MULLIN v. THE STATE OF NEW JERSEY et al
Filing
304
OPINION filed. Signed by Chief Judge Freda L. Wolfson on 5/31/2019. (mmh)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
JOAN MULLIN,
:
:
Plaintiff,
:
Civil Action No. 11-247 (FLW) (LHG)
:
v.
:
:
OPINION
KAREN BALICKI, et al.,
:
:
Defendants.
:
___________________________________ :
WOLFSON, Chief United States District Judge:
Pending before the Court is a motion to dismiss filed by Defendants Officer Nicholas
Dimler, Officer Robert Russo, Officer Eric Large (“Officer Defendants”) and Chief Ralph
Yansek, Lt. Dudich, Sgt. B. Stern, and Sgt. Thomas Spence (“Supervisor Defendants”)
(collectively, “Moving Defendants”).1 This case, arising out of a jailhouse suicide, was originally
assigned to the Hon. Mary Little, U.S.D.J., but was reassigned to me on November 30, 2017.
Plaintiff Joan Mullin (“Plaintiff”) brought this suit against Moving Defendants, Nurse Jane Byrd,
and Kintock Group,2 as administrator of the estate of her son, Robert Mullin (“Robert”), who
committed suicide while he was housed in a cell at the Central Reception and Assignment
1
The motion to dismiss was initially filed on behalf of Defendants Dimler, Dudich, and Stern
only. On December 3, 2018, counsel for these defendants informed the Court that he had begun
representing Defendants Spence, Large, Russo, and Yansick as well, and that these defendants
would join the pending motion to dismiss. See ECF No. 293.
2
Nurse Byrd was granted summary judgment by Order dated May 25, 2016, and was dismissed
from the case. Kintock Group has also since settled with Plaintiff.
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Facility (“CRAF”), a correctional facility operated by the New Jersey Department of Corrections
(“NJDOC”).
Moving Defendants currently seek dismissal of Plaintiff’s Third Amended Complaint
(“TAC”), which alleges that Moving Defendants (1) violated Robert’s First, Fourth, Eighth, and
Fourteenth Amendment rights under the United States Constitution (Count I); (2) violated rights
secured to Robert under Articles I and XII of the New Jersey Constitution (Count II); (3) were
negligent (Count III); (4) caused Robert to experience emotional distress (Count IV); (5)
engaged in abuse of process/abuse of authority (Count V); and (6) entered into a civil conspiracy
against Robert (Count VII).
For the following reasons, Moving Defendants’ motion is granted as to Counts V and
VII, and denied as to Counts I, II, III, and IV, except that Counts I and II are granted as to
Supervisor Defendants only.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff’s claims arise from the tragic jailhouse suicide of her son, Robert, on January
17, 2009. TAC at ¶ 47. Robert was a drug addict with a history of narcotics abuse and suicide
attempts. Id. at ¶ 25. Medical records obtained from the NJDOC revealed that Robert was
diagnosed as a suicide risk, had a family history of suicide, a history of mental illness including
anxiety, depression and mood disorder, and used psychotropic medication for his psychiatric
conditions. Id. at ¶ 79.
On or about January 15, 2009, while awaiting his imminent release from the Kintock
halfway house, Robert exhibited mental deterioration, including aggressive behavior, and he
swallowed a handful of pills (later identified as depression medications) in front of a caseworker
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at Kintock, then threw the rest of the pills in a trash can. Id. at ¶ 17. Robert was later found to be
in possession, and under the influence of, controlled substances, including cocaine and opiates.
Id. at ¶¶ 15-17.
As a result, Robert was moved to South Woods State Prison, a correctional facility,
where he underwent a medical evaluation. Id. at ¶¶ 18-19. A Licensed Social Worker at South
Woods identified Robert as a Mental Health Special Needs Inmate, i.e. an inmate suffering from
a psychiatric condition who is “unable to meet the functional requirements of incarceration
without mental health treatment” in accordance with stated NJDOC Policy (“the Policy”), and
constitutes a potential suicide risk. Id. at ¶ 26.
After the medical evaluation at South Woods, Robert was transferred to the CRAF on
January 16, 2009. Id. at ¶ 89. Robert’s Special Needs designation was noted on a transfer sheet
sent from South Woods to CRAF as part of Robert’s electronic medical records. Id. at ¶ 28.
Upon transfer, Robert was evaluated by Nurse Byrd. During that intake, Robert answered “Yes”
to the question “have you ever been hospitalized or treated for psychiatric illness,” and to the
question “have you ever considered or attempted suicide.” Id. at ¶ 88. In accordance with policy,
Robert was placed on the Special Needs Roster available to all monitoring, housing, supervisory
and medical personnel, and was transferred to a Close Custody Unit, Housing S3. Id at ¶¶ 31-32,
36. Despite this, Robert was not referred to psychiatric evaluation, which was also required by
the Policy. Id. at ¶¶ 36-40.
Officers Dimler, Russo and Large, the individual corrections officers on duty in the Close
Custody Unit, were responsible for the care, treatment, supervision and monitoring of Robert. Id.
at ¶¶ 48-49. Each of these officers covered different shifts on the night of the incident. Id. Chief
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Yansek, Lt. Dudich, Sgt. Stern and Sgt. Thomas were the supervisory and commanding officers
on duty responsible for overseeing the Officer Defendants. Id. at ¶ 51. According to the TAC,
the Policy requires high levels of monitoring and supervision in the Close Custody Unit for
Special Needs inmates, consisting of either “Close Watch”— intermittent monitoring of an
inmate either in person or by video monitoring at 15 minute intervals—or “Constant
Observation”— uninterrupted observance of one inmate to be conducted in person or by video
monitor when the video monitor provides continuous unobstructed vigilance. Id. at ¶ 38. Upon
transfer, a psychologist or psychiatrist is also required to conduct an initial assessment and
complete a suicide watch notice. Id at ¶ 44. If a mental health professional is not available due to
the time of the transfer after business hours, then the prisoner must be under Constant
Observation until an appropriate evaluation is made. Id. Also in accordance with the Policy, a
determination must be made as to what items will be permitted in the cell, including blankets or
sheets. Id. at ¶ 45
According to the TAC, all of the Moving Defendants were also obligated by policy to
know which inmates under their watch were designated Special Needs on the Special Needs
Roster, and, in fact, had direct knowledge that Robert was a Special Needs inmate requiring
special precautions and monitoring. Id at ¶ 52. The TAC alleges that, despite this knowledge and
in violation of the Policy, Officer Defendants failed to monitor Robert either on Constant
Observation or Close Watch. Id.
According to the reports of inmates housed near Robert, Officer Dimler made only one
round over the course of his entire shift. Inmates also reported that Officer Russo made several
troubling statements to Robert in response to Robert’s request to see a psychiatrist. Id. at ¶ 61.
4
Officer Russo allegedly told Robert to “go ahead and hang yourself” because “you have to wait
until the holidays are over to see the psych because they won't be back until the holidays are
over.” Id. at ¶ 55. In responses to Robert’s obvious distress, Officer Russo allegedly told Robert
to “Shut up. You might as well kill yourself,” and that “there was no psych available” so “I guess
you have to kill yourself.” Id. Moreover, an inmate heard Robert banging on a wall and asking to
see a psychologist, and another inmate stated “last night I heard the guy that died ask for the
psych…on 2nd shift and he was denied by CO Russo. I'll take a polygraph if you ask.” Id. at ¶
59. On January 17, 2009 at approximately 4:23 a.m., Officer Dimler found Robert unresponsive,
hanging from a noose made of a bed sheet. Id. at ¶ 47. Officer Dimler performed CPR, but failed
to revive Robert. Id. at ¶ 95.
This case has been the subject of over eight years of litigation. Plaintiff filed the initial
complaint on January 14, 2011, which was originally assigned to Judge Little, against several
parties, most of whom have since been dismissed: the State of New Jersey, and several
individual administrators and health care providers at the jail facilities. The matter was also
settled with Kintock, and Mercer County was voluntarily dismissed from the case. Nurse Byrd
was granted summary judgment by Order dated May 25, 2016. Plaintiff twice amended her
complaint to both flesh out the facts—in part to account for interim discovery she received—and
to modify the list of defendants. In particular, Plaintiff filed the Amended Complaint (“SAC”),
adding Officer Dimler as a Defendant in September 2012. After a series of discovery disputes, in
April 2013 the State supplied a Special Investigation Report detailing reports from inmates that
Robert had been crying out for help and was ignored; however, due to a clerical error, Plaintiff’s
attorney failed to review this material when it was received, and Judge Little ultimately
5
dismissed the SAC as to all Defendants in November 2013. After dismissal, in February 2014,
Plaintiff’s counsel discovered the overlooked material, and filed a motion to amend, which the
Magistrate Judge denied. Upon appeal, the Third Circuit reversed the denial of leave to amend
and permitted Plaintiff to file the TAC. The case was reassigned to me on November 30, 2017,
and the TAC was filed on January 25, 2018.
On October 26, 2018, Defendants Dimler, Dudich and Stern moved for dismissal,
arguing that the TAC should be dismissed on the following grounds: 1) failure to state a claim
for conspiracy under 42 U.S.C. § 1985; 2) that the New Jersey Tort Claims Act (“NJTCA”)
provides immunity from Plaintiff’s state law claims; 3) failure to state a claim for abuse of
process/abuse of authority; 4) failure to state a claim for civil conspiracy under New Jersey state
law; and 5) that qualified immunity applies to Plaintiff’s constitutional claims. On December 3,
2018, Defendants Russo, Large, Spence and Yansek joined the pending motion.
II.
LEGAL STANDARD
Moving Defendants move to dismiss under Federal Rule of Civil Procedure Rule
12(b)(6). Under Fed. R. Civ. P. 12(b)(6), a complaint may be dismissed for “[f]ailure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When reviewing a motion to
dismiss on the pleadings, courts “accept all factual allegations as true, construe the complaint in
the light most favorable to the plaintiff, and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d
224, 233 (3d Cir. 2008) (quotations omitted). Under this standard, the factual allegations set
forth in a complaint “must be enough to raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed, “the tenet that a court must accept
6
as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[A] complaint must do more than allege the
plaintiff's entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
However, Rule 12(b)(6) only requires a “short and plain statement of the claim showing
that the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. The complaint must
include “enough factual matter (taken as true) to suggest the required element. This does not
impose a probability requirement at the pleading stage, but instead simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of the necessary element.”
Phillips, 515 F.3d at 234 (citation and quotations omitted); Covington v. Int’l Ass’n of Approved
Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (“[A] claimant does not have to set out in
detail the facts upon which he bases his claim. The pleading standard is not akin to a probability
requirement; to survive a motion to dismiss, a complaint merely has to state a plausible claim for
relief.” (citation and quotations omitted)).
Under the current pleading regime, when a court considers a dismissal motion, three
sequential steps must be taken: first, “it must take note of the elements the plaintiff must plead to
state a claim.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quotations
omitted). Next, the court “should identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. (quotations omitted). Lastly, “when
there are well-pleaded factual allegations, the court should assume their veracity and then
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determine whether they plausibly give rise to an entitlement to relief.” Id. (quotations and
brackets omitted).
III.
DISCUSSION
Moving Defendants move to dismiss on the following grounds: 1) qualified immunity
bars all § 1983 claims (and parallel NJCRA claims) against Moving Defendants in their
individual capacities; 2) Plaintiff has failed to state a claim for conspiracy under Federal and
New Jersey law; and 3) Plaintiff’s state tort claims should be dismissed due to NJTCA immunity
or failure to state claim. I will address each of these arguments in turn.
A. Qualified Immunity - § 1983 Individual Capacity Claims Against Moving
Defendants
Moving Defendants argue that the doctrine of qualified immunity shields them from
Plaintiff’s Count I, for violation of Robert’s Constitutional Rights in connection with his jail cell
suicide. “Qualified immunity is ‘an entitlement not to stand trial or face the burdens of
litigation.’” Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)). Under this doctrine, a government official is immune from claims for damages
unless, interpreting the allegations most favorably to the plaintiff, they show (1) that the official
violated the plaintiff's constitutional or statutory rights and (2) that the rights violated were
clearly established. Id. at 201; see also Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982) (“[G]overnment officials performing discretionary functions ... are shielded from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person should have known.”). While courts generally
address the first prong—whether a constitutional violation is alleged—first, a court may exercise
discretion in considering these elements in the order it sees fit. Pearson v. Callahan, 555 U.S.
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223, 236 (2009). Qualified immunity applies only to defendants in their individual capacities.
Williams v. Sec'y Pa. Dep't of Corr., 848 F.3d 549, 572 n.151 (3d Cir. 2017).
As an initial matter, with regard to the second prong of the qualified immunity analysis,
there is no dispute that the right at issue is clearly established. Prison officials have a
Constitutional “obligation not to act with reckless indifference to a prisoner's vulnerable mental
state when the officials know or should know of that prisoner's suicidal tendencies.” Snyder v.
Baumecker, 708 F. Supp. 1451, 1460 (D.N.J. 1989) (citing Freedman v. City of Allentown, Pa.,
853 F.2d 1111, 1115 (3d Cir. 1988); Colburn v. Upper Darby Twp., 838 F.2d 663, 669 (3d Cir.
1988) (“Colburn I”)).3 This is precisely the right Plaintiff alleges Moving Defendants violated
here: that Robert had a particular vulnerability to suicide of which Defendants should have been
aware, and that Defendants acted with reckless indifference to this known risk. Thus, the
3
Count I also asserts that Moving Defendants violated the following Constitutional rights: the
“First Amendment right to be free of retaliation or abuse based on the request for mental health
assistance” and the “14th Amendment right to equal protection, based on discrimination in failing
to offer mental health treatment.” ECF No. 294 at 30. To the extent that these constitute
separate claims, they are dismissed for the following reasons. As an initial matter, a vulnerability
to suicide claim brought by an inmate—which is the focus of Plaintiff’s opposition brief—is
properly analyzed under the Eighth Amendment, except for claims brought by pretrial detainees
which are brought under the Fourteenth Amendment due process clause. Palakovic v. Wetzel,
854 F.3d 209, 222 (3d Cir. 2017). Further, in order to assert a First Amendment retaliation
claim, Plaintiff must as a threshold issue demonstrate that he engaged in constitutionally
protected conduct. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Here, the only
plausible constitutionally protected conduct is Robert’s request to Officer Russo to see a
psychiatrist. However, while the filing of official grievances regarding medical care constitutes
protected activity, Plaintiff does not cite any cases—and the Court is unaware of any—in which
the mere verbal request for medical care by a prisoner constitutes protected activity for the
purposes of a First Amendment retaliation claim. See, e.g. Wicker v. Shannon, No. 09-629, 2010
WL 3812351, at *6 (M.D. Pa. Sept. 21, 2010) (although filing of grievance form is protected
conduct, merely requesting one is not); Hunter v. Bledsoe, No. 10-0927, 2010 WL 3154963, at
*4 (M.D. Pa. Aug. 9, 2010) (same). Moreover, to the extent that Plaintiff asserts an equal
protection claim, he has not identified a protected class to which he belongs.
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question is whether Moving Defendants violated that right. As this question requires a different
analysis for both Officer Defendants and Supervisor Defendants, I will address each of these sets
of defendants separately.
1. Officer Defendants
Plaintiff brings claims against the three Officer Defendants who were on duty in the
Close Custody Unit on the night of Robert’s suicide, and who were allegedly directly responsible
for monitoring Robert. The Eighth Amendment, which is made applicable to the states through
the Fourteenth Amendment, prohibits the infliction of cruel and unusual punishment. U.S. Const.
amend. VIII. “[D]eliberate indifference to serious medical needs of prisoners” constitutes a
violation of that constitutional proscription. Estelle v. Gamble, 429 U.S. 97, 104 (1976). The
Third Circuit has held that a prisoner’s vulnerability to suicide is one such serious medical need.
Thus, to assert an Eighth Amendment claim for deliberate indifference to a prisoner’s
vulnerability to suicide, a Plaintiff must allege the following: (1) that the individual had a
particular vulnerability to suicide, meaning that there was a “strong likelihood, rather than a
mere possibility,” that a suicide would be attempted; (2) that the prison official knew or should
have known of the individual’s particular vulnerability; and (3) that the official acted with
reckless or deliberate indifference, meaning something beyond mere negligence, to the
individual’s particular vulnerability. Palakovic v. Wetzel, 854 F.3d 209, 223–24 (3d Cir. 2017);
see also Colburn I, 838 F.2d 663; Colburn v. Upper Darby Township (“Colburn II”), 946 F.2d
1017 (3d Cir. 1991); and Woloszyn v. County of Lawrence, 396 F.3d 314 (3d Cir. 2005).
At this stage, Plaintiff has satisfied the first prong, that Robert had a particular
vulnerability to suicide. The Third Circuit has explained that an individual’s particular
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vulnerability to suicide “speaks to the degree of risk inherent in the detainee’s condition.”
Palakovic, 854 F.3d at 222 (quoting Colburn II, 946 F.2d at 1024). A prisoner’s “strong
likelihood” of suicide “must be ‘so obvious that a lay person would easily recognize the
necessity for’ preventative action.” Id. (quoting Colburn II, 946 F.2d at 1025). Plaintiff alleges
that Robert had a history of suicide attempts, diagnoses as a suicide risk, a familial history of
suicide, a history of mental illness including anxiety, depression and mood disorder, and use of
psychotropic medication. Plaintiff further alleges that immediately prior to transfer to the DOC
facilities—two days before his death—Robert had swallowed a handful of depression medication
pills in front of a caseworker at Kintock. This documented history of suicidal behavior clearly
indicates that there was a “strong likelihood, rather than a mere possibility that self inflicted
harm would occur.” Woloszyn, 396 F.3d at 322 (quoting Colburn II, 946 F.2d at 1024) (“[W]hen
a mentally ill, depressed person has attempted to kill himself multiple times, has engaged in selfharm… it cannot be said as a matter of law that the risk of suicide is nothing more than a ‘mere
possibility.’”). Moreover, Plaintiff avers that various neighboring inmates had heard Officer
Russo recognizing Robert’s suicidal desires, by allegedly taunting Robert, “if you want to kill
yourself, kill yourself'.” See Colburn II, 946 F.2d at 1025 (holding that there is a “strong
likelihood” where a lay person would recognize the necessity for preventive action). Taken
together, these allegations indicate that Robert had a particular vulnerability to suicide.
Further, there is no question as to the second prong of the analysis, that Officer
Defendants knew, or, at the very least should have known, of Robert’s particular vulnerability to
suicide. Officer Russo had actual knowledge of Robert’s vulnerability, as several inmates stated
that Robert told Officer Russo that he wanted to kill himself and begged to see a psychiatrist, and
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that Officer Russo acknowledged these pleas. While Plaintiff does not allege that Officers
Dimler and Large had direct, subjective knowledge of Robert’s suicidal tendencies, “[i]t is not
necessary for the custodian to have a subjective appreciation of the detainee’s particular
vulnerability.” Palakovic, 854 F.3d at 231 (citing Woloszyn, 396 F.3d at 320). Rather, prison
officials may “know” of a particular vulnerability to suicide where they have knowledge of a
history of suicide attempts or a diagnosis identifying suicidal propensities, which can be
presumed if all of this information is accessible in the prisoner’s records. Id. at 230-31. At the
time of transfer to CRAF, Robert was allegedly placed on the Special Needs Roster, reserved for
an inmate suffering from a psychiatric condition who is “unable to meet the functional
requirements of incarceration without mental health treatment,” and is a suicide risk. According
to Plaintiff, Robert’s suicidal history was noted in the records, and in his intake form, he
admitted to having attempted suicide in the past. “These facts, taken together, are sufficient to
support a reasonable inference that prison officials and medical personnel knew or should have
known of [Robert’s] particular vulnerability to suicide.” Id. (“Brandon had attempted suicide on
prior occasions and told prison officials so. The prison identified Brandon as a ‘suicide behavior
risk’ and rated him ‘Stability Rating D,’ diagnosed him with multiple, serious mental illnesses
known to heighten the risk of self-harm, and placed him on the ‘mental health roster.’ The
Palakovics allege that all of this information was set forth in Brandon’s records, which the
corrections officers and medical staff must have—or, at the very least, should have—
reviewed….”).
Finally, having determined that Officer Defendants had actual or constructive knowledge
of Plaintiff’s vulnerability, I next turn to whether they were deliberately indifferent to such risk.
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When assessing whether a defendant showed deliberate indifference to a prisoner’s risk of or
vulnerability to suicide, the Third Circuit has looked to the definition of that term derived
from Farmer v. Brennan, 511 U.S. 825 (1994), which demands “something more culpable on the
part of the officials than a negligent failure to recognize the high risk of suicide.” Palakovic, 854
F.3d at 231 (citing Woloszyn, 396 F.3d at 320). Thus, an “official knows of and disregards an
excessive risk to inmate health or safety” when he is “aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Estate of Allen v. Cumberland Cty., No. 15-6273, 2018 WL 1293154, at *8 (D.N.J.
Mar. 13, 2018) (citing Farmer, 511 U.S. at 834). As an initial matter, there is again no doubt that
Plaintiff has alleged that Officer Russo acted with deliberate indifference to the risk of Robert’s
vulnerability to suicide: Robert told Officer Russo that he wanted to kill himself, but Officer
Russo ignored and humiliated him, and even encouraged Robert to “go ahead and hang
yourself.” TAC at ¶¶ 54-60. As for the remaining Officer Defendants—Officers Dimler and
Large—it is enough that Plaintiff has alleged that they had awareness of Robert’s vulnerability to
suicide, which they recklessly disregarded. Indeed, at the motion to dismiss stage, courts have
found that prison officials acted with reckless indifference to a prisoner’s particular vulnerability
to suicide when, as here, they ignore “positive answers to relevant medical intake questions, or
otherwise obvious indicators of suicidality.” Estate of Allen, 2018 WL 1293154, at *8 (citing,
e.g., Palakovic, 854 F.3d at 230; Colburn I, 838 F.2d at 670). Here, Plaintiff alleges that Robert
positively answered medical intake questions indicating suicidality, and, otherwise, outwardly
expressed his suicidal intentions. Despite this, Officer Defendants allegedly failed to adequately
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monitor Plaintiff, and even permitted him to have bed sheets, the tools that Robert ultimately
used to end his own life. These allegations are sufficient to survive a motion to dismiss.
In response, Moving Defendants merely argue that Officer Defendants are not medical
professionals, but “officers of the law who maintain order in a correctional facility and conduct
their duties to the best of their ability.” ECF No. 287-1 at 23. According to Moving Defendants,
the fact that Officer Dimler attempted to save Robert’s life by administering CPR indicates that
Plaintiffs were doing their best to ensure Robert’s safety, but ultimately failed. Id. However, the
obligation not to act with reckless indifference to a prisoner’s vulnerable mental state extends
beyond medical professionals to any prison official who recklessly disregards a known risk of a
particular vulnerability to suicide. See Boyd v. Bergen Cty. Jail, No. 07-769, 2012 WL 3821890,
at *16 (D.N.J. Sept. 4, 2012), aff'd sub nom., 536 F. App'x 203 (3d Cir. 2013) (noting that
prisoner’s Eighth Amendment claims against prison guards “are subject to the same deliberate
indifference standard as his claims against medical personnel”). And, officers are not absolved
from liability even if they attempt lifesaving procedures when a prisoner successfully attempts
suicide as a result of the officers’ deliberate indifference to a known risk. If I were to adopt
Moving Defendants’ position, it would run directly contrary to reason and established law.
Thus, because Plaintiff has adequately alleged that Officer Defendants violated Robert’s
Eighth Amendment rights, qualified immunity does not shield Officer Defendants from
Plaintiff’s Constitutional claims.
2. Supervisory Liability
Supervisor Defendants are not alleged to have been personally responsible for monitoring
Robert while he was in the Close Custody Unit. Nevertheless, Plaintiff alleges that Supervisor
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Defendants were responsible for the unreasonable and dangerous practice of failing to ensure
that Officer Defendants were adequately monitoring Robert, including by not maintaining log
books documenting the Officer Defendants’ rounds. Because vicarious liability and respondeat
superior are not actionable under § 1983, Plaintiff must show that Supervisor Defendants
violated Robert’s constitutional rights. See Estate of Moore v. Cumberland Cty., No. 17-2839,
2018 WL 1203470, at *2 (D.N.J. Mar. 8, 2018). The Third Circuit has recognized that there are
two theories of supervisory liability. First, supervisors can be held indirectly liable if they
established and maintained a policy, practice or custom which itself directly caused the
constitutional harm. Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016) (citing Santiago v.
Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010); Sample v. Diecks, 885 F.2d 1099, 1118
(3d Cir. 1989)).4 Second, they can be directly “liable if they participated in violating a plaintiff's
rights, directed others to violate them, or, as the persons in charge, had knowledge of and
acquiesced in their subordinates' violations.” Id. A plaintiff “can show this by establishing that
the risk was obvious.” Beers–Capitol v. Whetzel, 256 F.3d 120, 135 (3d Cir. 2001). Here,
although it is not entirely clear which method of supervisory liability Plaintiff asserts, the TAC
does not adequately allege that Supervisor Defendants may be liable under either method.5
4
The Third Circuit has since questioned whether a supervisor may be held indirectly liable for
deficient policies using this first method—the so-called Sample test—“as the Supreme Court
may have called the…test into question in Ashcroft v. Iqbal, 556 U.S. 662 (2009).” Palakovic,
854 F.3d at 225. Nonetheless, as explained infra, Plaintiff has failed to adequately allege
supervisory liability under either method.
5
In her opposition brief, Plaintiff also makes reference to a Monell claim, under which a
governmental entity may be held directly liable for establishing an unconstitutional policy,
practice, or custom. However, as no governmental entity is a party to the suit, Plaintiff has no
basis to assert such a claim.
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As for the first method, Plaintiff argues only that Supervisor Defendants “knew the
policy regarding the level of supervision required” for suicide risk inmates, yet failed ensure that
this policy was carried out. Under Third Circuit law,
[t]o hold a supervisor liable for such an Eighth Amendment violation, the
plaintiff must identify a supervisory policy or procedure that the supervisor
defendant failed to implement, and [allege] that: (1) the policy or procedures in
effect at the time of the alleged injury created an unreasonable risk of a
constitutional violation; (2) the defendant-official was aware that the policy
created an unreasonable risk; (3) the defendant was indifferent to that risk; and
(4) the constitutional injury was caused by the failure to implement the
supervisory procedure
Sample, 885 F.2d at 1118. Under this test, “to establish a claim against a policymaker under §
1983 a plaintiff must allege and prove that the official established or enforced policies and
practices directly causing the constitutional violation.” Chavarriaga v. New Jersey Dep’t of
Corrs., 806 F.3d 210, 229 (3d Cir. 2015). Here, the problem with Plaintiff’s attempt to hold
Supervisor Defendants liable is that she has neither clearly articulated the precise policy,
practice, or custom at issue, nor has she alleged who implemented one. Although a plaintiff
could theoretically allege an Eighth Amendment violation based on a widespread policy,
practice, or custom of failing to ensure that suicide risk inmates were effectively monitored,
Plaintiff’s vague allegations here do not suffice: there is no indication about how prevalent the
practice is, nor who was responsible for implementing it. Moreover, Plaintiff merely alleges that
Supervisor Defendants were on duty while Officer Defendants failed to adequately monitor
Robert, but does not allege any awareness of the alleged failure to monitor.
16
Indeed, Plaintiff’s approach to establishing supervisory liability is similar to one that the
Third Circuit rejected in Parkell v. Danberg. There, a plaintiff-prisoner brought a § 1983 claim
against supervisory prison officials, alleging that they deprived him of adequate medical care by
allowing prison staff to subject him to the allegedly unconstitutional practice of visual cavity
body searches. Parkell, 833 F.3d at 319-20. The Third Circuit disagreed, noting that the plaintiff
had not shown “any involvement [by the supervisor] in establishing or enforcing any specific
policies…or even any awareness that the searches were occurring.” Id. at 331. It was, moreover,
“unclear whether [the alleged policy] was in accordance with official DOC policy endorsed by
[the supervisor], a policy limited to VCC, or even just an informal practice or custom.” Id. Here,
Plaintiff has similarly failed to allege any involvement by Supervisor Defendants in the
monitoring decisions, or whether such decisions amounted to official policy or informal practice
or custom. As in Parkell, to presume that the alleged lax monitoring “arose from [Supervisor
Defendants’] policies merely because of [their] position[s] is to rely on respondeat superior.” Id.
Plaintiff likewise cannot establish supervisory liability through the second method—
direct liability based on acquiescence to a known obvious risk. Under this method, a plaintiff
must show that the defendants knew or were aware of and disregarded an excessive risk to the
plaintiffs' health or safety, which can be established by showing that the risk was obvious. BeersCapitol, 256 F.3d at 135. The essence of this method of supervisory liability is the following:
“Where a supervisor with authority over a subordinate knows that the subordinate is violating
someone’s rights but fails to act to stop the subordinate from doing so, the factfinder may usually
infer that the supervisor ‘acquiesced’ in…the subordinate's conduct.” Laurier v. D'Ilio, No. 156043, 2018 WL 638747, at *6 (D.N.J. Jan. 31, 2018) (quoting Bennett v. Washington, No. 11–
17
176, 2015 WL 731227, at *11 (E.D. Pa. Feb. 19, 2015)). Here, although Plaintiff has vaguely
and conclusorily alleged that Supervisor Defendants were on duty while Officer Defendants
failed to perform their monitoring duties, and, therefore, had the required knowledge, there is no
indication that Supervisor Defendants had any actual awareness of this alleged constitutional
violation. With only conclusory allegations regarding Supervisory Defendants’ knowledge,
Plaintiff’s attempt to assert supervisory liability cannot survive a motion to dismiss. See id. at *8
(granting motion to dismiss against supervisory prison officials for failure to provide adequate
medical care because plaintiff did “not allege [supervisors] knew [plaintiff] would be denied
adequate medical care in PHD; nor does he allege they knew he was not having his bandages
changed as directed by the hospital, or that they knew of any of the other allegedly filthy
conditions in PHD”).
Thus, because Plaintiff has failed to adequately allege supervisory liability, qualified
immunity bars Plaintiff’s § 1983 claims against Supervisor Defendants.
B. NJCRA Claims
In Count II, Plaintiff also asserts that Moving Defendants violated his rights under the
NJCRA. The NJCRA was modeled after § 1983, and, thus, courts in New Jersey have
consistently looked at claims under the NJCRA “through the lens of § 1983.” Trafton v. City of
Woodbury, 799 F.Supp.2d 417, 443–44 (D.N.J.2011); Chapman v. New Jersey, Civ. No. 08–
4130, 2009 WL 2634888, *3 (D.N.J. Aug. 25, 2009) (“Courts have repeatedly construed the
NJCRA in terms nearly identical to its federal counterpart ....”); Armstrong v. Sherman, Civ. No.
09–716, 2010 WL 2483911, *5 (D.N.J. June 4, 2010) (“[T]he New Jersey Civil Rights Act is a
kind of analog to section 1983 ....”). Accordingly, Plaintiff’s New Jersey State Constitution
18
claim will be interpreted analogously to his § 1983 claim. Trafton, 799 F.Supp.2d at 443–44;
Bayete v. Ricci, 489 F. App'x 540, 543 (3d Cir. 2012) (citing State v. Ramseur, 106 N.J. 123,
169 (1987)) (concluding that New Jersey’s constitutional provisions concerning cruel and
unusual punishment are interpreted analogously to the Eighth Amendment). Because the Court
has concluded that qualified immunity bars Plaintiff’s parallel Eighth Amendment § 1983 claims
against Supervisor Defendants but not against Officer Defendants, the same conclusion applies
to Plaintiff’s NJCRA cause of action.
C. Civil Rights Conspiracy
The Court will dismiss without prejudice Plaintiff's conspiracy claim under § 1985 for
failure to state a claim for relief. Civil rights conspiracies require a “meeting of the minds,” and
to survive screening or a motion to dismiss, plaintiffs must provide some factual basis to support
the existence of the elements of a conspiracy, namely, agreement and concerted action. See
Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir. 2008) (citing Adickes v. S.H. Kress
& Co., 398 U.S. 144, 158 (1970)). Here, the TAC contains no facts related to a meeting of the
minds between Moving Defendants and any of the other parties involved. Although Plaintiff
correctly points out that such an agreement may be proven through circumstantial evidence,
“pure speculation is not [sufficient].” Boyd, 2012 WL 3821890, at *8. Here, Plaintiff offers
nothing more than pure speculation that such an agreement between Moving Defendants existed
because they were all on duty when Plaintiff was allegedly denied medical care and committed
suicide. Thus, this claim must also be dismissed. See Aulisio v. Chiampi, No. 17-3301, 2019 WL
1299712, at *3 (3d Cir. Mar. 20, 2019) (dismissing conspiracy claim against state prison
officials because inmate-prisoner “offered nothing more than conclusory statements that
19
Defendants conspired to deprive him of his constitutional rights; no evidence suggests that they
agreed, plotted, or even discussed doing so”).6 The conspiracy claim is, therefore, dismissed.
D. Tort Claims Against Individual Defendants
Plaintiff also asserts three additional common law tort claims against Moving
Defendants: negligence (Count III), IIED (Count IV), and abuse of process/abuse of authority
(Count V).7 Moving Defendants, in response, argue that the NJTCA immunizes them from
liability. For the following reasons, the NJTCA immunity provisions are not applicable in the
present matter, and Plaintiff has stated a claim for negligence and IIED, but not for abuse of
process/authority.
1. Immunity
New Jersey state law pursuant to the NJTCA limits the circumstances in which state
officials and state entities can be held liable under state law. N.J.S.A. 59:1–1 to 12–3. Moving
Defendants have asserted that the alleged conduct at issue is shielded from liability under state
law by the NJTCA. Specifically, Moving Defendants argue that, pursuant to N.J.S.A. 59:6–5 and
Plaintiff’s state common law civil conspiracy claim is also dismissed for the same reasons. The
elements of a civil conspiracy under New Jersey law are “two or more persons acting in concert
to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element
of which is an agreement between the parties to inflict a wrong against or injury upon another,
and an overt act that results in damage.” Mercedes–Benz USA, LLC v. ATX Group, Inc., No. 08–
3529, 2010 WL 3283544, at *12 (D.N.J. 2010) (quoting Banco Popular N. Am. v. Gandi, 184
N.J. 161, 177 (2005)). Here, Plaintiff has not alleged the existence of an agreement by even
circumstantial evidence, such as through “the close association and frequent communication
between the major players and the pattern of conduct among all of them.” Bd. of Educ., Asbury
Park v. Hoek, 38 N.J. 213, 239 (1962).
6
7
As already discussed, Plaintiff’s civil conspiracy claim under New Jersey law is dismissed.
20
6–6, they are immune for failing to diagnose a mental condition, and for any decision to confine
a person for mental illness. Those sections provide:
a. Neither a public entity nor a public employee is liable for injury resulting from
diagnosing or failing to diagnose that a person is afflicted with mental illness or
is a drug dependent person or from failing to prescribe for mental illness or drug
dependence; provided, however, that nothing in this subsection exonerates a
public entity or a public employee who has undertaken to prescribe for mental
illness or drug dependence from liability for injury proximately caused by his
negligence or by his wrongful act in so prescribing.
b. Nothing in subsection a. exonerates a public entity or a public employee from
liability for injury proximately caused by a negligent or wrongful act or omission
in administering any treatment prescribed for mental illness or drug dependence.
N.J.S.A. 59–6–5.
Neither a public entity nor a public employee is liable for any injury resulting
from determining in accordance with any applicable enactment: (1) whether to
confine a person for mental illness or drug dependence; (2) the terms and
conditions of confinement for mental illness or drug dependence; (3) whether to
parole, grant a leave of absence to, or release a person from confinement for
mental illness or drug dependence.
N.J.S.A. 59:6–6.
Courts interpret these provisions broadly, and close calls in application are resolved in
favor of immunity, not liability. See, e.g., Charpentier v. Godsil, 937 F.2d 859, 865 (3d
Cir.1991); Greenway Dev. Co. v. Bor. of Paramus, 163 N.J. 546, 552 (2000); Ludlow v. City of
Clifton, 305 N.J.Super. 308, 311 (N.J. App. Div. 1997); Perona v. Twp. of Mullica, 270
N.J.Super. 19, 27 (N.J. App. Div. 1994). These provisions reflect and advance New Jersey's
public policy in favor of providing immunity to public employees for their discretionary decision
making. Perona, 270 N.J.Super. at 27.
The New Jersey Appellate Division has stated that the immunity conferred by N.J.S.A.
59:6–6 is not limited only to confinement within a “mental institution,” and that the linchpin for
21
such immunity “is a discretionary decision whether to confine a person for the care and treatment
of mental illness rather than the particular type of facility in which a person may be
confined.” Ludlow, 305 N.J.Super. at 311. Immunity is also not limited to physicians and can
apply to any public employee, including police officers. Perona, 270 N.J.Super. at 27.
Before the case was transferred to me, Judge Little initially granted Officer Dimler
immunity under N.J.S.A. 59:6–6 because she construed Plaintiff’s claims as relating to
Defendants’ “alleged failure to properly confine the decedent based on his mental illness and
substance abuse under N.J.S.A. 59:6–6.” Mullin v. Balicki, No. 11-247, 2013 WL 5935998, at
*8 (D.N.J. Nov. 1, 2013). The court ruled that the “decision before Movants was whether to
further confine the decedent from the general prison population as a result of potential mentalhealth issues. Movants decided against such confinement, and therefore, their decision is one
considering ‘whether to confine a person for mental illness or drug dependence.’” Id. at *9
(quoting N.J.S.A. 59:6–6).
Now, however, Plaintiff no longer pleads that there was negligence in the housing
placement, i.e. that Robert was improperly released into the general prison population. This is
not a case, as in those where the immunity provisions have applied, where there was misfeasance
regarding where to confine Robert, how to diagnose or treat him, or whether to change the terms
of confinement. Rather, the gravamen of the TAC is that the Moving Defendants knew of
Roberts’ vulnerability to suicide; that Robert was in fact housed appropriately, but Moving
Defendants failed to follow standards, protocols, and policies in connection with monitoring
Robert and denied him medical care when requested. The Act provides immunity in all
circumstances for injury resulting from the failure to diagnose or prescribe, but provides no
22
immunity for injury resulting from a failure of treatment, as is the case here. Charpentier, 937
F.2d at 864.8
In Estate of Wilson v. N. State Prison, for instance, the defendant prison officials
attempted to assert NJTCA immunity in similar circumstances against the estate of an inmate
who had committed suicide while incarcerated. No. 07-1942, 2008 WL 2478377 (D.N.J. June
18, 2008). In finding the immunities did not apply, the court concluded that that [the decedent]
had already been diagnosed as a suicide risk, having been placed on suicide
watch on at least two occasions prior to his death, and that Wilson had been
evaluated by NSP physicians, psychiatrists, and/or nurses. These medical
personnel are alleged to have failed to properly treat, medicate, and/or diagnose
Wilson's medical and mental health condition during their treatment or
examination of Wilson. The subsequent denials of medical care and treatment
by the Moving Defendants are also alleged to have contributed to his death.
Id. at ¶ 5. Here, Plaintiff alleges that Plaintiff had already been evaluated by medical personnel
upon intake and placed on a Special Needs Roster, requiring a heightened level of supervision.
Thus, “it is logical for the Court to infer from these allegations that the defendants had already
identified [Robert] with a medical or mental health condition of sufficient severity as to require
suicide monitoring, and that there were medical diagnoses and/or examinations related to his
medical and mental health condition.” Id. NJTCA immunity, is, therefore, inapplicable to
Plaintiff’s state law claims.
8
The TAC does allege that Moving Defendants denied Plaintiff access to a psychiatrist, in
violation of the Policy. However, the basis for Plaintiff’s vulnerability to suicide claims is not
that the lack of a psychiatric evaluation resulted in a misdiagnosis that Plaintiff was not a suicide
risk, which would likely confer immunity to Moving Defendants; rather, Plaintiff alleges that he
had already been identified as a suicide risk who required heightened monitoring, but did not
receive it.
23
2. Negligence
Plaintiff argues that both sets of Moving Defendants were negligent in their actions or
inactions that led to Robert’s suicide. “‘[T]o sustain a common law cause of action
in negligence’ under New Jersey law, ‘a plaintiff must prove four core elements: (1) a duty of
care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.’” Aymonier v.
U.S., 432 F.App'x 66, 67 (3d Cir. 2011) (quoting Polzo v. Cnty of Essex, 196 N.J. 569, 584
(2008)).
Here, Plaintiff has alleged that Officer Defendants had a duty, pursuant to NJDOC
policy, to monitor Robert, a known suicide risk; they breached this duty by failing to monitor
Robert; and that the failure to monitor Robert resulted in him committing suicide. These
allegations are sufficient at this stage to state a claim for negligence: in finding already that
Officer Defendants were recklessly or deliberately indifferent to Robert’s “strong likelihood” of
suicide, I necessarily determined that Officer Defendants’ culpability was “something beyond
mere negligence.” Palakovic, 854 F.3d at 222 (citing Colburn II, 946 F.2d at 1024–25); Hearns
v. Johnson, No. 16-3284, 2016 WL 4690386, at *7 (D.N.J. Sept. 6, 2016) (“[O]fficials at
the jail clearly did owe Plaintiff a duty of care to the extent that they were required to provide
him adequate medical care”). Although I dismissed Plaintiff’s Eighth Amendment claims against
Supervisor Defendants due to qualified immunity, in doing so I merely found that they had not
been recklessly or deliberately indifferent to Robert’s rights, a level of culpability higher than
negligence. Supervisor Defendants have offered no argument as to why the failure to ensure that
Officer Defendants were monitoring Plaintiff did not amount to mere negligence, and, moreover,
it is plausible, at the motion to dismiss stage, that Supervisor Defendants had a duty to ensure
24
that proper monitoring was occurring but failed to do so, which resulted in Robert’s suicide. As
such, Plaintiff has sufficiently stated a claim for negligence against both Officer and Supervisor
Defendants.
3. Emotional Distress
The TAC asserts a cause of action for “emotional distress.” In her opposition papers,
Plaintiff clarifies that the claim refers to an IIED claim against Officer Russo. To state a claim
for intentional infliction of emotional distress, a party must plead “intentional and outrageous
conduct by the defendant, proximate cause, and distress that is severe.” Taylor v. Metzger, 152
N.J. 490, 509 (1998) (citation omitted). New Jersey sets a “high bar” for a plaintiff to establish
extreme and outrageous conduct. See Taveras v. Resorts Int’l Hotel, Inc., No. 07-4555, 2008 WL
4372791, at *6 (D.N.J. Sept. 19, 2008) (citing Fregara v. Jet Aviation Bus. Jets, 764 F.Supp.
940, 956 (D.N.J. 1991)). “Only where reasonable persons may differ is it for the jury, subject to
the control of the court, to determine whether the conduct alleged in this case is sufficiently
extreme and outrageous to warrant liability.” McConnell v. State Farm Mut. Ins. Co., 61
F.Supp.2d 356, 363 (D.N.J. 1999) (internal quotation marks omitted).
Here, Plaintiff alleges that Officer Russo engaged in intentional and outrageous conduct
by repeatedly telling Robert, who was allegedly openly suicidal, to kill himself. These statements
included telling Robert to “go ahead and hang yourself”; to “Shut up. You might as well kill
yourself”; and that “there was no psych available” so “I guess you have to kill yourself.” TAC at
¶¶ 54-60. These alleged statements, which immediately preceded Robert’s suicide by hanging,
are, at the very least, such that reasonable persons might differ as to whether they are sufficiently
extreme and outrageous to warrant liability. See McDonald-Witherspoon v. City of Philadelphia,
25
No. 17-1914, 2018 WL 4030702, at *13 (E.D. Pa. Aug. 23, 2018) (denying motion to dismiss in
prison suicide case, because “[a]t this early stage of the litigation we conclude that these
allegations plausibly demonstrate that MHM engaged in extreme or outrageous conduct” because
jail “intentionally abdicated its responsibilities for Jones’s psychiatric care…. with full
knowledge of the danger it posed to him”).
4. Abuse of Process/Abuse of Authority
Although the TAC asserts a cause of action for abuse of process/abuse of authority,
Plaintiff, in her opposition papers, specifically states that she brings Count V as a tort of abuse of
authority “separate and apart from a constitutional violation.” ECF No. 294 at 38. Contrary to
Plaintiff’s assertion, no such cause of action exists under the law. See Mitchell v. Walters, No.
10-1061, 2010 WL 3614210, at *5 (D.N.J. Sept. 8, 2010) (“The Court is frankly at a loss to
construe Plaintiff's ‘abuse of authority’ assertion as any claim cognizable in the law.”); see also
Brunson v. New Jersey, No. 17-04577, 2018 WL 3388303, at *3 (D.N.J. July 12, 2018)
(dismissing abuse of authority claim). Plaintiff’s reliance on the phrase “abuse of municipal
power and authority” in Hyland v. Borough of Allenhurt, 78 N.J. 190, 196 (N.J. 1978) is
misplaced. The New Jersey Supreme Court, in that case, did not in fact find that such a tort
existed, and it did not otherwise apply tort law. Rather, the Court used the language to explain its
ruling that the Borough of Allenhurst could not deprive users of a public beach from adjacent
public toilets. Id. The case simply does not have any application to the instant matter.
Thus, Plaintiff’s claim for abuse of authority is dismissed.
IV.
CONCLUSION
26
For the foregoing reasons, Moving Defendants’ motion to dismiss the TAC is DENIED
as to Counts, I, II, III, and IV, except it is GRANTED insofar as Counts I and II are asserted
against Supervisor Defendants. The motion to dismiss is also GRANTED as to Counts V and
VII, which are dismissed as to all Moving Defendants.
Dated: May 31, 2019
/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
Chief United States District Judge
27
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