HANSEN v. ATLANTIC COUNTY JUSTICE FACILITY et al

Filing 26

OPINION FILED. Signed by Judge Jerome B. Simandle on 11/30/17. (js)

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

BROOKE HANSEN,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 17-466 (JBS/JS)

v.
ATLANTIC COUNTY JUSTICE
FACILITY, et al.,

OPINION

Defendant.

APPEARANCES:
Anton Kaminsky, Esq.
David P. Heim, Esq.
BOCHETTO AND LENTZ, PC
1524 Locust Street
Philadelphia, PA 19102
Attorneys for Plaintiff
James T. Dugan, Esq.
Atlantic County Department of Law
133 Atlantic Avenue
8th Floor
Atlantic City, NJ 08401
Attorney for Defendant
SIMANDLE, District Judge:
I.

INTRODUCTION
This dispute arises out of a head injury suffered by

Plaintiff Brooke Hansen (“Plaintiff”) while she was incarcerated
at the Atlantic County Justice Facility. Approximately one year
after she was injured, Plaintiff filed suit against Defendants
Atlantic County Justice Facility, Atlantic County Department of
Public Safety, Atlantic County of New Jersey, and their agents

(collectively, “Defendants”), bringing claims under the U.S.
Constitution and New Jersey Civil Rights Act, as well as the New
Jersey Tort Claims Act (“NJTCA”). [Docket Item 1.] Specifically,
Plaintiff asserts the following causes of action: (1)
substantive due process civil rights violation under 28 U.S.C. §
1983 and N.J.S.A. § 10:6-2; (2) negligence; (3) negligent
supervision; and (4) dangerous conditions of public property
pursuant to N.J.S.A. 59:4-2. [Docket Item 7.]
Before the Court is Defendants’ motion to dismiss the
Amended Complaint in its entirety pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6). [Docket Item 17.] The principal issue to
be determined is whether Plaintiff has stated a claim for
violation of her substantive due process rights upon which
relief can be granted. As discussed below, the Court finds that
Plaintiff has failed to allege a plausible claim that Defendants
acted with deliberate indifference to a serious medical need and
will, therefore, grant Defendants’ motion to dismiss Count One
without prejudice.
Also before the Court is the issue of whether Plaintiff’s
tort claims (Counts Two, Three, and Four) are barred by her
failure to timely file a notice of claim under the NJTCA. For
the reasons discussed infra, the Court fully endorses and
incorporates the Memorandum Opinion and Order of the Honorable
Joel Schneider, U.S.M.J., dated August 18, 2017, in which Judge
Schneider determined that Plaintiff failed to timely file notice
2 

of her NJTCA claims and that “extraordinary circumstances” did
not warrant a late filing of notice. [Docket Item 24.] Because
Plaintiff failed to satisfy a critical statutory element of the
NJTCA, see N.J.S.A. 59:8-8(a), the Court will dismiss Counts
Two, Three, and Four with prejudice.
II.

BACKGROUND1
On January 28, 2016, Plaintiff was arrested by an unnamed

New Jersey State Police officer during a traffic stop on a drugrelated warrant issued out of Atlantic County. (Am. Compl. at ¶¶
17-22.) Plaintiff admitted she was under the influence of
alcohol, heroin, and Xanax at the time of arrest and claims she
was visibly intoxicated during the traffic stop. (Id. at ¶ 20.)
Plaintiff asserts that these visible traits included severely
slurred speech, drifting in and out of consciousness, dilated
pupils, and an impaired ability to walk. (Id. at ¶ 21.) Upon

1

Although, as a general rule, a party's reliance upon factual
materials extraneous to the pleadings would require the Court to
treat a motion to dismiss as one for summary judgment under Rule
56, see Crown Cent. Petroleum Corp. v. Waldman, 634 F.2d 127,
129 (3d Cir. 1980), the Court may consider a “document integral
to or explicitly relied upon in the complaint,” or an
“undisputedly authentic document” without converting the motion.
In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280,
287 (3d Cir. 1999) (quoting In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) and Pension Benefit
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196
(3d Cir. 1993)). In this case, the Amended Complaint [Docket
Item 7] and Plaintiff’s motion to file late notice of claim
[Docket Item 3] explicitly rely upon certain prison and hospital
records. As the parties do not dispute the authenticity of these
records, the Court will consider Defendants’ intake records
[Docket Item 14 at Exhibits B-D] for purposes of this motion.
3 

arrest, Plaintiff was taken into police custody and transported
to the Atlantic County Justice Facility. (Id. at ¶ 22.)
Around 1:30 p.m., Plaintiff was received into an admissions
holding cell at the Atlantic County Justice Facility. [Docket
Item 14 at Exhibit B.] There, Plaintiff maintains, she remained
visibly intoxicated. (Am. Compl. at ¶ 24.) Plaintiff avers that
her obvious impairment put Defendants on notice she had a “high
risk of losing consciousness and/or falling.” (Id. at ¶ 29.)
At 3:48 p.m., Plaintiff lost consciousness and collapsed,
hitting her head against the glass barrier of the holding cell
and then on the concrete floor. (Id. at ¶¶ 2, 30.) Shortly
thereafter, Plaintiff was immediately transported to Shore
Medical Center, where she was seen by a doctor at 5:42 p.m.
[Docket Item 7 at Exhibit A.] A computerized tomography (“CT”)
scan of Plaintiff’s brain revealed “increased attenuation within
apparent 2.3 1.3 cm mass within the medial aspect of the right
temporal fossa adjacent to the sphenoid bone,” which “may be
related to meningioma.” [Id.] Later that evening, Plaintiff was
discharged from Shore Medical Center and transported back to
Atlantic County Justice Facility. [Docket Item 14 at Exhibit B.]
At around 10 p.m., a registered nurse performed a “Visual
Triage,” completed a “Registered Nurse Assessment,” and approved
Plaintiff for the general population. [Id.] The registered nurse
assigned Plaintiff with a “special needs” status, which required
“lower level, lower bunk” medical housing through February 12,
4 

2016, due to concerns of withdrawal symptoms, including possible
seizures. [Docket Item 14 at Exhibits C and D.]
On February 11, 2016, Plaintiff was transported back to
Shore Medical Center for further testing, which revealed a
“large flow void arising from the right internal carotid artery
measuring 2 cm in greatest dimension, most consistent with giant
aneurysm.”2 [Docket Item 7 at Exhibit B.] During the remainder of
her incarceration, Plaintiff underwent detoxification for her
heroin addition, suffered from depression and anxiety, and on,
multiple occasions, reported to prison officials an intent to
commit suicide. (Id. at ¶ 39, 42-43.) Plaintiff was released
from the Atlantic County Justice Facility on April 30, 2016.
(Id. at ¶ 38.)
Six months after her release, on November 2, 2016,
Plaintiff visited Kennedy University Hospital, “complaining of
severe pains in her head and abnormal swelling and blurry vision
in her right eye.” (Id. at ¶ 50.) A CT scan and MRI revealed
that Plaintiff’s brain aneurysm had increased in size and
required emergency surgery. (Id. at ¶¶ 51-52.) On December 14,
2016, Plaintiff successfully had her aneurysm removed. (Id. at ¶
58.)
On or about November 2, 2016, Plaintiff retained present
counsel who served Defendants with a notice of claim on November

2

Defendants do not dispute that Plaintiff’s aneurysm was caused
by her fall on January 28, 2016. (Def. Br. at 4-5.)
5 

10, 2016. [Docket Item 7 at Exhibit D.] On January 23, 2017,
Plaintiff filed her first Complaint against Defendants. [Docket
Item 1.] Four days later, Plaintiff filed the Amended Complaint.
[Docket Item 7.] In the four-count Amended Complaint, Plaintiff
alleges that, in addition to the brain aneurysm she had removed,
the January 28, 2016 fall caused her emotional and physical
harm, including regular severe headaches; short and long term
memory loss and an ability to maintain focus on tasks; loss of
cognitive function; severe irritability and anger due to the
headaches and inability to focus; restlessness and insomnia;
loss of inhibition and passion for her profession due to her
other symptoms; nausea, loss of appetite, and hair loss due to
radiation treatment; blurred vision; depression; anxiety; and
suicidal thoughts. (Am. Compl. at ¶ 63.) Defendants filed the
motion to dismiss the Amended Complaint now pending before the
Court. [Docket Item 17.]
Shortly after filing her first Complaint, Plaintiff filed a
motion asking the Court to find that her notice of claim served
on November 10, 2016 was timely or, in the alternative, that she
be permitted to file late notice due to “extraordinary
circumstances.” [Docket Item 3.] Judge Schneider heard oral
argument on the motion and, on August 18, 2017, issued a 28-page
Memorandum Opinion and Order denying Plaintiff’s motion. [Docket
Item 24.]
III. Standard of Review
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1.

Rule 12(b)(1)

A motion to dismiss for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(1) which is filed prior to
answering the complaint is considered a “facial challenge” to
the court's subject matter jurisdiction. Cardio–Med. Assocs. v.
Crozer–Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983). This
is distinct from a factual attack on the court's subject matter
jurisdiction which can only occur after the answer has been
served. Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d
884, 891 (3d Cir. 1977). In deciding a Rule 12(b)(1) motion to
dismiss which is filed prior to an answer, the court must
“review only whether the allegations on the face of the
complaint, taken as true, allege facts sufficient to invoke the
jurisdiction of the district court.” Licata v. U.S. Postal
Serv., 33 F.3d 259, 260 (3d Cir. 1994). When a defendant files a
motion under Rule 12(b)(1), the plaintiff bears the burden of
establishing subject matter jurisdiction for the sake of
remaining in federal court. Gould Elec., Inc. v. United States,
220 F.3d 169, 178 (3d Cir. 2000).
2.

Rule 12(b)(6)

Pursuant to Fed. R. Civ. P. 8(a)(2), a complaint need only
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Specific facts are not
required, and “the statement need only ‘give the defendant fair
notice of what the ... claim is and the grounds upon which it
7 

rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
omitted). While a complaint is not required to contain detailed
factual allegations, the plaintiff must provide the “grounds” of
his “entitle[ment] to relief”, which requires more than mere
labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007).
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) may be
granted only if, accepting all well-pleaded allegations in the
complaint as true and viewing them in the light most favorable
to the plaintiff, a court concludes that the plaintiff failed to
set forth fair notice of what the claim is and the grounds upon
which it rests. Id. A complaint will survive a motion to dismiss
if it contains sufficient factual matter to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 663 (2009). Although a court must accept as true all
factual allegations in a complaint, that tenet is “inapplicable
to legal conclusions,” and “[a] pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause
of action will not do.” Id. at 678.
IV.

DISCUSSION
1.

Substantive Due Process Claim (Count One)

Plaintiff brings Count One pursuant to 42 U.S.C. § 1983,
alleging, in relevant part, that her “substantive due process
right to safe conditions of confinement and appropriate medical
care” was violated while in Defendants’ custody. (Am. Compl. at
8 

¶ 71.) Specifically, Plaintiff avers that “[b]y allowing
[Plaintiff] to be placed, without restraint, in a holding cell
that did not take into account her level of intoxication or that
she was under the influence of strong narcotics such as Xanax
and heroin, Defendants exhibited a deliberate indifference as to
[her] rights and departed substantially from the accepted
standards of care for a correctional facility’s and police
officer’s handling of such an intoxicated individual.” (Id. at ¶
65.) Defendants argue that Plaintiff fails to state a claim for
violation of her due process rights because, “[a]t best, [she]
is alleging that Atlantic County was negligent in processing
plaintiff into its facility.” (Def. Br. at 9.)
The Due Process Clause of the Fourteenth Amendment applies
to pretrial detainees' claims of inadequate medical care.
Bocchino v. City of Atlantic City, 179 F. Supp.3d 387, 403
(D.N.J. 2016). “[T]he Fourteenth Amendment in this context
incorporates the protections of the Eighth Amendment”, Holder v.
Merline, 2005 WL 1522130, at *3 (D.N.J. June 27, 2005) (citing
Simmons v. City of Philadelphia, 947 F.2d 1042, 1067 (3d Cir.
1991), cert. denied, 503 U.S. 985 (1992)), and most cases have
stated that, at a minimum, the Eighth Amendment's “deliberate
indifference” standard will suffice. In other words, substantive
due process rights are violated only when the behavior of the
government official is so egregious and outrageous that it
“shocks the conscience.” A.M. ex rel. J.M.K. v. Luzerne Cnty.
9 

Juvenile Detention Ctr., 372 F.3d 572, 579 (3d Cir. 2004)
(citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-47
(1998)).
Applying this principle in the context of a claim for
violation of the right to adequate medical care, a pretrial
detainee must allege the following two elements to set forth a
cognizable cause of action: (1) a serious medical need; and (2)
behavior on the part of prison officials that constitutes
deliberate indifference to that need. Estelle v. Gamble, 429
U.S. 97, 106 (1976); Natale v. Camden Cnty. Corr. Facility, 318
F.3d 575, 582 (3d Cir. 2003).
To satisfy the first prong of the Estelle inquiry, an
inmate must demonstrate that his medical needs are serious. The
Third Circuit has defined a “serious medical need” as: (1) “one
that has been diagnosed by a physician as requiring treatment”;
(2) “one that is so obvious that a lay person would recognize
the necessity for a doctor's attention”; or (3) one for which
“the denial of treatment would result in the unnecessary and
wanton infliction of pain” or “a life-long handicap or permanent
loss.” Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003)
(internal quotations and citations omitted). When evaluating
this first element under Estelle, courts consider factors such
as “the severity of the medical problems, the potential for harm
if the medical care is denied or delayed and whether any such

10 

harm actually resulted from the lack of medical attention.”
Maldonado v. Terhune, 28 F. Supp.2d 284, 289 (D.N.J. 1998).
The second element of the Estelle test is subjective and
“requires an inmate to show that prison officials acted with
deliberate indifference to his serious medical need.” Holder,
2005 WL 1522130, at *4 (citing Natale, 318 F.3d at 582). Conduct
that constitutes negligence (that is, a failure to exercise
reasonable care under the circumstances) does not rise to the
level of deliberate indifference; rather, deliberate
indifference requires at least a “reckless disregard of a known
risk of harm.” Holder, 2005 WL 1522130, at *4 (citing Farmer v.
Brennan, 511 U.S. 825, 836 (1994)).
At this stage, the Court accepts as true that Plaintiff’s
visibly high-level of intoxication and inebriation was of such a
nature and extent as to satisfy the “serious medical need” prong
of a Fourteenth Amendment claim. However, the Amended Complaint
does not set forth sufficient facts to satisfy the second prong
requiring a showing of “deliberate indifference,” as now
discussed.
Plaintiff argues that Defendants exhibited deliberate
indifference “[b]y allowing [her] to be placed, without
restraint, in a holding cell that did not take into account her
level of intoxication or that she was under the influence of
strong narcotics such as Xanax and heroin.” (Am. Compl. at ¶¶
65, 68-70.) While Defendants concede they had actual knowledge
11 

of Plaintiff’s intoxicated and inebriated state at the time she
was processed (Def. Br. at 3-4), the Amended Complaint sets
forth insufficient facts to infer how, if at all, Defendants
recklessly disregarded Plaintiff’s health or safety by
temporarily housing her in a holding cell specifically designed
for admissions. Cf. Nicini v. Morra, 212 F.3d 798, 815 (3d Cir.
2000) (finding deliberate indifference where prison officials
ignored objective evidence that a plaintiff had serious need
for medical care); Monmouth Cnty. Corr. Inst. Inmates v.
Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (finding deliberate
indifference “where necessary medical treatment is delayed for
non-medical reasons”). Notably, Plaintiff fails to identify who
acted recklessly and what, if any, objective evidence Defendants
ignored in the two hours between intake and her fall. Thus,
Plaintiff has not adequately alleged that Defendants acted with
deliberate indifference pre-fall when they placing her in the
admissions holding cell while intoxicated and inebriated.
After the fall, Plaintiff claims that, “[i]n complete
disregard for [her] health and safety, the employees, staff
and/or correctional officers at the Correctional Facility did
not take [Plaintiff] to a hospital and failed to obtain any
medical evaluation of [her] condition.” (Am. Compl. at ¶ 28.)
Plaintiff’s claim is belied by her own exhibits, which show that
Defendants twice transported Plaintiff to Shore Medical Center
for treatment – on January 28, 2016 (the date of the fall,
12 

within minutes of its occurance) and on February 11, 2016 (for a
follow-up appointment). [See Docket Item 7 at Exhibits A and B.]
Defendants’ exhibits on which Plaintiff relies also show that
Plaintiff underwent a medical evaluation by a registered nurse
on January 28, 2016. [See Docket Item 14 at Exhibits B-D.]3 Thus,
Plaintiff’s claims about Defendants’ post-fall conduct appear to
be unfounded.
For these reasons, Plaintiff has failed to demonstrate that
Defendants acted with “deliberate indifference” and the Court
will dismiss Count One without prejudice. Plaintiff may be able
to cure the Amended Complaint by identifying the actions taken
by specific state actors which supposedly amounted to reckless
conduct. To that end, the Court shall grant Plaintiff leave to
file a motion to amend the Complaint consistent with this
Opinion within 30 days of the entry of the Order.
2.

New Jersey Tort Claims Act Claims (Counts Two, Three,
and Four)

In Counts Two, Three, and Four Plaintiff brings state law
tort actions against Defendants for negligence, negligent

3

In her Opposition Brief, Plaintiff also argues that Defendants
acted with deliberate indifference by failing to abide by their
own policy requiring a registered nurse to complete certain
portions of Plaintiff’s Health Evaluation within two hours of
custody notification. (Pl. at 3-4.) While there does appear to
be an approximately eight-hour gap between custody notification
(at 1:30 p.m.) and the completion of the “RN Visual Triage” and
“Registered Nurse Assessment” (around 9:30 p.m.), [Docket Item
14 at Exhibit B], that gap is easily explained by Plaintiff’s
emergency-room visit to Shore Medical Center. [Docket Item 7 at
A.]
13 

supervision, and dangerous conditions of public property.
[Docket Item 7.] Defendants argue these tort claims should be
dismissed because Plaintiff failed to timely file a notice of
claim, as required by New Jersey law.
Tort claims against public entities and public employees
are governed by the New Jersey Tort Claims Act, N.J.S.A. 59:1–1
et seq. See Velez v. City of Jersey City, 180 N.J. 284, 850 A.2d
1238 (2004); Longo v. Santoro, 195 N.J. Super. 507, 514, 480
A.2d 934 (App. Div. 1984). The NJTCA requires that a notice of
claim must be filed with the public entity not later than the
ninetieth (90th) day after accrual of the underlying cause of
action. N.J.S.A § 59:8–8(a). Failure to file the required
notice will generally result in the dismissal of the Plaintiff's
tort claims. N.J.S.A. § 59:8–3 (“No action shall be brought
against a public entity or public employee under this act unless
the claim upon which it is based shall have been presented in
accordance with the procedure set forth in this chapter.”).
The NJTCA establishes an exception to the ninety-day notice
requirement if, upon motion supported by affidavits, the
claimant seeking to file a late claim shows: (1) reasons
constituting “extraordinary circumstances” for the claimant's
failure to meet the ninety–day filing requirement; and (2) that
the defendant(s) are not “substantially prejudiced thereby.”
N.J.S.A. 59:8–9. The existence of “extraordinary circumstances”
is to be determined by the courts on a case-by-case basis. D.D.
14 

v. Univ. of Med. and Dentistry of New Jersey, 213 N.J. 130, 148
(N.J. 2013) (citing Lowe v. Zarghami, 158 N.J. 606, 626 (N.J.
1999)).
By the unambiguous terms of the NJTCA, Plaintiff is barred
from bringing a tort action against Defendants. As Plaintiff’s
tort claims are against public entities and public employees,
Plaintiff was required to file a notice of claim with Atlantic
County within ninety days of the accrual of her claim. Following
full briefing and oral argument on Plaintiff’s motion to file
late notice of claim [Docket Item 3], Judge Schneider found that
Plaintiff’s November 10, 2016 notice of claim was not timely
filed pursuant to N.J.S.A. 59:8-8 because her tort claims
accrued on January 28, 2016, the date of the fall, rather than
on November 2, 2016, when Plaintiff visited Kennedy University
Hospital and supposedly “discover[ed] the full extent of her
injuries and the causal connection between her symptoms and the
January 28 fall.” [Docket Item 24 at 6, 14-16.] Judge Schneider
also determined that Plaintiff’s physical and emotional
conditions, ninety-three-day incarceration, and inability to
retain counsel, when considered individually or in totality, did
not constitute “extraordinary circumstances” to excuse the late
notice under N.J.S.A. 59:8-9. [Id. at 16-28.] In summary, Judge
Schneider found that Plaintiff failed to satisfy a critical
statutory requirement of the NJTCA. This Court sees no reason to
disturb Judge Schneider’s well-reasoned decision and will
15 

dismiss Counts Two, Three, and Four against Defendants with
prejudice.
V.

CONCLUSION
For the foregoing reasons, Count One will be dismissed

without prejudice and Plaintiff will be granted leave to file a
motion to amend the Amended Complaint within thirty (30) days.
Additionally, Counts Two, Three, and Four will be dismissed with
prejudice. An accompanying Order shall be entered.

November 30, 2017
Date

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

16 

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

BROOKE HANSEN,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 17-466 (JBS/JS)

v.
ATLANTIC COUNTY OF NEW JERSEY,
et al.,

ORDER

Defendant.

This matter having come before the Court on Defendants’
motion to dismiss Plaintiff’s Amended Complaint [Docket Item
17]; the Court having considered the parties’ submissions; for
the reasons explained in the Opinion of today’s date; and for
good cause shown;
IT IS this

30th

day of

November

, 2017, hereby

ORDERED that Defendants’ motion is GRANTED and that Count
One of the Amended Complaint is hereby dismissed without
prejudice and Counts Two, Three, and Four are dismissed with
prejudice; and it is further
ORDERED that Plaintiff shall be granted leave to file a
motion to amend the Amended Complaint within thirty (30) days of
the entry of this Order; and it is further

ORDERED that the Clerk shall CLOSE this case upon the
docket.

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

18