FREEMAN v. SCHAFFER

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

MATTHEW FREEMAN, :

: Civ. Action No. 18-11566(RMB)

Plaintiff, :

:

v. : OPINION

:

GARY G. SCHAFFER, et al., :

:

Defendants. :

APPEARANCES:

JEFFREY MICHAEL PATTI, Esq.

PATTI & PATTI, ESQS.

255 WOODPORT ROAD

SPARTA, NJ 07871

On behalf of Plaintiff

RICHARD GOLDSTEIN, Esq.

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA

15000 MIDLANTIC DRIVE, Suite 200

P.O. BOX 5429

MOUNT LAUREL, NJ 08054

On behalf of Defendants Cape May County, Cape May County

Correctional Center, Cape May County Sheriff’s Office, Grady

Faircloth, Vincent Grencavich, Kenneth Hill, Joseph Hoover, Mark

Howard, William Lear, Donald Lombardo, Gary G. Schaffer

BUMB, United States District Judge

This matter comes before the Court upon Defendants’ motion to

dismiss Plaintiff’s Amended Complaint1 (“Defs’ Mot. to Dismiss,”

ECF No. 20 and “Defs’ Brief,” ECF No. 20-2); Plaintiff’s opposition

1 Defendants’ motion to dismiss was filed before Plaintiff amended

his complaint but the motion to dismiss is now applicable to the

Amended Complaint. (Def’s Letter, ECF No. 25.)

to Defendants’ motion to dismiss (“Pl’s Opp. To Defs’ Mot. to

Dismiss,” ECF No. 24); and the parties pre-motion conference

letters (Defs’ Letter, ECF No. 25; Pl’s Letter, ECF No. 26.) This

Court will decide the motions on the briefs without an oral

hearing, pursuant to Federal Rule of Civil Procedure 78(b). For

the reasons discussed below, the Court will grant in part and deny

in part Defendants’ motion to dismiss.

I. BACKGROUND

In his Amended Complaint, Plaintiff alleges that at various

times between January 24, 2014 and July 27, 2016, he was an inmate

and/or a pre-trial detainee lodged at Cape May County Correctional

Center (“CMCCC”). (Am. Compl., ECF No. 22, ¶19.) CMCCC uses an

“emergency restraint chair,” whereby an inmate is strapped into a

chair around the waist and his hands are cuffed behind his back

and his legs are shackled. (Id., ¶20.) Straps are wrapped from the

inmate’s neck down to his feet, completely immobilizing the inmates

and causing severe pain and discomfort. (Id.)

Proper use of the restraint chair requires administrative

approval and is to be used only in those instances where

corrections staff have a reasonable concern that an inmate’s

behavior is a threat to himself or others. (Id., ¶22.) Use of the

restraint chair should be discontinued when the inmate no longer

poses a risk of harm to himself or others. (Am. Compl., ECF No.

22, ¶23.) The restraint chair is not to be used as a disciplinary

device or a means for intimidation and doing so amounts to torture.

(Am. Compl., ECF No. 22, ¶24.) Defendants Gary G. Schaffer and

Donald Lombardo were responsible for the oversight of the

operations, creating and implementing policies and procedures,

implementing well settled practice and procedures, and

implementing official decisions and policy statements at the

CMCCC, including the use of the restraint chair. (Id., ¶25.)

Plaintiff’s commitment began at CMCCC on January 24, 2014

until he was transferred to Ancora State Hospital on July 27, 2016.

(Id., ¶27.) During the relevant time period, Plaintiff was

diagnosed with serious psychoses, causing him to act out. (Id.,

¶26.) Between February 15, 2014 and May 29, 2014, plaintiff was

placed in the restraint chair at least twelve times, with some

occasions for multiple days at a time. (Id.)

On July 11, 2016,2 Defendant Faircloth authorized the

placement of Plaintiff in the restraint chair, and all other named

defendants proceeded to forcibly strap Plaintiff in the restraint

chair. (Id., ¶29.) Commencing on July 11, 2016, Plaintiff was left

strapped in the restraint chair continuously until he was

transported to Ancora Psychiatric Hospital on July 27, 2016. (Id.,

¶28.) While strapped in the restraint chair, Plaintiff experienced

2 The Amended Complaint has the date “July 11, 2014” but the Court

assumes “2014” was a typographical error and that Plaintiff

intended to allege that he was put in the restraint chair from

July 11, 2016 through July 27, 2016.

excruciating pain in his body and burning in his eyes from being

sprayed in the face. (Am. Compl., ECF No. 22, ¶30.) Plaintiff

urinated and defecated in his pants as he was not permitted to use

the bathroom. (Id.) Upon his arrival at Ancora, Plaintiff was

covered in his own feces. (Id., ¶28.)

Plaintiff asserts the following causes of action: Count One—

Federal 1983 Claims; Count Two—42 U.S.C. §1985—Conspiracy; Count

Three—Policy and practice/Monell; Count Four—New Jersey State

Constitutional Claims; Count Five—State Law Conspiracy; Count Six—

State law Policy and practice/Monell. (Am. Compl., ECF No. 22,

¶¶34-63.)

II. STANDARD OF REVIEW

On a Rule 12(b)(6) motion to dismiss, courts must accept the

Plaintiff’s allegations as true “with the important caveat that

the presumption of truth attaches only to those allegations for

which there is sufficient “factual matter” to render them

“plausible on [their] face.” Schuchardt v. President of the United

States, 839 F.3d 336, 347 (3d Cir. 2016) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009)). The plausibility determination

is context-specific and requires a reviewing court to draw on its

judicial experience and common sense. Id. (citations omitted).

A plaintiff has the burden of pleading sufficient “factual

matter” but need not plead “specific facts.” Id. (quoting Boykin

v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 569 (2007) and Erickson v. Pardus,

551 U.S. 89, 93 (2007)). “Implicit in the notion that a plaintiff

need not plead ‘specific facts’ to survive a motion to dismiss is

that courts cannot inject evidentiary issues into the plausibility

determination.” Id. A court may not dismiss a complaint based on

the court’s “assessment that the plaintiff will fail to find

evidentiary support for his allegations or prove his claim to the

satisfaction of the factfinder.” Id. (quoting Twombly, 550 U.S. at

573.)

In reviewing the sufficiency of a complaint, a court must

first identify the legal elements required to state a cognizable

claim. Argueta v. U.S. Immigration and Customs Enforcement, 643

F.3d 60, 74 (3d Cir. 2011) (citing Iqbal, 129 S. Ct. at 1950,

Santiago v. Warminster Tp., 629 F.3d 121, 129-30 (3d Cir. 2010)).

Second, the court should identify allegations that are no more

than conclusions that are not entitled to an assumption of truth.

Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016).

Under Twombly and Iqbal, only legal conclusions are discounted,

while “even outlandish allegations” are entitled to a presumption

of truth unless they are merely “formulaic recitations of the

elements of a … claim.” Id. at 789 (citing Iqbal, 556 U.S. at 681.)

“[T]he clearest indication that an allegation is conclusory and

unworthy of weight in analyzing the sufficiency of a complaint is

that it embodies a legal point.” Connelly, 809 F.3d at 790 (citing

Peñalbert–Rosa v. Fortuño–Burset, 631 F.3d 592, 595 (1st Cir. 2011)

(citation and internal quotation marks omitted).

Third, a court must determine whether the “well-pleaded

factual allegations plausibly give rise to an entitlement to

relief.” Argueta, 643 F.3d at 74 (citing Iqbal, 129 S. Ct. at 1950,

Santiago, 629 F.3d at 129-30.) The plausibility requirement “‘is

not akin to a ‘probability requirement.’” Id. (quoting Iqbal, 129

S. Ct. at 1949). The plausibility requirement requires a pleading

to show “‘more than a sheer possibility that a defendant has acted

unlawfully.’” Connelly, 809 F.3d at 786 (quoting Iqbal, 556 U.S.

at 678)). Allegations that are “merely consistent with a

defendant's liability” … are not enough. Santiago, 629 F.3d at 133

(quoting Iqbal, 129 S. Ct. at 1949–50 (internal quotation marks

omitted)). Where there is an allegation consistent with a

defendant’s liability but there is an “obvious alternative

explanation,” the inference of the defendant’s liability is not

plausible. Id.

III. DEFENDANTS’ MOTION TO DISMISS

A. The Parties’ Arguments

Defendants move to dismiss the Amended Complaint for the

following reasons: (1) the two-year statute of limitations bars

Plaintiff’s constitutional claims in Counts I, III, IV and VI; (2)

Plaintiff’s Monell claims (Counts III, VI) fail to allege plausible

grounds for relief; (3) Plaintiff’s Section 1986 conspiracy claim

is barred by the one-year statute of limitations and fails to state

a plausible claim for relief;3 (4) Plaintiff’s state law civil

conspiracy claim fails as a matter of law because Plaintiff did

not comply with the notice provision of the New Jersey Tort Claims

Act; and (5) the individual defendants are entitled to qualified

immunity. (Defs’ Brief, ECF No. 20-2.)

In opposition to the motion to dismiss, Plaintiff asserts:

(1) Plaintiff’s Amended Complaint cures the mistakenly pleaded §

1986 claim by properly pleading § 1985, which carries a two-year

statute of limitations; (2) the New Jersey Tort Claims Act does

not apply to New Jersey Civil Rights Act claims including claims

for conspiracy to deprive civil rights; (3) Plaintiff’s claims are

not time-barred; (4) Plaintiff has adequately pled a Monell claim

based on improper/lack of training and supervision, and

established policy, practice or custom. (Pl’s Opp. to Defs’ Mot.

to Dismiss, ECF No. 24.)

In reply, Defendants contend that: (1) the continuing

violations doctrine does not save Plaintiff’s claims from the

statute of limitations bar; (2) Plaintiff’s § 1985 claim fails as

a matter of law; (3) Plaintiff has not corrected the pleading

deficiencies in the original complaint with respect to his Monell

3 Due to a typographical error, Plaintiff initially brought his

claim under 42 U.S.C. § 1986. (Compl., ECF No. 1, ¶¶35-38.)

Plaintiff corrected the error in the Amended Complaint, Count Two.

(Am. Compl., ECF No. 22, ¶¶40-43.)

and state law claims; (4) the Court need not permit discovery prior

to addressing the qualified immunity defense; (5) Plaintiff’s

civil conspiracy tort claim is barred by Plaintiff’s failure to

provide a notice of claim under the NJTCA. (Defs’ Letter, ECF No.

25.)

Plaintiff counters that: (1) his allegations in the Amended

Complaint support application of the continuing violations

doctrine to bring his claims within the two-year statute of

limitations; (2) Plaintiff sufficiently pled his § 1985 claim; (3)

the NJTCA does not apply to claims under the NJCRA of conspiracy

to commit civil rights. (Pl’s Letter, ECF No. 26.)

B. Analysis

1. Statute of limitations on Plaintiff’s state and

federal constitutional claims

If “the time alleged in the statement of a claim shows that

the cause of action has not been brought within the statute of

limitations,” a statute of limitations defense may be made in a

Rule 12(b)(6) motion. Schmidt v. Skolas, 770 F.3d 241, 249 (3d

Cir. 2014) (quoting Robinson v. Johnson, 313 F.3d 128, 135 (3d

Cir. 2012) (quoting Hanna v. U.S. Veterans’ Admin. Hosp., 514 F.2d

1092, 1094 (3d Cir. 1975)). In determining the statute of

limitations for a claim arising under 42 U.S.C. § 1983, courts

apply the limitations period applicable to personal-injury torts

in the state in which the cause of action arose. Wallace v. Kato,

549 U.S. 384, 387 (2007). Plaintiff’s claims arose in New Jersey,

where personal injury claims are governed by a two-year statute of

limitations. Estate of Lagano v. Bergen Cty. Prosecutor’s Office,

769 F.3d 850, 859 (3d Cir. 2014) (citing N.J.S.A. 2A:14-2).

Plaintiff’s claims under the New Jersey Civil Rights Act (“NJCRA”),

N.J.S.A. 10:6-1 et seq. are also governed by a two-year statute of

limitations. Melendez-Spencer v. Shack, 747 F. App’x 910, 913 (3d

Cir. 2018)(per curiam)).

“[T]he accrual date of a § 1983 cause of action is a question

of federal law that is not resolved by reference to state law.”

Wallace, 549 U.S. at 388. Under federal law, a claim accrues when

the plaintiff has a complete cause of action, in other words “when

‘the plaintiff can file suit and obtain relief.’” Id. (quoting Bay

Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp.

of Cal., Inc., 522 U.S. 192, 201 (1997)).

Under federal law, the continuing violation doctrine

postpones the running of the statute of limitations “‘when a

defendant’s conduct is part of a continuing practice.’” Randall v.

City of Philadelphia Law Department, 919 F.3d 196, 198 (quoting

Brenner v. Local 514, United Bhd. Of Carpenters & Joiners of Am.,

927 F.2d 1283, 1295 (3d Cir. 1991). “[S]o long as the last act

[in] the continuing practice falls within the limitations period

… the court will grant relief for the earlier related acts that

would otherwise be time barred.” Brenner, 927 F.2d at 198-99

(quoting Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001)).

The continuing violation doctrine “relies on a defendant’s

continuing acts, not a plaintiff’s continuing injury.” Randall,

919 F.3d at 199 (alterations in original).

“In order to benefit from the doctrine, a plaintiff must

establish that the defendant’s conduct is ‘more than the occurrence

of isolated or sporadic acts.” Cowell, 263 F.3d at 292 (quoting

West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995)).

Courts should consider the following three factors, and the third

factor is most important: (1) whether the violations involved the

same type of misconduct, tending to connect them; (2) frequency—

whether the acts are recurring or more in the nature of isolated

incidents; and (3) degree of permanence—whether the act had a

degree of permanence that should have triggered a plaintiff’s

awareness of and duty to assert his/her rights. Id. The focus is

on affirmative acts of the defendants. Id.

Plaintiff filed his original complaint on July 12, 2018.

(Compl., ECF No. 1.) Therefore, for his § 1983 and NJCRA claims to

fall within the two-year limitations period, his claims must have

accrued by July 12, 2016. Plaintiff alleges that between February

15, 2014 and May 29, 2014, he was placed in the restraint chair at

least twelve times, with some occasions for multiple days at a

time. (Am. Compl., ECF No. 22, ¶27.) Plaintiff also alleges that

he was placed in the restraint chair beginning on July 11, 2016

and was not removed from the chair until he was transported to

Ancora Psychiatric Hospital on July 27, 2016. (Am. Compl., ECF No.

22, ¶28.)

Here, the third and most important factor in application of

the continuing violations doctrine, degree of permanence, strongly

supports a finding that Plaintiff should have asserted his rights

based on Defendants’ use of the restraint chair in February 2014

through May 29, 2014. Plaintiff was allegedly restrained in the

chair at least twelve times in four months. At that point, he

should have known to assert his rights, and the statute of

limitations permitted him two years in which to do so. The Court

dismisses the § 1983 and NJCRA claims based on use of the restraint

chair in 2014.

Plaintiff does not allege another use of the restraint chair

between May 29, 2014 and June 10, 2016. The alleged use of the

restraint chair on July 11, 2016 was an isolated incident from the

2014 incidents. But the restraint chair was allegedly used

continuously from July 11, 2016 through July 27, 2016, constituting

a continuing act by Defendants. The continuing violations doctrine

extends the two-year statute of limitations from July 11, 2018

until July 27, 2018, and that part of Plaintiff’s § 1983 and NJCRA

claims may proceed.

2. Failure to state a constitutional claim

Defendants argue that Plaintiff failed to state a

constitutional claim. (Def’s Brief, ECF No. 20-2 at 12.) “[T]he

‘NJCRA was intended to serve as an analog to [Section 1983]; it

was intended to ‘incorporate and integrate seamlessly’ with

existing civil rights jurisprudence.” Chapman v. N.J., No. CIV.

08-4130(AET), 2009 WL 2634888, at *3 (D.N.J. Aug. 25, 2009)

(quoting Slinger v. State of New Jersey, 2008 U.S. Dist. LEXIS

71723, at *15.) Therefore, “[c]ourts have repeatedly construed the

NJCRA in terms nearly identical to … Section 1983.” Id. (citing

Newport v. Fact Concerts, 453 U.S. 247, 259–261 (1981); Allen v.

Fauver, 768 A.2d 1055 (2001)). Because it is not known whether

Plaintiff was a convicted prisoner, to whom the Eighth Amendment

applies, or a pretrial detainee, to whom the Fourteenth Amendment

applies, the Court will address Plaintiff’s excessive force claim

under the Eighth and the Fourteenth Amendments, along with the

analogous NJCRA claims.

In the Amended Complaint, Plaintiff alleges that under

CMCCC’s policy, staff may use the restraint chair when they have

a reasonable concern that an inmate’s behavior is a threat to

himself, other inmates, or corrections staff. (Am. Compl., ECF No.

22, ¶22.) Plaintiff also alleges that during the relevant time

period, he was diagnosed with “serious psychoses causing him to

act out.” (Id., ¶26.) Defendants note that Plaintiff never alleged

when he ceased acting out. (Def’s Brief, ECF No. 20-2 at 12.) Thus,

Defendants conclude that the Amended Complaint alleges staff used

the restraint chair in accordance with policy and not in violation

of law. (Id.)

a. Eighth Amendment

“Force that is used ‘maliciously and sadistically for the

very purpose of causing harm’ violates the Eighth Amendment.” Young

v. Martin, 801 F.3d 172, 180 (3d Cir. 2015) (quoting Whitley v.

Albers, 475 U.S. 312, 320–21 (1986) (citation and internal

quotation marks omitted in original). “‘Application of force by

... prison guards exceeding that which is reasonable and necessary

under the circumstances’ may be actionable[.]” Id. (quoting

Davidson v. O'Lone, 752 F.2d 817, 827 (3d Cir. 1984)). Where a

claim of excessive force involves use of mechanical restraints,

the following conduct constitutes excessive force:

(1) where the inmate had “already been

subdued, handcuffed, [and] placed in leg

irons,” and (2) there was a “clear lack of an

emergency situation” such that “[a]ny safety

concerns had long since abated,” then (3)

subjecting the inmate to “substantial risk of

physical harm” and “unnecessary pain” serves

no penological justification.

Id. (quoting Hope v. Pelzer, 536 U.S. 730, 738 (2002)).

Defendants are correct that Plaintiff alleges he was

“diagnosed with serious psychoses causing him to act out” during

the relevant time period. (Am. Compl., ECF No. 22, ¶26.) Plaintiff,

however, does not allege the manner in which he “acted out” or

whether his “acting out” was continuous or in discrete episodes.

Assuming Plaintiff was placed in the restraint chair on July 11,

2016 for acting out in a manner that posed a risk of harm to

himself or others, the question becomes when, if ever, did

Plaintiff no longer pose a risk to himself or others. By alleging

that he was strapped into a restraint chair with his hands and

legs cuffed for nearly two continuous weeks, the allegations in

the Amended Complaint create a plausible inference that at some

point Plaintiff no longer presented a safety risk that would

justify the continued use of restraints. See e.g. Bistrian v. Levi,

696 F.3d 352, 372 (3d Cir. 2012) (construing the facts in the light

most favorable to plaintiff on a motion to dismiss and affording

him all reasonable inferences). Therefore, Plaintiff states an

Eighth Amendment and analogous NJCRA claim in the Amended

Complaint.

b. Fourteenth Amendment

By extension of the Supreme Court’s holding in Hope, that a

convicted prisoner’s claim involving use of mechanical restraints

is governed by the Eighth Amendment excessive analysis, a pretrial

detainee’s claim of excessive force must be analyzed under the

Fourteenth Amendment’s Due Process Clause. In Kingsley v.

Hendrickson, the Supreme Court held that the Due Process analysis

of an excessive force claim is objective. 135 S. Ct. 2466, 2473

(2015). “‘[T]he Due Process Clause protects a pretrial detainee

from the use of excessive force that amounts to punishment.’” Id.

(quoting Graham v. Connor, 490 U.S. 386, 395, n. 10 (1989)). “[I]n

the absence of an expressed intent to punish, a pretrial detainee

can nevertheless prevail by showing that the actions are not

‘rationally related to a legitimate nonpunitive governmental

purpose” or that the actions “appear excessive in relation to that

purpose.’” Kingsley, 135 S. Ct. at 2373-74 (quoting Bell v.

Wolfish, 441 U.S. 520, 561 (1979)).

Plaintiff alleges that “Defendants’ unlawful and

inappropriate use of the restraint chair on plaintiff was for the

purpose of punishment and intimidation and at times simply because

they did not know what to do with plaintiff. Defendants’ (sic)

unlawfully and illegally used the restraint chair on plaintiff as

an instrument of torture.” (Am. Compl., ECF No. 22, ¶31.) This

allegation meets the “punishment” element of a Fourteenth

Amendment excessive force claim. Even considering Defendants’

argument that Plaintiff had severe psychoses that caused him to

act out, the alleged use of the restraint chair for a continuous

period from July 11, 2016 through July 27, 2016 is sufficient to

allege that Defendants’ use of the restraint chair appeared

excessive in relation to the purpose of protecting others from

Plaintiff’s “acting out.” Plaintiff’s Fourteenth Amendment

excessive force and analogous NJCRA claims may proceed.

3. Failure to state a § 1985 conspiracy claim

Defendants contend Plaintiff failed to state a claim under §

1985 because Plaintiff did not allege that the constitutional

violation was motivated by a racial or class-based discriminatory

animus. (Defs’ Letter, ECF No. 25 at 2.) Plaintiff counters that

he alleges he was suffering from psychoses and he was discriminated

against on that basis by repeated use of the restraint chair. (Pl’s

Letter, ECF No. 26 at 2.)

Plaintiff’s claim falls under subsection 3 of 42 U.S.C. §

1985.4 To state a claim under 42 U.S.C. § 1985(3),

a plaintiff must allege: (1) a conspiracy; (2)

motivated by a racial or class based

discriminatory animus designed to deprive,

directly or indirectly, any person or class of

persons to the equal protection of the laws;

(3) an act in furtherance of the conspiracy;

and (4) an injury to person or property or the

deprivation of any right or privilege of a

citizen of the United States.

Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997), as amended (May

15, 1997).

In Count Two of the Amended Complaint, Plaintiff alleges that

the actions of Defendants Faircloth, Warcham,

Hoover, Lear Grencavich, Hill, Howard and John

Does 1-100 amounted to a civil conspiracy to

directly deprive Plaintiff of equal protection

of the law, denied due process of law, and

subjected to cruel and unusual punishment in

4 42 U.S.C. § 1985 (1) and (2) involve conspiracies that,

respectively, prevent an officer from performing duties and

obstruct justice by intimidating a party, witness or juror.

violation of the United States Constitution 42

U.S.C. §1985.

(Am. Compl., ECF No. 22, ¶41.) Plaintiff also alleges that he was

diagnosed with serious psychoses during the relevant time period

(Am. Compl., ECF No. 22, ¶26), and that “Defendants’ unlawful and

inappropriate use of the restraint chair on plaintiff was for the

purpose of punishment and intimidation and at times simply because

they did not know what to do with plaintiff.” (Id., ¶31.)

Plaintiff has not alleged that Defendants used the restraint

chair only on persons with psychoses or other mental disorders or

that Defendants used the restraint chair on him when he was not

acting out. Plaintiff has not pled sufficient facts supporting a

claim that Defendants’ use of the restraint chair was motivated by

class-based animus. Therefore, Plaintiff fails to state a claim

under § 1985(3). This claim is dismissed without prejudice.

4. Failure to state a Policy and Practice/Monell claim

Plaintiff’s “policy and practice/Monell” claims fall under

Section 1983 and the NJCRA and assert supervisory and municipal

liability against Cape May County Sheriff Gary G. Schaffer, CMCC

Warden Donald Lombardo (“the Administrator Defendants”), Cape May

County Sheriff’s Office and Cape May County (“the County

Defendants”) for the alleged use of excessive force in violation

of the Eighth Amendment and the New Jersey Constitution by misuse

of the restraint chair. (Am. Compl., ECF No. 22, ¶¶44-48, 59-63.)

A municipality is “liable under § 1983 only where the

municipality itself causes the constitutional violation at issue.”

City of Canton v. Harris, 489 U.S. 378, 385 (1989). A plaintiff

must allege that the constitutional injury was caused by a

municipal “policy” or “custom.” Monell v. Dep’t of Social Servics

of City of New York, 436 U.S. 658, 694 (1978). A species of

supervisory liability claims is similar; “supervisors can be

liable if they ‘established and maintained a policy, practice or

custom which directly caused [the] constitutional harm.’”

Santiago, 629 F.3d at 129 n.5 (quoting A.M. ex rel. J.M.K. v.

Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir.2004)

(first alteration added)).

Policy is made when a “decisionmaker

possess[ing] final authority to establish

municipal policy with respect to the action”

issues an official proclamation, policy, or

edict. A course of conduct is considered to be

a “custom” when, though not authorized by law,

“such practices of state officials [are] so

permanent and well-settled” as to virtually

constitute law.

Mulholland v. Gov't Cty. of Berks, Pa., 706 F.3d 227, 237 (3d Cir.

2013) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469,

1480 (3d Cir. 1990) (citations omitted) (alterations in original).

Where the policy “concerns a failure to train or supervise

municipal employees, liability under section 1983 requires a

showing that the failure amounts to ‘deliberate indifference’ to

the rights of persons with whom those employees will come into

contact.” Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir.

2014) (quoting Carter v. City of Phila., 181 F.3d 339, 357 (3d

Cir. 1999) (quoting City of Canton, Ohio, 489 U.S. at 388). To

state a § 1983 claim for failure to train, a plaintiff “must

identify a failure to provide specific training that has a causal

nexus to their injuries and must demonstrate that the absence of

that specific training can reasonably be said to reflect a

deliberate indifference to whether the alleged constitutional

deprivations occurred.” Reitz v. County of Bucks, 125 F.3d 139,

145 (3d Cir. 1997)).

Defendants contend that Plaintiff’s supervisory/municipal

claims are vague and conclusory assertions that corrections

officers have not been properly trained and there was a failure to

take appropriate remedial measures. (Defs’ Brief, ECF No. 20-2 at

14.) Plaintiff counters that his policy claims are based on

Defendants’ use of the restraint chair as a matter of convenience

because they did not know how to handle Plaintiff. (Pl’s Opp. To

Defs’ Mot. to Dismiss, ECF No. 24 at 7.)

In the Amended Complaint, Plaintiff alleges that the County

Defendants and the Administrator Defendants “acted with deliberate

indifference to Plaintiff’s … constitutional rights by failing to

enact and/or otherwise permitted a policy and custom of corrections

officer corruption and abuse of prisoner rights.” (Am. Compl., ECF

No. 22, ¶40.) Plaintiff further alleges that the County Defendants

and the Administrator Defendants “failed to train and supervise

their employees; were grossly negligent in the supervision of their

subordinates; created and/or permitted a policy or custom under

which unconstitutional practices occurred and/or because this

problem had occurred on previous occasions and by failing to take

appropriate remedial measures.” (Am. Compl., ECF No. 22, ¶41).

Plaintiff’s municipal/supervisory § 1983 claims are deficient

for several reasons. First, Plaintiff has not identified a specific

training or supervisory deficiency that caused the alleged

constitutional violation. The allegation that Plaintiff suffered

from psychoses and that Defendants did not know how to handle him

is too vague to create a plausible inference that there was a

specific training program or supervisory practice that would have

avoided the constitutional violation. See City of Canton, Ohio,

489 U.S. at 391 (the plaintiff must prove the injury would have

been avoided “had the employee been trained under a program that

was not deficient in the identified respect.”)

Second, “a course of conduct is considered to be a ‘custom’

when, though not authorized by law, ‘such practices of state

officials [are] so permanently and well-settled’ as to virtually

constitute law.” McTernan v. City of York, PA, 564 F.3d 636, 658

(3d Cir. 2009) (quoting Andrews, 895 F.2d at 1480 (quoted in Beck

v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citations

omitted). “Custom requires proof of knowledge and acquiescence by

the decisionmaker.” Id. (citing Watson v. Abington Twp., 478 F.3d

144, 154 (3d Cir. 2007); Beck, 89 F.3d at 971.)) Plaintiff’s bare

assertion that “this problem had occurred on previous occasions”

falls short of pleading a “well-settled” practice of which a

decisionmaker was aware and acquiesced in. Plaintiff’s supervisory

and municipal § 1983 and NJCRA claims will be dismissed without

prejudice.

5. Failure to file Tort Claim Notice for New Jersey

civil conspiracy claim

Plaintiff alleges that Defendants Faircloth, Warcham, Hoover,

Lear, Grencavich, Hill, Howard, and John Doe 1-100 (“the Individual

Defendants”) engaged in a civil conspiracy under state law (Count

Five). Defendants contend that Plaintiff’s failure to serve timely

notice of tort claim pursuant to the New Jersey Tort Claims Act

(“TCA”) is fatal to his New Jersey civil conspiracy claim.

Plaintiff argues that the TCA does not apply to state law civil

conspiracy claims.

Under the TCA, no action may be brought against a public

entity or public employee unless it is in accord with the procedure

established under the Act. N.J.S.A. 59:8-3. The TCA established a

ninety (90) day period from the time the claim accrued for a

claimant to file a Notice of Claim. N.J.S.A. 59:8-8. The TCA

provides, in pertinent part:

A claim relating to a cause of action for death

or for injury or for damage to person or to

property, shall be presented as provided in

this chapter not later than the ninetieth day

after accrual of the cause of action. . . .

The claimant shall be forever barred from

recovering against a public entity or public

employee if:

a. he failed to file his claim with the public

entity within ninety days of accrual of the

claim . . . .

b. Two years have elapsed since the accrual of

the claim . . .

N.J.S.A. 59:8-8.

It is well-settled that the TCA’s notice provision applies to

the tort of civil conspiracy. Cty. Concrete Corp. v. Town of

Roxbury, 442 F.3d 159, 174–75 (3d Cir. 2006). Applying the NJTCA

to a civil conspiracy claim hinders the state tort claim but it

does not “add another hurdle for bringing a distinct § 1983 or

state constitutional claim because a conspiracy is not an element

of such claims.” Id. Thus, the Third Circuit has held that the

NJTCA notice requirements are applicable to New Jersey civil

conspiracy claims. Id. at 175. Because more than two years have

elapsed since accrual of Plaintiff’s New Jersey civil conspiracy

claim, on July 27, 2016 at the latest, and he did not comply with

the TCA notice requirement, this claim is barred and is dismissed

with prejudice.

6. Qualified immunity

“The Individual Defendants,” including Schaffer, Lombardo,

Faircloth, Grencavich, Hill, Hoover, Howard and Lear contend they

are entitled to qualified immunity for Plaintiff’s Section 1983

and NJCRA claims. (Defs’ Brief, ECF No. 20-2 at 20-22.) Plaintiff

argues that dismissal on qualified immunity is premature because

he has not had the opportunity to conduct discovery. (Pl’s Opp. To

Defs’ Mot. to Dismiss, ECF No. 24 at 8.)

The qualified immunity doctrine is an affirmative defense

available for § 1983 and NJCRA claims for money damages. Lapolla

v. Cty. of Union, 157 A.3d 458, 467 (N.J. Super. Ct. App. Div.

2017) (quoting Ramos v. Flowers, 56 A.3d 869, 875-76 (N.J. Super.

Ct. App. Div. 2012). A defendant is entitled to qualified immunity

“when an official's conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)

(quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)

(alterations and internal quotation marks omitted in Kisela).

“‘Because the focus is on whether the officer had fair notice that

her conduct was unlawful, reasonableness is judged against the

backdrop of the law at the time of the conduct.’” Id. (quoting

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam )). “An

officer ‘cannot be said to have violated a clearly established

right unless the right's contours were sufficiently definite that

any reasonable official in the defendant's shoes would have

understood that he was violating it.’” Kisela, 138 S. Ct. at 1153

(quoting Plumhoff v. Rickard, 134 S. Ct. 2012, 2023, (2014)).

“[F]or a right to be clearly established, existing precedent must

have placed the statutory or constitutional question beyond

debate.” Id. at 1152 (quoting White, 137 S. Ct. at 551 (internal

quotation marks omitted in Kisela)).

Defendants rely on Diaz, where the Third Circuit held that

placing an inmate who behaving violently in a restraint device for

a prolonged period of time, for the inmate’s own protection and

the protection of others, does not constitute cruel and unusual

punishment or deliberate indifference. (Defs’ Brief, ECF No. 20-2

at 22 (citing Diaz v. Director Federal Bureau of Prisons, 716 F.

App’x 98, 101 (3d Cir. 2017) (per curiam)). Defendants assert that

Plaintiff readily admits that he was suffering from and diagnosed

with “serious psychoses” causing him to act out. (Id.)

The facts alleged in the Amended Complaint do not establish

when Plaintiff acted out, how he acted out, and how long his

episode(s) of acting out lasted. It is not known if Plaintiff was

acting out in a violent manner when he was allegedly put in the

restraint chair on July 11, 2016. Even assuming Plaintiff was

acting out violently on July 11, 2016, the Amended Complaint does

not contain any allegations concerning Plaintiff’s behavior

between July 11, 2016 and July 27, 2016, a period in which

Plaintiff alleges he was continuously kept in the restraint chair

without bathroom breaks. At this stage of the litigation,

insufficient facts are known to determine whether Diaz is

controlling precedent suggesting that the defendants acted

reasonably in this case.

“[I]t is generally unwise to venture into a qualified immunity

analysis at the pleading stage as it is necessary to develop the

factual record in the vast majority of cases.” Gibbs v. Coupe, No.

CV 14-790-SLR, 2015 WL 6870033, at *2 (D. Del. Nov. 6, 2015)

(quoting Newland v. Reehorst, 328 F. App’x 788, 791 n. 3 (3d Cir.

2009) (per curiam)); accord Batiz v. Brown, No. CIV. 12-581

RMB/AMD, 2013 WL 1137531, at *7 (D.N.J. Mar. 14, 2013). Additional

factual development is necessary in this case before the Court can

undertake a qualified immunity analysis. Therefore, Defendants'

motion to dismiss on qualified immunity grounds is therefore denied

without prejudice.

IV. CONCLUSION

For the reasons discussed above, Defendants’ Motion to

Dismiss [the Amended Complaint] is granted in part and denied in

part.

An appropriate Order follows.

Date: June 5, 2019

` s/Renée Marie Bumb

RENÉE MARIE BUMB

UNITED STATES DISTRICT JUDGE