PRATT v. ANN KLEIN FORENSIC CENTER

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LINDA PRATT, individually and as a

personal representative on behalf of TARIK Civ. No. 15-5779

PRATT, an incompetent person,

OPINION

Plaintiff,

v.

ANN KLEIN FORENSIC CENTER et al.,

Defendants.

THOMPSON, U.S.D.J.

INTRODUCTION

This matter comes before the Court upon the Motion for Summary Judgment filed by

Defendants Ann Klein Forensic Center (“AKFC”), Ancora Psychiatric Hospital (“Ancora”), Dr.

Safeer Ansari, Dr. Dariusz Chacinski, Linda Elias, Dr. Elaine Martin, and Dr. Benito Marty

(collectively, “Defendants”). (ECF No. 92.) Plaintiff Linda Pratt (“Plaintiff”), individually and

on behalf of her son Tarik Pratt (“Tarik”), opposes. (ECF No. 94.) The Court has decided the

Motion based on the parties’ written submissions and without oral argument, pursuant to Local

Civil Rule 78.1(b). For the reasons stated herein, Defendants’ Motion for Summary Judgment is

granted in part and denied in part.

BACKGROUND

Plaintiff brings this action as a representative on behalf of her son, Tarik, an incompetent

person who was civilly committed at Defendants AKFC and Ancora, two psychiatric hospitals

located in New Jersey, due to a traumatic brain injury he had suffered years before. (Defs.’

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Statement of Undisputed Material Facts (“SUMF”) ¶¶ 1–2, ECF No. 92-2.) Tarik first became a

patient at Defendant AKFC on June 2, 2011. (Id. ¶ 3.) On May 8, 2015, he was transferred from

Defendant AKFC to Defendant Ancora, but on October 28, 2015, he was transferred back to

Defendant AKFC. (Id. ¶¶ 4–5.) Plaintiff alleges that during Tarik’s stay at these two facilities,

he was subject to (1) isolation and seclusion; (2) abuse, neglect, and retaliation; and (3)

overmedication. (See Defs.’ Br. at 2–3, ECF No. 92-1.)

I. Isolation and Seclusion: Defendants Chacinksi and AKFC

Defendant Chacinski, a staff clinical psychiatrist at Defendant AKFC, began treating

Tarik when he was transferred to his unit on June 13, 2011, shortly after Tarik arrived at

Defendant AKFC. (Pl.’s Suppl. SUMF at 8, ECF No. 94-2.) Defendant Chacinksi referred to

Tarik as agitated, irrelevant, talking with no sense, and paranoid. (Id.) In order to make him

more sedated and less agitated, he prescribed Thorazine on August 25, 2011. (Id. at 8–9.)

Thorazine is a medication that can be used as an antidepressant, antipsychotic, or mood

stabilizer. (Ansari Dep. 19:15–19, ECF No. 94-16.) Because he was “still psychotic and

agitated,” Tarik’s dosage of Thorazine was gradually increased until it reached 600 milligrams

per day on September 12, 2011. (Pl.’s Suppl. SUMF at 9; Chacinski Dep. 38:19–39:8, ECF No.

94-6.) After that, the dosage was gradually decreased until January 11, 2012, when Tarik was

taken off Thorazine completely and transferred to another psychotropic drug. (Pl’s Suppl.

SUMF at 16, 20.)

During the weekend of September 16, while Tarik was still on Thorazine, staff members

found him engaging in sexual conduct with another patient. (Id. at 9–10; Chacinski Dep. 39:18–

40:16; see also Incident Report 1, ECF No. 94-9; Incident Report 2, ECF No. 94-10.) Three

days later on September 19, Defendant Chacinksi transferred Tarik to Unit 2, an intensive

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treatment unit (“ITU”) typically reserved for violent or self-injurious patients requiring more

supervision. (Pl.’s Suppl. SUMF at 2, 9.) Defendant Chacinski described Tarik as psychotic,

delusional, and unstable at the time. (Chacinski Dep. 39:18–40:16.) Plaintiff contends that

Defendant Chacinski violated Tarik’s substantive due process rights of care and protection by

placing him in more restrictive housing than necessary as punishment for in-facility conduct that

violated the institution’s rules or policies. (Pl.’s Br. at 14, 29, ECF No. 94.) Plaintiff also argues

that Defendant AKFC discriminated against Tarik by keeping him in ITU for longer than

necessary. (Id. at 22–22.)

II. Alleged Abuse, Neglect, and Retaliation: Defendant AKFC

On October 28, 2011, Plaintiff’s counsel wrote a letter to Defendant AKFC requesting

reports, notes, and documents relating to the incident on the weekend of September 16, 2011.

(Request Letter, ECF No. 94-13.) On December 6, 2011, Plaintiff’s counsel submitted to

Defendant AKFC a document purporting to be a Notice of Tort Claim pursuant to the New

Jersey Tort Claims Act, N.J.S.A. § 59:8-4. (Notice Letter, ECF No. 94-15.) After the Notice of

Tort Claim was served, Plaintiff contends that staff members at Defendant AKFC abused Tarik

in retaliation. (Pl.’s Suppl. SUMF at 28.) For example, she avers that Tarik told her that staff

members at Defendant AKFC punched Tarik in the eye, starved him, encouraged him to punch

walls causing abrasions on his knuckles, neglected him to the point of contracting MRSA and

sleeping in his own urine, hit him during the night, shackled and restrained him, and held him

while other patients punched him.1 (Id. at 28–29.) Defendants dispute these allegations of

abuse.

1 Plaintiff also alleged that staff members at Defendant AKFC broke Tarik’s glasses and delayed

replacing them, but she abandoned that claim in her Opposition. (See Pl.’s Br. at 15.)

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III. Alleged Overmedication: Defendant Ansari

Plaintiff alleges that Defendant Ansari prescribed an inappropriate amount of Thorazine

to Tarik while he was treating him at Defendant Ancora in 2015. Defendant Ansari had been a

staff clinical psychiatrist at Defendant Ancora since 2012. (Pl.’s Suppl. SUMF at 20.) He

became responsible for Tarik’s medication on May 8, 2015, the day Tarik was transferred to

Defendant Ancora. (Id. at 20–21.) Over the next few months, Tarik was involved in several

physical altercations, demonstrating a propensity for violence and aggression. (Id. at 21–22.)

Because he was gradually getting worse, on August 31, 2015, Defendant Ansari ordered

that Tarik take fifty milligrams of Thorazine four times per day. (Id. at 22.) Defendant Ansari

explained the rationale for the decision:

We were looking for something that would work to help him calm down if he’s

violent and aggressive. When you are in that situation and somebody is attacking

you . . . . it’s very scary and some people can get hurt . . . . [I]f people are being

extremely violent and dangerous and it’s putting the lives of other patients on the

ward in jeopardy, if it’s putting the life of staff that are mainly just middle aged

women trying to control a very strong aggressive man who is very muscular and

knows Karate and is very impulsive and nobody is there to help them . . . it’s a

very dangerous and precarious situation.

(Ansari Dep. 50:17–52:23.)

Shortly afterwards, however, Tarik was involved in physical altercations on September 1

and September 2, 2015. (Pl.’s Suppl. SUMF at 22–23.) And as a result, Defendant Ansari

discontinued Tarik’s Thorazine on September 3 because it “didn’t help him [and] he was still

aggressive.” (Ansari Dep. 61:22–63:6 (“There was no benefit to that medication. I was

concerned if [sic] he was getting worse. He doesn’t communicate well because of his traumatic

brain injury. . . . It’s trying to figure out what’s going on with somebody.”).)

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For the next few weeks, Tarik was off Thorazine, but his behavior did not change much.

(See Pl.’s Suppl. SUMF at 23–24.) Defendant Ansari described Tarik’s behavior as unstable,

violent, and aggressive on September 16; and bizarre, unpredictable, and assaultive on October

23. (Id. at 24.) And during the weekend of October 23, Tarik attempted to bite a staff member.

(Id. at 23–24.) Defendant Ansari testified that Tarik had become “quite violent . . . . paranoid,

disorganized, aggressive towards both peers and staff,” and “very threatening.” (Ansari Dep.

67:9–68:10.)

As a result, on October 26, 2015, Defendant Ansari put Tarik back on Thorazine and

ordered “two-to-one precaution,” wherein only male staff would interact with Tarik. (Id.)

Plaintiff contends that Defendant Ansari prescribed Thorazine on October 26 despite having

discontinued it on September 3 and that he thus understood its ineffectiveness for Tarik. (Pl.’s

Resp. to Interrog. No. 3, Ex. B, ECF No. 92-3.) This second prescription of Thorazine, Plaintiff

argues, breached Defendant Ansari’s affirmative duty to care for and treat involuntarily

committed persons in custody and thus violated Tarik’s substantive due process rights of care

and protection. (Pl.’s Br. at 8.)

Defendant Ansari maintains that this second prescription was appropriate. He testified

that “Thorazine was used to deter [Tarik’s] violence, to see if it would help him, because nothing

else [was] working.”2 Defendant Ansari also explained, “Psychiatry is not an exact science; it’s

2 See Ansari Dep. 50:17–52:23 (explaining thought process behind prescribing Thorazine), 71:5–

72:7 (“[T]he trial of Thorazine [in September 2015] did not make [Tarik] worse. The medication

didn’t make him violent. Violence is not a side effect of medication. Violence is violence. . . .

We can use medicine to help deter and diminish behavior, but if somebody is violent, they’re

violent. There is no cure for that. That’s based on anti-social personality disorder. . . . in

addition to being schi[]zophrenic. Most schi[]zophrenics don’t bite people, most schi[]zophrenic

people aren’t that violent. They are stable in the community, not violent. . . . [Tarik] is very

violent. It’s not because he’s schi[]zophrenic. He’s violent because he’s a violent person. . . .”).

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trial and error . . . . There is no laboratory test to see what dose of medicine is going to be helpful

or not helpful. We try to do the best according to our judgment and clinical experience.”

(Ansari Dep. 62:14–19.) Defendants argue that Plaintiff fails to provide any expert testimony to

the contrary and that Plaintiff’s claim regarding proper patient care is actually a “disguised claim

for medical malpractice.” (See Defs.’ Br. at 20–21.)

Tarik was transferred back to Defendant AKFC two days later on October 28, 2015. (Id.)

In anticipation of Tarik leaving Defendant Ancora, Defendant Ansari prepared a “discharge

summary” indicating that Tarik’s medication “remain[ed] pretty much the same” during his brief

stay at Defendant Ancora as when Tarik was placed at Defendant AKFC beforehand. (See

Ansari Dep. 72:16–74:20 (“Obviously there are medicine changes. . . . But the fact remains that

we were trying to maintain the same medicines that he was on at [Defendant AKFC] and there

were some medicine changes that did occur.”).) However, Defendant Ansari did not mention

Thorazine in the discharge summary, to which Defendant admits: “If Thorazine was omitted, it’s

an error. I don’t recall. It wasn’t intentional.” (Ansari Dep. 77:4–7.) Plaintiff contends that a

reasonable jury could infer from this omission that Defendant Ansari’s proffered reason for

prescribing Thorazine a second time is not credible. (Pl.’s Br. at 8.)

Upon his return, Defendant AKFC placed Tarik in ITU, noting that Tarik was still

aggressive and violent. (Pl.’s Suppl. SUMF at 26.) Specifically, one doctor referred to Tarik as

psychotic, bizarre, delusional, hostile, easily agitated, and uncooperative. (Marty Dep. 11:13–

12:10, Ex. E, ECF No. 92-3.) A doctor noted Tarik’s “long history of mental illness with

multiple psychiatric hospitalizations and extremely violent behaviors” and referred to his recent

attempts at biting a staff member and striking a nurse between the legs. (Id.) Because of this,

Defendant AKFC submits, Tarik was placed in ITU. Although Tarik was taken out of ITU about

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a month later, he still exhibited bouts of disorganization and paranoia. (Pl.’s Suppl. SUMF at

26.)

IV. Procedural History

Plaintiff, on behalf of Tarik, filed the Complaint on July 27, 2015. (ECF No. 1.) She

subsequently filed amended versions on August 31, 2015 (ECF No. 3); October 6, 2015 (ECF

No. 5); and November 1, 2015 (ECF No. 8). On February 18, 2016, the Court dismissed

Defendants AKFC and Ancora on the basis of sovereign immunity under the Eleventh

Amendment. (Op. at 5–6, ECF No. 36; Order, ECF No. 37.)

On August 15, 2017, Plaintiff filed a separate complaint, based on the same factual

predicate, in New Jersey Superior Court. (Rmv’l ¶ 1, Civ. No. 17-6865, ECF No. 1.)

Defendants removed that action to federal court. (See id.) On October 2, 2017, Plaintiff

dismissed the separate action and instead filed the Fourth Amended Complaint in this action.

(ECF No. 55.)

On May 10, 2018, Plaintiff filed the Fifth Amended Complaint, the operative complaint.

(5th Amend. Compl. at 1, ECF No. 71.) The Fifth Amended Complaint alleges six counts: (1)

speech and petition rights violations via 42 U.S.C. § 1983 and the New Jersey Civil Rights Act

(“NJCRA”), N.J.S.A. § 10:6-1, against all Defendants (5th Amend. Compl. at 4–10); (2–3)

substantive due process violations via § 1983 and the NJCRA against Defendants Ansari,

Chacinski, Elias, Martin, and Marty (5th Amend. Compl. at 10–18); (4) various state statutory

violations3 against all Defendants (id. at 18–19); (5) discrimination pursuant to the Americans

3 Various subsections regarding management and operation of institutions pursuant to N.J.S.A.

§§ 30:4-24, 4-24.1, 4-24.2, 4-27.1, 4-27.13, 4-27.14, and 4-27.16; and the Developmentally

Disabled Rights Act pursuant to N.J.S.A. §§ 30:6D-4, 6D-5, and 6D-9. (5th Amend. Compl. at

18.)

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with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and the New Jersey Law Against

Discrimination (“NJLAD”), N.J.S.A. § 10:5-12(f)(1), against Defendants AKFC and Ancora (5th

Amend. Compl. at 19–21); and (6) retaliation pursuant to the ADA, § 12203, and NJLAD,

N.J.S.A. § 10:5-12d, against Defendants AKFC and Ancora (5th Amend. Compl. at 22–23). On

September 6, 2018, the Court denied in its entirety a motion to dismiss brought by Defendants

AKFC and Ancora. (ECF Nos. 79–80.)

On March 29, 2019, Defendants filed the instant Motion for Summary Judgment. After

an extension of time (ECF No. 93), Plaintiff opposed on May 6, 2019. Defendants replied on

June 4, 2019. (ECF Nos. 100–01.) The Motion is currently before the Court.

LEGAL STANDARD

Summary judgment shall be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is “genuine” if it could lead

a “reasonable jury [to] return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it will “affect the outcome of the suit

under the governing law.” Id. When deciding the existence of a genuine dispute of material fact,

a court’s role is not to weigh the evidence; all reasonable “inferences, doubts, and issues of

credibility should be resolved against the moving party.” Meyer v. Riegel Prods. Corp., 720

F.2d 303, 307 n.2 (3d Cir. 1983).

In resolving a motion for summary judgment, a district court considers the facts drawn

from “the pleadings, the discovery and disclosure materials, and any affidavits.” Curley v. Klem,

298 F.3d 271, 276–77 (3d Cir. 2002) (internal quotations omitted). The court must determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or

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whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at

251–52. More precisely, summary judgment should be granted if the evidence available would

not support a jury verdict in favor of the nonmoving party. Id. at 248–49. The Court must grant

summary judgment against any party “who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex, 477 U.S. at 322.

DISCUSSION

As a preliminary matter, Plaintiff has agreed to dismiss the following claims: Count I

against all Defendants; Count III against Defendants Elias, Martin, and Marty; and Count IV

against Defendants Elias, Martin, and Martin. (See Letter from Peter Kober to Robert J.

McGuire (Feb. 8, 2019), Ex. C, ECF No. 92-3; see also Defs.’ Br at 3; Defs.’ SUMF ¶¶ 7–8.)

Plaintiff also summarized in her Opposition the remaining claims and omitted Defendant Ancora

from Counts V and VI. Because of this omission and because the factual circumstances

underpinning these counts—alleging discrimination and retaliation—exclusively focus on events

wherein Tarik was under Defendant AKFC’s custody, the Court dismisses these claims against

Defendant Ancora. As a result, the Court addresses each of the outstanding claims: (Counts II–

III) substantive due process violations pursuant to § 1983 and the NJCRA against Defendants

Ansari and Chacinski; (Count IV) state statutory violations against Defendants AKFC, Ancora,

Ansari, and Chacinski; (Counts V) discrimination pursuant to the ADA and NJLAD against

Defendant AKFC; and (Count VI) retaliation pursuant to the ADA and NJLAD against

Defendant AKFC. (See id.; Pl.’s Br. at 30.)

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I. Substantive Due Process Violations Pursuant to § 1983 and the NJCRA against

Defendants Ansari and Chacinski (Counts II–III)

Plaintiff’s claims arise under 42 U.S.C. § 1983, “which provides a cause of action for any

person who has been deprived of rights secured by the Constitution or laws of the United States

by a person acting under color of law.” Curley v. Klem, 499 F.3d 199, 206 (3d Cir. 2007)

(internal citation omitted). Individual defendants in a § 1983 case, however, are protected by the

doctrine of qualified immunity. “The doctrine of qualified immunity shields government

officials who perform discretionary functions ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Santini v. Fuentes, 795 F.3d 410, 416–17 (3d Cir.

2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

The Supreme Court has articulated a two-part test for analyzing claims of qualified

immunity. See Bayer v. Monroe Cnty. Children & Youth Servs., 577 F.3d 186, 191–92 (3d Cir.

2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

First, the court must determine whether the facts alleged show that the

defendant’s conduct violated a constitutional or statutory right. If so, the court

must then determine whether the constitutional or statutory right allegedly

violated by the defendant was “clearly established.” If the court concludes that

the defendant’s conduct did violate a clearly established constitutional or statutory

right, then it must deny the defendant the protection afforded by qualified

immunity.

Williams v. Bitner, 455 F.3d 186, 190 (3d Cir. 2006) (citing Saucier, 533 U.S. at 201). Summary

judgment is warranted if the defendant carries his burden in regard to either prong. James v. City

of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012).

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A. Whether the Conduct Constituted a Constitutional Violation

1. Overmedication: Defendant Ansari

The Due Process Clause of the Fourteenth Amendment provides that no state may

“deprive any person of life, liberty, or property, without due process of law.” U.S. Const.

amend. XIV. “Thus, the Due Process Clause restricts what a state may take away, but it

generally does not impose any affirmative ‘duty to provide substantive services.’” Fialkowski v.

Greenwich Home for Children, Inc., 921 F.2d 459, 465 (3d Cir. 1990) (quoting Youngberg v.

Romeo, 457 U.S. 307, 317 (1982)). However, “in certain limited circumstances the Constitution

imposes upon the State affirmative duties of care and protection with respect to particular

individuals.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 198 (1989). For

example, “when the State takes a person into its custody and holds him there against his will, the

Constitution imposes upon it a corresponding duty to assume some responsibility for his safety

and general well-being.” Id. at 199–200. The Supreme Court recognized such a right in

Youngberg v. Romeo, wherein it held that “when the state deprives an individual of liberty

through involuntary commitment proceedings, it undertakes an affirmative obligation to confine

the individual under ‘conditions of reasonable care and safety’ that are ‘reasonably

nonrestrictive.’” Torisky v. Scheiker, 446 F.3d 438, 443 (3d Cir. 2006) (quoting Youngberg, 457

U.S. at 324).

In the context of medical professionals, the Supreme Court has emphasized that “courts

must show deference to the judgment exercised by a qualified professional” and that “there

certainly is no reason to think judges or juries are better qualified than appropriate professionals

in making such decisions.” Youngberg, 457 U.S. at 322–23.

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[T]he [treatment] decision, if made by a professional, is presumptively valid;

liability may be imposed only when the decision by the professional is such a

substantial departure from accepted professional judgment, practice, or standard

as to demonstrate that the person responsible actually did not base the decision on

such a judgment.

Id. at 323. Therefore, the state has an “affirmative obligation to confine [an involuntarily

committed] individual under ‘conditions of reasonable care and safety’ that are ‘reasonably

nonrestrictive’” and that “comport fully with the purpose of [the individual’s] commitment.”

Torisky, 446 F.3d at 443 (quoting Youngberg, 457 U.S. at 324).4

Here, Plaintiff does not offer a single opinion, report, deposition, or affidavit from a

medical professional to demonstrate that Defendant Ansari’s prescribing of Thorazine on

October 26, 2015 despite having discontinued it on September 3, 2015 was a “substantial

departure from accepted professional judgment.” Rather, Plaintiff merely contends that the

“common knowledge of lay persons is sufficient to enable them to identify that [Defendant]

Ansari’s proffered reason for prescribing Thorazine a second time isn’t credible.” (Pl.’s Br. at

4.) She speculates that reasonable jurors could conclude that Defendant Ansari “opt[ed] for an

easier and less efficacious treatment,” “persiste[d] in using a certain drug after awareness that the

drug was making the patient worse,” and deliberately treated Tarik “with an inappropriate drug

for no valid reason.” (Pl.’s Br. at 8.)

4 Defendants seem to conflate this standard with a physician’s “deliberate indifference” in

diagnosing or treating an incarcerated patient. (See Defs.’ Br. at 22–23.) However, that standard

derives from an inmate’s § 1983 claim alleging deliberate indifference to medical needs in

violation of the Eighth Amendment. See, e.g., Giles v. Kearney, 571 F.3d 318, 330 (3d Cir.

2009) (“The question under the Eighth Amendment is whether prison officials, acting with

deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to

his future health.’” (quoting Farmer v. Brennan, 511 U.S. 825, 836 (1994))). As a result, the

cases on which Defendants rely in this regard are inapposite.

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This Court disagrees. It is undisputed that Tarik episodically initiated violent incidents

involving staff and patients while he was institutionalized. Defendant Ansari testified that he

prescribed Thorazine “to deter [Tarik’s] violence, to see if it would help him, because nothing

else [was] working.” (Ansari Dep. 71:5–72:7.) His deposition testimony refutes most of

Plaintiff’s baseless claims, and the remaining are simply not tenable without expert medical

testimony. See supra note 2 and accompanying text (providing Defendant Ansari’s deposition

testimony); cf. Laufgas v. Speziale, 2006 U.S. Dist. LEXIS 70522, at *8–9 (D.N.J. Sep. 26,

2006) (granting summary judgment and dismissing all due process claims against medical

defendants “[b]ecause the negligence in a medical malpractice action encompasses matters not

within the ordinary knowledge and experience of lay persons” so “plaintiff is required to

demonstrate a substantial departure from accepted professional judgment, practice or standards

through the use of an expert”). Mindful that a medical professional’s treatment decision is

“presumptively valid,” Youngberg, 457 U.S. at 322–23, this Court will not second-guess

Defendant Ansari’s decision to prescribe Thorazine for a second time without an opposing

opinion from a medical expert.

Even if Plaintiff were to present evidence that a different drug or some other type of

medicinal alternative was available at the time, “[m]ere negligence is never sufficient for

substantive due process liability.” Nicini v. Morra, 212 F.3d 798, 810 (3d Cir. 2000) (citing

Daniels v. Williams, 474 U.S. 327, 330–31 (1986)). Instead, Plaintiff must prove behavior “so

egregious, so outrageous that it may fairly be said to shock the contemporary conscience.’”

Deavers v. Santiago, 243 F. App’x 719, 722 (3d Cir. 2007) (quoting Cnty. of Sacramento v.

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Lewis, 523 U.S. 833, 847 n.8 (1998)). We simply do not have that here. Accordingly,

Defendant Ansari is entitled to summary judgment on this claim.5

2. Transfer to More Restrictive Housing: Defendant Chacinski

Plaintiff alleges that Defendant Chacinski placed Tarik in housing that was more

restrictive than necessary as a form of punishment, violating his right to due process under the

Fourteenth Amendment. More specifically, Plaintiff alleges that Defendant Chacinksi

inappropriately prescribed Thorazine, which in part caused the incident on September 16, 2011,

which directly led to his placement in ITU on September 19, 2011. (See 5th Amend. Compl. at

6–7.) The placement into ITU, Plaintiff argues, was excessive and revealed an express intent to

punish without being related to a legitimate non-punitive government purpose. (Pl.’s Br. at 26.)

At the outset, the parties seem to agree that the standard from Bell v. Wolfish, 441 U.S.

520, 536 (1979), analyzing a pre-trial detainee’s liberty interest in freedom from punishment

before sentencing, applies here. (Compare Pl.’s Br. at 24–25, with Defs.’ Reply at 7–8, ECF No.

101.) Of course, consistent with Bell, “[t]he Fourteenth Amendment requires that committed

persons not be subjected to conditions that amount to punishment.” Grohs v. Santiago, 2014

U.S. Dist. LEXIS 130139, at *8 (D.N.J. Sep. 17, 2014) (citing Bell, 441 U.S. at 536) (analyzing

due process claims of civilly committed persons). But Youngberg also “set[] forth ‘the proper

balance between the interests of the State and the rights of the involuntarily committed to

reasonable conditions of safety and freedom from unreasonable restraints.’” Clark v. Cohen, 794

5 Plaintiff makes hay out of the allegation that Defendant Ansari omitted from the discharge

summary that he prescribed Thorazine (see, e.g., Pl.’s Br. at 8), but Plaintiff fails to explain how

exactly this omission, obviously occurring after the prescribing of Thorazine, would constitute a

“substantial departure from accepted professional judgment” vis-à-vis the actual decision to

prescribe Thorazine.

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F.2d 79, 87 (3d Cir. 1986) (quoting Youngberg, 457 U.S. at 321–25) (analyzing substantive due

process claim of civilly committed person placed in restrictive environment). Therefore, the

Court must determine whether (1) pursuant to Bell, Tarik’s placement in ITU was not reasonably

related to a legitimate goal and thus imposed for purposes of punishment; or (2) pursuant to

Youngberg, the level of restraint and restrictiveness in ITU was not reasonable under the

circumstances. See Stevenson v. Carroll, 495 F.3d 62, 67–68 (3d Cir. 2007) (citing Bell, 441

U.S. at 537–38); Clark, 794 F.2d at 87 (citing Youngberg, 457 U.S. at 321–25).

Under either prong, genuine issues of material fact prevent summary judgment. First,

Plaintiff challenges the severity of the factual allegations underlying Tarik’s placement in ITU.

On the date of the incident, staff members found Tarik engaging in sexual conduct with another

patient. (Incident Report 1 at 1.) Placement in ITU is appropriate only if the patient is becoming

violent or self-injurious, requiring an increased level of supervision. (Pl.’s Suppl. SUMF at 2.)

Dr. Robert Roth, staff clinical psychiatrist at Defendant AKFC, testified that ITU is reserved for

someone who has been fighting, is in poor control, or is a danger to themselves or others. (Roth

Dep. 14:12-19, ECF No. 94-4.) Placement in ITU is a last resort in order to resolve a “crisis”

where “nothing else has worked.” (Id. 25:15–23.) Plaintiff submits that this incident did not

require this level of isolation and seclusion.

Second, Plaintiff intimates that other, less restrictive alternatives were available at the

time. For example, Tarik could have been placed on Periodic Visual Observation (“PVO”).

PVO is where a staff member observes the patient at least four times per hour and documents his

behavior; the maximum amount of time for PVO is seventy-two hours, unless a renewal order is

authorized. (Pl.’s Suppl. SUMF at 4.) Tarik also could have been placed in Seclusion +

Observation (“S+O”). S+O is appropriate where there is an imminent concern for violence. (Id.

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at 3.) It is used to reduce the risk of an assault by an agitated patient and serves as somewhat of

an intervention to calm him or her down. (Id.) The time-period for S+O is open-ended until

staff members reassess the patient. (Id. at 4.) Plaintiff contends that either of these alternatives

would have been appropriate.

But even if ITU was appropriate at the time of the incident, the appropriateness was not

everlasting. Incident Report 1, dated the day of the incident, September 16, 2011, indicates that

Tarik was placed in S+O at the time of the incident for engaging in sexual conduct with another

patient. (Incident Report 1 at 2.) But Defendant Chacinski ordered that Tarik be placed in the

more restrictive ITU three days later when he returned from the weekend on September 19,

presumably after Tarik’s stability had improved. (Chacinski Dep. 39:18–40:21, ECF No. 94-6.)

And Incident Report 2, dated roughly two weeks after the incident on October 3, 2011, indicates

that Tarik was placed in ITU at the time of the incident “for assaultive behavior toward other

peer.” (Incident Report 2 at 2.) Not only are the two incident reports inconsistent, but the Court

is unclear as to how long Tarik was subject to ITU—an obscurity that must be viewed in the light

most favorable to Plaintiff, the non-movant—especially considering Dr. Roth’s notes one month

after the incident suggesting that Tarik may have still been in the ITU at the time:

Q: Is there any indication at or about the time of your notes on November 16,

2011 why Tarik could not be transferred to a less restrictive unit?

A: No.

Q: Do you know a reason . . . as of November 16, 2011 that Tarik could not

be transferred to a less restrictive unit?

A: I don’t know, no.

(Roth Dep. 56:24–57:2, ECF No. 94-4.)

Because factual disputes exist over why the more restrictive environment of ITU was

selected in the first place, how long after the incident and under what circumstances Tarik was

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placed in ITU, and exactly how long he was kept there and the progress of his stability during

that time, summary judgment is not warranted at this time. Cf. Clark, 794 F.2d at 87 (affirming

district court’s finding of fact that institutionalized patient’s substantive due process rights were

violated where professionals agreed that she should have been placed in a far less restrictive

environment). Accordingly, Defendants’ Motion is denied in this regard.6

B. Whether a Clearly Established Right Was Violated

Having determined that sufficient evidence exists in connection with Defendant

Chacinski’s decision to place Tarik in ITU that a reasonable jury could find that he violated

Tarik’s right to due process, the Court turns to whether that right was clearly established.7 This

inquiry focuses on “whether the right that was violated was clearly established, or, in other

words, ‘whether it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.’” Curley, 499 F.3d at 206–07 (quoting Saucier, 533 U.S. at 202). At

this point in the qualified-immunity analysis, room for sensible disagreement about the

application of law is not enough. See White v. Pauly, 137 S. Ct. 548, 552 (2017). Instead, “[t]he

inquiry focuses on the state of the relevant law when the violation allegedly occurred” because

“[f]or a right to have been ‘clearly established,’ ‘existing precedent must have placed the

statutory or constitutional question beyond debate.’” Williams v. Sec’y Pa. Dep’t of Corr., 848

F.3d 549, 570 (3d Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

6 Plaintiff also argues that “[r]easonable jurors could infer that overmedication on Thorazine

explained Tarik’s behavior.” (Pl.’s Br. at 29.) However, not only is the overmedication

inference beyond the pale of a lay juror, but it inappropriately imports the motivations behind

Tarik’s inappropriate behavior to Defendant Chacinski’s decision to place him in ITU. Even if it

were true that Tarik was reacting poorly to his medication, that presumably would supply

justification to isolate him until his medication stabilized.

7 The Court need not analyze whether Defendant Ansari’s conduct violated a clearly established

right because, as discussed supra Section I.A.1, those constitutional claims are dismissed.

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A clearly established right is at the center of this litigation. Regardless of whether one

interprets it to be the right to appropriate treatment or the right to a less restrictive environment

while confined by the state, see Clark, 794 F.2d at 87 (affirming district court’s finding of fact

that institutionalized patient’s substantive due process rights were violated where professionals

agreed that she should have been placed in a far less restrictive environment), or whether it is the

right to be free from confinement for purposes of punishment, see Bistrian v. Levi, 696 F.3d 352,

372–75 (3d Cir. 2012) (finding reasonable inference that time spent in administrative detention

was excessive in light of any legitimate non-punitive government purpose for his segregation),

the factual allegations here touch upon a clearly established right. Accordingly, Defendant

Chacinksi is not entitled to qualified immunity.

II. State Statutory Violations against Defendants AKFC, Ancora, Ansari, and

Chacinski (Count IV)

Plaintiff asserts a variety of state-law violations. Plaintiff does not cite to the applicable

subsections in the Fifth Amended Complaint, but one may glean from the statutes that these

allegations center on procedural defects, overmedication, abuse, and seclusion.8 Most of these

statutory claims fail, however.

8 See N.J.S.A. § 30:4-24 (outlining “general principles” to govern the admission and

commitment of persons with mental illness), 4-24.1 (conferring “fundamental civil rights and

medical care” to persons with mental illness), 4-24.2 (describing rights of patients, such as the

right to be free from unnecessary or excessive medication and the right to be free from physical

restraint and isolation), 4-27.1 (finding and declaring that the state must care, treat, and

rehabilitate mentally ill persons who are disabled and are not able to care for themselves

“[b]ecause involuntary commitment to treatment entails certain deprivations of liberty, it is

necessary that State law balance the basic value of liberty with the need for safety and

treatment”), 4-27.13 (requiring notice of hearing), 4-27.14 (detailing rights of patient at hearing),

4-27.16 (outlining court review hearings); N.J.S.A. §§ 30:6D-4 (limiting presumptions and

discriminations against persons with developmental disabilities who have been admitted to a

facility), 6D-5 (prohibiting persons with developmental disabilities from, inter alia, being

subjected to corporal punishment, administered inappropriate medication, or physically

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First, the statutes detailing the requirements for notice of and rights at a court hearing are

inapplicable. No allegations in the Fifth Amended Complaint, nor any advanced in this briefing,

address procedural due process or procedural defects surrounding a hearing. Therefore, these

statutory claims are dismissed.

Second, the statutes focusing on overmedication are necessarily subsumed within the §

1983 claim for a substantive due process violation against Defendant Ansari. Because these

alleged statutory violations track the same analysis as the § 1983 claim and because Plaintiff’s §

1983 claim fails, these statutory claims fail as well.

Third, the statutes involving alleged abuse must also fail. Specifically, Plaintiff avers that

Tarik told her that staff members at Defendant AKFC punched him in the eye, starved him,

encouraged him to punch walls causing abrasions on his knuckles, neglected him to the point of

contracting MRSA and allowing him to sleep in his own urine, hit him during the night, shackled

and restrained him, and held him while other patients punched him. (Pl.’s Suppl. SUMF at 28–

29.) Those allegations, however, are entirely dependent on conversations between Plaintiff and

Tarik, who the parties agree is legally incompetent and who at the time had been involuntarily

civilly committed. (See Pl.’s Resp. to Defs.’ SUMF ¶ 1, ECF No. 95.) Although a district court

may rely on hearsay evidence during summary-judgment briefing, it may be considered only “if

the out-of-court declarant could later present that evidence through direct testimony, i.e. ‘in a

form that would be admissible at trial.’” Williams v. W. Chester, 891 F.2d 458, 465 n.12 (3d Cir.

1989) (relying on Celotex, 477 U.S. at 324, 327); see also Nichols v. Bennett Detective &

restrained or isolated), 6D-9 (requiring facilities serving persons with developmental disabilities

to “be designed to maximize the developmental potential of such persons and . . . provide[] in a

humane manner in accordance with generally accepted standards for the delivery of such

service”).

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Protective Agency, Inc., 245 F. App’x 224, 229 (3d Cir. 2007) (affirming grant of summary

judgment for defendant where district court excluded statements as hearsay). The declarant,

Tarik, is legally incompetent to testify or execute an affidavit, so Rule 807 of the Federal Rules

of Evidence (providing residual exception to hearsay where “the statement has equivalent

circumstantial guarantees of trustworthiness”) is inapplicable. Because Plaintiff has failed to

produce any testimony or affidavit from someone who witnessed this alleged abuse despite full

discovery (see Pl.’s Resp. to Defs.’ SUMF ¶ 18), these statutory claims fail.

Plaintiff’s statutory claims survive, however, to the extent that they broach Tarik’s

placement in ITU. The parallel § 1983 claim against Defendant Chacinski survives this Motion

for Summary Judgment, see supra Section I.A.2, so the statutory claims should as well.

Accordingly, summary judgment is entered in favor of Defendants AKFC, Ancora, and Ansari

on all statutory claims in Count IV, but the claims survive against Defendant Chacinski to the

extent that they implicate Tarik’s placement in ITU.

III. Discrimination under the ADA and NJLAD against Defendant AKFC (Count V)

Plaintiff alleges that Defendant AKFC and its staff members discriminated against Tarik

by abusing and isolating him, thus depriving him of the same services given to the other patients.

(5th Am. Compl. at 19–21.) She contends that this discrimination violated Title II of the ADA

and the NJLAD.

A. Discrimination under the ADA

“Title II of the ADA prohibits discrimination against the disabled in public services,

programs, and activities.” Disability Rights N.J., Inc. v. Comm’r, N.J. Dep’t of Human Servs.,

796 F.3d 293, 301 (3d Cir. 2015) (citing Tennessee v. Lane, 541 U.S. 509, 517 (2004)). It

provides that “no qualified individual with a disability shall, by reason of such disability, be

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excluded from participation in or be denied the benefits of the services, programs, or activities of

a public entity.” 42 U.S.C. § 12132. “[T]he phrase ‘service, program, or activity’ is extremely

broad in scope and includes ‘anything a public entity does.’” Disability Rights N.J., 796 F.3d at

301 (citing 28 C.F.R. § 35.130(b)(1)(vii); Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168, 171 (3d

Cir. 1997)). To allege a prima facie violation, the plaintiff must demonstrate that “(1) he is a

qualified individual; (2) with a disability; (3) [who] was excluded from participation in or denied

the benefits of the services, programs, or activities of a public entity, or was subjected to

discrimination by any such entity; (4) by reason of his disability.” Haberle v. Troxell, 885 F.3d

171, 178–79 (3d Cir. 2018) (quoting Bowers v. NCAA, 475 F.3d 524, 553 n.32 (3d Cir. 2007)).

Defendants challenge only the latter two elements. (See Defs.’ Br. at 29.)

In regard to the third prong, Plaintiff concedes in her Opposition that “Tarik was not

excluded” from participation in a service, program, or activity of a public entity. (Pl.’s Br. at

16.) Though she contends that Tarik was instead denied a benefit of a service, program, or

activity, she never identified a specific service, program, or activity from which Tarik was

denied or specified the scope of that denial. (See id. at 16–18.) Rather, Plaintiff simply

regurgitates black-letter law.

Plaintiff also fails to satisfy the fourth prong. No evidence presented to this Court

demonstrates that Tarik was placed, and remained for a period of time, in ITU after the

September 16 incident “by reason of his disability.” Of course the Court finds that questions

remain regarding Count III and the constitutionality of Tarik’s placement and prolongment in

ITU, see supra Section I.A.2, but those questions begin and end there. Indeed, in her

Opposition, Plaintiff simply takes the arguments advanced for her due process claim and

refashions them for her discrimination claim. (See, e.g., Pl.’s Br. at 22 (arguing that “reasonable

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jurors could conclude that Tarik’s transfer to more restrictive housing . . . was a form of

unnecessary segregation, thus disparate treatment from the services provided to his peers”).)

Discrimination under the ADA requires causation, but there is no sign of animus or

pretext by Defendants in regard to Tarik’s disability or that Tarik was treated differently

compared to his peers. See CG v. Pa. Dep’t of Educ., 734 F.3d 229, 236 (3d Cir. 2013)

(expounding on causation requirements that plaintiffs “must prove that they were treated

differently based on the protected characteristic”); See Burton v. Teleflex Inc., 707 F.3d 417, 427

(3d Cir. 2013) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)) (explaining that

“[t]o make a showing of pretext, ‘the plaintiff must point to some evidence, direct or

circumstantial, from which a factfinder could reasonably either (1) disbelieve the [defendant’s]

articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more

likely than not a motivating or determinative cause of the [defendant’s] action’”). Rather, the

evidence presented suggests that Defendants simply sought to stabilize Tarik’s undisputedly

inappropriate behavior. Accordingly, summary judgment is entered in favor of Defendants on

this claim.

B. Discrimination under the NJLAD

The NJLAD prohibits any place of public accommodation from refusing, withholding, or

denying any accommodation, advantage, facility, or privilege thereof from any person on the

account of disability. N.J.S.A. § 10:5-12(f). Like the ADA, the NJLAD also requires a

causation element—that the plaintiff “was denied equal treatment on the basis of [his or her

disability].” See Islam v. City of Bridgeton, 804 F. Supp. 2d 190, 200 (D.N.J. 2011) (emphasis

added) (detailing elements). For the same reasons discussed above, therefore, this claim fails

and summary judgment is entered in favor of Defendants.

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IV. Retaliation under the ADA and NJLAD against Defendant AKFC (Count VI)

Although Defendants contend that the “Fifth Amended Complaint should be dismissed

with prejudice as to all [D]efendants in its entirety” (Defs.’ Br. at 33; see also Defs.’ Reply at

20), Defendants offer no argument as to why Count VI, retaliation under the ADA and NJLAD,

should be dismissed. Save for a reference of the claim in their “Preliminary Statement” section

in their opening brief, Defendants do not even mention the word “retaliation” in their papers.

This omission is striking in light of the fact that Plaintiff, unprompted, addressed the retaliation

claim in her Opposition (Pl.’s Br. at 20–24), yet Defendants failed to provide a rejoinder in their

Reply. Because one need not prevail on a discrimination claim to prevail on a retaliation claim,

summary judgement is denied and this Count survives Defendants’ Motion.

CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted in part

and denied in part. An appropriate Order will follow.

Date: 07/24/2019 /s/ Anne E. Thompson

ANNE E. THOMPSON, U.S.D.J.

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