MAZARIEGOS v. MONMOUTH COUNTY CORRECTIONAL INSTITUTION
OPINION filed. Signed by Judge Freda L. Wolfson on 10/24/2016. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ESVIN QUINONEZ MAZARIEGOS,
Civil Action No. 12-5626(FLW)
CORRECTIONAL INSTITUTION, et al.,
WOLFSON, United States District Judge:
This matter has been opened to the Court on a motion for summary judgment filed by
Monmouth County, the former Warden of Monmouth County Correctional Institution (MCCI)
Brian Elwood, and MCCI correctional officer Christopher Dixon (collectively referred to as “the
County Defendants”). The County Defendants seek dismissal of Plaintiff’s Fourteenth
Amendment Due Process claims (1) against Officer Dixon for failing to protect Plaintiff from an
assault by other inmates at MCCI and (2) against Warden Brian Elwood and the County of
Monmouth for failing to provide adequate medical treatment following the assault, which
allegedly resulted in permanent injuries to Plaintiff’s eyes. For the reasons explained in this
Opinion, the Court will grant the County Defendants’ motion for summary judgment.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
a. Procedural History
On August 27, 2012, while Plaintiff was being held as a pretrial detainee at the MCCI in
Freehold, New Jersey, he filed, pro se, the initial Complaint in this action. 1 (ECF No. 1.) By
Order entered September 13, 2012, this Court administratively terminated the case because
Plaintiff had not prepaid the $350 filing fee or applied to proceed in forma pauperis, pursuant to
28 U.S.C. § 1915. (ECF No. 2.) On October 1, 2012, Plaintiff paid the filing fee and the Clerk
filed the Complaint. (ECF No. 3.) On January 28, 2013, Plaintiff signed a document labeled
motion to supplement the complaint. 2 (ECF Nos. 4, 6.) The body of this motion contained an
Amended Complaint naming MCCI, MCCI Warden Brian Elwood, MCCI Corrections Officer
Dixon, Classification Officer John Doe, Doctor John Doe, Nurse John Doe, and Nurse Jane Doe.
Id. As no responsive pleading had been filed at the time Plaintiff sought to amend the
Complaint, see Fed. R. Civ. P. 15(a)(1)(B), the Court granted the motion to amend the Complaint
On July 15, 2011, federal officials arrested Plaintiff pursuant to an arrest warrant and federal
criminal complaint charging him with illegal reentry by an alien who was deported from the
United States. See United States v. Quinonez-Mazariegos, Crim. No. 12-0467 (MLC) (D.N.J.
filed July 12, 2012). On July 2, 2013, pursuant to a plea agreement, Plaintiff pled guilty to one
count of being an alien who knowingly entered the United States after being deported, in
violation of 8 U.S.C. § 1326(a) and (b)(2). On October 9, 2013, Plaintiff was sentenced to a 51month term of imprisonment.
The initial Complaint names only MCCI as a defendant. Plaintiff alleges in the initial
Complaint that, while he was detained at MCCI, he was attacked by inmates and his eyes were
“severely damaged.” (ECF No. 1 at 5.) The initial Complaint asserts that, although doctors were
supposed to monitor his eye, he received no follow-up medical care for seven months. He alleges
that when he was ultimately examined by an eye doctor, the doctor “told me I had glaucoma
from trauma.” Id.
on March 21, 2013, and deemed ECF No. 6 to be Plaintiff’s Amended Complaint. (See ECF
In the Amended Complaint (ECF No. 6), Plaintiff alleges that while he was incarcerated
at MCCI in 2011, he informed Correction Officer Dixon that certain gang members had
threatened his life, but “nothing was done to investigate” the threat and his “pleas for help w[ere]
ignored.” (ECF No. 6 at 3.) Plaintiff alleges that on October 7, 2011, while he was housed with
county and state inmates in the maximum security unit of the jail, several “Surenos-13 gang
members” assaulted him for over six minutes. Id. He asserts that, “[w]hile plaintiff was being
attacked and beat[en], defendant Di[xon] was nowhere to be found,” and Officer Valentino
eventually called the code. Id. Plaintiff alleges that he was taken to a hospital by ambulance and
he had severe injuries to his eyes and on his torso, stomach, chest, arms, and back. In addition,
he contends that Defendants Warden Elwood and Classification Officer John Doe “were aware
that [MCCI] ha[d] a gang problem, and they [took] no corrective action to control and/or abide
by State Administrative Regulations regarding gang control.” Id.
Plaintiff further asserts that Defendant Doctor John Doe “refused to provide plaintiff with
any aftercare treatment, pain medication and [an] eye doctor referral to determine the extent of
[his] eye injury,” and Nurses John Doe and Jane Doe “refused to place plaintiff’s name [on] the
sick call list” and ignored his requests for medical treatment. (ECF No. 6 at 4.) Plaintiff alleges
that after seven months, he “was finally sent to see an eye specialist who diagnosed [his] eye
injury as glaucoma due to the trauma from being assaulted and beat[en].” Id. He states that he
now “has a permanent eye injury as a direct result [of] the delay in providing [him] with
specialist medical care.” Id. For violation of his rights, he seeks injunctive relief and damages.
Id. at 5.
The Monmouth County Defendants filed an Answer substantially denying Plaintiff’s
allegations and raising several affirmative defenses, as well as filing a Third Party Complaint
against Correct Care Solutions LLC (“CCS”), which seeks indemnification and contribution, as
well as attorney’s fees and costs from CCS. (Answer and Third Party Complaint, ECF No. 17.)
In response to the Third Party Complaint, CCS filed a motion to dismiss the Amended Complaint
for failure to state a claim upon which relief may be granted or, alternatively, for summary
judgment. (ECF No. 22-4.) CCS, further, moved to dismiss the Third Party Complaint against it
as moot. Id. The County Defendants thereafter filed a cross motion to dismiss the Amended
Complaint or, alternatively, for summary judgment, which substantially mirrored CCS’s motion.
(ECF No. 28.)
The Court denied without prejudice Defendants’ hybrid motions on procedural grounds
and proceeded to screen Plaintiff’s Amended Complaint pursuant to under 28 U.S.C. 1915A,
which is governed by the same standard as motions to dismiss made pursuant to Rule 12(b)(6).
After screening, the Court dismissed the 42 U.S.C. § 1983 failure to protect claim without
prejudice against Monmouth County, Brian Elwood, Classification Officer John Doe, Dr. John
Doe, Nurse Jane Doe, and Nurse John Doe. The Court allowed the § 1983 failure to protect
claim to proceed past dismissal against Officer Dixon. The Court dismissed the § 1983
inadequate medical care claim without prejudice against Christopher Dixon and Classification
Officer John Doe. The Court allowed the § 1983 inadequate medical care claim to proceed past
dismissal against Monmouth County, Brian Elwood, Dr. John Doe, Nurse Jane Doe, and Nurse
John Doe. Although the Court construed Plaintiff to raise claims against the John and Jane Doe
Doctors and Nurses, they were not added to the docket at that time. In its Opinion and Order,
however, the Court directed the attorney for Monmouth County and Warden Elwood to provide
the names of the doctors and nurses at MCCI who were responsible for providing medical care to
Plaintiff during the relevant time period. (See id., Op. at 19 n.15; see also ECF No. 35.) The
Court also appointed counsel for Plaintiff, subject to his filing, and the Court’s granting, of his
application to proceed in forma pauperis.
Plaintiff’s application to proceed in forma pauperis was docketed on April 7, 2014, and
was granted by the Court on the same date. (ECF Nos. 37-38.) On April 14, 2014, Paul L.
LaSalle, Esquire wrote to the Court on behalf of County Defendants, and stated as follows:
“[A]fter a review of records relative to Plaintiff’s incarceration at the MCCI, it appears that
Plaintiff was treated by Kabeeruddin Hashmi, M.D. With regard to the nurses, the names of
same cannot be ascertained from their handwritten signatures contained within the records.”
(ECF No. 39.) On April 28, 2014, the law firm of Drinker, Biddle & Reath, LLP, was appointed
to represent Plaintiff. (ECF No. 40.) On July 24, 2014, CCS filed its Answer to the Third Party
Complaint by the County Defendants and a Cross Claim against the County Defendants.
On February 18, 2015, the Magistrate Judge held a status conference in which Plaintiff’s
appointed counsel requested a stay of the action pending resolution of Plaintiff’s pending
administrative deportation proceedings and Defendants agreed to the relief requested. (ECF No.
50.) The Magistrate Judge entered an Order staying and administratively terminating the case on
February 19, 2015. (Id.) Plaintiff wrote to the Magistrate Judge several times, requesting that
the stay be lifted so that the case could proceed. (See ECF Nos. 51-52, 57.) On December 2,
2015, the Magistrate Judge denied an informal application by Plaintiff’s appointed counsel to be
relieved during the pendency of Plaintiff’s administrative deportation proceedings. (ECF No.
58.) The Magistrate Judge also granted Plaintiff’s pro se application to reopen the matter and
restored the matter to the Court’s active docket. (Id.)
On February 2, 2016, the Court held a status conference and issued a Revised Scheduling
Order, setting the deadline for fact discovery as April 4, 2016, and the deadline for dispositive
motions as March 11, 2016. 3 On March 11, 2016, the County Defendants filed the instant
motion for summary judgment. (ECF No. 61.) On the same date, CCS filed a letter response
“joining” the County Defendants’ motion for summary judgment. (ECF No. 62.) On April 1,
2016, Plaintiff’s appointed counsel filed opposition to the motion. On the same date, CCS filed
what it characterizes as a “reply brief” in response to Plaintiff’s opposition. The County
Defendants filed their reply on April 13, 2016. (ECF No. 67.)
b. Relevant Facts on Summary Judgment
i. Facts Relating to Plaintiff’s Failure to Protect Claims
Plaintiff was incarcerated at MCCI from July 17, 2011 to October 29, 2013. (Plaintiff’s
Counterstatement of Material Facts (CSMF at ¶ 1 (citing Certification of Vik C. Jaitly (“Jaitly
Cert.”)¶ 2, Ex. A, Plaintiff ’s Dep. Tr., 27:1-3).)
Prior to the assault, which occurred on or
around November 8, 2011, Plaintiff informed Officer Christopher Dixon that he felt unsafe or
threatened at MCCI on two separate occasions. 4 (Id. at ¶ 2 (citing Jaitly Cert. ¶ 2, Ex. A, 59:1121; 60:21-61:11).) Officer Dixon denies having any conversations with Plaintiff while Plaintiff
The initial scheduling Order entered by the Magistrate Judge on August 21, 2014, set deadlines
for motions to amend/join new parties as October 31, 2014.
Defendants’ moving papers list the date of the assault as November 11, 2011.
was incarcerated at MCCI. (ECF No. 61-4 County Defendants Statement of Material Facts
(“DSMF”) at ¶ 27 (citing Ex. D, # 8).)
Plaintiff testified in his deposition about his conversations with Officer Dixon:
At anytime did you write to anyone at MCCI
advising that you had enemies or had been threatened?
I never wrote nothing but I had told an officer that I
was threatened. I didn’t feel safe [sic].
Okay. And who was that officer?
(Ex. A, 52:17-23.)
…did you request protective custody at anytime
either before this or after this date, this date being March 26, 2013?
I just told officer that I was afraid being in the unit.
And nothing was done because he say nothing’s going to happen to
(Ex. A, 49:02-10.)
A: …And in the morning one of the inmates said be careful
because, you know, they mad that you changed the TV and
everything. They might try to jump you. That’s [what] one of the
What inmate said that to you?
And what did you do after he told you that?
I tried—I was around. I tried to go look for Officer
Dixon to tell him I was going to, you know, that I was in danger,
but Mr. Dixon was – I don’t know what he was doing. He wasn’t
paying no mind to me. So he ignore[d] me.
(Ex. A, 57:03-15.)
Let’s talk about [Officer] Chris Dixon for a minute.
Prior to the date of the alleged assault on November 8, 2011 how
many times had you ever talked to him?
A: Two time[s]. The first day that I got there and that time
that I told him that I wasn’t feeling safe in the unit. That was about
two, three weeks before the incident I went to Officer Dixon and
told him that I wasn’t feeling safe in the unit.
(Ex. A., 59:11-21.)
Q: What was Chris Dixon doing the first time you spoke
with him which you testified was two to three weeks before the
assault? Was he the corrections officer in the pod?
A: I don’t know if he was the correction in the pod but he
was there that day. Well, I guess he was the correction part of the
pod because he was there the whole time when I was there.
Was he doing rounds?
A: Yeah, by that time he was doing rounds. And I told him
because, you know, when inmates see you talk to officers they
think you snitching or something. And I’m afraid of this place. So
when he was doing his rounds I told Officer Dixon I’m afraid of
being in this unit. He said nothing going to happen to you because
ain’t no threats or you be okay. That was it.
(Ex. A., 60:21-61:11.)
Plaintiff also testified in his deposition that during that first conversation, he told Officer Dixon
that he was afraid “because of the environment I’m around. The people I’m around. That was
it.” (Pl. Dep. at 76: 22-77:2.) He testified that Officer Dixon responded by stating “oh,
nothing’s going to happen to you. You’ll be okay.” (Id.)
Plaintiff further testified as follows regarding his second conversation with Officer Dixon
immediately prior to the assault against him:
Okay. At some point on November 8, 2011 did you have a
conversation with Officer Dixon?
And what time was that conversation?
Like 15, 20 minutes—15, 10 minutes before the attack.
What time of day would that have been?
Around, maybe, 8 o’clock, 7:30. Can’t remember the time.
So how long had Officer Dixon been on duty at that point?
For maybe an hour, two hours. I can’t remember how long
he was there.
Why did you go to talk to Officer Dixon?
Because before in the morning when the inmate Mr. DiSosa
told me be careful because these guys is mad because you changed
the TV last night. So I went and told Officer Dixon that – I tried to
go and talk to [Officer] Dixon about, you know, I think I’m getting
jumped. I’m getting jumped. I don’t want to be here. He said –
well, he was busy. I don’t know he got a cell phone. I don’t know
what he had. And he normally kept on walking. Looked at me,
kept on walking.
(Ex. A, 71:14-72:11.)
Q: Did you tell Officer Dixon why you thought you were going to
A: No, this time he got up from the desk and disappeared. Got up.
He was mad that he was being bothered.
(Ex. A, 74:5-9).
After his conversation with Officer Dixon, Plaintiff returned to the common area where
the TV was located and was assaulted by three inmates. (Id. at 3 (citing Jaitly Cert. ¶ 2, Ex. A,
77:22-84:17).) During the assault, which lasted approximately four to six minutes, no one came
to his rescue. (Id. at ¶ 4 (citing Jaitly Cert. ¶ 2, Ex. A, 80:04-22).) When asked in his deposition
why he returned to the common area if he believed he would be jumped, Plaintiff stated as
follows: “Because, like I said, I didn’t believe that was going to happen to me. I didn’t know
whether I was going to get jumped or not.” (Pl. Dep. at 75:5-76:1.)
ii. Facts Relating to Plaintiff’s Inadequate Medical Care Claims
Immediately after the assault, Plaintiff was taken to a hospital. (Id. at ¶ 5 (Jaitly Cert. ¶ 2,
Ex. A, 87:23-88:1).) At this hospital visit, Plaintiff received treatment for his eyes, neck,
shoulder, and arms. (Id. at ¶ 6 (Jaitly Cert. ¶ 2, Ex. A, 87:23-89:23).) Plaintiff’s medical
treatment was monitored at MCCI by outside contractor, Correct Care Solutions (“CCS”) and its
employees. (Id. at ¶ 7 (citing Jaitly Cert. ¶ 4, Ex. C, Service Contract between MCCI and CCS).)
Plaintiff was examined by nurses and, in some cases, by doctors. (Id. at ¶ 8 (citing Jaitly Cert. ¶
2, Ex. A, 96:11-21).) One of the doctors who examined Plaintiff was Dr. Kabeeruddin Hashmi,
the medical director at CCS. (Id. at ¶ 9 (citing Jaitly Cert. ¶ 5, Ex. D, Dr. Hashmi’s Dep. Tr.,
Although Plaintiff was only given pain medication initially for his eye injuries, the
condition of Plaintiff’s eyes severely worsened. (Id. at ¶ 10 (Jaitly Cert. ¶ 6, Ex. E, Health
Service Requests submitted in 2012).) On January 24, 2013, Plaintiff submitted a Health Service
Request in which he wrote “eye pain and headache; eye pressure to[o] strong.” (Id. at 11 (citing
Jaitly Cert. ¶ 7, Ex. F, Health Service Request dated January 24, 2013).) Following this request,
Plaintiff was seen by an ‘outside’ ophthalmologist on February 15, 2013. (Id. at ¶ 12 (citing
Jaitly Cert. ¶ 8, Ex. G, February 15, 2013 Consultation Note).) The ophthalmologist who saw
Plaintiff wrote a consultation note stating the following: “Recommend patient see Glaucoma
specialist as soon as possible.” (Id. at ¶ 13 (citing Jaitly Cert. ¶ 8, Ex. G, February 15, 2013
Consultation Note).) This consultation note is signed by Dr. Hashmi. (Id. at ¶ 14 (citing Jaitly
Cert. ¶ 5, Ex. D, 19:8-20).)
Over the next two months, Plaintiff submitted a number of Health Services Requests.
Plaintiff submitted a Health Services Request on February 20, 2013 stating: “eye problem.” (Id.
at ¶ 15 (citing Jaitly Cert. ¶ 9, Ex. H).) He submitted a Health Services Request on March 16,
2013 stating: “eye problem emergency; [loss] of vision.” (Id. at ¶ 16 (citing Jaitly Cert. ¶ 10, Ex.
I).) Plaintiff submitted a verbal Health Service Request on March 17, 2013 stating: “Vision
impaired; pain to left eye.” (Id. at ¶ 17 (citing Jaitly Cert. ¶ 11, Ex. J).) He submitted a Health
Service Request on March 23, 2013 stating: “I’m having a very strong pain in my left eye and
lost [half] of my vision and need to see a doctor as soon as possible.” (Id. at ¶ 18 (citing Jaitly
Cert. ¶ 12, Ex. K).) He submitted a Health Service Request on March 31, 2013 stating: “I need
to see the doctor for my eye; Please hurts a lot.” (Id. at ¶ 19 (citing Jaitly Cert. ¶ 13, Ex. L).)
Plaintiff submitted a Health Service Request on April 14, 2013 stating: “My eye is really hurting
me and blind; would like to know why nothing has been done yet.” (Id. at ¶ 20 (citing Jaitly Cert.
¶ 14, Ex. M).)
Plaintiff also testified in his deposition that he met with Warden Elwood on an
unspecified date regarding the inadequacy of his medical treatment. (Id. at ¶ 25 (citing Jaitly
Cert. ¶ 2, Ex. A, 29:19-33:15).) It appears undisputed, however, that Defendant Warden Elwood
retired as Warden on December 10, 2012, and could not have been the Warden with whom
Plaintiff met in April 2013. 5 (See ECF No. 61-4, DSMF at ¶¶ 35, 39-42; Pl. Opp. Br. at 9-10.)
On April 17, 2013, two months after Plaintiff was prescribed an evaluation by a
specialist, Plaintiff saw a glaucoma specialist, Dr. Paul Lama. (Id. at ¶ 21 (citing Jaitly Cert. ¶
15, Ex. N).) In his notes, Dr. Lama wrote that Plaintiff “was steadily losing vision in the left
eye” and “lost fixation about a month ago.” (Id. at ¶ 22 (citing Jaitly Cert. ¶ 15, Ex. N).) In May,
2013, Plaintiff had surgery on both eyes. (DSMF at ¶ 44 (citing Pl. Dep at 105-106.) In his
deposition taken on January 6, 2015, Plaintiff has testified that he is currently blind in his left eye
and has no peripheral vision in his right eye. (CSMF at ¶ 23 (citing Jaitly Cert. ¶ 2, Ex. A,
It is also undisputed that Plaintiff submitted an Inmate Grievance Form addressed “to the
Warden” on October 4, 2013 complaining about medication he was receiving after his surgery in
May 2013. (CSMF at ¶ 24 (citing Jaitly Cert. ¶ 18, Ex. Q, Grievance Form); County
Defendants’ Response to CSMF at ¶ 24.)
STANDARD OF REVIEW
Summary judgment is appropriate where the Court is satisfied that “there is no genuine
issue as to any material fact and that the movant is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is
genuine only if there is “a sufficient evidentiary basis on which a reasonable jury could find for
the non-moving party,” and it is material only if it has the ability to “affect the outcome of the
suit under governing law.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or
unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248.
“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, 447 U.S. at 255));
see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v.
Klem, 298 F.3d 271, 276–77 (3d Cir. 2002).
The burden of establishing that no “genuine issue” exists is on the party moving for
summary judgment. Celotex, 477 U.S. at 330. “A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.”
Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001). The non-moving party must
present “more than a scintilla of evidence showing that there is a genuine issue for trial.”
Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (quotations omitted). Under
Anderson, Plaintiffs' proffered evidence must be sufficient to meet the substantive evidentiary
standard the jury would have to use at trial. 477 U.S. at 255. To do so, the non-moving party
must “go beyond the pleadings and by her 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 (quotations omitted); see also Matsushita, 475 U.S. at
586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the merits
of a party's motion for summary judgment, the court's role is not to evaluate the evidence and
decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
There can be “no genuine issue as to any material fact,” however, if a party fails “to make
a showing sufficient to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322–23. “[A]
complete failure of proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972
F.2d 53, 55 (3d Cir. 1992).
The County Defendants have moved for summary judgment on Plaintiff’s civil rights
claim for failure to protect against Officer Dixon and for inadequate medical care against
Warden Elwood and the County of Monmouth. Both claims are brought pursuant to 42 U.S.C. §
1983 and are grounded in the Due Process Clause of the Fourteenth Amendment. 6
a. Failure to Protect Claim Against Officer Dixon
“[P]rison officials have a duty . . . to protect prisoners from violence at the hands of
other prisoners.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Cortes–Quinones v.
Jimenez–Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)) (internal quotation marks and ellipses
omitted). The Eighth Amendment imposes “a duty upon prison officials to take reasonable
measures to protect prisoners from violence at the hands of other prisoners.” Hamilton v. Leavy,
117 F.3d 742, 746 (3d Cir. 1997). To establish a failure to protect claim, an inmate must
demonstrate that: (1) he or she is “incarcerated under conditions posing a substantial risk of
serious harm;” and (2) the prison official acted with “deliberate indifference” to his or her health
and safety. Farmer, 511 U.S. at 834.
Deliberate indifference requires that an official “knows of and disregards an excessive
risk to inmate health or safety.” Farmer, 511 U.S. at 837. “The knowledge element of deliberate
As a pretrial detainee, rather than a convicted prisoner, Plaintiff retains liberty interests
grounded in the Due Process Clause of the Fourteenth Amendment. See Fuentes v. Wagner, 206
F.3d 335, 341 n. 9 (3d Cir.), cert. denied, 531 U.S. 821 (2000). Practically speaking, however,
courts have analyzed claims of failure to protect by pretrial detainees under the “deliberate
indifference” standard set forth in Eighth Amendment jurisprudence, as the due process rights of
a pretrial detainee are at least as great as the Eighth Amendment rights of a convicted prisoner.
Mohamed v. Aviles, 2007 WL 923506, at *6 (D.N.J. March 26, 2007) (citing Turner v. Cupp,
238 F.3d 424, 2000 WL 1141423, at *2 (6th Cir. Aug.4, 2000)). In similar cases, the Third
Circuit has indicated that deliberate indifference is the appropriate standard in the context of a
Fourteenth Amendment failure-to-protect claim. See A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile
Det. Ctr., 372 F.3d 572, 587 (3d Cir. 2004). The Eighth Amendment standard has likewise been
applied to inadequate medical care claims brought by pretrial detainees. See Hubbard v. Taylor,
399 F.3d 150, 166 n. 22 (3d Cir. 2005) (applying Eighth Amendment doctrine to pretrial
detainees raising claims of failure to protect and inadequate medical care); see also Strobert v.
Ocean Cty. Jail, No. CIV.A. 07-3172 GEB, 2011 WL 63601, at *4 (D.N.J. Jan. 7, 2011)
indifference is subjective, not objective knowledge, meaning that the official must actually be
aware of the existence of the excessive risk; it is not sufficient that the official should have been
aware.” Beers–Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001); see also Barkes v. First
Correctional Medical, Inc., 766 F.3d 307, 323 (3d Cir. 2014); Bistrian v. Levi, 696 F.3d 352, 367
(3d Cir. 2012). Thus, in order to survive defendant's summary judgment motion, plaintiff must
produce sufficient evidence supporting the inference that defendant “knowingly and
unreasonably disregarded an objectively intolerable risk of harm.” Beers–Capitol, 256 F.3d at
132 (internal citation and quotation omitted); Natale v. Camden County Corr. Facility, 318 F.3d
575, 582 (3d Cir. 2003). Knowledge may be shown where the official has actual notice of the
risk, Nami v. Fauver, 82 F.3d 63, 67–68 (3d Cir.1996), or where the risk was “longstanding,
pervasive, well-documented, or expressly noted by prison officials in the past, and the
circumstances suggest that the defendant-official being sued had been exposed to information
concerning the risk and thus must have known about it.” Farmer, 511 U.S. at 842. An inmate
“normally proves actual knowledge of impending harm by showing that he complained to prison
officials about a specific threat to his safety.” Davis v. Muscarella, 615 F. Supp. 2d 296, 302 (D.
Del.), aff'd sub nom. Davis v. Williams, 354 F. App'x 603 (3d Cir. 2009) (citing Pope v. Shafer,
86 F.3d 90, 92 (7th Cir.1996)).
Here, the County Defendants contend that Plaintiff’s failure to protect claims against
Officer Dixon fail for the following reasons: (1) Plaintiff cannot prove he was incarcerated under
conditions posing a substantial risk of serious harm; (2) Officer Dixon cannot be deliberately
indifferent to a serious risk of harm to Plaintiff because he denies having any communications
with Plaintiff during his incarceration at MCCI and denies that Plaintiff told him about any
threats against Plaintiff; and (3) because Plaintiff’s “alleged communications with Officer Dixon
are palpably insufficient to establish that Officer Dixon was deliberately indifferent to a known
excessive risk to Plaintiff’s safety.” (ECF No. 61-4, Moving Br. at 16.)
Applying Farmer to the instant action, the first question is whether Plaintiff has provided
sufficient facts showing that Plaintiff in particular or inmates in general faced a substantial risk
of assault at MCCI. The second question is whether Plaintiff has provided sufficient facts
showing that that Defendant Dixon was aware of and disregarded a substantial risk of harm. 7
Even assuming, without deciding, that Plaintiff has provided sufficient facts showing that
he faced a substantial risk of assault at MCCI, he has not provided sufficient facts showing that
Officer Dixon knew of the risk and intentionally disregarded it. Although Plaintiff has testified
that he had two conversations with Officer Dixon, as explained below, the content of his
statements to Officer Dixon are too vague, without more, to raise the inference that Officer
Dixon was aware of any substantial risk to Plaintiff’s safety, and Plaintiff’s own conduct
suggests that he did not believe he faced a serious risk of harm.
In several unpublished decisions, the Third Circuit has addressed the types of complaints
by inmates that are too general or vague to raise the inference that a prison official was aware of
a risk of substantial harm. In Counterman v. Warren County Corr. Facility, 176 F. App’x 234,
The Court notes that Plaintiff has not presented any evidence of a generalized threat of serious
harm at MCCI. Where there is a generalized threat of serious harm, a plaintiff need not present
evidence of a particularized threat against him. As explained by the Third Circuit in BeersCapitol, 256 F.3d at 131-32, “Farmer made clear that a prison official defendant cannot escape
liability by showing that he did not know that a particular inmate was in danger of attack: ‘it does
not matter . . . whether a prisoner faces an excessive risk of attack for reasons personal to him or
because all prisoners in his situation face such a risk.’” Id. (citing Farmer, 511 U.S. at 843).7 In
his Complaint, Plaintiff contends that Defendants Warden Elwood and Classification Officer
John Doe “were aware that [MCCI] ha[d] a gang problem, and they [took] no corrective action to
control and/or abide by State Administrative Regulations regarding gang control.” (ECF No. 6,
at 3.) However, in his Counterstatement of Material Facts, Plaintiff has provided no facts to
substantiate this allegation.
237-239 (3d Cir. 2006), the plaintiff presented evidence that several prison officers knew that he
was the target of harassment and aggression by several inmates prior to the attack and thus had
the requisite knowledge for deliberate indifference. The Third Circuit, in upholding the district
court’s grant of summary judgment, found that evidence that those inmates bragged to prison
guards about their mistreatment of plaintiff and that the officers told Plaintiff “not to take it” and
to “fight back” was insufficient to raise the inference that the officers were actually aware of an
excessive risk to plaintiff’s safety. The Court determined that “[t]he inmates’ boasts conveyed
harassment and unpleasantness” but “did not lead to the inference that [the officer] must have
known of an intolerable danger to [Plaintiff] that would evince an Eighth Amendment violation.”
Id. at 239. The Court noted however that another portion of deposition testimony which made
clear that the inmates specifically bragged to officers about “harassing and beating up on”
plaintiff, lent more credence to plaintiff’s position, but declined to consider it because the
plaintiff had not submitted the testimony below. Id. at 239 fn 1 (emphasis in original).
Similarly, in Jones v. Beard, 145 F. App’x 743, 745 (3d Cir. 2005), the Third Circuit held
that prison guards did not have actual knowledge of a threat of serious harm to an inmate in part
because the inmate had not “articulated specific threats of harm” to the prison official. The
Third Circuit held that Jones’ statements in the three weeks leading up to the attack were
insufficient to establish that the defendant guards had actual knowledge of a threat of serious
harm to Jones:
Jones told several guards during September 2002 that he
and [his cell mate] were not getting along and asked whether he
could be moved into a new cell. However, the record is devoid of
evidence establishing that Jones articulated specific threats of
serious harm, or that he made multiple complaints about [his
cellmate] to any one guard. See, e.g., Jackson v. Everett, 140 F.3d
1149, 1152 (8th Cir.1998) (noting that “threats between inmates
are common” and do not, in every circumstance “serve to impute
actual knowledge of a substantial risk of harm”) (citations and
internal quotations omitted). Moreover, although Jones alleged in
his complaint that he filed institutional grievances complaining
about [his cellmate] prior to the attack, prison records indicate a
complete lack of documentation to substantiate this allegation. See,
e.g., Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986) (the non-moving party cannot resist a properly
supported motion for summary judgment merely by restating the
allegations of his complaint; rather, he must point to concrete
evidence in the record that supports each and every essential
element of his case).
Jones, 145 F. App'x at 745–46; see also Blackstone v. Thompson, 568 F. App'x 82, 84–85 (3d
Cir. 2014) (no liability where plaintiff “had just one communication” with prison official, in
which Plaintiff “stated that he was not ‘getting along’ and did not ‘feel comfortable’ with his
cellmate”); Bizzell v. Tennis, 449 F.App'x 112, 115 (3d Cir. 2011) (plaintiff’s complaints to
prison officials that his eventual attacker was unstable and trying to set him up found insufficient
to raise a significant risk of serious harm where plaintiff did not complain about threat to his
To survive the County Defendants’ motion for summary judgment, Plaintiff must to point
to evidence in the record that Dixon both knew of and was deliberately indifferent to an
excessive risk to his safety. See Beers–Capitol, 256 F.3d at 131. “When making a determination
as to deliberate indifference, the court must ‘focus [on] what a defendant’s mental attitude
actually was (or is), rather than what it should have been (or should be).’” Blackstone, 568 F.
App'x at 83–84 (citing Hamilton, 117 F.3d at 747. Deliberate indifference is “a state of mind
more blameworthy than negligence.” Id. (citing Farmer, 511 U.S. at 835). Thus if a Defendant
“knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave
rise was insubstantial or nonexistent,” liability will not attach. Id. (citing Farmer, 511 U.S. at
Here, there is no indication in the record that Officer Dixon made the inference that
Plaintiff faced a substantial risk of serious harm and disregarded it. The record reflects that
Officer Dixon had only two alleged communications with Plaintiff. Plaintiff testified in his
deposition that during his first conversation with Officer Dixon, he stated that he was afraid
“because of the environment I’m around. The people I’m around. That was it.” (Pl. Dep. at 76:
22-77:2.) He testified that Officer Dixon responded by stating “oh, nothing’s going to happen to
you. You’ll be okay.” (Id.) Plaintiff’s second alleged conversation with Officer Dixon occurred
shortly before Plaintiff was assaulted and after Inmate DiSosa told Plaintiff that unidentified
inmates were “mad that [Plaintiff] changed the TV [channel] and “might try to jump [Plaintiff].”
(Ex. A, 57:03-15.) Plaintiff testified that after his conversation with Inmate DiSosa, Plaintiff
“tried to go and talk to [Officer] Dixon about, you know, I think I’m getting jumped. I’m getting
jumped. I don’t want to be here.” (Pl. Dep., Ex. A, 71:14-72:11.) Plaintiff’s statement to Officer
Dixon that he thought he might get jumped is vague at best, and Plaintiff admits in his deposition
that he did not communicate any other specific information about the possible threat to Officer
Dixon, such as why he thought he might get jumped, when the assault might occur, or who the
possible assailants were. Plaintiff contends that Officer Dixon, who may have been looking at
his cell phone, ignored him and “got up from the desk and disappeared” as Plaintiff was trying to
talk to him. (Id. at 71:14-72:11; 74:5-9.) At best, this conduct suggests that Officer Dixon failed
to listen to Plaintiff; without more, a jury could not infer from this conduct that Officer Dixon
intentionally disregarded a serious risk to Plaintiff’s safety.
Plaintiff’s testimony about his own conduct after Officer Dixon allegedly disappeared
also undermines his contention that Officer Dixon intentionally ignored a serious threat to
Plaintiff’s safety. It is undisputed that after Officer Dixon walked away, Plaintiff returned to the
common area where the TV was located. (CSMF at ¶ 3 (citing Jaitly Cert. ¶ 2, Ex. A, 77:2284:17).) When asked in his deposition why he returned to the common area if he believed he
would be jumped, Plaintiff stated as follows: “Because, like I said, I didn’t believe that was
going to happen to me. I didn’t know whether I was going to get jumped or not.” (Pl. Dep., Ex.
A at 75:5-76:1.)
Absent any other evidence of Officer Dixon’s culpable state of mind, the evidence
presented by Plaintiff is insufficient to permit a reasonable finder of fact to infer that Officer
Dixon both knew of and intentionally disregarded an excessive risk to Plaintiff’s safety. As
such, the Court will grant summary judgment to Officer Dixon on the failure to protect claim.
b. Claims of Inadequate Medical Treatment Against Warden Brian Elwood and
the County of Monmouth
It appears that Plaintiff has conceded that summary judgment should be granted as to his
inadequate medical care claims against the County Defendants. In his Opposition, Plaintiff
concedes that, after completing discovery, there are no facts that
support a claim of inadequate medical care against Defendant
Brian Elwood because [he] did not have personal involvement with
[Plaintiff’s] medical treatment. Therefore, [Plaintiff] does not wish
to pursue the inadequate medical care claim against Defendant
In their reply brief, the County Defendants contend that, in light of this concession, summary
judgment must be granted as to Defendants Brian Elwood and the County of Monmouth. (ECF
No. 67, County Reply at 7.) The Court agrees, and will grant summary judgment in favor of
County Defendants Brian Elwood and the County of Monmouth. 8 (Id.)
Plaintiff’s brief does not address the claim against the County of Monmouth. In screening
Plaintiff’s Amended Complaint, the Court found that Plaintiff adequately pleaded a § 1983
medical care claim against the County based on Warden Elwood’s failure to act. (ECF No. 34,
Op. at 20.) The Court further explained that “[a]t this early stage of the proceeding, and in the
absence of full briefing on the question of which county official has final policymaking authority
c. Third Party Defendant CCS and John Doe Employees of CCS
In connection with the instant motion, CCS filed a letter that purports to “join” the
County Defendants’ motion for summary judgment and states as follows:
Furthermore, as the direct claims filed by Plaintiff arising under 42
U.S.C. § 1983 against Christopher Dixon an Monmouth County
Correctional Institution pertaining to medical care should be
dismissed pursuant to law, the third party claims against Correct
Care Solutions, LLC must also be dismissed with prejudice.
(ECF No. 62.) Presumably, CCS’s request is directed at the third party claims for
indemnification and contribution; however, the Third Party Complaint against CCS also seeks
attorney’s fees and costs. It is not clear whether the County Defendants wish to dismiss their
claims for attorney’s fees and costs, as their motion is silent regarding the dismissal of the Third
Party Complaint. CCS also attempts to raise arguments beyond those raised by the County
Defendants in their motion for summary judgment. After receiving Plaintiff’s Opposition, CCS
submitted what it terms a “letter brief” addressing Plaintiff’s arguments that he still has viable
claims against CCS and its employees, which are not the subject of the current motion for
summary judgment. The County Defendants’ moving papers take no position on the liability of
CCS or its employees and focus solely on Plaintiff’s failure to establish the liability of the
County Defendants. (See, e.g., ECF No. 67, County Reply at 6-7.) The Court declines to address
CCS’s arguments for dismissal of the Third Party Complaint or the viability of any claims
under New Jersey law with respect to the conditions provided to MCCI inmates and with respect
to monitoring CCS’s compliance with its contractual obligations, this Court will not at this time
find as a matter of law that Warden Elwood was not a policymaker for Monmouth County with
respect to the failure to treat Plaintiff’s blindness.” (Id.) Because the Court has granted summary
judgment as to Warden Elwood, it will likewise grant summary judgment as to the County of
Monmouth as to the Monell claim premised on Warden Elwood’s failure to act.
against CCS employees in the context of this instant motion. CCS is free to file the appropriate
motion to dismiss the Third Party Complaint. 9
In this regard, the Court also notes that Plaintiff has not moved to amend the Complaint
to identify the John and Jane Doe Doctors and Nurses, and fact discovery appears to have closed
on April 15, 2016. (See ECF No. 59, Revised Scheduling Order dated February 2, 2016.) The
Court will provide Plaintiff with 30 days to file a motion to amend the Complaint to identify the
John and Jane Doe Doctors and Nurses, and makes no determination at this time as to whether
such amendment will be permitted. 10
The Court notes that Plaintiff’s Amended Complaint does not allege any direct claims against
CCS. The Complaint does allege claims against John and Jane Doe Doctors and Nurses, who are
employed by CCS. A corporation under contract with the state or municipality, however, cannot
be held liable for the acts of its employees or agents under a theory of respondeat superior. See
Natale v. Camden County Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003). Instead, an entity
under contract with the state may be held liable for the acts of an employee if those acts are
deemed the result of a policy or custom where the inadequacy of an existing practice is so likely
to result in the violation of constitutional rights that the entity can reasonably be said to have
been deliberately indifferent to the plaintiff’s serious medical needs. Albrecht v. Correctional
Med. Services, No. 06-2772MLC, 2009 WL 1834320, at *7 (D.N.J. June 25, 2009) (citing Natale
318 F.3d at 584).
Plaintiff’s motion to amend the Complaint would be proper only if it relates back to the
original Complaint. See Fed. R. Civ. P. 15(c)(1). Pursuant to Rule 15(c)(1)(A), an amended
complaint relates back to the filing of the original complaint if relation back is allowed under the
law that provides the applicable statute of limitations, in this case, New Jersey law. New Jersey
law also determines whether the Second Amended Complaint relates back to the filing date of
the Complaint. See Padilla v. Twp. of Cherry Hill, 110 F. App’x. 272, 276 (3d Cir. 2004). Under
New Jersey law, a plaintiff may avail themselves of the so-called fictitious party rule if a
defendant's true identity is “unknown” at the time of filing. N.J. Ct. R. 4:26–4; Mears v. Sandoz
Pharm., Inc., 300 N.J. Super. 622, 631–32 (App. Div. 1997). Rule 4:26–4 provides in relevant
part that “if the defendant's true name is unknown to the plaintiff, process may issue against the
defendant under a fictitious name, stating it to be fictitious and adding an appropriate description
sufficient for identification.” Id. Rule 4:26-4 further provides that “Plaintiff shall on motion,
prior to judgment, amend the complaint to state defendant's true name, such motion to be
accompanied by an affidavit stating the manner in which that information was obtained.” Id.
Whether a Plaintiff may avail himself of N.J.R. 4:26–4 typically turns on three factors: (1)
whether plaintiff exercised due diligence in identifying the proposed defendants; (2) whether the
lapse of time has prejudiced the proposed defendants; and (3) whether plaintiff acted with due
diligence in substituting the proposed defendants once they were identified. See Padilla, 110 F.
For the reasons explained in this Opinion, the County Defendants’ motion for summary
judgment is granted as to the failure to protect claim against Officer Christopher Dixon. The
County Defendants’ motion for summary judgment is likewise granted as to the inadequate
medical treatment claims against Warden Brian Elwood and the County of Monmouth. The
Court declines to dismiss the Third Party Complaint against CCS, or consider the additional
arguments raised by Third Party Defendant CCS in the absence of a properly filed motion, which
CCS is free to file. The Court will also provide Plaintiff with 30 days in which to file a motion
to amend the Complaint to identify the John and Jane Doe Doctors and Nurses. An appropriate
/s/ Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.
Date: October 24, 2016
Appx. at 277. Plaintiff’s motion to amend should address these factors and provide the relevant
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