STEVENSON v. THE COUNTY SHERIFF'S OFFICE OF MONMOUTH et al

Filing 72

MEMORANDUM and ORDER Denying 71 Motion to Amend Complaint regarding claims of intentional infliction of emotional distress, negligence, malicious abuse of process and denial of 10 proper medical treatment. Plaintiff's request to reinstate the claim of excessive force with regard to Sheriff Officer Fuller is Granted. Defense Counsel is to notify the Court on whether he will accept service on behalf of Sheriff Officer Fuller by 1/18/2019. Signed by Magistrate Judge Tonianne J. Bongiovanni on 1/7/2019. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANTHONY E. STEVENSON,

Civil Action No. 13-5953 (AET)

Plaintiff,
MEMORANDUM AND ORDER

v.
THE COUNTY SHERIFF’S OFFICE OF
MONMOUTH COUNTY, et al.
Defendants.
BONGIOVANNI, Magistrate Judge

Pending before the Court is Plaintiff Anthony Stevenson’s (“Plaintiff”) Motion to Amend
the Complaint to add individuals Sheriff SGT. Vincent Giglio and Sheriff Officer Robert Fuller
to particular claims already set forth in the Complaint. (Docket Entry No. 71). The County
Sheriff’s Office of Monmouth County, et al. (“Defendants”) did not file opposition to Plaintiff’s
motion. The Court has fully reviewed all arguments made in support of Plaintiff’s motion. The
Court considers Plaintiff’s motion without oral argument pursuant to L.Civ.R. 78.1(b). For the
reasons set forth below, Plaintiff’s motion to Amend the Complaint is GRANTED in part and
DENIED in part.
I.

Background and Procedural History
This matter arises out of Plaintiff’s claims against The County Sherriff’s Office, et al.,

based on his treatment by prison officials. Plaintiff initially brought suit against the following
Defendants in this matter: The County Sheriff’s Office of Monmouth, Sheriff Shawn Golden,
Sergeant Vincent Giglio, Sheriff Officer Leonard Maxfield, Sheriff Officer D. Herrmann, Sheriff
Officer K. O’Neill, Sheriff Officer Robert Fuller, The County Jail of Monmouth, Warden Barry
Nadrowski, Captain Shawn Althouse, Sergeant Jack Hausman, Court Line Woman #1, Court
1

Line Woman #2, Correct Care Solutions Medical Providers, Medical Director Dr. Hashman
(later identified as Dr. Hashmi), Nurse Practioner “C.J.,” Monmouth County E.M.T. Response
Ser., E.M.T. Technician #1 and #2, later identified as Drew Lumbar and Shawn Sprance, on
October 7, 2013. In his Complaint, Stevenson asserted several claims against Defendants,
including violations of his Fourth, Fifth, Eight and Fourteenth Amendment rights. (See,
generally, Compl; Docket Entry No. 1). The District Court reviewed Plaintiff’s Complaint
pursuant to 28 U.S.C. §1915(e)(2)(B) and 1915A to determine whether it should be dismissed as
frivolous or malicious, for failure to state a claim upon which relief may be granted. (See
generally, Opinion of 2/6/2015; Docket Entry No. 11).
The District Court concluded that Plaintiff’s Complaint should be allowed to proceed
against the two Defendant Sheriff Officers, Leonard Maxfield and D. Herrmann, as to the claim
asserting excessive use of force. All other claims and Defendants were dismissed. (Id.).
Specifically, as related to the current amendment, the District Court dismissed Stevenson’s claim
against Sheriff Officer Giglio for violation of his Constitutional rights by denying him medical
care after Stevenson was injured.
On September 11, 2017, Plaintiff filed a Motion for Leave to Amend the Complaint,
requesting the Court re-instate Defendants Giglio and Fuller to parts of the Complaint. (Docket
Entry No. 56). Defendants filed a Motion for Summary Judgment on the excessive force claims
on February 24, 2017 (Docket Entry No. 42) which was administratively terminated on March
28, 2017 pending Plaintiff’s review of a certain DVD produced by Defendants during discovery.
(Docket Entry No. 45). Once the Court confirmed that Plaintiff had the opportunity to view the
DVD, the Motion for Summary Judgment was re-listed on July 6, 2017. (Docket Entry No. 52).
The District Court denied Defendant’s Motion for Summary Judgment on February 8, 2018.

2

(Opinion of 2/8/18; Docket Entry No. 57). By letter dated February 18, 2018, Plaintiff sought to
amend his Complaint. (Docket Entry No. 59). On March 29, 2018, the Court terminated
Plaintiff’s Motion to Amend and directed Plaintiff to re-file and to include with the motion a
proposed Amended Complaint. (Docket Entry No. 62). After Plaintiff filed his renewed Motion
to Amend, he contacted the Court to notify that the Proposed Amended Complaint was
incomplete. (Docket Entry No. 66). On August 19, 2018, this Court gave Plaintiff one last
opportunity to file a Motion to Amend. (Docket Entry No. 68). Plaintiff has endeavored to
comply with the Courts instructions as to correct procedure when filing a Motion to Amend, and
successfully did so on September 17, 2018, filing the current motion. (Docket Entry No. 71).
As previously noted, Plaintiff seeks to amend his Complaint to add Officers Robert Fuller
and Sheriff SGT. Vincent Giglio who were dismissed from the case in 2015 for failure to state a
claim upon which relief could be granted. Plaintiff argues that after discovery, new evidence
has arisen that would cure his pleading deficiency and show that these two officers did, in fact,
violate Plaintiff’s Constitutional rights. Specifically, Plaintiff represents that the following
evidence has been produced: (1) video footage that shows Officer Fuller using excessive force,
(2) an affidavit made by the EMTs that shows Sheriff SGT. Vincent Giglio lied to EMT
Technicians causing them to not provide him with proper medical treatment, (3) evidence that
Defendants tampered with 42 seconds of pertinent video footage during the physical altercation
that took place on July 30, 2013. (Pl.’s MTA; Docket Entry No. 71). Plaintiff also restates parts
of his Complaint that were dismissed in the District Court’s opinion. Plaintiff argues that his
motion should be granted under the liberal amendment standards set for in FED.R.CIV.P. (“Rule”)
15(a).

3

II.

Analysis
A. Standard of Review
Pursuant to Rule 15(a)(2), leave to amend the pleadings is generally granted freely. See

Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).
Nevertheless, the Court may deny a motion to amend where there is “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of the amendment.” Id. However, where there is an absence of undue
delay, bad faith, prejudice or futility, a motion for leave to amend a pleading should be liberally
granted. Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004). Here the Court focuses on futility
amendment.
An amendment is futile if it “is frivolous or advances a claim or defense that is legally
insufficient on its face.” Harrison Beverage Co. v. Dribeck Imp., Inc., 133 F.R.D. 463, 468 (D.N.J.
1990) (internal quotation marks and citations omitted). To determine if an amendment is
“insufficient on its face,” the Court utilizes the motion to dismiss standard under Rule 12(b)(6) (see
Alvin, 227 F.3d at 121) and considers only the pleading, exhibits attached to the pleading, matters of
public record, and undisputedly authentic documents if the party’s claims are based upon same. See
Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).
To determine if a complaint would survive a motion to dismiss under Rule 12(b)(6), the
Court must accept as true all the facts alleged in the pleading, draw all reasonable inferences in favor
of the plaintiff, and determine if “under any reasonable reading of the complaint, the plaintiff may be
entitled to relief[.]” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). “[D]ismissal
is appropriate only if, accepting all of the facts alleged in the [pleading] as true, the p[arty] has failed
to plead ‘enough facts to state a claim to relief that is plausible on its face[.]’” Duran v. Equifirst

4

Corp., Civil Action No. 2:09-cv-03856, 2010 WL 918444, *2 (D.N.J. March 12, 2010) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Put simply, the
alleged facts must be sufficient to “allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d
868 (2009). The focus is not on “‘whether a plaintiff will ultimately prevail but whether the claimant
is entitled to offer evidence to support the claims[.]’” Bell Atl. Corp., 550 U.S. at 563 n.8 (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). Additionally, in
assessing a motion to dismiss, while the Court must view the factual allegations contained in the
pleading at issue as true, the Court is “not compelled to accept unwarranted inferences, unsupported
conclusions or legal conclusions disguised as factual allegations.” Baraka, 481 F.3d at 211.

B. Discussion
Plaintiff’s Amended Complaint seeks to reinstate Sheriff SGT. Giglio and Officer Fuller
to some of the claims and reasserts claims that were previously dismissed by the District Court.
The Court does not find that Plaintiff’s motion is unduly delayed, made in bad faith or will
prejudice the Defendants. The Court therefore focuses its analysis on futility of amendment in
light of the District Court’s review of Plaintiff’s Complaint. Plaintiff’s claims are addressed in
turn.
i.

Intentional Infliction of Emotional Distress Claim
In reviewing Plaintiff’s Complaint, the District Court found that Plaintiff failed to allege

facts sufficient to satisfy any of the elements of an Intentional Infliction of Emotional Distress
claim, “[f]or instance, Plaintiff has alleged no facts to show that he has actually suffered any
severe emotional distress.” (Opinion of 2/6/2015 at 14). Plaintiff has not alleged any further
facts in his Amended Complaint that would cure this deficiency, and therefore this claim in the
Amended Complaint is DENIED.
5

ii.

Excessive Force, Assault, Battery and Negligence Claims
The District Court held that Plaintiff pleaded sufficient facts that, if true, would allow this

case to proceed against Defendants Maxfield and Hermann for their alleged use of excessive
force against Plaintiff. (Id. at 13). Additionally, Plaintiff’s common law claims of assault,
battery and negligence also went forward against these two Defendants under the Court’s
supplemental jurisdiction. (Id. at 14). Plaintiff did not originally assert a claim of excessive force
against Sheriff Officer Robert Fuller. Plaintiff claims that video footage surfaced through
discovery that would prove Sheriff Officer Robert Fuller participated in his alleged assault while
Plaintiff was unconscious. (Docket Entry No. 71 at 2).
The Court notes that Plaintiff has acted diligently in his pursuit of the video footage at
issue from the outset of this litigation. As the District Court noted, on August 6, 2013, Plaintiff
wrote to Monmouth County Sheriff Shawn Golden requesting the video footage of the incident
that occurred at the Courthouse be preserved on July 30, 2013 and Plaintiff wrote the Warden’s
Office asking same. (Opinion of 2/6/2015 at 7). It was not until June 2, 2017 that Plaintiff had
the opportunity to view the video footage in order to identify Sheriff Officer Fuller as one of his
assailants. (See Def. 7/21/2017 Letter; Docket Entry No. 53). Since that time, he has attempted
to add Sheriff Officer Fuller to the Complaint, culminating in this Motion to Amend.
These additional facts, if true, are sufficient to allow an excessive force claim to go
forward against Sheriff Officer Fuller. Plaintiff alleges that the video shows Sheriff Officer
Fuller grabbed Plaintiff by the back of the belt that Plaintiff was handcuffed to and violently
dragged Plaintiff through the hallways back to the prisoner holding cells, which, in conjunction
with the alleged assault from Defendants Maxfield and Hermann, caused him extreme pain that
necessitated medical care. (Docket Entry No. 71-1 at 4-5). Plaintiff asserts that he could not

6

have resisted Officer Fuller warranting the use of force upon him, nor could he have identified
Fuller as an actor in his assault, until he viewed the video footage, as he was allegedly
unconscious at the time. Additionally, Plaintiff’s claims of assault, battery and negligence shall
also proceed against Officer Fuller, as they are “inextricably related to the excessive force
claim,” as noted by the District Court in relation to Officers Maxfield and Hermann. (Opinion of
2/6/2015 at 14). Therefore, Plaintiff’s amendment of the claim of excessive force, assault,
battery and negligence against Sheriff Officer Fuller is GRANTED.
iii.

Negligence Claim Against Monmouth County Under the Theory of Respondeat
Superior
Plaintiff asserted in his original complaint that Defendant Monmouth County Sheriff’s

Office is liable for the actions of Defendant Officers Maxfield and Hermann regarding their use
of excessive and unreasonable force against Plaintiff. (See generally, Compl.). The District
Court dismissed this claim, finding Plaintiff had not pleaded sufficient facts to assert a §1983
claim against a municipality, namely, Plaintiff did not plead any custom or policy which caused
the alleged violation of his rights. (Opinion of 2/6/2018 at 28). Nor did he raise any facts related
to the inadequacy of any training program, system of review or investigation as to the conduct of
the Sheriff Officers. (Id.). In his Amended Complaint, Plaintiff does not allege any facts that
would further support his claim of respondeat superior liability. Therefore, the amendment of
this claim against the Monmouth County Sheriff’s Office is DENIED.
iv.

Malicious Abuse of Process Claim
The District Court held that “there are no factual allegations that could be construed as a

claim that these Defendants utilized the prosecution against plaintiff for any illegitimate
purpose.” (Opinion of 2/6/2015 at 16-17). The Court noted that Plaintiff was found guilty of the
disciplinary charges after a hearing in which the court line officers reviewed a video-tape of the
7

incident. (Id.) Stevenson alleges in his Amended Complaint that Defendants tampered with
video-footage of the initial confrontation between Stevenson and the Officers, allegedly erasing
42 seconds of the video footage. (Docket Entry No. 71-1 at 18). Specifically, he notes that on or
about June 5, 2017, Defense Counsel for Defendants Herrmann and Maxfield came to the prison
to play five DVDs containing footage of the interaction between Stevenson and officers he
alleged assaulted him. Stevenson claims that “[t]he video footage of the confrontation between
Plaintiff and defendants Herrmann and Maxfield, was deliberately skipped over and spliced from
the video-footage.” (Id. at 12). Stevenson claims that the video shows Defendant Herrmann
“violently carrying an unconscious Plaintiff by the back of the belt that’s secured the handcuff
that Plaintiff was wearing, through the door to the inside foyer. Then defendant Herrmann drops
Plaintiff on the floor.” (Id.)
The District Court noted that Plaintiff had not proffered any factual allegations that the
Defendants utilized the prosecution against Plaintiff for any illegitimate purpose. The Court
rather construed Plaintiff’s allegations of malicious abuse of process and false imprisonment as a
claim of false disciplinary charge. The Court further found that because Plaintiff had been
granted a hearing and an opportunity to rebut the charges against him, he did not sufficiently
plead a §1983 claim. The District Court dismissed the claim with prejudice. This Court finds
that Plaintiff’s additional allegation of evidence tampering does not cure the pleading deficiency
articulated by the District Court, namely Plaintiff still does not allege facts tending to prove a
malicious abuse of process claim or a false disciplinary charge claim. Therefore, this
amendment is DENIED.
v.

Deprivation of Medical Care Claim
The District Court denied Plaintiff’s claims of deprivation of Medical Care against all

8

Defendants for failure to state a cognizable claim of constitutional deprivation. (Opinion of
2/6/2015 at 25). Plaintiff alleged that Sheriff SGT. Vincent Giglio violated his constitutional
rights by denying Plaintiff medical care after he was injured by the other Defendants. The
District Court determined that the E.M.T. was called shortly after the incident and that Plaintiff
was then taken to the infirmary at the Monmouth County Jail where he received medical
attention for his back injury. (Id.). Therefore, the District Court held that “Plaintiff’s allegations
do not show that his complaints of injury were ignored, but rather the medical care provided was
not to Plaintiff’s liking.” (Id.)
In this motion, Plaintiff asserts that Sheriff Sergeant Vincent Giglio “lied to the EMT
Technicians, telling the EMT’s that Plaintiff could not be taken to the hospital because Plaintiff
has tried to run from Defendants when take to the hospital in the past.” (Docket Entry No. 71-1
at 7). Plaintiff claims that Sheriff Sergeant Vincent Giglio intentionally misinformed the E.M.T.
Technicians and failed to promptly provide medical treatment to Plaintiff. However, as the
District Court noted, Plaintiff was provided medical care at the Monmouth County Jail infirmary
shortly after the E.M.T. arrived. The additional facts alleging that Sheriff Sergeant Vincent
Giglio lied to the E.M.T. do not change the fact that Plaintiff was attended to by the medical staff
at the infirmary. They further suggest, like the District Court noted, that Plaintiff was not
satisfied with the form of medical care he received. This additional fact, even if true, does not
rise to the level of deprivation of medical care required under the law. Therefore, Plaintiff’s
requested amendment is DENIED.
C. Conclusion
For the reasons set forth above, the request to amend the Complaint regarding claims of
intentional infliction of emotional distress, negligence, malicious abuse of process and denial of

9

proper medical treatment are DENIED. Plaintiff’s request to reinstate the claim of excessive
force with regard to Sheriff Officer Fuller is GRANTED. Plaintiff is to file a new Amended
Complaint that comports with this opinion, in other words, a Complaint that solely includes the
excessive force, assault, battery and negligence claims against Sheriff Officers Hermann,
Maxfield and Fuller. The Court notes, again, that Defendants have not filed opposition to this
motion. Defense Counsel is to notify the Court by January 18, 2019, whether he will accept
service on behalf of Sheriff Officer Fuller.

IT IS SO ORDERED.
The Clerk of the Court is directed to terminate Docket Entry No. 71.
s/ Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE

10