TULLI-MAKOWSKI v. COMMUNITY EDUCATION CENTERS, INC. et al

Filing 29

OPINION. Signed by Judge William J. Martini on 5/10/13. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ESTELA TULLI-MAKOWSKI, as
Administrator ad Prosequendeum of the
ESTATE OF VIVIANA TULLI,

Civ. No. 2:12-06091 (WJM)

Plaintiff,

OPINION

v.
COMMUNITY EDUCATION CENTERS,
INC., et al.,
Defendants.

Plaintiff Estella Tulli-Makowski, the administrator of the estate of Viviana Tulli,
brings the instant suit seeking money damages for Viviana Tulli’s murder. This matter
comes before the court on two motions. The State of New Jersey, the Department of
Corrections of the State of New Jersey, and the New Jersey State Parole Board (together
the “State Defendants”), the University of Medicine and Dentistry of New Jersey
(“UMDNJ”) and the UMDNJ-University Hospital (together the UMDNJ Defendants),
and the Department of Public Safety 1 move pursuant to Federal Rule of Civil Procedure
12(b)(6) to dismiss the Complaint. There was no oral argument. Fed. R. Civ. P. 78(b).
For the reasons set forth below, the State Defendants’ motion to dismiss is GRANTED.
The UMDNJ Defendants’ motion to dismiss is GRANTED IN PART and DENIED IN
PART. The Department of Public Safety’s motion to dismiss is GRANTED.
I.

BACKGROUND

On October 7, 2008 David Goodell was arrested for assaulting his girlfriend.
Compl. ¶ 21, ECF No. 1. Goodell pled guilty, and he was given a prison term of four
years. Id. ¶ 21. While he was in prison, Goodell sometimes communicated with a friend
named Viviana Tulli. Id. ¶¶ 21, 22.
On February 11, 2010, the New Jersey State Parole Board transferred Goodell
from prison to a halfway house in Newark called Logan Hall. Id. ¶¶ 27, 34. Apparently,
Logan Hall was designated by the Commissioner of the Department of Corrections as a
“secure and appropriately supervised place of confinement” for prisoners. Id. ¶ 27.
1

The Department of Public Safety provides security services for UMDNJ and UMDNJUniversity Hospital.
1

Logan Hall was not a state owned facility. It was part of the EHCA-CEC Halfway House
System, which was operated by Community Education Centers (“CEC”), a for-profit
corporation. Id. ¶ 28. Plaintiff alleges that the EHCA-CEC Halfway House System is
horribly mismanaged and has experienced an “inordinate” number of prisoner escapes.
Id. ¶¶ 31-32.
On April 29, 2010, Goodell faked a seizure at Logan Hall, and he was taken to
UMDNJ-University Hospital by an unarmed CEC employee. Id. ¶ 35. Goodell escaped
from the hospital and proceeded to murder Viviana Tulli. Id. ¶¶ 36, 40.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted.
The moving party bears the burden of showing that no claim has been stated. Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under
Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in
the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975).
A Complaint’s factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, such that it is “plausible on its face.” See Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007); see also Umland v. PLANCO Fin. Serv., Inc., 542
F.3d 59, 64 (3d Cir. 2008). Claims have “facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing
Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a
‘probability requirement’ . . . it asks for more than a sheer possibility.” Id. at 1949.
III.

DISCUSSION

The Complaint contains eight counts. Count I is a claim for survivorship under
N.J.S.A. 2A:15-3. Count II is a claim for wrongful death under N.J.S.A. 2A:31-1. Count
III is a claim for a violation of 42 U.S.C. § 1983 (“Section 1983”). Count IV is a claim
for fundamental fairness (i.e. due process violations) under New Jersey common law.
Count V is a claim for “sham non-profit entity—illegal operation of a halfway house
system) under New Jersey common law. Count VI is a claim for piercing the corporate
veil under New Jersey common law. Count VII is a claim for “corporate officer/manager
participating in tort” under New Jersey common law. Count VIII is a claim for failure to
exercise reasonable care under New Jersey common law.
The State Defendants, the UMDNJ Defendants, and the Department of Public
Safety (together “Defendants”) move to dismiss Count III, arguing that they are not
“persons” who can be sued under 42 U.S.C. § 1983. Defendants also move to dismiss the
additional claims asserted against them, arguing that they are immune from suit under the
2

New Jersey Tort Claims Act (“NJTCA”). 2 Finally, the Department of Public Safety
moves to dismiss all claims, arguing that it is a part of UMDNJ and not a separate legal
entity.
A.

Claims Against The Department Of Public Safety

The Department of Public Safety moves to dismiss all claims, arguing that it is not
an independent legal entity separate from UMDNJ. Plaintiff does not dispute that the
Department of Public Safety lacks independent legal existence. Accordingly, the Court
will DISMISS all claims against the Department of Public Safety WITH PREJUDICE.
See Reid v. Kraft General Foods, Inc., No. 93-5796, 1995 WL 262531, at *10 n.6
(E.D.Pa. Apr. 27, 1995).
B.

Claims Against The State Defendants And The UMDNJ Defendants

The State Defendants and the UMDNJ Defendants move to dismiss the Section
1983 claim and the State Law Claims.
1.

Section 1983

Count III is a claim for violations of Section 1983. The UMDNJ Defendants and
the State Defendants move to dismiss, arguing that they are not “persons” subject to
liability under Section 1983. Plaintiffs oppose the UMDNJ Defendants’ motion but not
the State Defendants’ motion.
a.

Applicable Law

Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured . . . .
(emphasis added). “A subdivision of the state itself is . . . a ‘person’ [for Section 1983
purposes] if it is merely an alter ego or ‘arm’ of the state.” Longoria v. New Jersey, 168

2

The Complaint is unclear as to which claims are being asserted against which Defendants. For
purposes of this motion, the Court will treat the Complaint as asserting state law claims against
each Defendant under Counts I, II, and IV-VIII (together “the State Law Claims”).
3

F. Supp. 2d 308, 315 (D.N.J. 2001). To determine whether an entity is an alter ego of the
state for Section 1983 purposes, courts weigh three “Fitchik” factors:
• State Treasury.
“[W]hether payment will come from the state’s treasury,
whether the agency has the money to satisfy the judgment, and whether the
sovereign has immunized itself from responsibility for the agency’s debts.”
Fitchik, 873 F.3d at 659.
• Status Under State Law. “[H]ow state law treats the agency generally, whether
the entity is separately incorporated, whether the agency can sue or be sued in its
own right, and whether it is immune from state taxation.” Id.
• Autonomy. “What degree of autonomy the agency has.” Id.
See Cooper v. Southeastern PA Transp. Authority, 548 F.3d 296, 299 (3d Cir. 2008)
(citing Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir.
1989) (en banc)).
b.

Whether The UMDNJ Defendants Are Persons For
Purposes of Section 1983

To determine whether a public university is the alter ego of a state, courts must
conduct “a fact-intensive review that calls for individualized determinations.” Bowers v.
Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 546 (3d Cir. 2007). The UMDNJ
Defendants have not provided the Court with the information necessary for such a fact
intensive review. Indeed, they do not even cite Fitchik. The UMDNJ Defendants simply
argue that they are not persons under Section 1983 because state entities cannot be
persons under Section 1983. This argument is incorrect: state entities can be persons
under Section 1983. See Kovats v. Rutgers, The State Univ., 822 F.2d 1303, 1312 (3d
Cir. 1987). Accordingly, the Court will DENY the UMDNJ Defendants’ motion to
dismiss. After sufficient discovery has taken place, the UMDNJ Defendants may renew
their challenge to personhood status under Section 1983. At that point, the UMDNJ
Defendants will be able to provide the Court with the information necessary for “a factintensive review.” Bowers, 475 F.3d at 546. 3

3

While the Court recognizes that some cases have held that UMDNJ is a person for Section
1983 purposes, the cases were decided roughly 25 years ago, and they are not binding. See
Fuchilla v. Prockop, 682 F. Supp. 247, 253-54 (D.N.J. 1987); Fuchilla v. Layman, 109 N.J. 319
(1988). In the intervening 25 years, the test for alter ego status has changed slightly. Moreover,
as UMDNJ’s financing has undoubtedly changed over the last 25 years, the analysis of the state
treasury factor in the Fitchik analysis might need updating.
4

c.

Whether The State Defendants Are Persons For Purposes
of Section 1983

While the status of the UMDNJ Defendants under Section 1983 is unclear, the
status of the State Defendants is not. The Supreme Court has held that states are not
persons under Section 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989).
The Third Circuit has held that the New Jersey State Parole Board is not a person for
purposes of Section 1983. Madden v. N.J. State Parole Bd., 438 F.2d 1189, 1190 (3d Cir.
1981). And multiple courts in this District have recognized that the New Jersey
Department of Corrections is not a person for purposes of Section 1983. See, e.g.,
Grabow v. Southern State Corr. Fac., 726 F. Supp. 537, 538-39 (D.N.J. 1989).
Accordingly, the State Defendants’ motion to dismiss Count III is GRANTED, and
Count III is DISMISSED WITH PREJUDICE against the State Defendants.
2.

State Law Claims

The State Defendants and the UMDNJ Defendants move to dismiss the State Law
Claims, arguing that they are immune from suit under the NJTCA.
The NJTCA provides:
Neither a public entity nor a public employee is liable for:
a. An injury resulting from the parole or release of a prisoner or from
the terms and conditions of his parole or release or from the
revocation of his parole or release;
b. any injury caused by:
(1) an escaping or escaped prisoner; [or]
(2) an escaping or escaped person . . . .
N.J.S.A. 59:5-2 (“Section 5-2”). The UMDNJ Defendants argue that Sections 5-2(b)(1)
& (b)(2) apply here. The State Defendants argue that Sections 5-2(a), (b)(1) & (b)(2)
apply here. Plaintiff argues that none of the provisions in Section 5-2 apply here.
The Supreme Court of New Jersey has recognized that the public entity immunity
conferred by Section 5-2 “appear[s] to be absolute.” Tice v. Cramer, 133 N.J. 347, 367
(1993). Plaintiff resists this conclusion, arguing that Defendants are not immune under
Section 5-2 based on conduct that “shocks the conscience.” This argument is predicated
on a misreading of Fielder v. Stonack, 141 N.J. 101, 241 (1995). Fielder only addressed
the “shocks the conscience” standard in its discussion of federal liability under Section
1983. Fielder did not hold that the NJTCA’s immunities are limited by the “shocks the
conscience” standard.
5

Plaintiff’s final argument is that UMDNJ-University Hospital is not immune under
Section 5-2 because UMDNJ-University Hospital is not a public entity. UMDNJ is
clearly a public entity for purposes of the NJTCA. Lowe v. Zarghami, 158 N.J. 606, 614
(1999). While the Court has not located any case addressing whether UMDNJUniversity Hospital is a public entity, the Court sees no reason why UMDNJUniversity—a public hospital—would not be. Accordingly, the Court will DISMISS the
State Law Claims against Defendants WITH PREJUDICE. 4
IV.

CONCLUSION

For the foregoing reasons, the State Defendants’ motion to dismiss is GRANTED.
Counts I-VIII against the State Defendants are DISMISSED WITH PREJUDICE.
The UMDNJ Defendants’ motion to dismiss is GRANTED IN PART and
DENIED IN PART. Counts I, II, IV, V, VI, VII, and VIII against the UMDNJ
Defendants are DISMISSED WITH PREJUDICE. Count III against the UMDNJ
Defendants survives.
The Department of Public Safety’s motion to dismiss is GRANTED. Counts IVIII against the Department of Public Safety are DISMISSED WITH PREJUDICE.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: May 10, 2013

4

To the extent Plaintiff’s claims under state law seek to impose liability on individual public
employees, Plaintiff’s claims might not be barred. While public entities cannot be held liable for
the “acts of omissions of a public employee constituting a crime, actual fraud, actual malice, or
willful misconduct,” N.J.S.A. 59:2-10, a public employee can still be held liable for conduct that
was “outside the scope of his employment or constituted a crime, actual fraud, actual malice, or
willful misconduct,” N.J.S.A. 59:3-14.
6