SCANLON v. LAWSON

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

EDWARD SCANLON, IV

Civ. No. 16-4465 (RMB-JS)

Plaintiff

v.

VALERIE LAWSON, et al., OPINION

(REDACTED)

Defendants

APPEARANCES:

KEVIN T. FLOOD, Esq.

181 Route 206

Hillsborough, NJ 08844

On behalf of Plaintiff

PATRICK JOSEPH MADDEN, Esq.

Madden & Madden, PA

108 Kings Highway East, Suite 200

P.O. Box 210

Haddonfield, NJ 08033

On behalf of Defendants Robert Balicki, Veronica

Surrency and Michael Baruzza

BUMB, United States District Judge

This matter comes before the Court upon Defendants Robert

Balicki, Veronica Surrency and Michael Baruzza’s motion for

summary judgment (Defs Balicki, Surrency and Baruzza’s Mot. for

Summ. J., ECF No. 115); Brief in Supp. of Summ. J. (“Defs’ Brief,

ECF No. 116); Statement of Material Facts in Supp. of Summ. J.

(“Defs’ SOMF,” ECF No. 116-1); Plaintiff’s Opposition to Summary

Judgment Motions (“Pl’s Opp. Brief,” ECF No. 130); Plaintiff’s

Reply to Statement of Material Facts in Support of Motion for

Summary Judgment (“Pl’s Reply to SOMF,” ECF No. 130-2); Plaintiff’s

Counter-statement of Material Facts (“Pl’s CSOMF,” ECF No. 130-

5); Reply Brief of Defs. Robert Balicki, Veronica Surrency and

Michael Baruzza (“Defs’ Reply Brief,” ECF No. 143); and Defs.

Veronica Surrency, Robert Balicki and Michael Baruzza’s Response

to Pl’s Counter-statement of Material Facts (“Resp. to Pl’s CSOMF,”

ECF No. 143-2.)

Pursuant to Federal Rule of Civil Procedure 78(b), the Court

will determine the motion for summary judgment on the briefs

without oral argument.

I. BACKGROUND

Plaintiff filed this action in the New Jersey Superior Court,

Law Division, Cumberland County on March 29, 2016, alleging civil

rights violations under 42 U.S.C. § 1983; the New Jersey Civil

Rights Act (“NJCRA”), § 10:6-2, and tort claims under the New

Jersey law, N.J.S.A. §§ 59:1-1 et seq. (Compl., ECF NO. 1-1 at 8-

18.) The defendants to the original complaint were Valeria Lawson

(“Lawson,”)1 Felix Mickens (“Mickens”), Robert Balicki

(“Balicki”), Veronica Surrency (“Surrency”), Michael Baruzza

1 Plaintiff sued “Valerie” Lawson and Lawson corrected her name

to “Valeria” upon answering the complaint. (Answer, ECF No. 26

at 1.)

(“Baruzza”), and John and/or Jane Does 1-45 (fictitious

individuals) and ABC Corps. 1-45 (fictitious corporations).

(Compl., ECF No. 1-1 at 8.) The action arose out of incidents

alleged to have occurred at the Cumberland County Juvenile

Detention Center (“CCJDC”) in March 2012. (Id.) Plaintiff alleged

[O]n or about March 2, 2012 through March 5,

2012, Plaintiff was made to fight other

inmates at the Cumberland County Detention

Center whereby he suffered serious injuries

solely for the enjoyment and entertainment of

Cumberland County Detention guards, who were

instead responsible to safeguard the minor.

(Id., ¶3.) Plaintiff also alleged he had numerous mental and

behavioral disabilities and generally that he was subject to

physical and psychological abuse and depravation of medication at

the CCJDC. (Id. at 11-10, ¶¶2, 14, 26.)

Defendants removed the action to this Court on July 22, 2016.

(Notice of Removal, ECF No. 1.) On August 3, 2016, Balicki,

Surrency and Baruzza, represented by Patrick J. Madden, Esq., filed

an answer to the original complaint, and a cross-claim for

contribution and indemnification against Lawson and Mickens.

(Answer, ECF No. 6.) Plaintiff filed a motion to amend the

complaint on July 26, 2017. (ECF No. 44.)

The motion to amend was granted on October 20, 2017. (Order,

ECF No. 56.) Plaintiff filed a redacted amended complaint on

October 26, 2017, and later filed an unredacted amended complaint.

(Am. Compl., ECF Nos. 58, 88.) The amended complaint added claims

against William M. Burke (“Burke”) Supervisor, Compliance

Monitoring Unit, New Jersey Juvenile Justice System; Bobby Stubbs

(“Stubbs”) Senior Juvenile Detention Officer at CCJDC; David

Fuentes (“Fuentes”) Juvenile Detention Officer at CCJDC; Harold

Cooper (“Cooper”) Senior Juvenile Detention Officer at CCJDC;

Wesley Jordan (“Jordan” or “Officer Jordan”) Juvenile Detention

Officer at CCJDC; and Carol Warren LPN (“Warren” or “Nurse

Warren”), at CCJDC. (Am. Compl., ECF No. 88, ¶¶28-32.) Balicki,

Baruzza and Surrency filed the present motion for summary judgment

on August 15, 2019. (Defs’ Mot. for Summ. J., ECF No. 115.)

II. THE AMENDED COMPLAINT

Plaintiff was born on April 1, 1996, and was a minor at all

relevant times alleged in the amended complaint. (Am. Compl., ECF

No. 88, ¶19.) Prior to the incidents alleged, Plaintiff was

diagnosed with numerous mental and behavioral disabilities. (Id.,

¶20.) He was committed to the New Jersey Juvenile Justice

Commission (“JJC”) following his adjudication of delinquency. (Am.

Id., ¶1.)2 Throughout his commitment, Plaintiff alleges that he

was subjected to excessive use of force during unlawful room

2 Discovery revealed that Plaintiff was a detainee not yet

adjudicated delinquent at all relevant times alleged in the

complaint. (Pl’s CSOMF, ¶¶11-12, ECF No. 130-5; Ex. M, ECF No.

130-8 at 100-101.)

extractions, physical and psychological abuse and deprivation of

medication. (Am. Compl., ¶¶2, 3, ECF No. 88.)

On May 21, 2011, Stubbs, Senior Juvenile Detention Officer at

CCJDC, ordered Juvenile Detention Officers Jordan and Fuentes to

remove Plaintiff from his room. (Id., ¶¶4, 28, 29, 31.) Plaintiff

was charged with aggravated assault for injuring Jordan and Fuentes

during the room extraction on May 21, 2011. (Id., ¶¶4-5.) Jordan

received a notice to appear in court regarding the incident. (Id.,

¶6.) Jordan asked Surrency, Division Head at CCJDC, and Senior

Juvenile Detention Officer Cooper whether there was a “No Contact

Order” in place for Plaintiff, and they told him “no.” (Id., ¶¶6,

26, 30.)

In March 2012, Plaintiff alleges that he was forced to fight

other inmates at CCJDC for Jordan’s entertainment. (Id., ¶8.) On

March 2, 2012, Plaintiff reported to Nurse Warren at CCJDC, and

she noticed a bruise or bruises on Plaintiff’s lower extremities

but she did not report the injuries to any supervisor. (Id., ¶¶7,

32.) Plaintiff saw Warren again on March 5, 2012, and she noticed

more injuries on his body and, this time, notified a supervisor.

(Id., ¶9.)

Plaintiff alleges Lawson, Mickens and Burke of the New Jersey

JJC “were responsible for ensuring that the JJC complies with state

and federal law.” (Id., ¶¶21 22, 23.) Balicki, Warden of CCJDC,

and Baruzza, Division Head of CCJDC, are also named as defendants.

(Am. Compl., ¶¶25-27, ECF No. 88.)

In Count One, Plaintiff alleges violations of substantive due

process for excessive use of force, inhumane conditions, lack of

health care and failure to protect from harm under 42 U.S.C. §

1983. (Id., ¶¶36-43.) Count Two of the amended complaint is for

the same conduct in violation of the New Jersey Civil Rights Act,

N.J.S.A. § 10:6-2. (Id., ¶¶44-47.)

In Count Three, Plaintiff alleges negligence under New Jersey

state law. (Id., ¶¶48-51.) In Count Four, Plaintiff alleges

Defendants’ actions and failure(s) to act

constituted a failure to act and/or

discipline, which proximately caused a

violation of plaintiffs’ civil rights to

procedural and substantive due process which

violations are made actionable by the

N.J.C.R.A.

Defendants knew or should have known of the

violation of plaintiff’s rights, and acted and

failed to act so as to permit the violation of

plaintiff’s rights intentionally and/or

recklessly and with deliberate indifference.

(Id., ¶¶53, 54.) Count Five is for punitive damages under New

Jersey law. (Id., ¶¶58-61.) Counts Six and Seven are for

intentional and negligent infliction of emotional distress under

New Jersey law. (Id., ¶¶62-69.) Count Eight is alleged against

Jordan, Stubbs and Fuentes for excessive force in violation of the

Fourth and Fourteenth Amendments. (Id., ¶¶70-72.) Counts Nine and

Ten are alleged against Balicki, Surrency, Cooper, Baruzza, Burke,

Lawson and Mickens for supervisory liability of their

subordinates’ violations of Plaintiff’s constitutional rights in

violation of 42 U.S.C. § 1983. (Am. Compl., ¶¶73-88, ECF No. 88.)

III. DISCUSSION

A. Summary of Arguments

As an initial matter, Plaintiff does not oppose summary

judgment in favor of Baruzza on all claims. (Pl’s Opp. Brief, ECF

No. 130 at 9.) Further, Plaintiff does not oppose summary judgment

on the tort claims in favor of Balicki and Surrency. (Id.)

Therefore, the Court need address only the Section 1983 and NJCRA

claims against Balicki and Surrency.

The NJCRA, N.J.S.A. 10:6-2(c), was modeled on 42 U.S.C. §

1983, and courts have repeatedly construed NJCRA claims as nearly

identical to § 1983, using § 1983 jurisprudence as guidance for

the analogous NJCRA claims. See Trafton v. City of Woodbury, 799

F.Supp.2d 417, 443-44 (D.N.J. June 29, 2011) (collecting cases)).

Because the parties have not identified any differences between

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

together, guided by § 1983 jurisprudence.

Defendants assert there is nothing in the record that shows

that any of the defendants directly participated in violating

Plaintiff's rights, directed others to violate them, or, as the

person in charge, had knowledge of and acquiesced in their

subordinates' violations. (Defs’ Brief, ECF No. 116 at 11.)

Therefore, Defendants can only be liable if Plaintiff can establish

that they established a policy, practice or custom which directly

caused the constitutional harm to plaintiff. (Id. at 10-11.)

Balicki, the warden, and Surrency, a division head, did not

directly supervise Jordan and were quite removed in the chain of

command. (Id. at 12 citing Defs’ SOMF, ¶50; Ex. V, ECF No. 116-6

at 3-4.)

As to Plaintiff’s policy claims, Defendants contend Plaintiff

cannot show their deliberate indifference to a known risk that a

juvenile detention officer would permit juveniles to fight each

other under his supervision. (Defs’ Brief, ECF No. 116 at 13.)

Defendants contends that evidence does not show a pattern of such

abuses nor does it show that Defendants had knowledge of any such

incident occurring. (Id. at 13-14.)

Moreover, Defendants anticipated that Plaintiff would argue

they should have enacted policies to prevent bullying of juveniles

with special needs and they maintain that there is nothing in the

record suggesting Plaintiff’s injury was caused by his

susceptibility to bullying. (Id.) Instead, Defendants argue this

was a unique situation where a juvenile detention officer permitted

two juveniles to “go body to body” with each other to resolve their

differences. (Id.) The risk of harm that this would occur was not

so obvious to Defendants that they were deliberately indifferent

for failing to enact a policy that would have prevented it. (Defs’

Brief, ECF No. 116 at 14.)

In opposition, Plaintiff asserts there is evidence that

Balicki and Surrency were responsible for developing policies and

procedures for the CCJDC. (Pl’s Opp. Brief, ECF No. 130 at 51.)

Incident reports involving Plaintiff provided notice that

Plaintiff was continuously: 1) removed from rooms; 2) placed in

24-hour lock down; 3) had issues with other residents; and 4) had

severe behavior problems. (Id. at 53.) Plaintiff asserts “there is

absolutely no evidence that Balicki [and] Surrency … did anything

to correct the numerous issues affecting [Plaintiff.]” (Id.)

Plaintiff also contends Surrency and Balicki were

deliberately indifferent to his serious mental health needs by

housing him, for several months, on D-wing with the worst violent

juvenile offenders. (Id. at 50.) In sum, Plaintiff argues there is

a genuine factual dispute as to whether Surrency and Balicki failed

to establish policies to address his mental health needs and

protect him from harm. (Id.)

B. Summary Judgment Standard of Review

Summary Judgment is proper where the moving party “shows that

there is no genuine dispute as to any material fact,” and the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a); Daubert v. NRA Group, LLC, 861 F.3d 382, 388 (3d

Cir. 2017). “A dispute is “genuine” if ‘a reasonable jury could

return a verdict for the nonmoving party,’” Baloga v. Pittston

Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019) (quoting Santini

v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “[A] fact is

‘material’ where ‘its existence or nonexistence might impact the

outcome of the suit under the applicable substantive law,’” Id.

(citing Anderson, 477 U.S. at 248).

The burden then shifts to the nonmovant to show, beyond the

pleadings, “‘that there is a genuine issue for trial.” Id. at 391

(quoting Celotex Corp. v. Catrett, 447 U.S. 317, 324 (1986)

(emphasis in Daubert)). “With respect to an issue on which the

non-moving party bears the burden of proof, the burden on the

moving party may be discharged by ‘showing’—that is, pointing out

to the district court—that there is an absence of evidence to

support the nonmoving party’s case.” Conoshenti v. Public Serv.

Elec. & Gas, 364 F.3d 135, 145–46 (3d Cir. 2004) (quoting Celotex,

477 U.S. at 323).

A party asserting that a fact cannot be or is

genuinely disputed must support the assertion

by:

(A) citing to particular parts of

materials in the record, including

depositions, documents, electronically

stored information, affidavits or

declarations, stipulations (including

those made for purposes of the motion

only), admissions, interrogatory

answers, or other materials; or

(B) showing that the materials cited do

not establish the absence or presence of

a genuine dispute, or that an adverse

party cannot produce admissible evidence

to support the fact.

Fed. R. Civ. P. 56(c)(1).

“At the summary judgment stage, facts must be viewed in the

light most favorable to the nonmoving party only if there is a

‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S.

372, 380 (2007) (citing Fed. Rule Civ. Proc. 56(c)). The court’s

role is “‘not ... to weigh the evidence and determine the truth of

the matter but to determine whether there is a genuine issue for

trial.’” Baloga, 927 F.3d 742, 752 (3d Cir. 2019) (quoting

Anderson, 477 U.S. at 249)).

C. Failure to Provide Proper Medications

Plaintiff brings his failure to supervise claims against

Surrency and Balicki in their individual and official capacities.3

3 A § 1983 claim against a municipal officer in his or her official

capacity is treated like a claim against the municipality itself.

Monell v. Dep’t of Social Services of City of New York, 436 U.S.

658, 690 n. 55 (1978). “It is well established that in a § 1983

case a city or other local governmental entity cannot be subject

to liability at all unless the harm was caused in the

implementation of ‘official municipal policy.’” Lozman v. City of

Riviera Beach, Fla., 138 S. Ct. 1945, 1951 (2018) (quoting Monell,

436 U.S. at 691)). “Official municipal policy includes the

decisions of a government's lawmakers, the acts of its policymaking

officials, and practices so persistent and widespread as to

practically have the force of law.” Connick v. Thompson, 563 U.S.

51, 61 (2011) (citations omitted).

While it is true, that Balicki and Surrency were not final-policy

makers for the Manual of Standards, the record contains evidence

Plaintiff alleged Defendants failed to provide him with proper

medications throughout his commitment to the CCJDC. (Pl’s Opp.

Brief, ECF No. 130 at 24-25.)

A juvenile detainee has a Fourteenth Amendment liberty

interest in his personal security and well-being. A.M. ex rel.

J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572,

579 (3d Cir. 2004). To determine whether Defendants violated this

right, the Court must decide “‘what level of conduct is egregious

enough to amount to a constitutional violation and ... whether

there is sufficient evidence that [the Defendants'] conduct rose

to that level.’” A.M. ex rel. J.M.K., 372 F.3d at 579 (quoting

Nicini v. Morra, 212 F.3d 798, 809 (3d Cir. 2000) (alterations in

A.M. ex rel. J.M.K.)) A substantive due process violation “may be

shown by conduct that ‘shocks the conscience.’” Id. (quoting County

of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998)). The

deliberate indifference standard is employed to determine whether,

in the custodial setting of a juvenile detention center, the

defendants were deliberately indifferent to the plaintiff’s

personal security and well-being. ” A.M. ex rel. J.M.K., 372 F.3d

at 579. Whether the conduct of the defendants “shocks the

conscience” depends on the circumstances of any given case. Id.

1. Standard for Supervisory Liability

that they had authority to make written policies and procedures

for the CCJDC.

In 2009, the Supreme Court held that state officials are

liable in their individual capacities only for their own

unconstitutional actions, not for those of their subordinates.

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). The Third Circuit

considered whether Iqbal abolished § 1983 supervisory liability in

its entirety and decided that it did not. Barkes v. First Corr.

Med., Inc., 766 F.3d 307, 319 (3d Cir. 2014), cert. granted,

judgment rev'd sub nom. Taylor v. Barkes, 135 S. Ct. 2042 (2015).

In the Third Circuit, “there are two theories of supervisory

liability, one under which supervisors can be liable if they

established and maintained a policy, practice or custom which

directly caused the constitutional harm, and another under which

they can be liable if they participated in violating plaintiff's

rights, directed others to violate them, or, as the persons in

charge, had knowledge of and acquiesced in their subordinates'

violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5

(3d Cir. 2010). A plaintiff may establish a claim based on

knowledge and acquiescence if the supervisor knew about a practice

that caused a constitutional violation, had authority to change

the practice, but chose not to. Parkell v. Danberg, 833 F.3d 313,

331 (3d Cir. 2016).

“[T]o establish a claim against a policymaker under § 1983 a

plaintiff must allege and prove that the official established or

enforced policies and practices directly causing the

constitutional violation.” Parkell, 833 F.3d at 331 (quoting

Chavarriaga v. New Jersey Dept. of Corrections, 806 F.3d 210, 223

3d Cir. 2015.) When the supervisory liability is based on a

practice or custom, a plaintiff may rely on evidence showing the

supervisor “tolerated past or ongoing misbehavior.” Argueta v.

U.S. Immigration & Customs Enforcement, 643 F.3d 60, 72 (3d Cir.

2011) (quoting Baker v. Monroe Township, 50 F.3d 1186, 1191 n. 3

(3d Cir. 1995) (citing Stoneking v. Bradford Area Sch. Dist., 882

F.2d 720, 724–25 (3d Cir. 1989)).

For practice or custom liability, a plaintiff must typically

show “a prior incident or incidents of misconduct by a specific

employee or group of employees, specific notice of such misconduct

to their superiors, and then continued instances of misconduct by

the same employee or employees.” Id. at 74; see Wright v. City of

Philadelphia, 685 F. App'x 142, 147 (3d Cir.), cert. denied sub

nom. Wright v. City of Philadelphia, Pa., 138 S. Ct. 360 (2017)

(“a custom stems from policymakers’ acquiescence in a longstanding

practice or custom which constitutes the ‘standard operating

procedure’ of the local governmental entity”) (quoting Jett v.

Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). A supervisor’s

conduct occurring after the alleged constitutional violation

cannot be shown to have caused the violation. Logan v. Bd. of Educ.

of Sch. Dist. of Pittsburgh, 742 F. App'x 628, 634 (3d Cir. 2018).

To establish liability on a claim that a supervisory defendant

failed to create proper policy, the plaintiff must “(1) identify

the specific supervisory practice or procedure that the supervisor

has failed to employ, and show that (2) the existing custom and

practice without the identified, absent custom or procedure

created an unreasonable risk of the ultimate injury, (3) the

supervisor was aware that this unreasonable risk existed, (4) the

supervisor was indifferent to the risk, and (5) the underling's

violation resulted from the supervisor's failure to employ that

supervisory practice or procedure.” Brown v. Muhlenberg Township,

269 F.3d 205, 216 (3d Cir. 2001).

2. Undisputed Material Facts

Based on Plaintiff’s deposition testimony, Defendants seek

summary judgment on Plaintiff’s claim of supervisory liability for

failure to provide him with his proper medications. (Defs’ Brief,

ECF No. 116 at 15-16.) Plaintiff testified as follows:

Q: Were you getting meds when you were at the

Cumberland County Youth Facility?

A: Yes.

Q: Any issues getting your meds there?

A: No.

(Defs’ SOMF, ¶49.)

In opposition to summary judgment, Plaintiff argues the

following facts create a disputed issue of material fact regarding

his claim that he was not provided his prescribed medications.

(Pl’s Opp. Brief, ECF No. 130 at 26-27.) On March 23, 2011, an

officer gave Plaintiff a pill that was crushed. (Pl’s CSOMF, ¶28,

ECF No. 130-5; Ex. NN, ECF No. 130-11 at 2.) On July 21, 2011,

Plaintiff’s father complained that Plaintiff’s medication was sent

with him to court. (Id., ¶30; Ex. NN, ECF No. 130-11 at 3.) Nurse

Warren acknowledged that Plaintiff’s father always called with

concerns about Plaintiff’s medications. (Id., ¶31; Ex. II at

T34:10-20, ECF No. 130-10 at 79.) When Plaintiff was transferred

to Capitol Academy on May 25, 2012, Plaintiff’s father counted

Plaintiff’s medications and found the following medications

missing: 48 pills of Vyvance, 87 pills of Tryleptal, 148 pills of

Invega, and 38 pills of Lexapro. (Id., ¶¶36-37; Ex. A, ECF No.

130-8 at 2.)

3. Analysis

The Court holds that Plaintiff has not established a genuine

issue of disputed fact that Defendants were deliberately

indifferent to Plaintiff’s need for his prescribed medications.

The fact that a pill was crushed on one occasion, that Plaintiff

was given his medications to take to court on one occasion, and

the disappearance of pills when Plaintiff was transferred from

CCJDC to Capitol Academy on May 25, 2012, would not permit a

reasonable jury to conclude that Surrency and Balicki had knowledge

of and acquiesced in a failure to provide Plaintiff with his

prescribed medications throughout his stay at CCJDC or that

Defendants were aware of a custom of a failing to provide Plaintiff

with his medications and did nothing. See Ledcke v. Pennsylvania

Dep’t of Corr., 655 F. App’x 886, 889 (3d Cir. 2016) (per curiam)

(district court properly dismissed supervisory liability claims

where plaintiff failed to demonstrate any supervisory defendants

were involved in alleged unconstitutional conduct or that they

directly caused constitutional harm by establishing a policy,

practice or custom).

Indeed, Plaintiff’s own testimony that he had no issues with

getting his medication is contrary to his contention that there

was a pattern of failing to make certain that he took his

prescribed medications. Further, while it is troubling that pills

were missing when Plaintiff was transferred to Capitol Academy,

there is nothing in the evidence to explain why the pills were

missing or to suggest Balicki and/or Surrency had any reason to

know the pills were missing. Thus, Plaintiff has not shown that

Balicki and Surrency were deliberately indifferent to a

substantial risk that Plaintiff was not receiving his prescribed

medications. Accordingly, Balicki and Surrency, in their official

and individual capacities, are entitled to summary judgment on the

§ 1983 and NJCRA claims for failure to provide Plaintiff his

prescribed medications.

D. Room Extractions and Excessive Force

In his amended complaint, Plaintiff alleged he was subjected

to excessive force when he was removed from his room on May 21,

2011. In his opposition to Defendants’ motion for summary judgment,

he alleged he was subject to improper use of room extractions.

(Pl’s Opp. Brief, ECF No. 130 at 36-37.)

1. Elements of Fourteenth Amendment Excessive Force

Claim

Plaintiff, as a detainee not yet adjudicated as delinquent,

has a Fourteenth Amendment right to be free from excessive use of

force. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015)

(stating pretrial detainee has a right under the Due Process Clause

to be free from excessive force that amounts to punishment). To

state a Fourteenth Amendment excessive force claim, a pretrial

detainee must show “that the force purposely or knowingly used

against him was objectively unreasonable.” Kingsley, 135 S. Ct. at

2473-74.

Objective reasonableness is determined “from the perspective

of a reasonable officer on the scene, including what the officer

knew at the time, not with the 20/20 vision of hindsight.” Id. at

2473 (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). “A court

must also account for the ‘legitimate interests that stem from

[the government's] need to manage the facility in which the

individual is detained,’ appropriately deferring to ‘policies and

practices that in th[e] judgment’ of jail officials ‘are needed to

preserve internal order and discipline and to maintain

institutional security.’” Kingsley, 135 S. Ct. at 2473-74 (quoting

Bell v. Wolfish, 441 U.S. 520, 540 (1979)). Courts should consider

the following factors:

[1] the relationship between the need for the

use of force and the amount of force used; [2]

the extent of the plaintiff’s injury; [3] any

effort made by the officer to temper or to

limit the amount of force; [4] the severity of

the security problem at issue; [5] the threat

reasonably perceived by the officer; and [6]

whether the plaintiff was actively resisting.

Robinson v. Danberg, 673 F. App'x 205, 209 (3d Cir. 2016) (quoting

Kingsley, 135 S. Ct. at 2473).

2. Undisputed Material Facts

Fuentes, who was injured during the May 21, 2011 room

extraction, authored the following Incident Report.

On that above date and time, [Plaintiff] was

banging and kicking his door on A-Wing.

Officer Jordan repeatedly asked [Plaintiff]

what [was] wrong. [Plaintiff] continued to

kick the door harder and cuss Officer Jordan

out using racial remarks. Supervisor Stubbs

then came down to [Plaintiff’s] room to try to

talk to him. [Plaintiff] continued to kick the

door and cuss at Supervisor Stubbs also and

using racial remarks. Supervisor Stubbs then

instructed Officer Jordan and Officer Fuentes

to cuff and remove [Plaintiff] from the room

and place him in a D-Wing room. [Plaintiff]

then became physically combative and struck

Officer Jordan and Officer Fuentes in the face

as they physically restrained and cuffed

[Plaintiff]. Officer Fuentes and Officer

Jordan then walked [Plaintiff] up to room

#221A on D-Wing. Supervisor Stubbs then

removed the cuffs from [Plaintiff].

(Defs’ SOMF, ¶43; Ex. Y, ECF No. 130-9 at 6.) (alterations added).

Jordan also wrote an Incident Report about the May 21, 2011

room extraction.

At the above date and time, I (Mr. Jordan)

asked [Plaintiff] why was he punching and

kicking the door and walls in his room. He did

not respond to my question, so, I call Mr.

Stubbs and he asked [Plaintiff] the same

question why he was punching and kicking the

door and walls, and he did not respond to him.

So, Mr. Stubbs told [Plaintiff] if you keep

kicking the door you are going to go upstairs

and [Plaintiff] kept on kicking the door. Mr.

Stubbs told Mr. Fuentez (sic) and myself (Mr.

Jordan) to escort [Plaintiff] to a room on D-

Wing. While entering into [Plaintiff’s] room

he kicked me on the leg and punched me in the

face calling me a nigger while throwing his

punches. I (Mr. Jordan) grabbed [Plaintiff]

and placed him on his bed[,] while placing

[Plaintiff] on the bed Mr. Fuentez (sic) and

myself (Mr. Jordan) fell to the floor from

[Plaintiff’s] bed. While escorting

[Plaintiff] to his new room upstairs on D-Wing

I (Mr. Jordan) felt a sharp pain in my neck

and back.

(Ex. Y, ECF No. 130-9 at 5) (alterations in brackets added;

alterations in parentheses in original). Plaintiff testified that,

during his time at CCJDC, he had numerous altercations wherein he

hit juvenile detention officers but they never hit him back or

caused him any injuries. (Defs’ SOMF ¶¶44-47; Ex. B. at T40:5-41-

7, ECF No. 116-3 at 33.)

Defendants do not dispute the following assertions made by

Plaintiff in his Counter-statement of Material Facts, at least

insofar as the deposition testimony speaks for itself. (Defs’

Response to Pl’s CSOMF, ECF No. 143-2.) Surrency knew that room

extractions occurred at CCJDC and Plaintiff was involved in a

number of them. (Pl’s CSOMF ¶228, ECF No. 130-5; Ex. EE at T70:6-

17, ECF No. 130-9 at 204.) There was no specific policy governing

under what circumstances an officer should remove a juvenile from

his room by force; any force used was guided by the general policy

on the use of force. (Pl’s CSOMF ¶220; Ex. EE at T:74:3-75:6, ECF

No. 130-9 at 205.) The decision to remove a special needs juvenile

from his room was at the discretion of the supervisor in charge at

the time. (Pl’s COSMF ¶231, Ex. EE at T75:7-76:1, ECF No. 130-9 at

205.)

The doors on the rooms in the A and B-wings could easily be

kicked open. (Id., ¶232; Ex. EE at T77:3-19, ECF No. 130-9 at 206.)

According to Surrency, the doors on the second floor were heavy

and secure and would not open if kicked, which was a reason why

Plaintiff would be removed from his room on A-wing. (Id., ¶¶233-

34, Ex. EE at T80:24-81-14, ECF No. 130-9 at 206-07.)

3. Analysis

The exact basis for Plaintiff’s excessive force claim is

unclear. It would appear, by virtue of his allegation that there

is no policy governing when a juvenile detention officer should

physically remove a juvenile with mental health disorders from his

room, that Plaintiff is arguing any force, under such

circumstances, is excessive.4

Excessive force claims require courts to consider the

totality of the circumstances surrounding the use of force. The

record is undisputed that on May 21, 2011, Plaintiff was

unresponsive to verbal attempts to talk to him about why he was

punching and kicking the doors and walls, an attempt by the

officers to avoid using force. Plaintiff does not dispute that he

did not stop his behavior when warned that he would be moved to

another wing.

It is true that some use of force, therefore, was objectively

reasonable to protect Plaintiff from hurting himself, destroying

property or breaking the door open, and allowing him to access

other juveniles in the area. Reasonable officers might have

perceived a need to remove Plaintiff from his room based on these

concerns. Furthermore, Plaintiff physically attacked Officer

Jordan when he approached, a fact he does not dispute, requiring

the officers to physically restrain and handcuff Plaintiff in order

to move him to another room.

4 If the Court has misconstrued or misunderstood Plaintiff’s

claim, he may file a motion for reconsideration under Local

Civil Rule 7.1(i).

Based on the above undisputed material facts, the Court finds

that it was not objectively unreasonable to restrain and handcuff

Plaintiff in order to remove him from his room. The Court

recognizes that Plaintiff was diagnosed with a number of mental

and behavioral disorders, including mild mental retardation. Yet,

the record indicates that many of the juvenile inmates with

Plaintiff had mental and behavioral disorders. At the end of this

Court’s analysis, this Court does not find a constitutional injury.

As such, Balicki and Surrency are not liable in their individual

or official capacities. See Marable v. W. Pottsgrove Twp., 176 F.

App'x 275, 283 (3d Cir. 2006) (municipality is not liable for

officers’ actions when officers did not inflict a constitutional

injury).

E. Failure to investigate other incidents, including those

prior to March 2, 2012

Plaintiff contends Surrency and Balicki failed to investigate

whether there were incidents, prior to March 3, 2012, where Jordan

encouraged Plaintiff or other juveniles to “go body to body” to

resolve their differences. As part of this claim, Plaintiff also

maintains there were no policies or procedures requiring a nurse

to report injuries that were observed on a juvenile detained at

the CCJDC. (Pl’s CSOMF, ¶193, ECF No. 130-5 at 31; Exhibit II at

T27:4-28:2, ECF No. 130-10 at 77.) Nurse Warren did not notify

Surrency that she observed bruising on Plaintiff on March 2, 2012.

(Ex. EE at T127:17–24, ECF No. 130-9 at 218.) Plaintiff also

submits evidence suggesting that neither DCF nor Internal Affairs

expanded their investigations beyond Plaintiff’s fights on March

3 and March 4, 2012. (Pl’s CSOMF, ¶¶325-46; Ex. Q, p. 001-019, ECF

No. 130-8 at 143-162; Ex. P, p.001-002, ECF No. 130-8 at 117-18.)

Defendants counter with Plaintiff’s testimony that the only

occasions when Plaintiff fought other juveniles under Jordan’s

supervision were on March 3 and 4, 2012. (Defs’ Reply Brief, ECF

No. 143 at 10.) On March 5, 2012, Nurse Warren reported Plaintiff’s

injuries to Surrency, who ordered the investigation that led to

Jordan’s discipline. (Defs’ Reply Brief, ECF No. 143 at 10.)

The undisputed material facts show that Nurse Warren referred

Plaintiff to a nurse practitioner or doctor for further evaluation

of an injury to his shin on March 2, 2012. (Ex. II at T26:12-

29:5.) There is nothing in the record suggesting how Plaintiff

sustained the injury on his shin. Plaintiff did not tell the nurse

how he hurt his shin.

In an interview with DCF, Plaintiff said the incidents on

March 3 and March 4, 2012 were the first time he went “body to

body” with another resident, and he had never seen another resident

go “body to body” before this. (Ex. Q, ECF No. 130-8 at 150.)

According to Supervising Officer Tara Butler, after seeing a nurse

about his injuries on March 5, 2012, and telling her that his

injuries were caused by officers when they removed him from his

room, Plaintiff then told Butler the “actual truth,” that he went

“body to body” with other juvenile residents on March 3 and March

4, 2012, with Officer Jordan’s permission.

A policy requiring medical staff to report all juvenile

injuries to a supervisor would not have led to discovery of

Jordan’s alleged misconduct because Plaintiff did not sustain the

bruise to his shin on March 2, 2012, or on any previous occasion,

by going “body to body” with other juvenile residents. Further,

Plaintiff did not tell the nurse how he bruised his shin on March

2, 2012, but he did confess after March 5, 2012 that he sustained

the bruises to his body fighting other juveniles on March 3 and

March 4, 2012 under Jordan’s supervision. As the record stands,

there is no evidence of a pattern or practice of juvenile detention

officers permitting juveniles to fight each other. This case is

distinguishable from cases where plaintiffs demonstrated an

affirmative link between prior inadequate investigations into

complaints and the subsequent injuries suffered by the plaintiffs

when the misconduct continued. See Merman v. City of Camden, 824

F.Supp.2d 581, 593-94 (D.N.J. 2010) (collecting cases); cf. Huaman

v. Sirois, No. 13CV484 (DJS),2015 WL 5797005 at *11-13 (D. Conn.

Sept. 30, 2015) (32 excessive force complaints over 12-year span

without disciplinary action was inadequate to show a custom of

deliberate indifference to constitutional rights); see also Brown

v. New Hanover Twp. Police Dep’t, 2008 WL 4306760, at *15 (E.D.

Pa. Sept. 22, 2008) (“Rather than reciting a number of complaints

or offenses, a Plaintiff must show why those prior incidents

deserved discipline and how the misconduct in those situations was

similar to the present one.”)

For these reasons, Plaintiff has not established facts

sufficient for a jury to find a constitutional violation based on

failure to investigate other instances of staff permitting

juveniles to fight each other.

F. Staffing Ratios and Failure to Train

Plaintiff contends Surrency and Balicki are liable for

Plaintiff’s constitutional injuries based on deficiencies in

staffing and training. (Pl’ Opp. Brief, ECF No. 130 at 42.)

Plaintiff submits that CCJDC employees were permitted to work

before receiving any type of law enforcement training. (Pl’s CSOMF

¶294, ECF No. 130-5 at 48; Ex. EE at T115:8-15; 118:22, ECF No.

130-9 at 215-16.) Officers at CCJDC received on the job training;

then they went to the Sea Girt training academy. (Id., ¶295, Ex.

EE at T116:21-117:3, ECF No. 130-9 at 215-16.) Surrency stated in

her deposition, “[t]here is no special training that anyone

receives before they’re allowed to supervise a group of juveniles,

except from what we go through with agency training on the job.”

(Id. ¶297; Ex. EE at T119:3-7, ECF No. 130-9 at 216.)

According to Balicki, he could not always get training for

CCJDC officers at the academy, so he had to train them at CCJDC.

(Id., ¶301; Ex. FF at T59:20-60:5, ECF No. 130-10 at 18.) The JJC

did not mandate specific training, only that officers were to have

24 hours of training. (Id., ¶311;; Ex. HH at T86:2-19, ECF No.

62.) The CCJDC was also understaffed at times, likely while

Plaintiff was a resident. (Id., ¶319; Ex. JJ at T61:16-63:16, ECF

No. 130-10 at 106.) The staffing ratios should have been eight

juveniles to one guard during the day and sixteen juveniles to one

guard at night. (Pl’s SCOMF, ¶318, ECF No. 130-5; Ex. JJ at T61:16-

63:16, ECF No. 130-10 at 106.)

Defendants contend there is no evidence that CCJDC was

insufficiently staffed or that any juvenile detention officer was

rebuked for failing to supervise the residents. (Defs’ Reply Brief,

ECF No. 143 at 13-14.) In response to Plaintiff’s claim of

inadequate training, Defendants maintain Plaintiff has not

demonstrated that the lack of a specific training program caused

Jordan to permit juveniles to fight each other under his

supervision. (Id. at 14.) Defendants note that Jordan recalled

reviewing the Manual of Standards, which mentions being vigilant

to resident safety. (Id.) Additionally, Jordan recalled receiving

training in 2010 entitled “Recognizing a Person with Mental

Illness.” (Id.) Jordan also testified that he understood fighting

between juveniles was not permitted. (Id.)

2. Analysis of staffing ratio claim

Plaintiff has garnered evidence that CCJDC was understaffed

at unspecific times and might have been understaffed at times when

Plaintiff was committed to the CCJDC. Unlike A.M. ex rel. J.M.K.,5

where there was evidence linking understaffing to specific

instances of inability to adequately supervise residents, the

evidence submitted by Plaintiff is too tenuous to establish that

Balicki and Surrency were deliberately indifferent to a

substantial risk that understaffing would result in Officer Jordan

permitting juveniles to fight each other. Thus, the Court turns to

Plaintiff’s allegation that his injuries were caused by Balicki

and Surrency’s failure to train staff.

2. Failure to Train Standard of Law

“A pattern of similar constitutional violations by untrained

employees is ‘ordinarily necessary’ to demonstrate deliberate

indifference for purposes of failure to train.” Connick v.

Thompson, 563 U.S. 51, 62 (2011) (quoting Bryan Cty., 520 U.S. at

409.) To prove causation on a failure to train theory of liability,

the plaintiff must also show “‘the injury [could] have been avoided

had the employee been trained under a program that was not

deficient in the identified respect.’” Thomas v. Cumberland Cty.,

749 F.3d 217, 226 (3d Cir. 2014) (quoting City of Canton, Ohio v.

Harris, 489 U.S. 378, 391 (1989)).

5 372 F.3d at 581.

In an extraordinary case, “a [] decision not to train certain

employees about their legal duty to avoid violating citizens'

rights may rise to the level of an official government policy for

purposes of § 1983.” Connick, 563 U.S. at 61. “Single-incident”

liability may arise where the constitutional violation was the

“obvious” consequence of failing to provide specific training. Id.

at 63-64. To establish such a claim, frequency and predictability

of a constitutional violation occurring absent training might

reflect deliberate indifference to a plaintiff’s constitutional

rights. Id. at 64 (citing Board of County Com’rs of Bryan County,

Okl. v. Brown, 520 U.S. 397, 409 (1997)).

4. Analysis of failure to train claim

Plaintiff has not shown a pattern of juvenile detention

officers permitting juveniles to fight to resolve their

differences. The only deficiency in training that Plaintiff

identified was that employees were permitted to work before

attending Sea Girt Academy, and received only 24 hours of on the

job training. What is more, Jordan testified that the academy

taught “rather be tried by 12 than carried by 6,” meaning that it

is “your life over their life [sic].” The policy for dealing with

aggressive juveniles at the CCJDC, according to Jordan, was “[l]et

the kids beat you up and they’ll figure it out later.” (Ex. KK at

T16:15-21, ECF No. 130-10 at 113.)

Based on Jordan’s testimony, and absent evidence showing a

pattern of constitutional injuries resulting from a failure to

employ a specific training program, Plaintiff has not established

a causal link between a specific training deficiency and Jordan’s

alleged misconduct. Therefore, Balicki and Surrency, in their

official and individual capacities, are entitled to summary

judgment on the § 1983 and NJCRA claims for failure to train.

G. Lack of Policy For No Contact Orders

Plaintiff seeks to hold Balicki and Surrency liable for

failing to require a No-Contact Order between a juvenile and a

corrections officer when the juvenile had been charged with

assaulting that officer. (Pl’s Opp. Brief, ECF No. 130-5 at 52;

Pl’s CSOMF, ¶321; Ex. EE at T105:24-108:17, ECF No. 130-9 at 213.)

CCJDC did not put a No-Contact Order in place after Jordan charged

Plaintiff, in a criminal action, with assaulting him on May 21,

2011. (Id., ¶324; Ex. Q, ECF No. 130-8 at 156.)

Defendants contend there is no evidence that this lack of a

“no contact order” was a factor in Jordan permitting Plaintiff to

go “body to body” with other residents in March 2012. (Defs’ Reply

Brief, ECF No. 143 at 14.) Additionally, they argue it would

severely hamper the ability to staff a correctional facility if

there was a policy requiring a No-Contact Order every time a

juvenile assaulted a corrections officer. (Id.)

1. Undisputed Material Facts

The undisputed material facts show that on May 27, 2011,

Tammie D. Pierce of the Juvenile Justice Commission filed a

criminal charge of fourth degree aggravated assault against

Plaintiff for punching Jordan in the face in the course of his

duties on May 21, 2011. (Ex. QQ, ECF No. 130-11 at 18.) In his

deposition, Jordan does not remember when he became aware of the

crime charges but during the internal affairs investigation about

the March 2012 fights, he recalled asking Surrency, two weeks prior

to the March 2012 fights, whether there was a no contact order in

place between himself and Plaintiff. (Ex. KK at T39:17-T42:13, ECF

No. 130-10 at 119-20.) Jordan specifically recalled another

incident where there were charges by an officer against a juvenile

and there was a no contact order in place at CCJDC. (Ex. SS (video)

at 25:25 to 27:07).

Surrency stated there was no policy at CCJDC requiring a no

contact order between a juvenile and an officer the juvenile was

charged with assaulting. (Ex. EE at T108:3-110:11.) Balicki agreed

that there was no written policy in the manual, but he thought it

would have been a good idea to have a no contact order between a

juvenile and the officer with whom the juvenile was charged with

assaulting. (Ex. FF at T58:23-T59:16.) The charge against

Plaintiff by Jordan was not resolved until April 23, 2012, when

the charges were dismissed with a plea. (Ex. M, ECF No. 130-8 at

101.)

2. Analysis

The Court holds that a reasonable jury could conclude, on

this record, that Surrency and Balicki were deliberately

indifferent to a substantial risk of harm to a juvenile resident,

by the failure to have a no contact order, while criminal charges

were pending disposition, between a juvenile and the officer whom

the juvenile assaulted. A jury could find that, after learning a

no contact order was not in place, Jordan retaliated or held an

animus against Plaintiff by arranging for him to fight other

juveniles. Retaliation by corrections officers against inmates who

assaulted them creates an obvious risk of retaliation absent a no

contact order, particularly during the pendency of criminal

charges when tensions are high and, as here, where the officer had

been reprimanded for excessive force against a juvenile in the

past.6

A jury could also find that CCJDC had placed no contact orders

in similar situations, and that Balicki thought it was a good idea.

Certainly, a no contact order between Jordan and Plaintiff from

May 21, 2011 and April 23, 2012, when the charges were dismissed

upon a plea,7 would have prevented the March 2012 instances where

6 See 2003 formal reprimand of Wesley Jordan, Ex. U, ECF No. 130-

8 at 188.

7 See Ex. M, ECF No. 130-8 at 14.

Jordan facilitated the fights between Plaintiff and other

juveniles. See Heggenmiller v. Edna Mahan Correctional Institution

for Women, 128 F. App’x 240, 247 (3d Cir. 2005) (vigorously

enforced no contact order was a reasonable step in protecting

inmates from sexual contact by correctional officers.)

Defendants assert qualified immunity in their individual

capacities. There are unknown facts concerning the failure to issue

a no contact order that are jury issues. For example, in the

internal affairs interview, Jordan stated that there was a no

contact order between an officer and a juvenile with whom that

officer had filed an assault charge. Although Surrency states there

was no written policy requiring a no contact order, it is not known

whether there was a general practice of issuing no contact orders

and if so, what factors were considered in issuing a no contact

order and why was Jordan’s situation different. Also unknown is

why Jordan questioned Surrency, two weeks before the March 2012

fighting incidents, whether there was a no contact order in place.

Unresolved issues of material fact preclude the grant of qualified

immunity to Surrency and Balicki in their individual capacities.

See Barton v. Curtis, 497 F.3d 331, 335 (3d Cir. 2007) (qualified

immunity is question for a jury where relevant historical facts

are disputed).

Furthermore, Plaintiff also sued Surrency and Balicki in

their official capacities. (Am. Compl. ¶¶25-26, ECF No. 58.)

Although the Court agrees with Defendants that they are not final

policymakers with respect to the Manual of Standards, the record

shows that Balicki had final authority to make written policies

and procedures specific to the CCJDC. See supra note 3.

In fact, in his deposition, Balicki says he was charged with

updating CCJDC’s outdated policies when he was hired in 2008 or

2009. (Ex. FF at T17:3-24:23, ECF No. 130-8 at 8.) He delegated

that responsibility to Surrency. (Id.) According to Surrency, the

policy changes to the 1989 CCJDC policies and procedures were never

made because it was announced that CCJDC would close in 2015. (Ex.

EE at T26:21-28:3, ECF No. 130-9 at 193.) Therefore, because

Plaintiff sued Balicki and Surrency in their official capacities,

which, legally, is the same as suing the county, and because

Balicki had final policy-making authority with respect to the

CCJDC, which he delegated to Surrency, the Monell claim may proceed

to trial. See Board of County Com’rs of Bryan County, Okl. v.

Brown, 520 U.S. 397, 410 (1997) (single incident municipal

liability may be found where a municipal actor disregarded a known

or obvious consequence of his action). There is no qualified

immunity for § 1983 Monell claims. Defendants are not entitled to

summary judgment on the failure to protect claim based on their

failure to institute a policy requiring no contact orders between

a juvenile and an officer with whom there are criminal assault

charges pending.

H. 24-Hour Administrative Lock Downs

Plaintiff submits that Surrency and Balicki are liable for

the improper use of 24-hour administrative lock down (a/k/a room

restriction) to punish him. Defendants counter that Plaintiff did

not raise the issue of 24-hour administrative lock down in his

amended complaint or answers to interrogatories, nor is there

mention of it in his deposition transcript. (Defs’ Reply Brief,

ECF No. 143 at 12.) Furthermore, the Manual of Standards permitted

a 24-hour room restriction as a last resort when a juvenile’s

behavior posed a substantial threat to himself, others or property.

(Pl’s Ex. BB, Manual of Standards § 13:92-7.4, ECF No. 130-9 at

81.)

1. Undisputed material facts

Surrency stated in her deposition that juveniles were not

locked down for punitive reasons at CCJDC. (Ex. EE, T84:12-17, ECF

No. 130-9 at 207.) However, Surrency knew Plaintiff was placed in

24-hour lock down for acting out in class on March 22, 2012. (Ex.

W, ECF No. 130-8 at 194.) It was the custom at CCJDC to put

Plaintiff in 24-hour lock down for acting out in class. (Ex. EE,

T94:18-96:11, ECF No. 130-9 at 210.) According to Balicki, there

were no policies regarding whether a juvenile with mental and

behavioral issues should be put in lock down. (Ex. FF, T32:13-

33:5, ECF No. 130-10 at 11-12.)

According to the Manual of Standards governing CCJDC during

the relevant time period, a child should only be placed in lock

down if his/her behavior posed a substantial threat to

himself/others or property. (Ex. HH, T50:7-22; T56:1-25, ECF No.

130-10 at 53-54.) Lock down was not for punitive purposes, but to

gain control of a juvenile who was acting out, and should not

exceed 24 hours. (Ex. BB, ECF No. 130-9 at 81.) Placing a juvenile

in lock down for refusing school was a violation of the Manual of

Standards. (Ex. HH, T50:7-22; T56:1-25, ECF No. 130-10 at 53-54.)

Despite the provisions of the Manual of Standards, CCJDC has

a resident rooms and regulations form, one of which was signed by

Plaintiff on January 27, 2012. (Ex. CC, ECF No 130-9 at 92-93.)

The form advised of a 72-hour lock down as punishment for Class A

violations, which included Acting Out in Class, Refusing School,

Hindering Head Count, Off Limits, Gambling, and Tampering with

Locks. (Id.)

2. Analysis

Defendants are correct that Plaintiff’s first allegation of

improper use of 24-hour administrative lock down was in his

opposition to Defendants’ motion for summary judgment. The fact

that Plaintiff generally alleged “inhume conditions of

confinement” in the amended complaint does not make this claim

timely. The only “conditions” that Plaintiff described in the

amended complaint were deprivation of his medication, improper

room extractions, and failure to protect him against Officer Jordan

permitting him to fight other juveniles.

Defendants were not timely notified of Plaintiff’s claim that

subjecting him to 24-hour lock down violated his constitutional

rights. See Jones v. Treece, 774 F. App’x 65, 67 (3d Cir. 2019)

(“a plaintiff generally ‘may not amend his complaint through

arguments in his brief in opposition to a motion for summary

judgment’”) (quoting Shanahan v. City of Chicago, 82 F.3d 776, 781

(7th Cir. 1996)). The statute of limitations expired two days after

Plaintiff filed the original complaint on March 29, 2016. By the

time Plaintiff first raised his claim about 24-hour administrative

lock down in his opposition to summary judgment, filed on November

5, 2019, the statute of limitations had long expired, and it was

too late to add new claims to the amended complaint. Therefore,

Defendants are entitled to summary judgment on this claim.

I. Failure to Protect

Plaintiff asserts several policy failures caused the staff’s

failure to protect vulnerable juveniles, like himself, from abuse.

First, Plaintiff claims that Surrency and Balicki failed to create

a classification system designed to separately house vulnerable

juveniles and violent juveniles. (Pl’s Opp. Brief, ECF No. 130 at

30-32.)

Second, Plaintiff contends that there was no policy requiring

CCJDC staff to be made aware of his mental and behavioral disorders

or to disseminate instructions to maintain his safety. (Pl’s Opp.

Brief, ECF No. 130 at 27-30.) Third, Plaintiff asserts Defendants

failed to create a written policy requiring staff to review a

juvenile’s incident reports and take corrective action. (Id. at

35-36.)

Defendants maintain that Plaintiff did not show how these

alleged failures created an unreasonable risk of the injury he

sustained, that Officer Jordan permitted him to “go body to body”

with other residents. (Defs’ Reply Brief, ECF No. 143 at 7-8.)

Further, Defendants submit that there is nothing in the record

showing that Plaintiff was injured from bullying by other

residents. (Defs’ Reply Brief, ECF No. 143 at 8.)

Defendants distinguish A.M. ex rel. J.M.K., 372 F.3d 572 (3d

Cir. 2004), where a juvenile was housed in a wing with other

juveniles who had previously assaulted him. (Id. at 9.) In that

case, the failure to review incident reports showing continuous

assaults on the plaintiff by other juveniles permitted the assaults

to continue. (Id. at 11-12.) Here, Plaintiff was injured after a

juvenile detention officer arranged for Plaintiff to fight other

juveniles in order to settle their differences. Unlike A.M. ex

rel. J.M.K., Plaintiff’s incident reports did not show repeated

assaults on Plaintiff by other juveniles or that Plaintiff was

injured from bullying by other residents. (Defs’ Reply Brief, ECF

No. 143 at 11-12.)

1. Undisputed Material Facts

a. Plaintiff’s diagnoses

Plaintiff offers the expert report of Wayne A. Robbins. (Ex.

MM, ECF No. 130-10 at 157-210.) Robbins opined, in relevant part:

Plaintiff Edward Scanlon IV was identified to

have a medical and mental health history that

clearly should have identified him to the New

Jersey Juvenile Justice Commission (JJC) and

the Cumberland County Juvenile Department of

Corrections (CCJDC) as a juvenile “Special

Needs” detainee. Documents reviewed

identified that Scanlon had been diagnosed

with Klinefelter’s Syndrome and received

testosterone supplements as prescribed.

Additionally, Scanlon suffers from Bipolar II

Disorder, Mood Disorder, NOS, Learning

Disorder, NOS, Impulse Control Disorder and

Oppositional Defiant Disorder. Psychological

testing in March of 2008 found that Scanlon

functions in the low average range, with

significant unevenness in his learning skills,

coping with stress, frustration tolerance and

problem resolution. Scanlon was also noted to

have difficulty with impulsiveness,

interpersonal boundaries and rules. Testing

indicated a Full Scale IQ of 69, and a

diagnosis indicating a mild mental handicap.

(Ex. MM at ECF No. 130-10 at 161.)

Records concerning Plaintiff’s juvenile delinquency

proceedings included a psychiatric evaluation performed when

Plaintiff was five years old. (Ex. F, ECF No. 130-8 at 57.)

Plaintiff was diagnosed with attention deficit hyperactivity

disorder and adjustment disorder with mixed disturbance of

emotions and conduct and academic inhibition, severe. (Id. at 61.)

Regarding his psychosocial stressors, the evaluator noted

Plaintiff had been removed from school on a temporary basis due to

violent, physically aggressive behavior in the schoolroom setting.

(Ex. F, ECF No. 130-8 at 61.)

Plaintiff underwent another psychiatric evaluation later that

year, upon his first day at a new school. (Id. at 63.) Plaintiff

was described as “very hyperactive, oppositional and impulsive,”

verbose, with mood vacillating from happy to angry, with poor

insight and judgment. (Id. at 63.) He was diagnosed with

Oppositional Defiant Disorder and R/O Attention Deficit

Hyperactivity Disorder, combined type. (Id. at 64.)

Plaintiff was detained in CCDJC from November 29, 2011 through

May 29, 2012 for “out of control behavior causing risk to self[.]”

(Ex. M, ECF No. 130-8 at 94-95.) In April 2012, a probation officer

was ordered to create a predisposition report for Plaintiff. (Id.)

Plaintiff’s supervising probation officer wrote that Plaintiff’s

psychiatric and psychological evaluations spanned a ten year

period but “all of the evaluations indicate that Edward Scanlon IV

is a severely emotionally, developmentally, and educationally

impaired juvenile.” (Id. at 99-100.) Prior to his placement in

CCJDC in November 2011, Petitioner had multiple sexual assault

charges that were dismissed due to his incompetence, and aggravated

assault and other charges that were dismissed by his plea. (Id. at

100-101.)

b. Housing assignments at CCJDC

Warden Balicki was deposed concerning the placement of

juvenile offenders in appropriate housing in CCJDC. (Ex. FF at

T63:20-66-17, ECF No. 130-10 at 19-20.) Balicki knew that adult

jails had intake classification procedures that took into account

inmate offenses and disciplinary history, which were used to

classify inmates as maximum, medium or minimum custody. (Id.) There

was no such policy at CCJDC, housing was left to the discretion of

the division head, Surrency, or shift commanders. (Id.)

Surrency was a division head at CCJDC during the relevant

time period, and her supervisor was Warden Balicki. (Ex. EE at

T14:8-15:6, ECF No. 130-9 at 190.) Her responsibilities included

overseeing the daily operations of the facility, for all the

departments. (Id. at T24:7-26:20, ECF No. 130-9 at 192-93.) She

was responsible for protecting the welfare and safety of the

juveniles in CCJDC. (Id.)

Surrency had authority to create policy. (Id.) Balicki did

not work onsite at CCJDC, so she did not discuss issues with him

unless she felt an investigation was necessary. (Id.) Surrency and

Balicki did not discuss policies much because policies and

procedures were already in place. (Id.)

If a juvenile was identified as vulnerable during admission,

the juvenile would be placed in A-wing at CCJDC, which was less

volatile than the other wings. (Id. at T62:15-24.) They tried to

keep Plaintiff on A-wing, which was closer to the social workers,

medical department and administration. (Ex. EE at T47:25-48:4, ECF

No. 130-9 at 198.) Juveniles were removed from A-wing to another

wing when they repeatedly kicked the doors to their rooms, because

the doors on A-wing were not very secure. (Id. at T80:24-82:3, ECF

No. 130-9 at 206-7.)

Captain Tara Butler testified that there was no particular

wing assignment for individuals with mental health needs. (Ex. GG,

T11:12-14:5, ECF No. 130-10 at 27-28.) Placement of the juveniles

depended on their behavior within CCJDC. (Id. at T13:25-14:5.)

Officer Jordan testified that Plaintiff was on D-wing more than A-

wing, and D-wing housed the most violent and troubled kids. (Ex.

KK, T:25:16-28:1, T31:4-19, ECF No. 130-10 at 97-98.) Another

juvenile who was known for troubling behavior was housed next to

Plaintiff on D-wing at one time. (Id. at T34:16-38:12, ECF No.

130-10 at 99-100.)

b. Communication to staff of mental health issues

The CCJDC had an admissions process. (Ex. EE at T32:19-34:14,

ECF No. 130-9 at 194-95.) The only questions juveniles were asked

about mental health during admissions were whether they were

depressed, suicidal or used any alcohol or drugs. (Id.) Within 24-

hours of a juvenile’s admission, medical staff would further assess

his or her physical and mental health. (Id.) The facility had many

juveniles with mental health issues. (Id.)

When Plaintiff was admitted to CCJDC, Surrency was not

immediately made aware of his mental health issues, although she

learned within a few days. (Ex. EE at T29:20-31:19, ECF No. 130-9

at 194.) There was no policy requiring the rest of the staff to be

made aware of a juvenile’s mental health disorders. (Id. at T38:5-

39:5, ECF No. 130-9 at 196.)

In February 2011, Nurse Austin wrote a behavior log entry,

indicating that Plaintiff had multiple medical diagnoses including

mild mental retardation, and that he should be protected from

bullying by others. (Id. at T63:2-64:23, ECF No. 130-9 at 202.)

The shift supervisors were in charge of disseminating information

from the behavior log during shift changes, and such information

was shared orally. (Id. at T64:24-68:9, ECF No. 130-9 at 202-3.)

Surrency acknowledged that Plaintiff was a “special needs”

child. (Id. at T47:8-11, ECF No. 130-9 at 198.) She agreed that

Plaintiff was vulnerable to bullying but that all juveniles were

subject to bullying, and Plaintiff “fit in after [a] while . . .

everybody liked him.” (Id. at T59:4-12, ECF No. 130-9 at 201.)

Surrency was not aware of any incidents, apart from the fights

permitted by Jordan, when Plaintiff was bullied by any other

juvenile inmates. (Id. at T147:5-10, ECF No. 130-9 at 223.)

Plaintiff submits evidence that he was detained at CCJDC from

November 29, 2011 through May 25, 2012, and he was involved in 35

incidents or disciplinary issues, which resulted in 57 written

Incident Reports. (Pl’s CSOMF, ¶208; Ex. Z, ECF No. 130-9 at 17-

72.) Surrency acknowledged there was no policy or procedure

requiring staff to review a case where a juvenile had this many

incident reports and determine a corrective course of action for

managing the juvenile’s behavior. (Pl’s CSOMF, ¶210, ECF No. 130-

5 at 36; Exhibit EE at T83:1-24, T97:12-101:22, ECF No. 130-9 at

207, 211-12.)

Near the end of his placement at CCJDC, Plaintiff’s

supervising probation officer recommended

that the juvenile remain in detention until a

bed is available at an appropriate residential

facility. It is recommended that this facility

meet all of Edwards [sic] sex offender

specific needs, mental health needs, and be

able to ensure his safety and the safety of

the community. Probation would ask that the

program have a plan to deal with some of

Edwards [sic] negative and dangerous issues

(ie.running away) that took place while he was

at The Children’s Home.

(Ex. M, ECF No. 130-8 at 102.)

2. Analysis

Plaintiff has not explained how these alleged policy failures

caused his constitutional injury. Again, it bears repeating that

the sole constitutional injury that Plaintiff alleges is the

injuries resulting from Jordan’s reprehensible conduct in

arranging for him to fight other juveniles. If Plaintiff’s argument

is that these policy failures resulted in the failure to properly

treat his mental health disorders, this claim suffers the same

procedural defect as Plaintiff’s claims regarding administrative

lock down; they were first raised in Plaintiff’s opposition to

summary judgment, and it is too late to amend the complaint to

bring claims separate from the constitutional injuries alleged in

the amended complaint.

The injuries Plaintiff specifically alleged in his amended

complaint were (1) not receiving his proper medication; (2)

excessive force during room extractions; and (3) failure to protect

against Officer Jordan arranging for him to fight other juveniles.

As set forth above, the Court has determined that Plaintiff failed

to show a reasonably jury could conclude that Surrency and Balicki

were deliberately indifferent to a substantial risk that Plaintiff

was not receiving his prescribed medications or that excessive

force was used during Plaintiff’s room extractions. The Court,

however, will address whether the alleged policy failures

regarding Plaintiff’s mental disorders were the proximate cause of

Officer Jordan’s alleged misconduct.

The Due Process right to safety of incarcerated juveniles

encompasses the right to reasonable protection from the aggression

of others. See Thomas S. ex rel. Brooks v. Flaherty, 699 F. Supp.

1178, 1200 (W.D.N.C. 1988), aff'd, 902 F.2d 250 (4th Cir.), cert.

denied, 498 U.S. 951 (1990) (defining substantive due process

rights of mentally disabled adults).

Juveniles at [a] correctional facility should

be screened and classified so that aggressive

juveniles are identified and separated from

more passive juveniles, with the level of

restraint to be used for each juvenile based

on some rational professional judgment as to

legitimate safety and security needs; there

should also be periodic review of initial

placement to evaluate whether subsequent

events demonstrate need for reclassification

of juvenile security requirements.

Alexander S. By & Through Bowers v. Boyd, 876 F. Supp. 773 (D.S.C.

1995), as modified on denial of reh'g (Feb. 17, 1995).

Certainly, detention centers, whether adult or juvenile,

should have a classification system to identify violent and non-

violent persons for the purpose of protecting the safety of those

more vulnerable. Notwithstanding Plaintiff’s vulnerabilities, his

long history of physical aggression in school, since age five, and

the fact that he was detained for sexual assault of other children,

suggests that he would not have been classified as nonviolent.

Assuming, however, that Plaintiff should have been classified as

needing protection from violent juveniles, Plaintiff cites to

nothing in the record to support a reasonable inference that he

was attacked by another juvenile because he was vulnerable; rather,

the record evidence is that Officer Jordan arranged for Plaintiff

to voluntarily fight other juveniles to settle their differences.8

8 Plaintiff has offered no evidence that other juveniles preyed on

his vulnerabilities and assaulted him, other than the incidents

that occurred as result of Officer Jordan’s misconduct on March 3

and March 4, 2012. Plaintiff submitted his incident reports from

Absolutely, Surrency and Balicki were required to protect

Plaintiff from staff. They are not liable as supervisors under §

1983 and the NJCRA, however, unless they were deliberately

indifferent to a substantial risk that staff would have permitted

or encouraged juveniles to fight each other. See Brown, 269 F.3d

at 215-16 (municipality not liable for officer who shot pet dog

where plaintiff failed to show an official policy endorsing such

conduct, a custom of condoning such conduct, and where no

reasonable jury could conclude the need for further training was

the CCJDC. As discussed below, Plaintiff’s incident reports

reflect his difficulty following directions in the classroom and

his tendency to react to discipline by staff with physical

aggression. The incident reports include very few occasions where

Plaintiff argued with another juvenile and no occasions where

Plaintiff was injured in a fight with another juvenile.

As to the investigations of the March 3 and 4, 2012 fights, it was

learned that on March 3, 2012, when the residents were being locked

down for the night, Officer Jordan asked Plaintiff if he wanted to

go in another resident’s room and “go body to body,” meaning they

would punch each other repeatedly on the body until the other

submitted. Plaintiff agreed to fight, and the juveniles were

permitted to fight briefly in an area with no surveillance cameras.

(Ex. P, ECF No. 130-8 at 129-30.)

The investigation also revealed that on March 4, 2012, Officer

Jordan was in the t.v. room with a group of residents, including

Plaintiff. Another juvenile was harassing Plaintiff by putting his

feet on Plaintiff’s chair and pushing the chair back. Officer

Jordan joined in on the bullying by pushing and tripping Plaintiff,

and then other residents began to reach out toward or swat at

Plaintiff. This was caught on video, which then showed Plaintiff

and other residents going to a corner of the room and rearranging

furniture. The investigation revealed that Officer Jordan

permitted Plaintiff and the other juveniles to “go body to body”

in a blind spot of the security cameras. Plaintiff quit fighting

after receiving a painful punch in the chest. (Id.)

so obvious that municipality was deliberately indifferent to such

a risk.)

Plaintiff also asserts Surrency and Balicki should be held

liable for not creating a policy to make staff aware of a

juvenile’s mental and behavioral disorders, especially messages

communicated by medical staff, advising staff of a juvenile’s

vulnerabilities. The record shows that CCJDC that does not have a

written policy requiring dissemination of behavior log entries,

but Surrency related that the practice was for shift supervisors

to orally disseminate information from the behavior log to staff

during shift changes.

As with the lack of a classification policy, the record does

not permit a reasonable jury to conclude that Surrency and Balicki

were deliberately indifferent to a substantial risk that failure

to communicate Plaintiff’s mental disorders and his vulnerability

to bullying to staff would result in a staff member bullying

Plaintiff by encouraging him to fight other juveniles.

Finally, Plaintiff contends Surrency and Balicki should be

liable for not creating a policy requiring staff to review a

juvenile’s incident reports and take corrective action. Plaintiff

cites to A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention

Center, 372 F.3d 572 (3d Cir. 2004). In that case, the plaintiff

was physically assaulted on numerous occasions by other juvenile

residents in a juvenile detention center. Id. at 575-76. Although

the plaintiff was supposed to be kept away from the boys who had

previously assaulted him, this directive was not always followed.

Id. at 576. The incident reports involving the plaintiff in that

case supported an inference that it was predictable the plaintiff

would suffer recurrent harm at the hands of other residents.

In this case, Plaintiff’s incident reports generally show

that he refused to follow directions in class, refused to go to

school and argued with staff and became aggressive when they tried

to physically remove him from the situation. There were very few

physical fights between Plaintiff and other juveniles described in

his incident reports. Given this record, a reasonable jury could

not conclude that the incident reports alerted Surrency and Balicki

to the risk that Officer Jordan would encourage Plaintiff to fight

other juveniles to settle their differences. See Andrews v. Fowler,

98 F.3d 1069, 1077 (8th Cir. 1996) (municipality not liable for

rape by a police officer because there was no patently obvious

need to train officers not to commit rape and no evidence that

failure to train caused the rape).

The standard for supervisory liability under § 1983 is high.

Supervisors, without some type of personal involvement in the

constitutional harm, are not liable for the misconduct of their

employees. Iqbal, 556 U.S. at 676. Thus, the Court must grant

summary judgment to Surrency and Balicki on Plaintiff’s § 1983 and

NJCRA claims in their individual and official capacities.

IV. CONCLUSION

For the reasons discussed above, the Court grants in part and

denies in part Defendants Balicki, Baruzza and Surrency’s motion

for summary judgment.

An appropriate order follows.

Date: February 21, 2020

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge