
time Plaintiff first raised his claim about 24-hour administrative
lock down in his opposition to summary judgment, filed on November
5, 2019, the statute of limitations had long expired, and it was
too late to add new claims to the amended complaint. Therefore,
Defendants are entitled to summary judgment on this claim.
I.

Failure to Protect

Plaintiff asserts several policy failures caused the staff’s
failure to protect vulnerable juveniles, like himself, from abuse.
First, Plaintiff claims that Surrency and Balicki failed to create
a classification system designed to separately house vulnerable
juveniles and violent juveniles. (Pl’s Opp. Brief, ECF No. 130 at
30-32.)
Second, Plaintiff contends that there was no policy requiring
CCJDC staff to be made aware of his mental and behavioral disorders
37

or to disseminate instructions to maintain his safety. (Pl’s Opp.
Brief, ECF No. 130 at 27-30.) Third, Plaintiff asserts Defendants
failed to create a written policy requiring staff to review a
juvenile’s incident reports and take corrective action. (Id. at
35-36.)
Defendants maintain that Plaintiff did not show how these
alleged failures created an unreasonable risk of the injury he
sustained, that Officer Jordan permitted him to “go body to body”
with other residents. (Defs’ Reply Brief, ECF No. 143 at 7-8.)
Further, Defendants submit that there is nothing in the record
showing

that

Plaintiff

was

injured

from

bullying

by

other

residents. (Defs’ Reply Brief, ECF No. 143 at 8.)
Defendants distinguish A.M. ex rel. J.M.K., 372 F.3d 572 (3d
Cir. 2004), where a juvenile was housed in a wing with other
juveniles who had previously assaulted him. (Id. at 9.) In that
case, the failure to review incident reports showing continuous
assaults on the plaintiff by other juveniles permitted the assaults
to continue. (Id. at 11-12.) Here, Plaintiff was injured after a
juvenile detention officer arranged for Plaintiff to fight other
juveniles in order to settle their differences. Unlike A.M. ex
rel. J.M.K., Plaintiff’s incident reports did not show repeated
assaults on Plaintiff by other juveniles or that Plaintiff was
injured from bullying by other residents. (Defs’ Reply Brief, ECF
No. 143 at 11-12.)
38

1.

Undisputed Material Facts
a.

Plaintiff’s diagnoses

Plaintiff offers the expert report of Wayne A. Robbins. (Ex.
MM, ECF No. 130-10 at 157-210.) Robbins opined, in relevant part:
Plaintiff Edward Scanlon IV was identified to
have a medical and mental health history that
clearly should have identified him to the New
Jersey Juvenile Justice Commission (JJC) and
the Cumberland County Juvenile Department of
Corrections (CCJDC) as a juvenile “Special
Needs”
detainee.
Documents
reviewed
identified that Scanlon had been diagnosed
with Klinefelter’s Syndrome and received
testosterone
supplements
as
prescribed.
Additionally, Scanlon suffers from Bipolar II
Disorder,
Mood
Disorder,
NOS,
Learning
Disorder, NOS, Impulse Control Disorder and
Oppositional Defiant Disorder. Psychological
testing in March of 2008 found that Scanlon
functions in the low average range, with
significant unevenness in his learning skills,
coping with stress, frustration tolerance and
problem resolution. Scanlon was also noted to
have
difficulty
with
impulsiveness,
interpersonal boundaries and rules. Testing
indicated a Full Scale IQ of 69, and a
diagnosis indicating a mild mental handicap.
(Ex. MM at ECF No. 130-10 at 161.)
Records
proceedings

concerning
included

a

Plaintiff’s
psychiatric

juvenile

evaluation

delinquency

performed

when

Plaintiff was five years old. (Ex. F, ECF No. 130-8 at 57.)
Plaintiff
disorder

was
and

diagnosed
adjustment

with

attention

disorder

with

deficit
mixed

hyperactivity

disturbance

of

emotions and conduct and academic inhibition, severe. (Id. at 61.)
Regarding

his

psychosocial

stressors,
39

the

evaluator

noted

Plaintiff had been removed from school on a temporary basis due to
violent, physically aggressive behavior in the schoolroom setting.
(Ex. F, ECF No. 130-8 at 61.)
Plaintiff underwent another psychiatric evaluation later that
year, upon his first day at a new school. (Id. at 63.) Plaintiff
was described as “very hyperactive, oppositional and impulsive,”
verbose, with mood vacillating from happy to angry, with poor
insight

and

judgment.

Oppositional

Defiant

(Id.

at

Disorder

63.)

He

and

was

R/O

diagnosed

Attention

with

Deficit

Hyperactivity Disorder, combined type. (Id. at 64.)
Plaintiff was detained in CCDJC from November 29, 2011 through
May 29, 2012 for “out of control behavior causing risk to self[.]”
(Ex. M, ECF No. 130-8 at 94-95.) In April 2012, a probation officer
was ordered to create a predisposition report for Plaintiff. (Id.)
Plaintiff’s supervising probation officer wrote that Plaintiff’s
psychiatric

and

psychological

evaluations

spanned

a

ten

year

period but “all of the evaluations indicate that Edward Scanlon IV
is

a

severely

emotionally,

developmentally,

and

educationally

impaired juvenile.” (Id. at 99-100.) Prior to his placement in
CCJDC in November 2011, Petitioner had multiple sexual assault
charges that were dismissed due to his incompetence, and aggravated
assault and other charges that were dismissed by his plea. (Id. at
100-101.)
b.

Housing assignments at CCJDC
40

Warden

Balicki

was

deposed

concerning

the

placement

of

juvenile offenders in appropriate housing in CCJDC. (Ex. FF at
T63:20-66-17, ECF No. 130-10 at 19-20.) Balicki knew that adult
jails had intake classification procedures that took into account
inmate offenses and disciplinary history, which were used to
classify inmates as maximum, medium or minimum custody. (Id.) There
was no such policy at CCJDC, housing was left to the discretion of
the division head, Surrency, or shift commanders. (Id.)
Surrency was a division head at CCJDC during the relevant
time period, and her supervisor was Warden Balicki. (Ex. EE at
T14:8-15:6, ECF No. 130-9 at 190.) Her responsibilities included
overseeing the daily operations of the facility, for all the
departments. (Id. at T24:7-26:20, ECF No. 130-9 at 192-93.) She
was responsible for protecting the welfare and safety of the
juveniles in CCJDC. (Id.)
Surrency had authority to create policy. (Id.) Balicki did
not work onsite at CCJDC, so she did not discuss issues with him
unless she felt an investigation was necessary. (Id.) Surrency and
Balicki

did

not

discuss

policies

much

because

policies

and

procedures were already in place. (Id.)
If a juvenile was identified as vulnerable during admission,
the juvenile would be placed in A-wing at CCJDC, which was less
volatile than the other wings. (Id. at T62:15-24.) They tried to
keep Plaintiff on A-wing, which was closer to the social workers,
41

medical department and administration. (Ex. EE at T47:25-48:4, ECF
No. 130-9 at 198.) Juveniles were removed from A-wing to another
wing when they repeatedly kicked the doors to their rooms, because
the doors on A-wing were not very secure. (Id. at T80:24-82:3, ECF
No. 130-9 at 206-7.)
Captain Tara Butler testified that there was no particular
wing assignment for individuals with mental health needs. (Ex. GG,
T11:12-14:5, ECF No. 130-10 at 27-28.) Placement of the juveniles
depended on their behavior within CCJDC. (Id. at T13:25-14:5.)
Officer Jordan testified that Plaintiff was on D-wing more than Awing, and D-wing housed the most violent and troubled kids. (Ex.
KK, T:25:16-28:1, T31:4-19, ECF No. 130-10 at 97-98.) Another
juvenile who was known for troubling behavior was housed next to
Plaintiff on D-wing at one time. (Id. at T34:16-38:12, ECF No.
130-10 at 99-100.)
b.

Communication to staff of mental health issues

The CCJDC had an admissions process. (Ex. EE at T32:19-34:14,
ECF No. 130-9 at 194-95.) The only questions juveniles were asked
about mental health during admissions were whether they were
depressed, suicidal or used any alcohol or drugs. (Id.) Within 24hours of a juvenile’s admission, medical staff would further assess
his or her physical and mental health. (Id.) The facility had many
juveniles with mental health issues. (Id.)

42

When

Plaintiff

was

admitted

to

CCJDC,

Surrency

was

not

immediately made aware of his mental health issues, although she
learned within a few days. (Ex. EE at T29:20-31:19, ECF No. 130-9
at 194.) There was no policy requiring the rest of the staff to be
made aware of a juvenile’s mental health disorders. (Id. at T38:539:5, ECF No. 130-9 at 196.)
In February 2011, Nurse Austin wrote a behavior log entry,
indicating that Plaintiff had multiple medical diagnoses including
mild mental retardation, and that he should be protected from
bullying by others. (Id. at T63:2-64:23, ECF No. 130-9 at 202.)
The shift supervisors were in charge of disseminating information
from the behavior log during shift changes, and such information
was shared orally. (Id. at T64:24-68:9, ECF No. 130-9 at 202-3.)
Surrency acknowledged that Plaintiff was a “special needs”
child. (Id. at T47:8-11, ECF No. 130-9 at 198.) She agreed that
Plaintiff was vulnerable to bullying but that all juveniles were
subject to bullying, and Plaintiff “fit in after [a] while . . .
everybody liked him.” (Id. at T59:4-12, ECF No. 130-9 at 201.)
Surrency was not aware of any incidents, apart from the fights
permitted by Jordan, when Plaintiff was bullied by any other
juvenile inmates. (Id. at T147:5-10, ECF No. 130-9 at 223.)
Plaintiff submits evidence that he was detained at CCJDC from
November 29, 2011 through May 25, 2012, and he was involved in 35
incidents or disciplinary issues, which resulted in 57 written
43

Incident Reports. (Pl’s CSOMF, ¶208; Ex. Z, ECF No. 130-9 at 1772.)

Surrency

acknowledged

there

was

no

policy

or

procedure

requiring staff to review a case where a juvenile had this many
incident reports and determine a corrective course of action for
managing the juvenile’s behavior. (Pl’s CSOMF, ¶210, ECF No. 1305 at 36; Exhibit EE at T83:1-24, T97:12-101:22, ECF No. 130-9 at
207, 211-12.)
Near

the

end

of

his

placement

at

CCJDC,

Plaintiff’s

supervising probation officer recommended
that the juvenile remain in detention until a
bed is available at an appropriate residential
facility. It is recommended that this facility
meet all of Edwards [sic] sex offender
specific needs, mental health needs, and be
able to ensure his safety and the safety of
the community. Probation would ask that the
program have a plan to deal with some of
Edwards [sic] negative and dangerous issues
(ie.running away) that took place while he was
at The Children’s Home.
(Ex. M, ECF No. 130-8 at 102.)
2.

Analysis

Plaintiff has not explained how these alleged policy failures
caused his constitutional injury. Again, it bears repeating that
the sole constitutional injury that Plaintiff alleges is the
injuries

resulting

from

Jordan’s

reprehensible

conduct

in

arranging for him to fight other juveniles. If Plaintiff’s argument
is that these policy failures resulted in the failure to properly
treat his mental health disorders, this claim suffers the same
44

procedural defect as Plaintiff’s claims regarding administrative
lock down; they were first raised in Plaintiff’s opposition to
summary judgment, and it is too late to amend the complaint to
bring claims separate from the constitutional injuries alleged in
the amended complaint.
The injuries Plaintiff specifically alleged in his amended
complaint

were

(1)

not

receiving

his

proper

medication;

(2)

excessive force during room extractions; and (3) failure to protect
against Officer Jordan arranging for him to fight other juveniles.
As set forth above, the Court has determined that Plaintiff failed
to show a reasonably jury could conclude that Surrency and Balicki
were deliberately indifferent to a substantial risk that Plaintiff
was not receiving his prescribed medications or that excessive
force was used during Plaintiff’s room extractions. The Court,
however,

will

address

whether

the

alleged

policy

failures

regarding Plaintiff’s mental disorders were the proximate cause of
Officer Jordan’s alleged misconduct.
The Due Process right to safety of incarcerated juveniles
encompasses the right to reasonable protection from the aggression
of others. See Thomas S. ex rel. Brooks v. Flaherty, 699 F. Supp.
1178, 1200 (W.D.N.C. 1988), aff'd, 902 F.2d 250 (4th Cir.), cert.
denied, 498 U.S. 951 (1990) (defining substantive due process
rights of mentally disabled adults).

45

Juveniles at [a] correctional facility should
be screened and classified so that aggressive
juveniles are identified and separated from
more passive juveniles, with the level of
restraint to be used for each juvenile based
on some rational professional judgment as to
legitimate safety and security needs; there
should also be periodic review of initial
placement to evaluate whether subsequent
events demonstrate need for reclassification
of juvenile security requirements.
Alexander S. By & Through Bowers v. Boyd, 876 F. Supp. 773 (D.S.C.
1995), as modified on denial of reh'g (Feb. 17, 1995).
Certainly,

detention

centers,

whether

adult

or

juvenile,

should have a classification system to identify violent and nonviolent persons for the purpose of protecting the safety of those
more vulnerable. Notwithstanding Plaintiff’s vulnerabilities, his
long history of physical aggression in school, since age five, and
the fact that he was detained for sexual assault of other children,
suggests that he would not have been classified as nonviolent.
Assuming, however, that Plaintiff should have been classified as
needing protection from violent juveniles, Plaintiff cites to
nothing in the record to support a reasonable inference that he
was attacked by another juvenile because he was vulnerable; rather,
the record evidence is that Officer Jordan arranged for Plaintiff
to voluntarily fight other juveniles to settle their differences. 8

8

Plaintiff has offered no evidence that other juveniles preyed on
his vulnerabilities and assaulted him, other than the incidents
that occurred as result of Officer Jordan’s misconduct on March 3
and March 4, 2012. Plaintiff submitted his incident reports from
46

Absolutely,

Surrency

and

Balicki

were

required

to

protect

Plaintiff from staff. They are not liable as supervisors under §
1983

and

the

NJCRA,

however,

unless

they

were

deliberately

indifferent to a substantial risk that staff would have permitted
or encouraged juveniles to fight each other. See Brown, 269 F.3d
at 215-16 (municipality not liable for officer who shot pet dog
where plaintiff failed to show an official policy endorsing such
conduct,

a

custom

of

condoning

such

conduct,

and

where

no

reasonable jury could conclude the need for further training was

the CCJDC. As discussed below, Plaintiff’s incident reports
reflect his difficulty following directions in the classroom and
his tendency to react to discipline by staff with physical
aggression. The incident reports include very few occasions where
Plaintiff argued with another juvenile and no occasions where
Plaintiff was injured in a fight with another juvenile.
As to the investigations of the March 3 and 4, 2012 fights, it was
learned that on March 3, 2012, when the residents were being locked
down for the night, Officer Jordan asked Plaintiff if he wanted to
go in another resident’s room and “go body to body,” meaning they
would punch each other repeatedly on the body until the other
submitted. Plaintiff agreed to fight, and the juveniles were
permitted to fight briefly in an area with no surveillance cameras.
(Ex. P, ECF No. 130-8 at 129-30.)
The investigation also revealed that on March 4, 2012, Officer
Jordan was in the t.v. room with a group of residents, including
Plaintiff. Another juvenile was harassing Plaintiff by putting his
feet on Plaintiff’s chair and pushing the chair back. Officer
Jordan joined in on the bullying by pushing and tripping Plaintiff,
and then other residents began to reach out toward or swat at
Plaintiff. This was caught on video, which then showed Plaintiff
and other residents going to a corner of the room and rearranging
furniture. The investigation revealed that Officer Jordan
permitted Plaintiff and the other juveniles to “go body to body”
in a blind spot of the security cameras. Plaintiff quit fighting
after receiving a painful punch in the chest. (Id.)
47

so obvious that municipality was deliberately indifferent to such
a risk.)
Plaintiff also asserts Surrency and Balicki should be held
liable

for

not

creating

a

policy

to

make

staff

aware

of

a

juvenile’s mental and behavioral disorders, especially messages
communicated by medical staff, advising staff of a juvenile’s
vulnerabilities. The record shows that CCJDC that does not have a
written policy requiring dissemination of behavior log entries,
but Surrency related that the practice was for shift supervisors
to orally disseminate information from the behavior log to staff
during shift changes.
As with the lack of a classification policy, the record does
not permit a reasonable jury to conclude that Surrency and Balicki
were deliberately indifferent to a substantial risk that failure
to communicate Plaintiff’s mental disorders and his vulnerability
to bullying to staff would result in a staff member bullying
Plaintiff by encouraging him to fight other juveniles.
Finally, Plaintiff contends Surrency and Balicki should be
liable for not creating a policy requiring staff to review a
juvenile’s incident reports and take corrective action. Plaintiff
cites to A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention
Center, 372 F.3d 572 (3d Cir. 2004). In that case, the plaintiff
was physically assaulted on numerous occasions by other juvenile
residents in a juvenile detention center. Id. at 575-76. Although
48

the plaintiff was supposed to be kept away from the boys who had
previously assaulted him, this directive was not always followed.
Id. at 576. The incident reports involving the plaintiff in that
case supported an inference that it was predictable the plaintiff
would suffer recurrent harm at the hands of other residents.
In this case, Plaintiff’s incident reports generally show
that he refused to follow directions in class, refused to go to
school and argued with staff and became aggressive when they tried
to physically remove him from the situation. There were very few
physical fights between Plaintiff and other juveniles described in
his incident reports. Given this record, a reasonable jury could
not conclude that the incident reports alerted Surrency and Balicki
to the risk that Officer Jordan would encourage Plaintiff to fight
other juveniles to settle their differences. See Andrews v. Fowler,
98 F.3d 1069, 1077 (8th Cir. 1996) (municipality not liable for
rape by a police officer because there was no patently obvious
need to train officers not to commit rape and no evidence that
failure to train caused the rape).
The standard for supervisory liability under § 1983 is high.
Supervisors, without some type of personal involvement in the
constitutional harm, are not liable for the misconduct of their
employees. Iqbal, 556 U.S. at 676. Thus, the Court must grant
summary judgment to Surrency and Balicki on Plaintiff’s § 1983 and
NJCRA claims in their individual and official capacities.
49

IV.

CONCLUSION

For the reasons discussed above, the Court grants in part and
denies in part Defendants Balicki, Baruzza and Surrency’s motion
for summary judgment.

An appropriate order follows.
Date:

February 21, 2020
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

50