FLETCHER v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al
Filing
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OPINION. Signed by Judge Stanley R. Chesler on 4/9/12. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TYJON FLETCHER,
Plaintiff,
v.
NEW JERSEY DEPARTMENT OF
CORRECTIONS et al.,
Defendants.
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Civil Action No. 11-4214 (SRC)
OPINION
CHESLER, U.S.D.J.
This matter comes before the Court on two motions for summary judgment, pursuant to
Federal Rule of Civil Procedure 56: 1) the motion by Defendant Tracy Johnson (“Johnson”); and
2) the motion1 by Defendants New Jersey Department of Corrections (“NJDOC”), New Jersey
Northern State Prison (“NSP”), Commissioner George W. Hayman (“Hayman”), Officer Shunay
Howerton (“Howerton”), and Officer Sherell Peterson (“Peterson”) (collectively, the “State
Defendants.”) For the reasons that follow, Johnson’s motion will be denied in its entirety, while
the State Defendants’ motion will be granted in its entirety.
BACKGROUND
The case arises from the beating of Plaintiff while he was a prisoner at New Jersey
Northern State Prison. There is no dispute that Plaintiff was beaten by prison personnel; the big
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The motion by the State Defendants also seeks judgment on the pleadings, pursuant to
Federal Rule of Civil Procedure 12(c).
question, however, is who beat Plaintiff. Plaintiff filed an Amended Complaint in the Superior
Court of New Jersey, since removed to this Court, which asserted five claims: 1) assault and
battery; 2) negligent supervision; 3) negligent hiring; 4) violation of civil rights protected by the
First, Fifth, Eighth, and Fourteenth Amendments, pursuant to 42 U.S.C. §§ 1983, 1985, and
1988; and 5) tortious injury pursuant to New Jersey’s Tort Claims Act (“NJTCA”).
ANALYSIS
I.
Summary Judgment Legal Standard
Summary judgment is appropriate under FED . R. CIV . P. 56(a) when the moving party
demonstrates that there is no genuine issue of material fact and the evidence establishes the
moving party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for
the non-movant, and it is material if, under the substantive law, it would affect the outcome of
the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “In considering a motion
for summary judgment, a district court may not make credibility determinations or engage in any
weighing of the evidence; instead, the non-moving party's evidence ‘is to be believed and all
justifiable inferences are to be drawn in his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241,
247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
“When the moving party has the burden of proof at trial, that party must show
affirmatively the absence of a genuine issue of material fact: it must show that, on all the
essential elements of its case on which it bears the burden of proof at trial, no reasonable jury
could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003) (quoting
United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). “[W]ith
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respect to an issue on which the nonmoving 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.” Celotex, 477 U.S. at
325.
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v.
Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for
summary judgment cannot rest on mere allegations and instead must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer,
Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations .
. . and pleadings are insufficient to repel summary judgment.” Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). “A nonmoving party has created a genuine
issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at
trial.” Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001).
If the nonmoving party has failed “to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden of proof
at trial, . . . there can be ‘no genuine issue of material fact,’ since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,
477 U.S. at 322-23).
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II.
Defendants’ motions for summary judgment
Both Johnson and the State Defendants have moved for judgment on all claims in the
Amended Complaint. Although the Amended Complaint does not make crystal clear which
claims are brought against which Defendants, Plaintiff’s opposition brief states the target of each
claim as follows: 1) Johnson, Howerton, and Peterson; 2) all Defendants; 3) NJDOC, NSP, and
Hayman; 4) all Defendants; and 5) NJDOC, NSP, Hayman, and Johnson. (Pl.’s Opp. Br. 1.)
Plaintiff’s opposition brief abandons Count Three, for negligent hiring, against all Defendants, as
well as Count Four, for civil rights violations, against NJDOC and NSP. (Pl.’s Opp. Br. 20.) In
addition, Plaintiff concedes that he has no Count Four § 1985 claims against Defendants
Howerton, Peterson, and Hayman. (Id.)
Because Plaintiff bears the burden of proof at trial on all claims in the Amended
Complaint, Defendants’ initial summary judgment burden is satisfied by pointing to the absence
of evidence to support Plaintiff’s case. The summary judgment burden then shifts to Plaintiff to
create a genuine issue of material fact by pointing to “sufficient evidence to allow a jury to find
in [his] favor at trial.” Gleason, 243 F.3d at 138.
A.
Count One: Assault and Battery
Defendants point to an absence of evidence to support a claim against Johnson,
Howerton, and Peterson for assault and battery. The burden then shifts to Plaintiff. Plaintiff
points to his prior testimony that Johnson was present in the room throughout the entire beating,
that Johnson was the only Sergeant in that room, and that Plaintiff saw that he was kicked by a
leg which had pants with the stripes of a Sergeant on it. (Pl.’s Resp. 56.1 Stmt. ¶¶ 14, 18, 20.)
Making every reasonable inference in favor of Plaintiff, this easily suffices to raise a factual
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dispute over Johnson’s participation in the beating. As to Defendant Johnson on Count One, the
motion for summary judgment will be denied.2
As to Defendants Howerton and Peterson, Plaintiff’s opposition brief does not dispute
that they did not participate in the battery.3 Plaintiff argues that, however, a reasonable jury
could find that Howerton and Peterson participated in an assault. As Plaintiff states, the New
Jersey Supreme Court has recognized the following standard for the tort of assault:
A person is subject to liability for the common law tort of assault if: (a) he acts
intending to cause a harmful or offensive contact with the person of the other or a
third person, or an imminent apprehension of such a contact, and (b) the other is
thereby put in such imminent apprehension.
Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 591 (2009). Plaintiff has submitted a
declaration in which he states: “It appeared to me that when Howerton and Peterson left the area
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Although Defendant Johnson has moved for summary judgment on all claims in the
Amended Complaint, he makes only one argument, that there is no evidence that he personally
participated in the beating. Because this Court has concluded that Plaintiff has pointed to
evidence which defeats that point, his motion will therefore be denied in its entirety.
Nonetheless, to the extent that Plaintiff’s opposition brief abandons claims against Johnson, such
claims do not survive this decision.
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The State Defendants’ L. Civ. R. 56.1 Statement states that Peterson and Howerton were
ordered to leave Plaintiff in the room where the beating occurred, and that they did so prior to the
beginning of the beating. (State Defs.’ 56.1 Stmt. ¶ 21.) In response to this factual assertion,
Plaintiff’s responsive L. Civ. R. 56.1 Statement disagrees, but the only evidence it points to is
Plaintiff’s initial deposition testimony that he was not sure whether he saw Howerton leave the
room. (Fletcher Dep. 60:13.) This would not, under any circumstances, be sufficient to persuade
a reasonable jury that Howerton was present during the beating. During the deposition,
Defendants’ counsel showed Plaintiff a transcript of his prior testimony and asked if this
refreshed his recollection; he said it did, and agreed that he did see Howerton and Peterson leave
the room before the beating started. (Fletcher Dep. 62:15-63:5.) Furthermore, Plaintiff
submitted a declaration stating that Howerton and Peterson left the room before the beating
began. (Pl.’s 2/24/12 Dec. ¶ 4.) Given the evidence of record, no reasonable jury could find that
Howerton and Peterson were present in the room during the beating, and Plaintiff’s single
deposition statement that he was unsure does not suffice to raise a factual dispute.
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that they knew what was about to happen to me based upon the other officers present.” (Fletcher
2/24/12 Dec. ¶ 4.) The parties dispute whether this constitutes a sham affidavit, within the
meaning of Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007). This Court
need not reach this dispute. This statement does not constitute sufficient evidence to convince a
jury that Howerton and Peterson possessed the necessary mens rea to cause either a harmful
contact or an imminent apprehension of such a contact.4 This statement is entirely conclusory
speculation, built upon faulty logic, and lacking in evidentiary foundation: a trier of fact has no
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The standard set forth in Leang is quite similar to that stated in the Restatement of Torts:
§ 32 Character of Intent Necessary
(1)
To make the actor liable for an assault, the actor must have intended to
inflict a harmful or offensive contact upon the other or to have put the
other in apprehension of such contact.
Restatement 2d of Torts § 32 (1965). The Restatement defines “intent” as follows:
The word “intent” is used throughout the Restatement of this Subject to denote
that the actor desires to cause consequences of his act, or that he believes that the
consequences are substantially certain to result from it.
Restatement 2d of Torts § 8A (1965). Applying this definition of intent, Fletcher’s declaration
statement does not constitute evidence that Howerton and Peterson desired that Plaintiff be
beaten; no inferences can be made about what, if anything, they desired. Nor could any
reasonable jury conclude from this statement that Howerton and Peterson believed that a beating
was substantially certain to have resulted from their bringing Plaintiff to the room in which he
was beaten. Plaintiff implies that Howerton and Peterson must have known that he was about to
be beaten based on their recognition of the other officers present in the room. There is no basis
for this. Plaintiff concedes that the only officer he could identify in the room was Sergeant
Johnson. Because he has conceded that he could not identify anyone else in the room, he has no
basis to speculate about what Howerton and Peterson might have inferred based upon their
recognition of unknown persons – and there is no basis to infer that Howerton and Peterson did
recognize the other officers in the room. Thus, Plaintiff is left contending that Howerton and
Peterson would have recognized Sergeant Johnson and that, on that basis alone, they would have
inferred that Plaintiff was substantially certain to be beaten. Plaintiff has offered no evidence
that would support such an inference.
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new information after hearing that statement (other than hearing the witness make a purely
speculative inference with no foundation). It would be inadmissible under Federal Rule of
Evidence 403 as far more prejudicial and misleading than probative. Plaintiff has offered no
admissible evidence that Howerton and Peterson participated in the common law tort of assault
under New Jersey law. Plaintiff has failed to submit evidence which raises any factual dispute
about the involvement of Howerton and Peterson in an assault on him. As to Defendants
Howerton and Peterson on Count One, the motion for summary judgment will be granted.
B.
Count Two: Negligent Supervision
Defendants argue that Plaintiff cannot prove negligent supervision by any Defendant, and
the burden shifts to Plaintiff. In response, Plaintiff’s opposition brief offers two general and
vague paragraphs. The only point that Plaintiff makes in these paragraphs is that the prison lacks
a working video surveillance system. Plaintiff cites to no evidence in support of this factual
assertion, and his L. Civ. R. 56.1 Statement makes no assertions about video systems or
supervision. Plaintiff has offered no evidence to support Count Two, and, as to the claim for
negligent supervision, the State Defendants’ motion for summary judgment will be granted.
C.
Count Four: Civil Rights Violations
As already stated, Plaintiff has abandoned any civil rights claims against NJDOC and
NSP, leaving only the individual Defendants. The State Defendants first argue that all § 1983
claims against the State Defendants in their official capacities are barred by the Eleventh
Amendment, which is clearly true. The Supreme Court has held that, absent the State’s consent
to suit, the Eleventh Amendment bars actions for damages in federal court against state officials
in their official capacities. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). This
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does not affect the § 1983 claim against Defendants Johnson, Howerton, and Peterson in their
personal capacities (the Amended Complaint does not raise any claims against Defendant
Hayman is his personal capacity).
The State Defendants next argue that the claims for violations of §§ 1985(2) and (3) must
fail because the statutory language clearly has no application to this case. This appears to be
correct, inasmuch as § 1985(2) deals with intimidating parties, witnesses, or jurors, and §
1985(3) deals with conspiracy. Plaintiff does not counter this argument, but concedes it as to the
individual Defendants except for Johnson.
The State Defendants next argue that there can be no federal constitutional claims against
Howerton and Peterson because they had no personal involvement in the beating. In response,
Plaintiff agrees that proof of personal involvement is required, but argues that he has such
evidence. As discussed above, however, this Court finds that Plaintiff does not have any
evidence that Howerton and Peterson were personally involved, and so the federal constitutional
claims against them must fail.
Count Four of the Amended Complaint also makes passing reference to the action being
brought pursuant to 42 U.S.C. § 1988, but the State Defendants do not address this in their
motion. It appears that this relates to the possibility of collecting attorney’s fees under § 1988(b).
See Venegas v. Mitchell, 495 U.S. 82, 83 (1990) (“Under 42 U.S.C. § 1988 (1982 ed.), a court
may award a reasonable attorney’s fee to the prevailing party in civil rights cases.”) In view of
the fact that this Court is granting the State Defendants’ motion for summary judgment on all
other claims in the Amended Complaint, and that therefore, as to the State Defendants, Plaintiff
cannot be a prevailing party in this litigation, this Court exercises its power under Federal Rule of
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Civil Procedure 56(f)(3) and grants summary judgment on the Count Four § 1988 claim.
In sum, as to Count Four and the State Defendants, the motion for summary judgment
will be granted. Only the Count Four claims against Johnson survive this decision.
D.
Count Five: NJTCA
To recover for injuries under the NJCTA, Plaintiff must be able to prove liability for
injury. N.J. Stat. Ann. § 59:3-1(a). As to the State Defendants, no claim for injury has survived
this decision. This Court therefore need not reach the parties’ disputes regarding Count Five. In
the absence of any viable claim for injury, there can be no recovery under the NJCTA. As to
Count Five, the State Defendants’ motion for summary judgment is granted.
In conclusion, only the claims against Defendant Johnson have survived these motions.
Defendant Johnson’s motion for summary judgment is denied in its entirety. The State
Defendants’ motion for summary judgment is granted in its entirety.
CONCLUSION
For the reasons stated above, the State Defendants have demonstrated, pursuant to
Federal Rule of Civil Procedure 56, that there are no genuine issues of material fact and that the
evidence establishes that they are entitled to judgment as a matter of law. The State Defendants’
motion for summary judgment is granted in its entirety. As to the State Defendants only,
Judgment on the Amended Complaint in its entirety will be entered in Defendants’ favor. As to
Defendant Johnson, the motion for summary judgment is denied.
/s Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.
Dated: April 9, 2012
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