# FREEMAN v. SCHAFFER

> District Court, D. New Jersey · June 5, 2019

URL: https://www.frixlaw.com/law-library/cases/10266244

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 5, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10266244. Public record. Not legal advice.