VAN VALEN v. LANIGAN

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

REGINALD VAN VALEN, :

: Civ. Action No. 18-11441(RMB)

Plaintiff, :

:

v. : OPINION

:

COMMISSIONER GARY M. LANIGAN :

et al., :

:

Defendants. :

APPEARANCES:

CONRAD J. BENEDETTO, Esq.

Law Offices of Conrad J. Benedetto

10,000 Lincoln Drive East-Suite 201

Marlton, NJ 08053

On behalf of Plaintiff

MICHAEL EZRA VOMACKA, Deputy Attorney General

New Jersey Office of the Attorney General

Richard J. Hughes Justice Complex

25 Market St.

P.O. Box 112

Trenton, NJ 08625

On behalf of Defendant Commissioner Gary M. Lanigan

MARGARET M. RAYMOND-FLOOD, Esq.

NORRIS McLAUGHLIN PA

400 Crossing Boulevard, 8th Floor

Bridgewater, NJ 08807

On behalf of Defendants University Correctional Health

Care and University Behavioral Health Care

BUMB, United States District Judge

This matter comes before the Court upon Plaintiff’s motion to

reinstate and amend his complaint (“Mot. to Amend,” ECF No. 26);

Defendants University Behavioral Health Care and University

Correctional Health Care’s brief in opposition to Plaintiff’s

motion to amend (“Defs. UBHC and UCHC’s Opp. Brief,” ECF No. 30);

and Defendant Lanigan’s brief in opposition to Plaintiff’s motion

to amend (“Lanigan’s Opp. Brief,” ECF No. 31). 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 deny

Plaintiff’s motion to reinstate and amend the complaint.

I. BACKGROUND

On July 6, 2018, Plaintiff filed his complaint in this Court.

(Compl., ECF No. 1). Defendants Lanigan, UBHC and UCHC filed

motions to dismiss the complaint. (Motions to Dismiss, ECF Nos.

10, 17.) On March 25, 2019, the Court entered an Opinion and Order

granting the defendants’ motions to dismiss, dismissing the claims

against the defendants without prejudice, and giving Plaintiff 30

days to file an amended complaint. (Opinion, ECF No. 24; Order,

25). Plaintiff filed his motion to reinstate and amend the

complaint on July 13, 2019. (Mot. to Amend, ECF No. 26.)

In his original complaint, Plaintiff alleged that he was

incarcerated at Bayside State Prison in Leesburg, New Jersey on

August 13, 2016. (Compl., ECF No. 1, ¶23.) Upon his arrival at the

prison, Plaintiff was provided with a wooden cane “through the

Defendant UCHC and/or UBHC.” (Compl., ECF No. 1, ¶24.) Plaintiff

was assigned to the general population with a cellmate named

“Randals.” (Compl., ¶¶25-27, ECF No. 1.) Plaintiff was a documented

member of the Crips and Randals was documented as affiliated with

the Bloods, a rival gang. (Id., ¶¶26-27.)

On August 13, 2016, at approximately 7:00 a.m., Plaintiff was

confined to his cell with Randals. (Id., ¶30.) Randals struck

Plaintiff with his fist, and as the two fought, Randals knocked

Plaintiff unconscious using Plaintiff’s cane. (Id., ¶¶31-34.) The

assault lasted for fifteen minutes within the cell and then

continued in a common area after the cell doors were opened

remotely. (Id., ¶¶32-41.) As a result of the assault, Plaintiff

underwent facial reconstructive surgery at Cooper University

Health in Camden. (Id., ¶¶43-44.) For the entire course of his

six-day hospitalization, his hands and feet were shackled,

depriving him of sleep and causing physical and mental discomfort.

(Id., ¶45.) The corrections officers who supervised Plaintiff

during his hospitalization kept Plaintiff in shackles in defiance

of Plaintiff’s attending physician and nurses. (Id., ¶46.)

In the proposed Amended Complaint, Plaintiff realleges the

facts set forth above and adds the following factual allegations.

The Intelligence Unit of the New Jersey Department of Corrections

(“NJDOC”) documents and updates inmates’ gang affiliations, and,

as a result, all defendants had access to and person knowledge of

gang affiliations in the NJDOC system. (Proposed Am. Compl., ¶26,

ECF No. 26-2.) The Intelligence Unit is a subdivision of the

NJDOC’s Office of Legal and Regulatory Affairs, and reports to

Defendant Lanigan. (Proposed Amended Complaint, ¶27, ECF No. 26-

2.) The Intelligence Unit’s gang database is used for threat

assessments and cell assignments for the purpose of ensuring the

safety of inmates and employees of the NJDOC. (Id., ¶28.)

In the years leading up to the incident alleged in the

proposed Amended Complaint, various investigations, including

those by the State of New Jersey, have uncovered pervasive and

entrenched gang violence and control within prisons overseen by

the NJDOC. (Id., ¶29.) These investigations have uncovered a

significant number of prison guards who are gang members,

affiliated with gangs or are coerced or blackmailed into doing the

bidding of gang members. (Id., ¶30.) It is a goal of the NJDOC to

rehabilitate gang members so they can be returned to the general

prison population, which keeps the costs associated with

separating rival gang members down. (Id., ¶31.)

The database revealed that Plaintiff was a member of the

Crips. (Id., ¶33.) The database also revealed that Randals, who

was assigned to share a cell with Plaintiff, was a member of the

Bloods. (Id., ¶¶35, 36.) Defendants knew the Crips and Bloods are

rival gang members housed in close proximity. (Id., ¶37.)

Defendants knew it was a common practice for gang members to

further their status by fighting rival gang members in prison.

(Proposed Am. Compl., ¶42, ECF No. 26-2.)

Plaintiff alleges the fact that the defendant corrections

officers failed to intervene in Randals’ attack on Plaintiff for

approximately twenty minutes is evidence that they were complicit

in the attack or deliberately indifferent to Plaintiff’s safety or

negligently trained in providing for Plaintiff’s safety, including

obtaining immediate medical care for his injuries. (Id., ¶53.) If

the defendant corrections officers were acting according to NJDOC

policy by not intervening earlier, the policies and procedures

were deliberately indifferent to Plaintiff’s health and welfare.

(Id., ¶54.) While hospitalized for his injuries, Plaintiff posed

no threat to anyone, and there was no penological justification

for keeping Plaintiff in shackles when more humane restraints were

available, given Plaintiff’s pain and discomfort. (Id., ¶60.)

Plaintiff added a negligence against Defendant Lanigan in

Count IX of the proposed Amended Complaint. Plaintiff alleges

Lanigan failed to create policies or created deficient policies to

protect inmates in the care of the NJDOC. (Id., Count IX.) As a

result of deficient policies, Plaintiff alleges he was beaten by

another inmate without intervention by corrections officers, and

that he received delayed medical care and cruel and unusual

punishment when he was kept shackled while hospitalized. (Id.)

Plaintiff makes the following allegation against Defendants

UCHC and UBHC in the proposed Amended Complaint:

Defendant UCHC and/or UBHC and/or Defendant

Healthcare Providers also acted with

deliberate indifference and/or negligence

with respect to the substantial risk of harm

in their not insisting on either a segregated

or infirmary cell for Plaintiff, or for that

matter, any precautions whatsoever in giving

Plaintiff the wooden cane.

(Proposed Am. Compl., ¶40, ECF No. 26-2.)

In addition to his NJCRA and § 1983 claims, Plaintiff also

added a negligence claim against Defendants UCHC, UBHC and the

unidentified Healthcare Providers. (Id.) Plaintiff alleges UCHC

and UBHC breached their duties to provide medical care by failing

to request that Plaintiff be segregated from the general population

while possessing a cane; and consenting to the defendant

corrections officers’ demands to not remove his shackles during

medical treatment. (Id., ¶130.)

II. STANDARD OF REVIEW

According to Federal Rule of Civil Procedure 15(a)(2), courts

should freely give leave to amend when justice so requires. Liberal

amendment is appropriate because policy favors resolving cases on

the merits. Mullin v. Balicki, 875 F.3d 140, 149 (3d Cir. 2017).

Leave to amend may properly be denied based on “undue delay, bad

faith or dilatory motive on the part of the movant; repeated

failure to cure deficiencies by amendments previously allowed;

prejudice to the opposing party; and futility.” Mullin, 875 F.3d

at 149 (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

“Futility” means the amended complaint would fail to state a claim

upon which relief may be granted under the same standard applied

under Federal Rule Civil Procedure 12(b)(6). In re Burlington Coat

Factory Securities Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). “To

survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, ‘to state a claim for relief

that is plausible on its fact.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell v. Twombly, 550 U.S. 544, 570 (2007)).

III. DISCUSSION

A. Defendant Lanigan

1. Section 1983 and NJCRA Claims

The NJCRA is generally interpreted analogously to § 1983.

Shabazz v. New Brunswick Police Dep’t, Civ. Action No. 13–1975

(FSH), 2014 WL 2931602, at *9 (D.N.J. June 27, 2014). “Where a

party fails to identify ‘any specific right or theory of liability

grounded in the New Jersey Civil Rights Act or New Jersey

Constitution that is different from [the plaintiff’s] claims under

§ 1983,’ courts will review claims pled under the NJCRA consistent

with its analysis of the same issues under § 1983.” Id. Therefore,

the Court will address the § 1983 and NJCRA claims together, guided

by § 1983 jurisprudence.

a. Due Process Claim

Plaintiff alleges Lanigan violated his right to Due Process,

but Lanigan argues that the Due Process claim fails because

Plaintiff does not allege that he was a pretrial detainee at the

time of the alleged constitutional violations. Therefore, Lanigan

contends that Plaintiff failed to state a Due Process claim.

As this Court stated in its Opinion granting Lanigan’s motion

to dismiss the original complaint (Opinion, ECF No. 24), “the

‘more-specific-provision-rule’ … holds that ‘if a constitutional

claim is covered by a specific constitutional provision, such as

the Fourth or Eighth Amendment, the claim must be analyzed under

the standard appropriate to that specific provision, not under the

rubric of substantive due process.’” Wharton v. Danberg, 854 F.3d

234, 246 (3d Cir. 2017) (quoting United States v. Lanier, 520 U.S.

259, 272 n.7, (1997)). The detention of sentenced inmates is

governed by the Eighth Amendment, and the detention of pretrial

detainees is governed by the Due Process Clause of the Fourteenth

Amendment. Wharton, 854 F.3d at 247 (citing Bell v. Wolfish, 441

U.S. 520, 535 n. 16 (1979)).

The constitutional violations alleged by Plaintiff arose out

of his confinement in Bayside State Prison. State prisons generally

house only inmates sentenced to prison terms of one year or longer.

See N.J.S.A. § 2C:43-10. In the absence of an allegation that

Plaintiff was a pretrial detainee at any relevant time in the

proposed Amended Complaint, inclusion of a Due Process claim in

the Amended Complaint is futile. Thus, the Court will address

whether the proposed Amended Complaint sets forth an Eighth

Amendment failure to protect or conditions of confinement claim.

b. Eighth Amendment Failure to Protect Claim

Defendant Lanigan contends that the proposed Amended

Complaint fails to state an Eighth Amendment failure to protect

claim against him by alleging that the NJDOC tracks and reports

inmates’ gang affiliations; and that Lanigan therefore had

knowledge of and acquiesced in Plaintiff’s cell assignment with a

rival gang member. Plaintiff does not allege Lanigan was involved

in selecting Plaintiff’s housing or that he had contemporaneous

knowledge of and acquiesced in Plaintiff’s cell assignment with a

rival gang member.

Even if Plaintiff had alleged that Lanigan had

contemporaneous knowledge of and acquiesced in Plaintiff’s cell

assignment, Lanigan cites to Blanchard v. Gallick, 448 F. App'x

173, 177 (3d Cir. 2011), where the court dismissed a failure to

protect claim by a prisoner who had previously been assaulted by

a Crips member and was subsequently housed with a Crips member.

The Third Circuit held that the plaintiff failed to establish a

serious threat to his safety. Blanchard, 448 F. App’x at 177.

Further, Lanigan argues that the proposed Amended Complaint does

not identify any specific policy or practice or lack of a specific

policy or practice that created a substantial risk of harm to his

safety by housing him with a Crips member.

The Court finds it does not follow that because the NJDOC has

a system to track inmates’ gang affiliations that Lanigan was aware

of Plaintiff’s and Randals’ rival gang memberships. It is not

reasonable to infer that the Commissioner of the NJDOC is aware of

all of the information in the database of inmates’ gang

affiliations. Therefore, Plaintiff has not pled a supervisory

liability claim based on Lanigan’s knowledge and acquiescence in

a constitutional violation by housing him with a rival gang member.

Although Plaintiff has not alleged that Lanigan created a

specific policy or practice that caused his cell assignment with

a rival gang member, one could infer from the proposed Amended

Complaint that Plaintiff claims the failure to create a policy

prohibiting rival gang members from sharing a cell constitutes

failure to protect in violation of the Eighth Amendment. The Court

finds no precedent for such a claim. In fact, there are similar

cases holding to the contrary. See Blanchard, 448 F. App’x at 177

(failure to heed inmate’s request not to be assigned to share a

cell with members of certain gangs did not establish deliberate

indifference to inmate’s safety); Labatad v. Corrections Corp. of

America, 714 F.3d 1155, 1161 (9th Cir. 2013) (dismissal for failure

to show defendants’ awareness of a substantial risk of housing

certain rival gang members).

Therefore, even if Plaintiff could allege facts that showed

the failure to institute such a policy constituted deliberate

indifference to a substantial risk of harm to Plaintiff’s safety,

in the absence of clearly established law, Lanigan would be

entitled to qualified immunity. See Pearson v. Callahan, 555 U.S.

223, 231 (2009) (“[t]he doctrine of qualified immunity protects

government officials ‘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’”) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Plaintiff also seeks to hold Lanigan liable for the twenty

minute delay from when he was attacked by Randals and when

corrections officers arrived to assist him. Plaintiff has not

alleged Lanigan’s knowledge and acquiescence in the delay nor has

he alleged a specific policy or practice that caused the delay.

Moreover, he has not alleged facts establishing deliberate

indifference to his safety by delaying his aid.

c. Conditions of Confinement Claim

Plaintiff alleges that Lanigan subjected him to cruel and

unusual punishment under the Eighth Amendment by keeping him

shackled while hospitalized at Cooper University Hospital. Lanigan

argues that Plaintiff has not alleged his knowledge and

acquiescence in the conditions under which Plaintiff received

medical treatment. Further, Lanigan contends that being shackled

during facial surgery did not pose a substantial risk to

Plaintiff’s health or safety.

Indeed, Plaintiff has not alleged facts establishing

Lanigan’s knowledge and acquiescence in keeping him shackled while

receiving treatment in Cooper University Hospital. One could

reasonably infer that Plaintiff’s Eighth Amendment claim is based

on Lanigan’s creation of a policy or practice of shackling inmates

while hospitalized. Plaintiff does not allege that maintaining the

shackles deprived him of necessary medical care but rather that it

was unnecessary because he did not pose a threaat and the shackles

caused him pain. See Farmer v. Brennan, 511 U.S. 825, 832 (1994)

(Eighth Amendment requires prison officials to provide inmates

with adequate medical care).

Plaintiff’s claim may be better understood as an excessive

force claim. A general policy requiring the use of shackles when

a prisoner is taken outside a prison for medical treatment does

not in itself establish that prison officials unnecessarily and

wantonly inflicted pain on a prisoner. See Austin v. Tennis, 381

F. App’x 128, 133 (3d Cir. 2010) (finding cell extraction and use

of shackles on inmate who was on a hunger strike was not excessive

force in violation of Eighth Amendment). To determine whether force

was excessive depends on analysis of several factors, including:

(1) need for application of force; (2) relationship between the

need for force and amount of force used; (3) extent of injury

inflicted; (4) extent of threat to safety; and (4) efforts made to

temper severity of forceful response. Id. Plaintiff has not alleged

that Lanigan had contemporaneous knowledge of and acquiesced in

the particular circumstances under which Plaintiff was shackled

while receiving medical treatment at Cooper University Hospital

nor has Plaintiff alleged Lanigan created a policy that there were

no circumstances under which a prisoner could receive outside

medical care without being shackled. Therefore, the proposed

Amended Complaint fails to state an Eighth Amendment conditions of

confinement or excessive force claim against Lanigan.

2. Negligence Claims

Lanigan claims that (1) Plaintiff fails to allege that he met

the presentation requirements of the New Jersey Tort Claims Act;

(2) Lanigan is immune to the negligence claims; and (3) the

negligence claims are barred by the statute of limitations. First,

Lanigan asserts that failure to file a notice of claim under the

New Jersey Tort Claims Act (“TCA”) is a ground for dismissal at

the motion to dismiss stage.

Second, Lanigan argues that he is immune to Plaintiff’s tort

claims pursuant to N.J.S.A. 59:5-2 because a public employee is

not liable for injuries caused by one prisoner to another prisoner.

Further, he contends that he is immune from negligence claims for

injuries resulting from his exercise of discretionary judgment,

pursuant to N.J.S.A. 59:3-2(a). Lanigan acknowledges that courts

have limited discretionary immunity to the discretion exercised at

the highest levels of government in matters of policy or planning

but contends that the negligence claims against him fall within

this limitation. See Tice v. Cramer, 133 N.J. 347, 366 (N.J. 1993)

(citing Costa v. Josey, 83 N.J. 49, 54, (N.J. 1980).

Finally, Lanigan argues that amendment is futile because the

claims are barred by the two-year statute of limitations. Lanigan

contends that the limitations period was not tolled after Plaintiff

failed to amend his complaint within the thirty-day period provided

by the Court.

a. Presentation Requirements of NJTCA

Pursuant to N.J.S.A. 59:8–8., a person bringing a tort claim

against a public official must give notice to the entity within

ninety days of the injury. A claimant is “forever barred from

recovering against a public entity or public employee” if the

claimant fails to file the notice of claim with the public entity

within 90 days of accrual of the claim and fails to obtain

permission of a judge to file a late notice within one year; or if

two years have elapsed since accrual of the claim. N.J.S.A. 59:8-

8(a). Because a claimant may be forever barred from filing suit

under the Act, failure to file a notice of claim is a ground for

dismissal at the motion to dismiss stage.

Here, the alleged constitutional injuries occurred in August

2016. The proposed Amended Complaint does not contain allegations

of Plaintiff having met the presentation requirements of the TCA.

On the face of the proposed Amended Complaint, the time in which

Plaintiff was required to present his notice under the TCA has

expired. Because failure to file a notice of claim is a ground for

dismissal at the motion to dismiss stage, the Court finds the

negligence claims against Lanigan in the proposed Amended

Complaint fail to state a claim. See e.g. Niblack v. SCO Malbreen,

No. 15-5298, 2016 WL 1628881, at *3 (D.N.J. Apr. 25, 2016)

(dismissing TCA claims for failure to allege the plaintiff met the

notice of claim requirements).

Even if Plaintiff had pled that he met the presentation

requirements of the TCA, Lanigan is immune under N.J.S.A. 59:5-

2(b)(4) for an injury caused by one prisoner to another prisoner.

Lanigan may also be entitled to discretionary immunity under

N.J.S.A. 59:3-2(a), if he can show that he consciously exercised

discretion in making policies alleged to have caused Plaintiff’s

injuries, i.e. permitting rival gang members to be assigned to the

same cell and shackling prisoners while they are hospitalized for

medical treatment. See Costa v. Josey, 415 A.2d 337, 342 (1980);

Waldorf v. Shuta, 896 F.2d 723, 729 (3d Cir. 1990).

B. Defendants UCHC and UBHC

Defendants UCHC and UBHC argue, correctly, that the proposed

Amended Complaint does not allege any material new facts in support

of Plaintiff’s § 1983 and NJCRA claims against them. Therefore, as

the Court granted UCHC and UBHC’s motion to dismiss the complaint

for failure to state a claim, Plaintiff fails to state a § 1983 or

NJCRA claim against UCHC or UBHC in the proposed Amended Complaint.

Plaintiff has included new negligence claims against

Defendants UCHC and UBHC in the proposed Amended Complaint.

Plaintiff, however, has failed to allege that Defendants UCHC and

UBHC, as contracted healthcare providers for the prison, have a

duty to make prison housing assignments for the purpose of

protecting prisoners’ safety from other prisoners.

Plaintiff also seeks to hold UCHC and UBHC liable for

negligently allowing Plaintiff to be shackled during his

hospitalization at Cooper University Hospital. Plaintiff has not

alleged that UCHC or UBHC had any involvement in Plaintiff’s

medical care at Cooper University Hospital. For these reasons, the

Court denies Plaintiff’s motion to amend the complaint as to

Defendants UCHC and UBHC.

IV. CONCLUSION

For the reasons set forth above, the Court will deny

Plaintiff’s motion to reinstate and amend the complaint. The Court

notes that it did not dismiss this action when it granted

Defendants Lanigan and UCHC and UBHC’s motions to dismiss, because

Plaintiff also sued unidentified John and Jane Doe Defendants, who

remain unidentified and unserved.

Federal Rule of Civil Procedure 4(m) provides, “[i]f a

defendant is not served within 90 days after the complaint is

filed, the court—on motion or on its own after notice to the

plaintiff—must dismiss the action without prejudice against that

defendant or order that service be made within a specified time.”

See Manuel v. Atkins, 545 F. App’x 91, 95 (3d Cir. 2013) ((“the

District Court properly dismissed all claims against John Doe, as

[the plaintiff] failed to [timely] serve John Doe....”) Thus, the

Court will order Plaintiff to show cause why the Court should not

dismiss the claims against all John and Jane Doe Defendants for

failure to identify and serve those defendants, and why dismissal

should not be with prejudice, pursuant to Federal Rule of Civil

Procedure 41(b), for failure to prosecute.

Finally, if Plaintiff seeks to amend the complaint again, he

should address the statute of limitations issue, as more than two

years have passed since his alleged injury. See N.J.S.A. 2A:14-

2(a).

An appropriate order follows.

Date: February 21, 2020

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge