ESTATE OF ANTHONY DASARO, DECEASED et al v. COUNTY OF MONMOUTH et al
MEMORANDUM OPINION AND ORDER granting in part and denying in part 28 Motion for Leave to File Amended Complaint, Plaintiff shall file its Amended Complaint in conformance with this Courts Memorandum Opinion and Order within 10 days of the date of this Order. Signed by Magistrate Judge Tonianne J. Bongiovanni on 9/15/2016. (km)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
INDIVIDUALLY, AND AS THE
ADMINISTRATRIX OF THE ESTATE
OF ANTHONY DASARO, DECEASED,
COUNTY OF MONMOUTH;
CORRECT CARE SOLUTIONS, LLC;
SERVICES, INC.; AND JOHN DOES 110, ET AL
Civil Action No. 14-7773 (PGS)
MEMORANDUM OPINION AND
BONGIOVANNI, Magistrate Judge
Before the Court is Plaintiff Rosetta Dasaro’s (“Plaintiff”) motion seeking leave to file an
Amended Complaint, and file a late Second Amended Notice of Tort Claim. [Docket Entry No.
Plaintiff seeks to amend her Complaint to join as co-defendants Monmouth County
Corrections Institution (“MCCI”) Warden Barry Nadrowski, and two MCCI Corrections Officers,
Gingerelli and Hauseman (collectively “County Employees”). [Docket Entry No. 28-1 at 7-8].
Plaintiff also seeks to join as co-defendants certain Correct Care Solutions, LLC (“CCS”)
employees who were allegedly involved in the mental and physical health evaluation of the
decedent Anthony Dasaro: Martin Marino, Pauline Tyas, Kabeeruddin Hashini, Ibironke
Macaulay, Ashley LaBarbera and Alicia Caputo-Smith (“CCS Employees,” and collectively with
the County Employees the “Individual Defendants”). [Id.]. Plaintiff additionally seeks to file a
late Second Amended Notice of Tort Claim naming the Individual Defendants. [Id. at 6].
Defendant CCS filed a response in opposition to Plaintiff’s motion on April 1, 2016. [Docket
Entry No. 29]. Defendants County of Monmouth and MCCI (the “County Defendants”) also filed
a response on April 29, 2016, joining its opposition with CCS. [Docket Entry No. 32]. Plaintiff
replied to CCS’s response on April 6, 2016.
[Docket Entry No. 30].
Plaintiff replied to the
County Defendants’ response on May 3, 2016. [Docket Entry No. 33].
The Court has fully reviewed the papers in support of and in opposition to 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 is GRANTED IN PART, DENIED IN
Background Facts and Procedural History
Anthony Dasaro (“Decedent”) was arrested on April 28, 2014, and was incarcerated at
MCCI from the date of his arrest, until his May 3, 2014 suicide by hanging. [Docket Entry No. 1
at 2-4, Pl. Original Compl.]. Plaintiff then filed a Notice of Claim on the County Defendants
within the 90-day deadline required by the New Jersey Tort Claims Act § 59:8-8. [Docket Entry
No. 28-1 at 1]. Plaintiff did not serve a Notice of Claim on CCS within this 90-day deadline. [Id.].
Subsequently on December 11, 2014, Plaintiff, individually and as the Administratrix of the Estate
of Anthony Dasaro, filed her Complaint against the County Defendants, CCS, and 10 unnamed
Police Officers and/or Corrections Officers employed by the County Defendants and/or CCS.
[Docket Entry No.1 at 3-23]. Her Complaint asserted various claims including: violations of 42
U.S.C. §§ 1981, 1983, 1985, 1986, and 1988; the Fourth, Fifth, Eight and Fourteenth Amendments
to the United States Constitution; the New Jersey State Constitution; and New Jersey state tort law.
[Id. at 8]. In response, CCS filed a February 16, 2015 Motion to Dismiss Plaintiff’s Complaint for
failure to state a claim, and for failing to serve a Notice of Claim upon CCS. [Docket Entry No.
8, Def. CCS’s Mot. to Dismiss.].
Shortly thereafter, on February 19, 2015, Plaintiff filed a Motion for Leave to File a Late
Notice of Claim on CCS pursuant to N.J.S.A. 59:8-9, which upon a claimant’s showing of
extraordinary circumstances, gives trial courts the discretion to let claimants file a late Notice of
Claim on a defendant, within one year of the accrual of a claimant’s cause of action. [Docket
Entry No. 11. Pl’s. First Mot. to File a Late Notice of Claim]. The District Court heard oral
argument for both motions on September 29, 2015, and issued the following day an Opinion and
Order granting the Plaintiff leave to file a late Notice of Claim against CCS. [Docket Entry No.
22]. The District Court found the Plaintiff demonstrated the extraordinary circumstances required
to file a late Notice of Claim because despite CCS’s public function of providing medical services
to prisoners, a CCS employee had provided an affidavit identifying CCS as a private corporation.
[Id. at 5]. Therefore, CCS’s status as a public or private entity was unclear, and Plaintiff could not
have reasonably known CCS was required to be served with a Notice of Claim within the original
Further, the District Court dismissed Plaintiff’s § 1983 and New Jersey
Constitutional claims without prejudice, and denied without prejudice CCS’s Motion for Summary
Judgment as to Plaintiff’s medical negligence claim. [Id. see also Docket Entry No. 23].
Plaintiff’s instant motion was filed on March 24, 2016. Upon initial review of the parties’
submissions, the Court found the parties had overlooked N.J.S.A. § 59:8-10, a relevant provision
of the New Jersey Tort Claims Act which might have an effect on this Court’s determination.
Therefore, in a July 21, 2016 Letter Order, the Court ordered supplemental briefing regarding the
import of said provision on the instant motion. [Docket Entry No. 34]. The Plaintiff submitted its
supplemental letter brief on July 29, 2016. [Docket Entry No. 35]. CCS and the County
Defendants responded in kind, filing their supplemental letter briefs in opposition on August 4,
2016. [See Docket Entry Nos. 36 and 37, respectively].1
Motion to File a Second Late Notice of Claims
The New Jersey Tort Claims Act states public entities are “not liable for injury, whether
such injury arises out of act or omission of the public entity or a public employee.” N.J.S.A. 59:21 (West). A claimant shall be forever barred from recovering against a public entity or public
employee if “the claimant failed to file the claim with the public entity within 90 days of accrual
of the claim. N.J.S.A. 59:8-8 (West). However, a Plaintiff may still file a late notice of claim
pursuant to N.J.S.A. 59:8-9 which states:
A claimant who fails to file notice of his claim within 90 days as provided in section 59:88 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file
such notice at any time within one year after the accrual of his claim provided that the
public entity or the public employee has not been substantially prejudiced thereby.
Application to the court for permission to file a late notice of claim shall be made upon
motion supported by affidavits based upon personal knowledge of the affiant showing
sufficient reasons constituting extraordinary circumstances for his failure to file notice of
claim within the period of time prescribed by section 59:8-8 of this act or to file a motion
seeking leave to file a late notice of claim within a reasonable time thereafter; provided
that in no event may any suit against a public entity or a public employee arising under this
act be filed later than two years from the time of the accrual of the claim.
N.J.S.A. 59:8-9 (West) (emphasis added)
Cases which have excused strict statutory compliance generally involve claimants who
have been diligent in their efforts complying with the statutory period. Id. Extraordinary
circumstances can excuse statutory compliance when, despite diligent efforts by the claimant,
The Court also reminds the parties of their obligations to comply with the letter of the Court’s Orders. Although the
Court ordered supplemental briefing, the briefing was an “opportunity to address [the bearing of] this provision
[N.J.S.A. §59:8-10], on the circumstances of the case.” [Docket Entry No. 34s at 6]. It was not, as the parties
apparently believed, an invitation to file sur-replies arguing issues previously raised in the parties’ original moving
information identifying the parties of a claim is either unattainable or thwarted by the original
defendants. Id. (citing Feinberg v. State Dept. of Envtl. Prot., 137 N.J. 126 (1994)).
In her original moving papers, the Plaintiff relies on the latter half of N.J.S.A. § 59:8-9
which states: “[a claimant may file a late Notice of Claim] provided that in no event may any suit
against a public entity or a public employee arising under this act be filed later than two years from
the time of the accrual of the claim.” [Docket Entry No. 28-1 at 7; citing N.J.S.A. 59:8-9 (West)
(emphasis added)]. Plaintiff interprets this portion of the statute to mean a trial court retains the
discretion to allow a plaintiff to file a late Notice of Claim within two years of the accrual of the
In this regard, the Plaintiff asserts her motion is timely as it was filed within two years of
the May 3, 2014 accrual of Plaintiff’s claims. [Id.]. Likewise, the Plaintiff argues she has
demonstrated the extraordinary circumstances required to file the claim. [Id.]. Plaintiff claims she
did not name the Individual Defendants in her original Notice of Claim because the Plaintiff only
recently received CCS’s Rule 26 disclosures, and consequently discovered the Individual
Defendants’ participation in the evaluation and treatment of Decedent. [Id. at 9]. Further, the
Plaintiff has not received MCCI’s Rule 26 disclosures and has been unable to confirm the County
Employees’ status as employees or independent contractors. [Id.].
Additionally, in Plaintiff’s reply to the County Defendants’ response, Plaintiff cites the
recent New Jersey Appellate Division, Gomes v. County of Monmouth, No. A-1679-14 (App. Div.
April 14, 2016). Plaintiff argues that Gomes shows CCS need not be served with a Notice of
Claim, as it is a “private entity” under the meaning of the statute, and thus is exempt from the
notice provisions of N.J.S.A. 59:8-8. [Docket Entry No. 33 at 1].
In contrast, CCS argues that private entities who contract with a public entity to perform
public duties, such as CCS’s provision of medical care to inmates, are public entities subject to the
notice provisions of N.J.S.A. 59:8-8. [Docket Entry No. 29 at 8]. As such, there is no reason why
the Plaintiff could not have identified and named the CCS Employees in her original Notice of
Claim, within the statutory period that the Tort Claims Act requires. [Id. at 2-3]. Therefore,
Plaintiff failed to serve a timely Notice of Claim on CCS identifying the CCS Employees that
Plaintiff is attempting to join as defendants. [Id.]. Furthermore, CCS argues that the New Jersey
“discovery rule” does not supersede the notice requirements of the Tort Claims Act. Therefore,
even though Plaintiff had not learned the names of the CCS Employees she wishes to add, this fact
is immaterial and cannot be used to extend the period for application to file a late Notice of Claim
beyond one year. [Id. at 8-9]. CCS lastly argues that Plaintiff’s proposed Amended Complaint
fails to allege valid causes of action under 42 U.S.C. §§ 1981, 1983, 1985, 1986, or 1988, and that
the Plaintiff is seeking to reinstate claims that have already been dismissed by the Court. [Id. at
10-20]. The Court however notes that CCS’s August 4, 2016 supplemental letter brief concedes
CCS was not required to be served with a Notice of Claim, as the Gomes case properly disposes
the issue in Plaintiff’s favor. [Docket Entry No. 36].
The County Defendants argue the Plaintiff had no reason to unduly delay filing a Notice
of Claim naming the County Employees. [Docket Entry No. 32 at 8-11]. The County Defendants
also assert that Plaintiff has failed to show the extraordinary circumstances required for a trial court
to grant leave to file a late Notice of Claim. [Id. at 11]. The County Defendants also support CCS’s
argument that Plaintiff has failed to state a valid cause of action under 42 U.S.C. §§ 1981, 1983,
1985, 1986, or 1988. [Id. at 12-29]. Lastly, the County Defendants argue that the Plaintiff neither
used the proper Notice of Claim form properly promulgated by the County under the authority
granted to it pursuant to N.J.S.A. 59:8-6, nor properly named the Individual County Defendants in
the applicable form pursuant to N.J.S.A. 59:8-4. [Id. at 9-10].
As CCS has conceded it did not need to be named in a Notice of Claim, the Court will only
address the County Defendant’s arguments about whether the Plaintiff may be permitted to file a
late Notice of Claim. The County Defendants in this regard, argue in their sur-reply that “section
59:8-10 defines the manner of service; it does not define the party on whom service must be made.”
[Docket Entry No. 37 at 3; citing Forcella, 70 F. Supp. 2d at 518-19]. However, this short and
plain statement does not conclusively establish why N.J.S.A. 59:8-10 does not apply. N.J.S.A 59:810 provides in relevant part:
59:8-10. Presentation of Claim.
c. Service of the notice required by this chapter upon the public entity shall constitute
constructive service upon any employee of that entity.
N.J.S.A 59:8-10 (West) (emphasis added)
The Court believes in light of N.J.S.A 59:8-10, the Plaintiff’s failure to name the Individual
Defendants in her original Notices of Claim is immaterial. Here it is undisputed that Plaintiff’s
claim accrued on May 3, 2014, the date of Decedent’s passing. It is also undisputed that the 90day period to file a Notice of Claim under N.J.S.A. 59:8-8 expired on August 1, 2014. Likewise,
although the County Defendants claim that Plaintiff did not in fact properly serve MCCI, the
Plaintiff claimed it served a timely Notice of Claim against the County Defendants within the 90day period. [Docket Entry No. 28-1 at 1]. Likewise in considering same, the District Court
similarly found “Plaintiff timely filed Notices of Claim with the Monmouth County Defendants…”
[Docket Entry No. 22 at 5]. Further, although the County Defendants filed their appearances on
February 27, 2016, eight days after the Plaintiff filed her original February 19, 2015 Motion to
File a Late Notice of Claim, the County Defendants did not dispute the statutory compliance of
their entities’ original service with Plaintiff’s first Notice of Claim, in the time between their
appearances and March 6, 2015 Answer, and the District Court’s September 30, 2015 Opinion and
Order. Moreover, all of the named Individual Defendants were employed by either CCS or the
County Defendants at the time the Plaintiff’s claim accrued. Therefore, because the District Court
has already found service was proper upon the public entity, said service “constitude[d]
constructive service upon any employee of that entity.” Thus, the Court believes that the Individual
Defendants were put on notice when their respective entities were properly served and Plaintiff
has complied with the notice requirements of the Tort Claims Act, to the extent it required the
naming of the Individual Defendants. Plaintiff’s motion to file a second late notice of claims is
Motion to Amend
Federal Rule of Civil Procedure 15(a) governs requests for leave to amend, allowing an
amendment either through the court's leave or through obtaining the opposing party's written
consent. Smith v. Honeywell Int'l, Inc., No. 10-CV-03345-ES-JAD, 2014 WL 301031, at *11
(D.N.J. Jan. 27, 2014). While courts have broad discretion to decide motions to amend, they are
to “heed Rule 15(a)'s mandate that amendments are to be granted freely in the interests of justice.”
Voilas et al. v. General Motors Corp., et al., 173 F.R.D. 389, 396 (D.N.J. May 9, 1997) (internal
citations and quotations omitted); see also Wright & Miller section 1484, at 676 (“Subdivision
(a)(2) encourages the court to look favorably on requests to amend.”). This ensures that “a
particular claim will be decided on the merits rather than on technicalities.” Dole v. Arco Chem.
Co., 92 F.2d 484, 487 (3d Cir. 1990) (internal citation omitted); see also Sabatino v. Union
Township, No., 2013 WL 1622306, at *6 (D.N.J. April 15, 2013) (internal citations omitted)
(discussing that “if the underlying facts relied upon by a party might be a proper subject of relief,
that party should have the opportunity to test its claims on the merits.”). The decision to grant or
deny leave to amend under Rule 15(a) is “[c]ommitted to the sound discretion of the district court.”
Arab African Int'l Bank v. Epstein, 10 F.3d 168, 174 (3d Cir. 1993). In the absence of unfair
prejudice, futility of amendment, undue delay, bad faith, or dilatory motive, the court must grant
a request for leave to amend. Grayson v. Mayview State Hosp., 292 F.3d 103, 108 (3d Cir. 2002).
1. Undue Delay
Delay alone is not sufficient to justify denial of leave to amend. Arthur v. Maersk, Inc.,
434 F.3d 196, 204 (3d Cir. 2006); citing Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984).
“[H]owever, at some point, delay will become ‘undue,’ placing an unwarranted burden on the court
... [and] an unfair burden on the opposing party.” Id. When a party fails to take advantage of
previous opportunities to amend, without adequate explanation, leave to amend is properly denied.
Id.; see also Cureton, 252 F.3d at 273 (“the question of undue delay requires that we focus on the
movant's reasons for not amending sooner.”).
Only CCS has opposed Plaintiff’s motion on the basis that Plaintiff unduly delayed seeking
leave to Amend. However, from an examination of this cases’ timeline, no undue delay has
occurred. Plaintiff’s instant Motion was filed on March 24, 2016, less than a year and a half after
the commencement of this litigation on December 11, 2014. Similarly, the Court only held its
initial scheduling conference with the parties on November 25, 2015. Further CCS tendered
Plaintiff its Rule 26 initial disclosures on Nov 5, 2015 and Plaintiff still has not received Rule 26
initial disclosures from the County Defendants. Likewise, neither defendant has answered
interrogatories nor taken depositions. In sum, weighing the aforementioned, Plaintiff’s motion is
not so untimely as to deny her leave to amend. See Arthur v. Maersk, Inc., 434 F.3d 196, 204-05
(3d Cir. 2006) (“eleven months from commencement of an action to the filing of a motion for
leave to amend is not, on its face, so excessive as to be presumptively unreasonable”); citing
Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 793 (7th Cir. 2004) (delay of eight months);
Tefft v. Seward, 689 F.2d 637, 639–40 (6th Cir. 1982) (delay of four years); Buder v. Merrill Lynch,
Inc., 644 F.2d 690, 694 (8th Cir. 1981) (delay of two and a half years).
2. Futility of Amendments
In determining whether a proposed amendment is futile, “the court looks only to the
pleadings.” A proposed amendment is futile if it “would fail to state a claim upon which relief
could be granted.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). “In assessing ‘futility’ the
District Court applies the same standard of legal sufficiency as applies under Rule 12(b)(6).” Id.
When faced with a motion to dismiss for failure to state a claim, the court conducts a two-step
analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the factual elements
are separated from the legal elements of the claim. Id. at 210-11. The court must accept the factual
elements alleged in the well-pleaded complaint as true, but may disregard any legal conclusions.
Id. Second, the court must decide if the facts alleged are sufficient to show a “plausible claim for
relief.” Id. at 210 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. Id. at 679. In determining
whether a proposed amendment is futile, “the court looks only to the pleadings.” Pharmaceutical
Sales & Consulting Corp. v. J. W.S. Delavau Co., 106 F.Supp.2d 761, 765 (D.N.J. 2000).
The only amendment Plaintiff seeks to make is the joining of the Individual Defendants in
the Plaintiff’s existing counts alleging violations of: 42 U.S.C. §§ 1981, 1983, 1985, 1986, and
1988; the Fourth, Fifth, Eight and Fourteenth Amendments to the United States Constitution; the
New Jersey State Constitution; and New Jersey state tort law.
a) County Defendants
Plaintiff’s allegations against the County Defendants and County Employees are found in
her “Parties” section, and her counts Three through Thirteen.2 [Docket Entry No. 28-8, Pl’s. Prop.
Am. Compl. at 3-28, ¶¶ 10-12, 24, 45-116]. In her “Parties” section, Plaintiff alleges the “[County
Employees] are employed by the County of Monmouth and/or the [MCCI].” [Id. at 3-4, ¶¶ 1012]. Similarly, the County Employees “were responsible for the supervision, housing placement,
suicide watch, and suicide prevention of the [D]ecedent, , at all times relevant hereto.” [Id. at 5,
However, in examining Plaintiff’s counts Three through Thirteen, except for a few select
paragraphs, the Court struggles to discern the exact gravamen of Plaintiff’s claims against the
County Employees. In addition to the Plaintiff failing to state whether the Warden is being sued in
his official or individual capacities; the majority of the Plaintiff’s allegations are set forth in
conclusory fashion. [Id. at 11-13, ¶¶ 47-51; see also ¶¶ 56-57, 66-67 (alleging “based upon
information and belief, on or about May 3, 2014, inside of [MCCI], [D]ecedent, was violently
assaulted and brutally beaten and killed by defendants,  Gingerelli and  Hasueman”; alleging
the Corrections Officers have unlawfully acted against inmates in the past, and have forged entries
in official records to obscure said unlawful acts; that Warden Nadrowski knew of the Correction
Officers’ violent propensities; and that generally, the Warden failed to correct said behavior); ¶¶
68-69 (alleging the Warden failed to supervise the Corrections Officers); ¶75 (this hiding and
concealing of the aforementioned unlawful actions is a civil conspiracy); ¶¶ 96, 105 (Corrections
Officers’ use of force was done intentionally and deliberately, and is a violation of civil rights.).
The Defendants also note, and the Court is aware, Plaintiff does specify whether proposed co-defendant Warden
Barry Nadrowski is being sued in his individual or official capacity.
A plaintiff’s Complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of this statement is to provide
the defendant with fair notice of the basis of the plaintiff’s claims in order for the defendant to
respond to the Complaint. Transtech Indus., Inc. v. A & Z Septic Clean, 798 F. Supp. 1079, 1091
(D.N.J. 1992) (a complaint must be “understandable, fair and amendable to response”; that is,
“clear and concise enough for defendants to understand the nature of the Complaint and be able to
respond and defend itself.”). “While a complaint […] does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (emphasis added). Similarly, where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops short of the line between possibility
and plausibility of entitlement to relief. Ashcroft, 566 U.S. at 678 (internal quotations omitted;
emphasis added); see also Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 74
(3d Cir. 2011). While the Court can generally understand the nature of the Plaintiff’s complaint
against the County Employees, she has alleged nary a supporting fact to bring her claims beyond
the level of a mere possibility. Therefore, the Court DENIES WITHOUT PREJUDICE Plaintiff’s
request for leave to Amend to add the County Employees.
b) CCS Employees
Plaintiff’s allegations against the CCS Employees are in her “Parties,” section, and
remaining counts One and Two. [Docket Entry No. 28-8 at 6-10]. Plaintiff’s “Parties” section
alleges that “[CCS] was and is a limited liability corporation, performing work, labor and services
within the State of New Jersey.” [Id. at 3, ¶ 8]. Similarly, “[CCS] administered medical and
pharmaceutical services to the inmates of [MCCI].” [Id. at ¶ 9]. Additionally, the CCS Employees
“w[ere] at all times relevant hereto, employed by Correct Care Solutions, LLC.” [Id. at 4, ¶¶ 1318]. Further, “[CCS] w[as] responsible for the hiring, training, supervision, discipline, retention
[…] of its employees [the CCS Employees]; and that [the CCS Employees] assessed, evaluated,
and examined the [D]ecedent on behalf of [CCS]. [Id. at 5, ¶¶ 22-23].
Plaintiff’s count One alleges that prior to Decedent’s arrest, he was being treated for bipolar manic depressive and post-traumatic stress disorder. [Id. at 6, ¶ 26]. Upon Decedent’s arrest
and incarceration, his medications were confiscated and he was unable to take the appropriate
medication for four days prior to his death. [Id. at ¶ 27]. The CCS Employees performed medical
services on Decedent including, taking his medical history, assessing suicide risk, and evaluating
Decedent’s medical conditions; in doing so becoming aware of Decedent’s disorders, suicide risk,
and need for medication. [Id. at 6-7, ¶¶ 28, 31]. Plaintiff alleges the CCS Employees performed
the evaluations improperly. [Id. at 7, ¶ 32]. Further, the CCS Employees did not recommend the
proper suicide prevention housing, administer decedent’s medications, or provide appropriate
psychological care. [Id. at ¶ 32]. This failure to take the proper precautions led to Decedent’s
death. [Id. at ¶ 33].
Plaintiff’s count Two alleges the CCS Employees’ wrongful actions were done under color
of state law and consequently are also violations of 42 U.S.C. §§ 1981, 1983, 1985, 1986, and
1988; constitutional claims under the Fourth, Fifth, Eighth and Fourteenth Amendments to the
United States Constitution; and constitutional claims under the New Jersey State Constitution. [Id.
at 9-10, ¶ 41]. The Court will analyze those violations in turn.
§ 1981 Claim
42 U.S.C. § 1981 states, in relevant part:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every
State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to
the full and equal benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce contracts” includes the making,
performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental
discrimination and impairment under color of State law.
42 U.S.C.A. § 1981 (West)
The Plaintiff has plead no specific facts showing Decedent’s denial of care was racially
motivated, or to allege a claim remotely close to those claims found viable by the Circuit.
Moreover, none of the complained conduct in Plaintiff’s Amended Complaint implicates even a
remote violation of the provisions set forth in the strict letter of § 1981. Therefore, Plaintiff’s
motion to amend her Complaint to include violations of 42 U.S.C. § 1981 against the CCS
Employees is DENIED.
§ 1983 Claim
A plaintiff asserting civil rights violations under § 1983 must establish that the defendant
acted under color of state law to deprive him or her of a right secured by the United States
Constitution or the laws of the United States. Coletta v. Bd. of Freeholders, No. CIV.A. 06-585
(MLC), 2007 WL 128893, at *3 (D.N.J. Jan. 12, 2007); citing Groman v. Twp. of Manalapan, 47
F.3d 628, 633 (3d Cir. 1995). § 1983 does not create substantive rights, but instead provides a
remedy for the violation of rights created by other federal laws. Id.; see also Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). Therefore because the purpose of § 1983 is to vindicate federal
civil rights, the Court will address the Plaintiff’s Fourth, Fifth, Eighth and Fourteenth Amendment
violations within this section. See Islam v. City of Bridgeton, 804 F. Supp. 2d 190, 197 (D.N.J.
2011) (“an individual harmed by a violation of the United States Constitution by a person acting
under color of state law may bring an action under 42 U.S.C. § 1983”).
If the Plaintiff successfully asserts a viable § 1983 claim against the CCS Employees, she
also successfully asserts any analog state constitutional claims.
Fourth Amendment Violation
The Fourth Amendment concerns “the right of people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.” U.S. Const. Amend. IV. The
Fourth Amendment governs excessive force claims arising out of an arrest or investigatory stop.
Graham v. Connor, 490 U.S. 386, 395 (1989). Under the Fourth Amendment, whether an officer
used excessive force is assessed by the “objective reasonableness,” of that officer's conduct. Hill
v. Algor, 85 F. Supp. 2d 391, 399 (2000); (citing Graham v. Connor, 490 U.S. 386 (1989)).
Whether the force used to effectuate an arrest is reasonable depends upon “the facts and
circumstances of each particular case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.
Plaintiff’s Amended Complaint does not plead any facts or circumstances alleging the CCS
Employees conducted an unreasonable search or seizure, or used any excessive force upon
Decedent. Therefore, Plaintiff’s motion to amend her Complaint to include Fourth Amendment
violations against the CCS Employees is DENIED.
Eighth Amendment Violations
While the Eighth Amendment prohibits the infliction of cruel and unusual punishment
upon prisoners, it applies only “after [the State] has secured a formal adjudication of guilt in
accordance with due process of law.” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581
(3d Cir. 2003); (citing City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983));
(quoting Ingraham v. Wright, 430 U.S. 651, 671–72 n. 40 (1977)). Here, Plaintiff alleges the
Decedent was “arrested and placed in the Monmouth County Jail”. [Docket Entry No. 28-8 at 6,
¶ 25]. Thus Plaintiff was only a pre-trial detainee, who never retained a formal Eighth Amendment
right. Therefore, the Court DENIES Plaintiff’s motion to amend her Complaint to include Eighth
Amendment claims against the CCS Employees.
Fifth and Fourteenth Amendment Violations
According to the Fifth and Fourteenth Amendments to the United States Constitution, no
State shall deprive a person of life, liberty or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws. U.S. Const. Amend. V and U.S.
Const. Amend. XIV, § 1. Deprivation of medical care to arrestees violates their right to due
process if it constitutes deliberate indifference to medical needs. See City of Revere, 463 U.S. at
239 (holding that the Due Process Clause confers arrestees a right to prompt medical treatment);
see also Natale, 318 F.3d at 582 (evaluating a Fourteenth Amendment claim for inadequate
medical care under the deliberate indifference standard).
In order to establish a violation of one’s right to adequate medical care, a Plaintiff must
allege he or she had (1) a serious medical need; and (2) the behavior on the part of prison officials
constituted deliberate indifference to that need. Id.; citing Rouse v. Plantier, 182 F.3d 192, 197 (3d
Cir. 1999). A serious medical need is one that a “doctor determines needs treatment [,] or is so
clear that a layperson would realize it needs a doctor’s attention.” Monmouth County Correctional
Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987); citing Pace v. Fauver, 479
F.Supp 456, 458 (D.N.J. 1979). Medical need may also be considered serious if a delay or denial
of care causes unnecessary and wanton infliction of pain, or life-long handicap, or permanent loss.
Szemple v. Rutgers, 2016 WL 1228842, at 6* (D.N.J. 2016); citing Townsend v. Holt, 2013 WL
4459023, at *5 (M.D. Pa. 2013).
Deliberate indifference has been found “where the prison official (1) knows of a prisoner's
need for medical treatment but intentionally refuses to provide it; (2) intentionally delays necessary
medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed
or recommended medical treatment.” Rouse at 197. However, deliberate indifference requires
that a plaintiff demonstrate more than just negligence. Thomas v. Dragovich, 142 Fed. Appx. 33,
36 (3d Cir. 2005). In fact, allegations of medical malpractice are not sufficient to establish a
Constitutional violation. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004); citing Estelle, 429
U.S. at 106; see also Daniels v. Williams, 474 U.S. 327, 332–34 (1986) (holding that negligence
is not compensable as a Constitutional deprivation). “[M]ere disagreement as to the proper medical
treatment,” is also insufficient. Lanzaro, 834 F.2d at 346 (citing Bowring v. Godwin, 551 F.2d 44,
48 (4th Cir. 1977)); Massey v. Hutto, 545 F.2d 45, 46 (8th Cir. 1976) (per curiam).
These allegations plausibly establish a Fourteenth Amendment violation. Here, Plaintiff
alleges the Decedent had a serious medical need as, at the time of his arrest and subsequent
incarceration, he was being treated in some capacity for bi-polar manic depressive disorder and
post-traumatic stress disorder, and had received daily-prescriptions to treat same. [Docket Entry
No. 28-8 at 5, ¶ 26]. Plaintiff additionally alleges the CCS Employees performed medical services
on Decedent including taking his medical history, assessing suicide risk, and evaluating
Decedent’s medical conditions. [Docket Entry No. 28-8 at 5-7, ¶¶ 23, 31]. Plaintiff also alleges
that in doing so, the CCS Employees were made aware of the Decedent’s disorders, and his need
for daily medication to control his conditions. [Id. at 6, ¶ 28]. Plaintiff likewise also alleges that
Decedent’s medications were confiscated and he was not administered the medications for at least
four days. [Id. at 6, ¶ 27, 30].
Although CCS argues the Plaintiff allegations “[are] nothing more than her subjective
dissatisfaction [with the course of treatment],” “do not allege a subjective component,” “do not
allege any delay or denial of medical care […],” and at best only “allege a cause of action for
medical negligence[,] but not deliberate indifference,” [see Docket Entry No. 29 at 15-16], the
Court finds that the facts plausibly establish deliberate indifference on the part of the CCS
Employees. In addition to the Plaintiff’s allegations of the CCS Employees’ medical negligence,
where Plaintiff alleged the CCS Employees should have known to properly diagnose and/or treat
the Decedent, the Plaintiff has alleged more. Specifically Plaintiff alleges that the CCS Employees
were made aware of the Decedent’s respective disorders and need for daily medication, and chose
to not only allow the medicines to remain confiscated, but also chose not to prescribe the Decedent
an effective substitute for same, for a period of four days. The Court believes that this knowinginaction is precisely the subjective element required to adequately plead a deliberate indifference
claim. Therefore, Plaintiff’s motion to amend her Complaint to include Fourteenth Amendment
claims against the CCS Employees is GRANTED.
§ 1985 and § 1986 Claims
To make out a conspiracy claim under 42 U.S.C. § 1985, Plaintiff must “prove four
elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person
or class of persons of the equal protection of the laws, or of equal privileges and immunities under
the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his
person or property or deprived of any right or privilege of a citizen of the United States.” United
Brotherhood of Carpenters & Joiners Local 610 v. Scott, 463 U.S. 825, 828-29 (1983). "In § 1985
cases, federal courts often reject vague and conclusory claims, and require particular and specific
allegations of conspiracy." Szemple v. Rutgers, 2016 WL 1228842 at *7 (D.N.J. 2016).
Likewise, federal courts have held that when a plaintiff is unable to plead specific facts to
make out a conspiracy claim under 42 U.S.C. § 1985, then the plaintiff also fails to state a claim
under § 1986. See Foulke v. McCloud, 2014 WL 47726 at *5 (D.N.J. 2014); see also Rogin v.
Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980) (“Because transgressions of [§] 1986 by
definition depend on a preexisting violation of [§] 1985, if the claimant does not set forth a cause
of action under latter, its claim under the former necessarily must fail also.”).
Plaintiff’s Amended Complaint alleges no facts indicating the CCS Employees had created
a plan or scheme deprive the Decedent of equal protection of the law. Therefore, Plaintiff’s motion
to amend her Complaint to include violations of 42 U.S.C. § 1985 against the CCS Employees is
DENIED. In turn, Plaintiff’s failure to state a § 1985 claim prevents Plaintiff from establishing the
prerequisite violation required to bring a § 1986 claim. Therefore, Plaintiff’s motion to amend her
Complaint to include violations of 42 U.S.C. § 1986 against the CCS Employees is likewise
§ 1988 Claim
42 U.S.C. § 1988 (b) states in relevant part: “In any action or proceeding to enforce a
provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title…the court, in its
discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s
fees as part of the costs […].” 42 U.S.C.A. § 1988 (West). Because the Court has granted the
Plaintiff leave to amend her Complaint to include § 1983 violations against the CCS Employees,
the Plaintiff may still recover attorney’s fees under §1988. Consequently, Plaintiff’s motion to
Amend her Complaint to include a § 1988 claim is also GRANTED.
State Negligence Claim
To sufficiently plead a claim for negligence, a plaintiff must allege: “(1) a duty of care
owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff
proximately caused by defendant's breach.” Bethea v. Roizman, 2012 WL 4490759, * 23 (D.N.J.
Sept. 27, 2012) citing Endre v. Arnold, 300 N.J.Super. 136, 142, 692 A.2d 97 (App.Div.1997).
Here, the Court believes the Plaintiff has adequately alleged a claim for negligence against the
CCS Employees. As discussed supra, the Plaintiff alleges the Decedent was being treated and
medicated for bi-polar manic depressive and post-traumatic stress disorder, and upon evaluating
Decedent, the CCS Employees were made aware of same. [Docket Entry No. 28-8 at 5-7, ¶¶ 23,
26, 28, 31]. As the CCS Employees were the staff responsible for treating the Decedent upon his
intake to MCCI, the CCS Employees had a duty to perform their screenings, and any consequential
treatments appropriately. The Plaintiff’s Complaint also alleges facts showing despite the CCS
Employees’ awareness of Decedent’s needs, they failed to provide Decedent his medications, or a
substitute, for four days prior to his death. Lastly, it is plausible to the Court that a failure to provide
a substitute for the Decedent’s medications contributed to the Decedent’s eventual suicide.
Consequently, Plaintiff’s motion to amend her Complaint to include state negligence claims
against the CCS Employees, is GRANTED.
Therefore, for the reasons set forth above, and for good cause shown:
IT IS on this 15th day of Septemer, 2016
1. ORDERED that Plaintiff’s motion for Leave to Amended her Complaint is GRANTED IN
PART AND DENIED IN PART; and it is further
2. ORDERED that Plaintiff shall file its Amended Complaint in conformance with this
Court’s Memorandum Opinion and Order within 10 days of the date of this Order; and it
3. ORDERED that the Clerk of the Court shall terminate the aforementioned motion [Docket
Entry No. 28].
s/ Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE
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