GRIECO v. LANIGAN et al

Filing 22

OPINION filed. Signed by Judge Freda L. Wolfson on 1/27/2017. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STEVEN GRIECO,

Civil Action No. 15-7881 (FLW)

Plaintiff,
v.

OPINION

GARY LANIGAN, et al.,
Defendants.

WOLFSON, United States District Judge:
I.

INTRODUCTION
This matter has been opened to the Court by Defendants Gary M. Lanigan, Stephen

D’Ilio, New Jersey Department of Corrections (“NJDOC”), and New Jersey State Prison
(“NJSP”) (collectively the “Moving Defendants”) on their second motion to dismiss Plaintiff’s
Complaint. 1 In its prior Opinion and Order (ECF No. 14-15), the Court granted the Moving
Defendants’ motion to dismiss the federal claims against them but denied without prejudice their
motion to dismiss the state law claims brought pursuant to the New Jersey Tort Claims Act
(“NJTCA”). (See id.) Moving Defendants have filed a second motion to dismiss under Fed. R.
Civ. P. 12(b)(6) directed at the NJTCA claims. 2 For the reasons stated below, the Court will
grant the motion to dismiss.

1

Stephen D’Ilio is improperly pleaded in the Complaint as “Stephen D’Illio.”

2

As noted in its prior Opinion and Order, it is not clear from the Complaint and attachments
whether Plaintiff has sued the NJDOC as an entity separate from NJSP. (See ECF No. 1-1.)
Because Defendants have moved to dismiss on behalf of both NJDOC and NJSP, the Court will
consider whether Plaintiff has NJTCA claims against either the NJDOC or NJSP.
1

II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
a. Facts Regarding the Alleged Assault
On March 23, 2015, Plaintiff was housed alone in a cell on 7B Wing, an administrative

segregation unit of NJSP. (1-1, Complaint at ¶¶ 10-12.) The Complaint alleges that the only
persons with access to Plaintiff’s cell were NJSP corrections officers and personnel. (Id. at ¶
12.) The Complaint further alleges that in the early morning hours of March 23, 2015, five
corrections officers, identified in the Complaint as “John Does 1-5”, entered Plaintiff’s cell while
he was sleeping and “savagely and recklessly attacked” him, causing serious injuries to his head.
(Id. at ¶¶ 15-19.) After the attack, John Does 1-5 also allegedly left Plaintiff bleeding and
unconscious on the floor of his cell for several hours. (Id. at ¶¶ 20-21.) Plaintiff has also sued
“John Does 6-10,” who are described in the Complaint as “supervisory staff with direct
supervising authority over John Does 1-5 at NJSP . . . on the night and morning of March 22 to
March 23, 2015, who on information and belief failed to provide adequate training and
supervision to John Does 1-5.” (Id. at ¶ 9.)
b. Facts Regarding the Alleged Involvement of Defendants Lanigan and D’Ilio
The “Parties” section of the Complaint includes the following general allegations
regarding Moving Defendants Lanigan and D’Ilio:
5.
Garry [sic] M. Lanigan is the Commissioner of the New
Jersey Department of Corrections and is responsible for the
custody and care of inmates housed in State correctional facilities,
including New Jersey State Prison, and has his principal place of
business at Whittlesey Road, Trenton, NJ 08625, in the County of
Mercer and is being sued in his official and personal capacity.
....
7.
Stephen D'Illio [sic] was the administrator of the New
Jersey State Prison and was responsible for the custody and care of
inmates housed at the New Jersey State Prison located at 300 2nd
Crass St., Trenton, NJ 08625 Mercer County, and was responsible
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for the proper training and supervision of all John Doe Defendants,
and is being sued in his official and personal capacity.
(Id. at ¶¶ 6-7.) The “Background Information” section of the Complaint, which describes the
alleged assault on Plaintiff, alleges that “Defendants Gary M. Lanigan , NJDOC, Stephen D'Ilio,
and John Does [6-10], had a duty to train officers and to protect [Plaintiff] from the malicious,
wanton and reckless behavior of John Does 1-5.” 3 (Id. at ¶ 22.) In Count I of the Complaint,
which is brought pursuant to the NJTCA, alleges that “Gary M. Lanigan, Stephen D'Illio [sic],
and John Does 6-10 are responsible for the training and supervision of John Does 1-5 and failed
to provide adequate and appropriate training and supervision.” (Id. at ¶ 29.) Count II of the
Complaint, brought pursuant to 42 U.S.C. § 1983, alleges that “[t]he use of force by John Does
1-5 and the failure of Stephen D'Illio [sic], Gary M. Lanigan, the NJDOC, or John Does 6-10 to
supervise and protect Mr. Grieco or to appropriately train John Does 1-5, was a violation of the
8th Amendment rights of Mr. Grieco.” (Id. at ¶ 44.)
c. Procedural History of this Litigation
Plaintiff, who is represented by counsel, initially filed his two-count Complaint in Mercer
County Superior Court on October 10, 2015. The matter was removed by Defendants NJDOC
and Gary Lanigan on November 4, 2015. (ECF No. 1, Notice of Removal.) Defendants
Lanigan, NJDOC, and NJSP filed a motion to dismiss the Complaint on November 24, 2015.
(ECF No. 4.) Defendant D’Ilio subsequently moved to dismiss the Complaint on January 19,
2016. (ECF No. 11.) On June 17, 2016, the Court granted the Moving Defendants’ motions to
dismiss the § 1983 claims against them. (ECF Nos. 14-15.) The Court dismissed with prejudice
(1) the § 1983 claims as to Defendants NJDOC and NJSP and (2) the official capacity § 1983

3

The reference to John Does 11-15 appears to refer to John Does 6-10, who are described as
“supervisory staff with direct supervisory authority over John Does 1-5 at NJSP.” (Compl. at ¶
9.)
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claims for damages against Defendant Lanigan and D’Ilio. The Court dismissed without
prejudice the personal capacity § 1983 claims against Defendants Lanigan and D’Ilio. (ECF No.
14, Op. at 6-11.) The Court, however, denied without prejudice the motion to dismiss with
respect to the remaining NJTCA claims against all Moving Defendants, finding that they did not
meet their burden to show that Plaintiff failed to state a claim for relief. (ECF No. 14, Op. at 1112.) The Court also noted that the only federal claims remaining in this removal case were
alleged against unidentified John Doe Defendants. As such, the Court provided Plaintiff with a
90-day period in which to identify the John Doe Defendants. (Id. at 13 n. 9.)
On June 20, 2016, State Defendants wrote to the Court seeking permission to file a
second motion to dismiss to address the remaining NJTCA claims. (ECF No. 16.) In a June 21,
2016, letter to the Court, Plaintiff’s counsel stated that Plaintiff needed to engage in discovery
with Defendants Lanigan and D’Ilio in order to identify the John Doe Defendants, and that these
Defendants should not be dismissed from the suit until the 90-period of discovery was over.
(ECF No. 17.) The Court issued an Order that (1) permitted the Moving Defendants to file a
second motion to dismiss and (2) also permitted Plaintiff to engage in discovery with the Moving
Defendants in order to identify the John Doe Defendants within the 90-period set out by the
Court in its prior Order. 4 (See ECF No. 19.)
On July 1, 2016, the State filed its second motion to dismiss directed at the NJTCA
claims. (ECF No. 20.) Plaintiff, who is proceeding through counsel, did not file opposition to
the motion. Although the 90-day period for discovery has now expired, Plaintiff has not filed an

4

It is not clear from the docket whether any discovery has taken place.
4

Amended Complaint to identify the John Doe Defendants or to allege § 1983 claims against
Defendants Lanigan and D’Ilio in their personal capacities.
III.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a claim “for

failure to state a claim upon which relief can be granted.” Fed. R .Civ. P. 12(b)(6). On a motion
to dismiss for failure to state a claim, the moving party “bears the burden of showing that no
claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing
Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)); United Van Lines,
LLC v. Lohr Printing, Inc., No. CIV. 11–4761, 2012 WL 1072248, at *2 (D.N.J. Mar. 29, 2012).
When reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), courts first separate
the factual and legal elements of the claims, and accept all of the well-pleaded facts as true. See
Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009). All reasonable inferences
must be made in the plaintiff's favor. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314
(3d Cir. 2010). In order to survive a motion to dismiss, the plaintiff must provide “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). This standard requires the plaintiff to show “more than a sheer possibility that a
defendant has acted unlawfully,” but does not create what amounts to a “probability
requirement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Third Circuit has required a three-step analysis to meet the plausibility standard
mandated by Twombly and Iqbal. First, the court should “outline the elements a plaintiff must
plead to a state a claim for relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Next, the
court should “peel away” legal conclusions that are not entitled to the assumption of truth. Id.;
see also Iqbal, 556 U.S. 678–79 (“While legal conclusions can provide the framework of a
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complaint, they must be supported by factual allegations.”). Finally, the court should assume the
veracity of all well-pled factual allegations, and then “determine whether they plausibly give rise
to an entitlement to relief.” Bistrian, 696 F.3d at 365 (quoting Iqbal, 556 U.S. at 679). A claim
is facially plausible when there is sufficient factual content to draw a “reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The third step of the
analysis is “a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
IV.

ANALYSIS
a. NJTCA Claims Against the Moving Defendants
In their motion to dismiss, the Moving Defendants argue that the NJTCA claims against

them must be dismissed because there is no vicarious liability for intentional torts under the
NJTCA, and that the Complaint fails to plead sufficient facts to state a claim for negligent
supervision and/or training under the NJTCA.
Under some circumstances, a public entity – such as the NJDOC and NJSP – may be held
liable for the torts of its employees under a theory of respondeat superior. As explained by the
New Jersey Appellate Division in Hoag v. Brown, “[a] public entity ‘is liable for injury
proximately caused by an act or omission of a public employee within the scope of his
employment in the same manner and to the same extent as a private individual under like
circumstances.’” 397 N.J. Super. 34, 53–54 (App. Div. 2007) (citing N.J.S.A. 59:2–2a); see also
Carter v. Reynolds, 345 N.J. Super. 67, 783 A.2d 724, 726 (App. Div.2001 (“[A]n employer is
vicariously liable for the torts of an employee only if the employee was acting within the scope
of his or her employment at the time the tort was committed.”), aff'd, 175 N.J. 402, 815 A.2d 460
(2003). “Conduct is generally considered to be within the scope of employment if, ‘it is of the
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kind [that the servant] is employed to perform; it occurs substantially within the authorized time
and space limits; [and] it is actuated, at least in part, by a purpose to serve the master.” Di Cosala
v. Kay, 91 N.J. 159, 450 A.2d 508, 513 (N.J.1982) (quoting Restatement (Second) of Agency §
228 (1957)); see also Gattas v. City of Jersey City, No. CIV.A. 07-4242(JAG), 2010 WL
892187, at *12 (D.N.J. Mar. 5, 2010) (finding that defendant police officer was acting within his
role as an on-duty police officer when he handcuffed plaintiff and that officer’s arrest of plaintiff
was actuated at least in part to serve the master). N.J.S.A. § 59:2–2a “is the primary source of
public entity liability, in that ‘[i]t establishes the principle of vicarious liability for all public
entities for ‘injury proximately caused by an act or omission of a public employee within the
scope of his employment’ and thereby relies upon the established principles of law such as the
doctrine of respondeat superior.” Gattas v. City of Jersey City, No. CIV.A. 07-4242(JAG), 2010
WL 892187, at *5 (D.N.J. Mar. 5, 2010) (citing Wright v. State, 169 N.J. 422, 778 A.2d 443, 451
(N.J.2001) (quoting Comment to N.J. Stat. Ann § 59:2–2).
The NJTCA also provides that “[a] public entity is not liable for the acts or omissions of
a public employee constituting a crime, actual fraud, actual malice, or willful misconduct.”
Hoag, 397 N.J. Super at 53–54 (citing N.J.S.A. 59:2–10). As such, there is “no vicarious
liability by a public entity for intentional torts committed by its employees; that is, with respect
to such intentional torts, the theory of respondeat superior does not apply.” Id. (citing
McDonough v. Jorda, 214 N.J. Super. 338, 350 (App. Div. 1986), certif. denied, 110 N.J. 302,
540 A.2d 1282 (1988), cert. denied sub nom., Jorda v. City of New Brunswick, 489 U.S. 1065
(1989).
Here, John Does 1-5 allegedly entered Plaintiff’s cell while he was sleeping and
“savagely and recklessly attacked” him with their hands, feet, batons, and other objects. (Compl.
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at ¶ 16.) After they assaulted him, John Does 1-5 allegedly left Plaintiff bleeding on the floor his
cell for several hours without medical care. (Id. at ¶ 20.) Although Plaintiff’s Complaint states
in a conclusory fashion that the attack was “reckless,” the facts provided in the Complaint
suggest that the beating by John Does 1-5 was an unprovoked, intentional assault. The decision
to leave him bleeding on the floor of his cell also appears to be intentional misconduct. The
Complaint provides no facts from which the Court could find that the assault and failure to
provide medical care to Plaintiff was undertaken in the course of employment, i.e., that the
conduct is of the type John Does 1-5 are employed to perform and that the conduct was actuated
in least in part by a purpose to serve the master. Because the conduct of John Does 1-5, as
described in the Complaint, can only be construed as willful misconduct and/or criminal conduct,
see N.J.S.A. 59:2–10, NJDOC and NJSP (and by extension, Defendants Lanigan and D’Ilio) may
not be held liable for that conduct under a theory respondeat superior. As such, to the extent
Plaintiff seeks to hold the Moving Defendants liable for the misconduct of John Does 1-5 under a
theory of respondeat superior, such NJTCA claims are dismissed without prejudice.
The NJTCA, however, also permits claims of negligent hiring or negligent supervision,
which covers acts committed outside the scope of employment. 5 See Hoag, 397 N.J. Super. at 54
(collecting cases); see also Adams v. City of Camden, 461 F.Supp.2d 263, 269–70 (D.N.J. 2006)
as support for claim against county for negligent hiring of police officer); DiCosala, 91 N.J. at

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As explained by the New Jersey Supreme Court in DiCosala v. Kay, “the tort of negligent
hiring addresses the risk created by exposing members of the public to a potentially dangerous
individual, while the doctrine of respondeat superior is based on the theory that the employee is
the agent or is acting for the employer.” DiCosala v. Kay, 91 N.J. 159, 172-73 (1982); V.A. ex
rel., M.A. v. New Jersey Nat. Guard Youth Challenge Program, No. CIV A 06-347 JBS, 2007
WL 2010940, at *4 (D.N.J. July 9, 2007) (explaining same).
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172–74 (in private sector, tort of negligent hiring addresses different wrong from that sought to
be redressed by respondeat superior doctrine); Pacifico v. Froggatt, 249 N.J. Super. 153, 154–
55, 157(Law Div.1991) (New Jersey Transit could be liable for negligent hiring of its officers
notwithstanding that public entities cannot be liable for the willful acts of its employees); Harry
A. Margolis & Robert Novack, Claims Against Public Entities, comment on N.J.S.A. 59:2–10
(Gann 2007) (“Clearly this section does not prevent allocation of fault to a public entity where
that entity is liable for the negligent supervision of an employee who has engaged in willful
misconduct.”). The TCA also permits causes of action for related claims of negligent training.
See Denis v. City of Newark, 307 N.J. Super. 304, 312-13 (App. Div.1988) (holding that the Tort
Claims Act did not alter the previously established body of law that public entities could be
liable for negligent training and supervision claims); V.A. ex rel., M.A. v. New Jersey Nat. Guard
Youth Challenge Program, No. CIV A 06-347 JBS, 2007 WL 2010940, at *3 (D.N.J. July 9,
2007) (same).
The test for negligent hiring has been explained in Adams v. City of Camden, 461 F.
Supp. 2d 263, 269 (D.N.J. 2006) as follows:
In New Jersey, the tort of negligent hiring has as its constituent
elements two fundamental requirements. The first involves the
knowledge of the employer and foreseeability of harm to third
persons. An employer will only be held responsible for the torts of
its employees beyond the scope of the employment where it knew
or had reason to know of the particular unfitness, incompetence or
dangerous attributes of the employee and could reasonably have
foreseen that such qualities created a risk of harm to other persons.
The second required showing is that, through the negligence of the
employer in hiring the employee, the latter’s incompetence,
unfitness or dangerous characteristics proximately caused the
injury. Di Cosala v. Kay, 91 N.J. 159, 173–74, 450 A.2d 508
(1982) (citations omitted).
Similarly, under New Jersey law, liability may also be imposed on an employer who fails to
perform its duty to train and supervise its employees. See Vasquez v. Gloucester Cty., No.
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CIV.A. 13-4146 JEI, 2015 WL 3904550, at *5 (D.N.J. Jun. 25, 2015) (citing Tobia v. Cooper
Hosp. Univ. Med. Ctr., 136 N.J. 335, 346 (1994)); see also Ewing v. Cumberland Cty., No. CIV.
09-5432 JBS/AMD, 2015 WL 1384374, at *30 (D.N.J. Mar. 25, 2015) (“Plaintiff’s theory, that
[Cumberland County] is liable for its employees’ failure to properly supervise subordinates on
the day Plaintiff was beaten, states a claim of negligent supervision that is not barred by the
NJTCA. Plaintiff additionally states a claim of negligent failure to train”). In order to establish
a prima facie claim for negligent training, plaintiff must show that (1) the defendant owed a duty
of care to the plaintiff, (2) defendant breached that duty of care, (3) defendant’s breach was the
proximate cause of plaintiff's injury, and (4) defendant's breach caused actual damages to
plaintiff. Stroby v. Egg Harbor Twp., 754 F.Supp.2d 716, 721 (D.N.J. 2010) (citing Weinberg v.
Dinger, 106 N.J. 469, 484 (1987)). “A plaintiff bears the burden of establishing [each of] those
elements by some competent proof.” Townsend v. Pierre, 221 N.J. 36, 51 (2015) (internal
quotation marks and citations omitted).
Here, the Complaint does not contain any facts to suggest that any of the Moving
Defendants had reason to know that any of John Does 1-5 were particularly unfit, incompetent,
or dangerous, or that the Moving Defendants could have foreseen that the John Does 1-5
possessed qualities that created a risk of harm to Plaintiff or to inmates generally. See Di
Cosala, 91 N.J. at 174. Furthermore, the Complaint does not provide sufficient facts to suggest
that the Moving Defendants breached their duty of care to Plaintiff by providing inadequate
supervision of and/or training to John Does 1-5, or that the deficient supervision and/or training
was a proximate cause of Plaintiff’s injuries. Rather, the Complaint alleges in a conclusory
manner that Defendants Lanigan, D’Ilio, and John Does 6-10 are responsible for the training and
supervision of John Does 1-5, and failed to adequately train and supervise them, which resulted
10

in injuries to Plaintiff. (See Compl. at ¶¶ 22, 29, 35.) There are no facts regarding the alleged
deficiencies in the supervision and/or training and fails to link any alleged deficiencies in
supervision and/or training to the assault and/or failure to provide medical care. Although a
Plaintiff need not set forth “detailed factual allegations” to survive a motion to dismiss, see
Twombly, 550 U.S. at 555; see also in re Paulsboro Derailment Cases, No. 13-784 RBK/KMW,
2013 WL 5530047, at *2 (D.N.J. Oct. 4, 2013) (explaining same), he must “plead sufficient
factual matter” to state a plausible claim for relief. Iqbal, 556 U.S. at 677. Here, the Complaint
contains insufficient factual matter to suggest that Moving Defendants Lanigan or D’Ilio (or
John Does 6-10) failed to supervise and/or train John Does 1-5, and that the failure to supervise
and/or train caused Plaintiff’s injuries. Because the failure to supervise and/or train claims are
insufficiently pleaded against Defendants Lanigan, D’Ilio, and John Does 6-10, the NJDOC and
NJSP may not be held liable for the alleged failures to supervise and/or train. 6 As such, the
Court will dismiss without prejudice the NJTCA claims for failure to supervise and/or train as to
all Moving Defendants. 7

6

Moving Defendants have not briefed the issue, and the Court assumes without deciding that
Plaintiff could also state a claim against NJDOC or NJSP had he sufficiently alleged a claim for
negligent failure to supervise and/or train.
7

The Court does not dismiss the claims against John Does 6-10 at this time, as they have not
been identified or served, but nevertheless notes that the Complaint contains insufficient facts to
state NJTCA claims for failure supervise and/or train against John Does 6-10, who are alleged to
be the direct supervisors of John Does 1-5 at the time of the incident.
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V.

CONCLUSION
For the reasons stated in this Opinion, the Court will grant the Moving Defendants’

motion to dismiss the NJTCA claims against them. The dismissal is without prejudice. An
appropriate Order follows.

/s/ Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.

Date: January 27, 2017

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