BORNSTEIN et al v. COUNTY OF MONMOUTH et al

Filing 161

OPINION filed. Signed by Judge Peter G. Sheridan on 9/25/2014. (mmh)

*NOT FOR PUBLiCATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ISRAEL BORNSTEIN,
Civil Action No. 11-5336 (PGS)
Plaintiff,
v.

OPINION

CNTY. OF MONMOUTH. et al.,
Defendants.
SHERIDAN, U.S.D.J.
This matter comes before the Court on Defendants County of Monmouth, Monmouth
County Sheriff’s Office, Monmouth County Correctional Institution, Lt. Thomas Bollaro, Sgt.
Kenneth Noland. Ofc. Tracey Tift. Ofc. Thomas Ricchiuti, Ofc. Timothy Ruddy, Ofc. Daniel
Hansson, Ofc. Raymond Paul, Ofc. Rick Lombardo, Ofc. Steven Young, Ofc. George Theis.
Ofc. Donald Bennett, Ofc. Christopher Piney, Ofc. William Fancher, Ofc. Sara M. Sturt, Ofc.
Jamielynn Roosbach, Ofc. Leo Hafner, Ofc. David Millard, and Sgt. Richard Vilacoba’s
(collectively referred to as the “County Defendants”) Motion for Summary Judgment (ECF No.
66). The Court held oral argument in this matter on August 28, 2014. For the reasons set forth
herein, the motions are denied in part and granted in part.
I. BACKGROUND

The following facts are undisputed unless otherwise noted.’

‘As discussed by the parties, Plaintiff failed to submit an opposing 56.1 Statement of Undisputed
Material Facts. However, as held by the Third Circuit, “[plermitting the non-movant to rely on
its briefing and evidentiary submissions to dispute the movant’s 56.1 statement is consistent with
the requirement at summary judgment that federal courts ‘view the facts in the light most
favorable to the non-moving party.” Boswell v. Eoon, 452 F. App’x 107, 112 (3d Cir. 2011)
(quoting Jakimas v. Hoffmann—La Roche. Inc., 485 F.3d 770, 777 (3d Cir. 2007)); see also

On July 9, 2010, the Hon. Anthony J. Mellaci, J.S.C. signed an order of bench warrant
and bail forfeiture of decedent Amit Bornstein (“Mr. Bornstein”). (Defs.’ General Statement of

Undisputed Material Facts (“SUMF”)

¶ 20, ECF No. 66-72.) The order indicated that the most

serious charge alleged against Mr. Bornstein was the charge of criminal mischief— damage to
property in violation of N.J.S.A. 2C:17-3A(l). (Id.)

On July 23, 2010, another warrant was

issued for the arrest of Mr. Bomstein by order of Municipal Judge Spencer B. Robbins of
Woodbridge, New Jersey. (Id. at

¶

21.) This warrant was issued for the offense of N.J.S.A.

2C:35-1OA(4). (Id.) On July 29, 2010, a third warrant was issued by order of Judge Scott J.
Basen of Freehold Borough. (Id. at

¶ 22.)

The warrant was issued for Mr. Bomstein’s failure to

appear before the court in violation of N.J.S.A. 2A:l0-lc.

(Id.)

The warrant required Mr.

Bornstein to be kept at the Monmouth County Correctional Institution until August 3, 2010 at
1:00 p.m. at which time Mr. Bornstein was to be brought before the Court. Id.
On July 29, 2010, Monmouth County Sheriff’s Officers T. Mayer and L. Maxfield
served the Superior Court warrant on Mr. Bornstein at his home in Marlboro, New Jersey. (Id. at

¶ 23.)

The officers placed Mr. Bomstein in handcuffs and then transported him to the Monmouth

County Correctional Institution (“MCCI”). (Id. at

¶J

25; 29.) At approximately 5:20 p.m. on

July 29, 2010, Lieutenant Bollaro received a phone call from Mr. David Putz of the Red Bank,
New Jersey office of the Division of Youth and Family Services.

(Id. at

¶

50.)

Mr. Putz

requested that a number be retrieved from Mr. Bornstein’s cell phone in order to make
arrangements for Mr. Bomstein’s younger brother to be placed under the supervision of a family

Longoria v. New Jersey, 168 F.Supp.2d 308, 312 n. 1 (D.N.J. 2001) (noting that, because the
non-movant had not submitted an opposing 56.1 statement, the movants 56.1 factual statements
would be deemed admitted ‘unless disputed by [the non-movant] in his briefs or contradicted by
the evidence”). Therefore, unless disputed by Plaintiff in his brief or contradicted by the
evidence, the Court will deem the County Defendants’ facts admitted.
2

member. (Id.) Lieutenant Bollaro placed a phone call to the booking area and instructed Officer
George Theis to retrieve Mr. Bornstein’s father’s phone number out of Mr. Bornstein’s phone.
(Id. at

¶ 5 L) Officer Theis called Mr. Bornstein to come to the front desk and informed him that

he needed to get his father’s phone number out of his phone and explained that he would be
opening Mr. Bornstein’s property bag. (Id. at
father’s phone number. (Id. at

¶

52.) Officer Theis retrieved Mr. Bornstein’s

¶ 52.) Mr. Bornstein then wanted to use his phone and retrieve

other numbers from it. (Id. at ¶ 54.) According to Officer Theis, he explained to Bomstein that
he could not do that, which point Mr. Bornstein then reached over the front desk with a closed
fist and said to Officer Theis. “suck my fucking cock”.

(Id.)

Officer Theis claims that he

informed Mr. Bomstein that he was going to be taken to Tank 8 in order to calm down, but Mr.
Bornstein instead walked over to the nurse’s station, at which point Officer Theis walked over to
Bomstein and instructed him to stand up. (Id.) Defendants allege that Mr. Bomstein responded
by saying, “don’t fucking touch me”. (Id.)
Both Officers Theis and Tracy Tiff then began to escort Bornstein to Tank 8. (Id. at

¶

55.) Officer Tiff was directly behind Mr. Bomstein and was holding Mr. Bornstein’s left bicep
with his right hand as he was escorting him. (Id.

¶J 55-56.) As the three men passed through

the first of two doors on their way to Tank 8, Mr. Bomstein spun to his right. (Id. at

¶ 57.) As

he spun, Officer Tiff states that Mr. Bornstein’s hands were up in an aggressive manner, which
Officer Tift perceived as a “fighting stance”. (Id. at

¶ 58.) Officer Tiff testified that he felt

threatened and therefore, he struck Mr. Bornstein in the face. (Id. at

¶J 59; 61.) The officers

testified that as they were trying to place Mr. Bomstein in Tank 8, Mr. Bomstein was resisting
and Officer Theis went to bring Mr. Bornstein to the ground. (Id. at

¶ 64-65.) Officer Steven

Young became involved in the altercation when Mr. Bornstein was in the process of being taken

3

to the ground. (Id. at

¶ 65.) As the officers and Mr. Bornstein went to the ground, Officers

Timothy Ruddy, Daniel Hansson, Raymond Paul, Thomas Ricchiuti. and Rick Lombardo
responded to the scene to assist in subduing Mr. Bornstein. (Id.) The officers allege that Mr.
Bomstein was resisting the officers by not giving his arms up to be handcuffed and instead was
tucking them under his body. (Id. at ¶ 69.) They further allege that Mr. Bornstein was flailing his
arms, kicking his legs and resisting control, while attempting to get to his feet. (Id. at ¶ 71.)
The officers allege that after they handcuffed Mr. Bornstein, he began to kick so Sergeant
Noland ordered the officers to shackle him. (Id. at

¶ 74.) Also during the struggle, Officer Tift

sprayed OC (i.e. pepper) spray in Mr. Bornstein’s face. (Id. at

¶ 75.) Defendants allege that

while Mr. Bornstein was on the ground, the officers did not punch, kick, or strike him. (Id. at

¶

79.) Once Mr. Bornstein was secured, he was taken to the booking nurse to be screened. (Id. at

¶ 80.) Officer Paul placed a spit mask on Mr. Bornstein once they arrived at the nurse’s station.
(Id. at

¶ 81.) Upon reaching the nurse’s station, Defendants state that Mr. Bomstein was

wiggling out of the chair and falling to the ground and in response, Sergeant Noland instructed
the officers to leave him on the ground.

(Id. at

¶ 82.) Mr. Bornstein was then placed in a

wheelchair and taken out of booking to the medical section, where he was examined by a nurse.
(Id. at

¶ 86.) During the examination, the nurse telephoned the doctor who ordered a shot of

Ativan be given to Mr. Bornstein. (Id. at

¶ 86.) Sarah Smentkowski (Lamm), at the time a

Licensed Social Worker (LSW) employed by CCS, ordered Mr. Bornstein to be placed in the
constant watch area. (Id. at

¶ 87.)

After the examination in the medical section was completed, Mr. Bornstein was escorted
to the constant watch area which was thirty (30) feet away. (Id. at

¶ 89.) The officers wheeled

Mr. Bornstein into the constant watch area and the officers laid him face down on his stomach

4

onto the mattress in the constant watch cell to remove the shackles and handcuffs. (Id. at ¶ 90.)
Defendants allege that Mr. Bomstein began resisting and attempting to push up.

(Id.) The

officers testified that they attempted to keep Mr. Bornstein down on the bed so that he would not
get up, but he continued to resist.

(Id.

¶ 92.) Officer Rossbach passed handcuffs into the

constant watch cell and it took all of the officers present in the constant watch cell to handcuff
Mr. Bornstein. (Id. at

2
¶ 93.) The officers then placed him in a restraint chair. (Id. at ¶ 94.)

According to the officers, when they left Mr. Bornstein in the constant watch cell, he was
fighting with the restraints, kicking, and growling. (Id. at

¶ 95.) Within ten (10) minutes of

placing Mr. Bornstein in the constant watch cell, around 6:15 p.m., Officer Piney relieved
Constant Watch Officer Kerr for his dinner break.

(Id. at

¶ 96.) According to the County

Defendants, between 6:09 p.m. and 6:35 p.m., the nurse never requested to enter Mr. Bornstein’s
cell. (Id. at

¶ 97.) The officers’ and nurse’s first observation of Mr. Bornstein while he was in

the constant watch cell was that he was slumped over in the restraint chair, with his eyes slightly
open and fixed. (Id. at

¶ 98.) Mr. Bornstein was taken out of the restraint chair and placed on

the ground and the nurses began performing CPR. (Id. at
medical staff until first aid arrived at 7:08 p.m. (Id. at

¶ 99.) CPR was continued by the

¶ 100.) Mr. Bornstein was taken to

Centrastate Hospital, where he was pronounced dead. (Id. at ¶ 103.)
On September 9, 2011, Israel Bornstein, as the administrator of the Estate of Amit
Bornstein, filed the instant civil action, alleging claims against the County Defendants. (ECF
No. 1.) On April 20. 2012, he filed an amended complaint alleging the same claims against the
County Defendants but also adding claims against Defendant Correct Care Solutions, the

2

This incident, as well as the incident which occurred with the officers in the hallway, was
recorded on videotape and provided as an exhibit by the County Defendants. (Defs.’ Br., Exs.
H-I.)
5

medical provider at the jail. (ECF No. 12.) Plaintiff alleges claims for excessive force and
wrongful death against Defendants Tift; Ricchiuti; Huddy; Hansson; Paul; Lombardo; Young;
Theis; Bennett; Piney; Fisher; Sturt (Reyes); Roosback; Hafner; Millard; and John Does 1-10,
based on the “unlawful malicious and physical abuse of Plaintiff.” (Compi.

¶J 10-16.) Plaintiff

alleges a claim for ‘un1awful custom, practice, policy/inadequate training” against Defendants
County of Monmouth; Monmouth County Sheriffs Office and Monmouth County Correctional
Institution based on the fact that the individual defendants were acting pursuant to an official
policy, practice or custom of these defendants. (Id. at

¶J 18-19.) Plaintiff further alleges in this

count that Defendants County of Monmouth; Monmouth County Sheriffs Office and Monmouth
County Correctional Institution “failed to train. instruct. supervise, control, and discipline” the
individual defendants. (Id. at

¶ 20.) Plaintiff alleges that Defendants County of Monmouth;

Monmouth County Sheriffs Office and Monmouth County Correctional Institution were aware
of “numerous similar prison encounters” involving the individual defendants, however
Defendants County of Monmouth, Monmouth County Sheriffs Office and Monmouth County
Correctional Institution failed to employ any type of corrective or disciplinary measures against
the individual Defendants. (Id. at ¶ 2 1-22.)
In Count Four of the Amended Complaint, Plaintiff alleges a claim for “supervisory
liability” against Defendants Bollaro and Noland. (Id. at

¶ 28.) Plaintiff alleges that Defendants

Bollaro and Noland “either directed [the individual defendants] to violate Plaintiffs decedents
[sic] constitutional rights or had knowledge of and acquiesced in his/their subordinates
violations.” (Id. at

¶

30.) In Counts Five and Six of the Amended Complaint, Plaintiff alleges

that CCS’s doctor and nurses were negligent in the care they provided to Mr. Bornstein and that
they ‘did not use reasonable and proper skill and care” in their treatment of him. (Id. at

6

¶ 33-

40.)

In the final count of the Amended Complaint, Plaintiff alleges that Defendant CCS

“negligently failed to provide the professional care and treatment or prognosis or to disclose to
Plaintiff’s decedents [sic], such alternatives thereto and the reasonable foreseeable risks and
benefits involved as a reasonable practitioner would under similar circumstances have
disclosed....” (Id. at ¶ 44.)
II. DISCUSSION
A. Legal Standard

Summary judgment is appropriate under FED. R. Civ. P. 56(c) 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, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (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, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Disputes over irrelevant or unnecessary
facts will not preclude a grant of summary judgment. Id. “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).
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 Twp., 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

7

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). To do so, the non-moving party
must “go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine
issue for trial.” Celotex, 477 U.S. at 324. In other words. the non-moving party must “do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538
(1986). “[U]nsupported allegations

.

.

.

and pleadings are insufficient to repel summary

judgment.” Sclioch v. First Fidelity Bancorp., 912 F.2d 654, 657 (3d Cir. 1990); see also FED.
R. Civ. P. 56(e) (requiring nonmoving party to “set forth specific facts showing that there is a
genuine issue for trial.”). Moreover, only disputes over facts that might affect the outcome of the
lawsuit under governing law will preclude the entry of summary judgment. Anderson, 477 U.S.

at 247-48.

If a court determines, “after drawing all inferences in favor of [the non-moving

party], and making all credibility determinations in his favor

—

that no reasonable jury could find

for him, summary judgment is appropriate.” Alveras v. Tacopina, 226 F. App’x 222, 227 (3d
Cir. 2007).
B. Analysis
1. Individual County Defendants

The individual County Defendants can be divided into two categories: (1) those who
were merely present during the incident and/or did not use any force; and (2) those who were
directly involved. The Court will address each category separately.
a.

Defendants Who Were Merely Present (Millard, Rossbach, Sturt/Reyes, Hafner and

Fancher)

8

Defendants Millard, Rossbach and Reyes argue that they did not make any physical
contact with Mr. Bornstein and therefore cannot be found to have used excessive force.
Defendants Hafner and Fancher argue that they only made physical contact with Mr. Bornstein
to assist the medical professionals when they were examining him. Plaintiff does not point to
any evidence in the record to contradict these assertions but instead argues that these defendants
should be denied summary judgment because they failed to intervene during the incidents.
However, the Amended Complaint does not contain any allegations of failure to
intervene against Millard, Rossbach, Sturt/Reyes, Hafner or Fancher.

Rather, the only

allegations are that these defendants “assaulted and battered the plaintiff’s decedent resulting in
his death.” (Am. Compi.

¶

9.) The undisputed evidence put forth by these Defendants is that

they did not even touch Mr. Bornstein; or that they touched him merely to help the medical staff
provide treatment. (Defs.’ Br. 25-29.) Since the only allegations contained in the Amended
Complaint against these Defendants are that they “assaulted and battered” Mr. Bomstein and the
evidence put forth by Defendants, and not disputed by Plaintiff (see Summ. J. H’rg Tr. 7:19-22,
Aug. 28. 2014), shows that they did not assault or batter him, the Court will grant the summary
judgment for Millard, Rossbach, Sturt/Reyes, Hafner and Fancher.
b. Non-Supervisory Defendants Involved in the Incident

Defendants Bennett, Hansson, Huddy, Lombardo, Paul, Piney, Ricchiuti, Theis, Tift and
Young all acknowledge using force against Mr. Bomstein during the evening of July 29, 2010.
(Defs.’ Br. 31.) These defendants seek summary judgment on the basis of qualified immunity.
“Qualified immunity shields government officials from civil damages liability unless the
official violated a statutory or constitutional right that was clearly established at the time of the
challenged conduct.” Reichie v. Ilowards,

—

9

U.S.

,

,

132 S.Ct. 2088, 2093, 182

L.Ed.2d 985 (2012).

“The qualified immunity analysis is thus composed of two constituent

questions: first, whether the plaintiff suffered a deprivation of a constitutional or statutory right;
and second, if so, whether that right was ‘clearly established’ at the time of the alleged
misconduct. If the answer to either question is ‘no,’ qualified immunity applies.” Barkes v. First
Correctional Medical, Inc.,

---

F.3d

----,

2014 WL 4401051, at

*

15 (3d Cir. Sept. 5,2014). It is

within the court’s discretion to determine which prong to address first. Pearson v. Callahan, 555
U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
With regard to the first prong of the analysis, Plaintiff has alleged that Mr. Bomstein’s
rights were violated when these defendants used excessive force on him. At the outset, both
parties agree that Plaintiff was a pre-trial detainee at the time of the events in the Complaint.
(County Defs.’ Br. 21; Pl.’s Br. 29.)

In the context of the appropriateness of certain jury

instructions, the Third Circuit discussed the proper standard to use when evaluating claims of
excessive force by pre-trial detainees.
[W]e hold that the Eighth Amendment cruel and unusual punishments standards
found in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)
and Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992),
apply to a pretrial detaine&s excessive force claim arising in the context of a
prison disturbance. We can draw no logical or practical distinction between a
prison disturbance involving pretrial detainees, convicted but unsentenced
inmates, or sentenced inmates. Nor can prison guards be expected to draw such
precise distinctions between classes of inmates when those guards are trying to
stop a prison disturbance.

However, Fuentes’ objection to having to prove that the prison guards’ conduct
“shocked the conscience,” as required by the instruction, is somewhat more
troublesome. Although “shocks the conscience” is a term of art in Fourteenth
Amendment substantive due process jurisprudence, see Rochin V. Caflfornia, 342
U.S. 165, 172—73, 72 S.Ct. 205, 96 L.Ed. 183 (1952). our recent decisions suggest
that the standard may only apply to police pursuit cases. See Fagan v. City of
Vineland, 22 F.3d 1296, 1306 (3d Cir.l994); see also Kneipp v. Tedder, 95 F.3d
1199, 1207—08 (3d Cir. 1996) (“We believe that the Fagan II shocks the
10

conscience standard is limited to police pursuit cases....”). Furthermore, in
Valencia V. Wiggins, supra, the court rejected the contention that a pretrial
detainee bringing an excessive force claim arising from a prison disturbance had
to demonstrate that the prison guards’ conduct “shocked the conscience.”
Nonetheless, we believe that, in light of the Supreme Court’s decision in County
of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998),
the ‘shocks the conscience” standard is not inappropriate to an excessive force
claim in the context of a prison disturbance. Lewis involved a high speed police
chase of a motorcycle that ended in the death of the passenger of the fleeing
motorcycle. The parents of the decedent sued under 42 U.S.C. § 1983 alleging
that the police conduct violated the constitutional rights of the decedent. The
Court’s analysis of the police conduct clarifies that the “shocks the conscience”
standard of culpability applies in those instances where the police officer must
instantaneously respond to a situation without opportunity for reflection on his or
her actions. 118 S.Ct. at 1721.
In concluding that the “shocks the conscience” standard applies to police pursuit
cases, the Court analogized the police officers’ situation in a pursuit case to that of
prison officials who have to immediately respond to a violent prison disturbance
to restore and to maintain order and security. Id. at 1720 (“The analogy to sudden
police chases (under the Due Process Clause) would be hard to avoid.”).

Here, [the prison guards] were faced with [the prisoner’s] disruptive and violent
behavior for which they were not to blame. They could not take time to reason
through various options to determine the most appropriate response. Rather, they
had to quickly respond in order to quell the disturbance [the prisoner] was
creating, and minimize the possibility of an escalating disruption inside the
prison. Under those circumstances, we believe that the “shocks the conscience”
test that the Supreme Court has utilized in analogous situations, including high
speed chases, is the appropriate gauge of the conduct. Accordingly, we find no
error in the Magistrate Judge’s jury instruction.
Fuentes v. Wagner, 206 F.3d 335, 347-49 (3d Cir. 2000).

In this case, Defendants Bennett, Hansson, Huddy, Lombardo, Paul, Piney, Ricchiuti,
Theis, Tifi and Young all admit to using force. Though these officers argue that the amount of
force used was within the confines of the jail’s policy on usage of force, and does not “shock the
conscience,” the Court finds that there remains a question of fact as to whether the amount of
force used was appropriate. The video provided by Defendants shows the incidents both in the
11

hallway and in the constant watch cell, and said video raise a question of fact as to whether Mr.
Bornstein was resisting and what force, if any, was necessary. (See Defs.’ SUMF ¶j 69-7 1; 92.)
Based on these videos, as well as the testimony of the officers themselves, it cannot be stated that
there is no genuine issue of material fact as to whether the amount of force used “shocks the
conscience.”
Moreover, Defendants have not met either prong of the qualified immunity test. At the
outset, it does not appear that Defendants are arguing that the right of a pre-trial detainee to be
free of excessive force was not “clearly established” at the time of the incidents. Nor could
Defendants have made such an argument since “[tjhe factors relevant to the excessive force
analysis are well-recognized.” Suarez v. City of Bayonne, 566 F. App’x 181, 186 (3d Cir. 2014)
(citing Couden v. Duff, 446 F.3d 483, 497 (3d Cir. 2006)). With regard to the first prong of the
qualified immunity analysis, while ‘[t]he issue of qualified immunity is generally a question of
law,

...

a genuine issue of material fact will preclude summary judgment on qualified immunity.”

Barkes v. First Correctional Medical, Inc.,

---

F.3d

----,

2014 WL 4401051, at

*

18 (3d Cir. Sept.

5, 2014) (internal citations omitted). As discussed above, based on the testimony of Defendants
and the videos provided, there remains a question of fact as to whether the amount of force used
was excessive.
Therefore, Defendants Bennett, Hansson, Ruddy, Lombardo, Paul, Piney, Ricchiuti,
Theis, Tift and Young’s motion for summary judgment will be denied.
c. Supervisory Defendants
Plaintiff alleges a claim for supervisory liability” against Defendants Bollaro and
Noland. (Am. Compl.

¶J 27-3 1.) Plaintiff alleges that these defendants “either directed [the

12

officers involved in the altercations] to violate Plaintiff’s decedents [sic] constitutional rights or
had knowledge of and acquiesced in his/their subordinates violations.” (Am. Compi.

¶ 30.)

It is well-recognized that “[g]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.” Bistrian
v. Levi, 696 F.3d 352, 366 (3d Cir. 2012). Rather, state actors are liable only for their own
unconstitutional conduct. Id.
liability in

The Third Circuit recently addressed the issue of supervisory

§ 1983 actions and held that pursuant to the Supreme Court’s holding in Ashcro!1 v.

Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), “the level of intent necessary to
establish supervisory liability will vary with the underlying constitutional tort alleged.” Barkes,
2014 WL 440105, at

*

9. The Third Circuit identified the standard to be used for an Eighth

Amendment medical violation, but “[left] for another day the question whether and under what
circumstances a claim for supervisory liability derived from a violation of a different
constitutional provision remains valid.” Id.
Since neither party had the benefit of the Third Circuit’s decision in Barkes when
addressing the issue of summary judgment for Defendants Bollaro and Nolan, the Court will
deny the motion without prejudice and allow a new motion with supplemental briefing.
d. Municipal Defendants

In the Amended Complaint, Plaintiff alleges that acting pursuant to official policy,
practice or custom, Defendants County of Monmouth, Monmouth County Sheriff’s Office and
Monmouth County Correctional Institution (collectively, the “Municipal Defendants”) failed to
train, instruct, supervise, control and discipline the supervisory and individual officers involved
in the incidents with Mr. Bornstein. (Am. Compl.

¶ 20.) The Amended Complaint further

alleges that the Municipal Defendants were aware of ‘numerous similar prison encounters”

13

involving these defendants however they failed to employ any type of disciplinary measures.
(Id. at2l-22.)

A municipality or other local government may be liable under this section if the
governmental body itself “subjects” a person to a deprivation of rights or “causes” a person “to
be subjected” to such deprivation. See Monell v. New York City Dept. of Social Servs., 436 U.s.

658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). They are not vicariously liable under

§ 1983

for their employees’ actions. See Board of Comm’rs of Bryan Cly. v. Brown, 520 U.S. 397, 403,
117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (collecting cases).

liability on local governments under

“Plaintiffs who seek to impose

§ 1983 must prove that action pursuant to official municipal

policy caused their injury. Official municipal policy includes the decisions of a government’s
lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to
practically have the force of law. These are actions for which the municipality is actually
responsible.” Connick v. Thompson, 131 S.C’t. 1350, 1359 (2011) (internal citations omitted).
A municipality’s decision not to train certain employees about their legal duty to avoid
violating citizens’ rights may rise to the level of an official government policy for purposes of

§

1983. Id. Only if a municipality’s failure to train its employees in a relevant respect amounts to
“deliberate indifference to the rights of persons with whom the [untrained employees] come into
contact,” Canton, 489 U.S., at 388, 109 S.Ct. 1197, can it then be “properly thought of as a city
policy or custom that is actionable under

§ 1983,”

Id. at 389, 109 S.Ct. 1197. “[D]eliberate

indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a
known or obvious consequence of his action.” Bd. of Cnly. Co,nm’rs of Bryan Cnty., Okl. v.
Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).

14

In this case, the record establishes that the Municipal defendants had in a place a policy
for use of force training requirements. (Defs.’ Br. 56-57.) The policy required mandatory, semi
annual training for each correctional institution officer. (Id.) However, the record establishes,
and the Municipal Defendants do not contest, the fact that one officer, Officer Ruddy, did not
attend two training sessions in 2010, the year of the incident. (Defs.’ Reply 17.) Moreover, in
the two years prior to the incident, there were over 200 use-of-force reports filed regarding
incidents at the jail. (Pl.’s Opp’n 39.) Based on the number of incidents in the previous two
years and the fact that an officer involved in the incidents with Mr. Bornstein did not receive all
of the training mandated by the Municipal Defendants’ own policies, the Court finds that there
remains a question of fact as to whether the Municipal Defendants were deliberately indifferent
to the rights of Mr. Bornstein. The Municipal Defendants’ motion for summary judgment will
be denied.
III. CONCLUSION

For the foregoing reasons, Defendants Millard, Rossbach, Sturt/Reyes, Rafner and
Fancher’s motions for summary judgment are granted.

Defendants Bennett, Hansson, Ruddy,

Lombardo, Paul, Piney, Ricchiuti, Theis, Tift, Young, County of Monmouth, Monmouth County
Sheriffs Office and Monmouth County Correctional Institution’s motions for summary
judgment are denied. The Court reserves decision on Defendants Bollaro and Noland’s motions
for summary judgment and will order supplemental briefing. An appropriate order accompanies
this Opinion.

Dated: ?IJItLI
I
I
Peter G. Sheridan, U.S.D.J.

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