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NOT FOR PUBLICATION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 and Veronica Surrency’s (“Defendants”) motion for

reconsideration of the Court’s Opinion and Order dated February

21, 2020 (Mot. for Reconsideration, Dkt. No. 168); Plaintiff’s

Reply to the Motion for Reconsideration Filed by Defendants

Veronica Surrency and Robert Balicki (“Pl’s Opp. Brief,” Dkt. No.

184) and Defendants’ Reply Brief (Defs’ Reply Brief, Dkt. No. 186.)

For the reasons discussed below, the Court will grant the motion

for reconsideration and grant Defendants’ summary judgment, in

their individual and official capacities, on Plaintiff’s last

remaining claims, Fourteenth Amendment claims under 42 U.S.C. §

1983 and the New Jersey Civil Rights Act (“NJCRA”) for failure to

protect based on Defendants’ failure to impose a no contact order

at the Cumberland County Juvenile Detention Center (“CCJDC”)

between Juvenile Detention Officer (“JDO”) Wesley Jordan

(“Jordan”) and Plaintiff Edward Scanlon, IV (“Plaintiff” or

“Plaintiff Scanlon”).

I. BACKGROUND

The Court recited the procedural background in this matter in

its Opinion dated February 21, 2020, and need not repeat it for

the parties here. (Opinion, Dkt. Nos. 155, 156.)1 The Court granted

summary judgment to all Defendants, with the exception of

Defendants Warden Robert Balicki and CCJDC Division Head Veronica

Surrency, primarily because Plaintiff had failed to file his claims

against them within the statute of limitations. (Opinions, Dkt.

Nos. 144, 147, 150, 151, 155.) Plaintiff did not oppose summary

judgment in favor of Defendants Balicki and Surrency on his tort

1 The Court filed both a sealed opinion (Dkt. No. 155) and a

redacted Opinion (Dkt. No. 156) and will cite to the sealed Opinion

hereafter.

claims. (Defs’ Summ. J. Brief, Dkt No. 116 at 21-23;2 Pl’s Opp.

Brief, ECF No. 130 at 9.) Therefore, the Court’s Opinion was

restricted to Defendants’ motion for summary judgment on the only

remaining claims, Plaintiff’s § 1983 and NJCRA claims.

Defendants seek reconsideration of the denial of summary

judgment on Plaintiff’s § 1983 and NJCRA failure to protect claims

under the Fourteenth Amendment. This Court quotes here from the

relevant portion of the Court’s Opinion:

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

2 Page citations refer to the page number assigned by the Court’s

electronic case filing system, CM/ECF.

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.)

The Court held 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.

(Opinion, Dkt. No. 155 at 31-34) (emphasis added.)

II. DISCUSSION

A. Defendants’ Argument

Defendants Balicki and Surrency seek reconsideration alleging

an erroneous finding of fact by the Court when it attributed to

Defendant Balicki the testimony that it would have been a “good

idea” to have a no contact order between a juvenile and the alleged

victim officer. (See Brief in Supp. of Mot. for Reconsideration by

Surrency and Balicki (“Defs’ Brief”) Dkt. No. 169.) (Opinion, Dkt.

No. 155 at 31.) Defendants concede, in their reply brief, that the

statement was made by one of the dismissed Defendants, William M.

Burke, the Supervisor of New Jersey Juvenile Commission’s

Compliance Monitoring Unit. (Def’s Reply Brief, Dkt. No. 186 at

5.) In fact, Defendant Balicki’s deposition testimony concerning

no contact orders was limited to the fact that there was no policy

or procedure in place to keep separate, during a pending criminal

proceeding, a juvenile resident and the JDO whom the juvenile was

criminally charged with assaulting. (Plaintiff’s Ex. FF at T66:18-

22, Dkt. No. 130-10 at 20.)

Both Defendants also suggest that it was a clear error of law

for the Court to rely on a factually distinguishable Third Circuit

case, Heggenmiller v. Edna Mahan Correctional Institution for

Women, 128 F. App’x 240 (3d Cir. 2005). In Heggenmiller, state

prisoners brought a § 1983 action against prison administrators

alleging that they were deliberately indifferent to the risk of

sexual assaults on inmates by guards. There was a policy at the

prison prohibiting sexual contact between prison guards and

inmates. The Third Circuit held that the plaintiffs in Heggenmiller

could not show deliberate indifference by the administrative

defendants because the prison’s no contact rule was vigorously

enforced by the firing and/or prosecution of five of the six guards

responsible for the six documented sexual assaults between 1994

and 1998. Vigorous enforcement of the no contact order established

that the administrators took reasonable steps to reduce the risk

of sexual assaults. Defendants maintain that the present case is

not analogous to Heggenmiller because it was Plaintiff who had

assaulted Jordan in the past, not the other way around.

Finally, Defendants submit that it was a clear error of law

to find that they acted with deliberate indifference. Defendants

maintain there is nothing in the record to show that they were

aware that their failure to implement a policy for “no contact

orders” between a juvenile resident and the JDO whom the juvenile

was criminally charged with assaulting. Specifically, Defendants

highlight the fact that the record does not contain any prior

incidents at CCJDC where a JDO retaliated against a juvenile

resident under similar circumstances. Once they became aware of

Jordan arranging fights between Plaintiff and other juveniles in

March 2012, however, Defendants put a no contact order in place

between Plaintiff and Jordan at that time. (Defendants’ Statement

of Material Facts at ¶¶38-39; Plaintiff’s Reply to Defendants

Statement of Material Facts admitting to ¶¶38-39). Furthermore,

Defendants argue there is no evidence that Jordan, by his actions

in March 2012, was retaliating against Plaintiff for assaulting

him. In essence, Defendants conclude there is no connection between

the lack of a policy for no contact order in this situation and

Plaintiff’s ultimate injuries.

B. Plaintiff’s Counter-Argument

Plaintiff Scanlon acknowledges that William M. Burke, the

Supervisor of New Jersey Juvenile Commission’s Compliance

Monitoring Unit, not Defendant Balicki, was the person who

testified that it would have been a “good idea” to have a no

contact order between a juvenile resident and the officer he

assaulted, pending criminal proceedings regarding the assault.

(Pl’s Opp. Brief, Dkt. No. 184.) (See Burke Depo., Plaintiff’s Ex.

HH at T58:23-T59:16, Dkt No. 130-10 at 55.) Plaintiff argues that

this mistake by the Court only bolsters the Court’s decision that

Defendants Balicki and Surrency were deliberately indifferent to

his safety because it was Burke, who supervised all juvenile

detention centers for the State of New Jersey, who testified that

it would have been a “good idea” to have a no contact order in

place. Notably, however, Plaintiff points to no evidence that Burke

made this “good idea” known to Defendants Balicki and Surrency.

Plaintiff also argues that, while his case is factually

distinguishable, the Court did not err in its reliance on

Heggenmiller in holding that vigorous enforcement of a no contact

order is a reasonable step to protect inmates from harm. As a final

point, Plaintiff contends that Defendants’ objection to the

Court’s finding of deliberate indifference is nothing more than an

attempt to relitigate an issue solely because they disagreed with

the Court’s decision.3

3 After reading the parties’ briefs, the Court determined that it

would rule on the motion without oral argument under Federal rule

of Civil Procedure 78(b). (Text Order, Dkt. Nos. 185, 189.)

C. Analysis

Local Civil Rule 7.1(i) requires a party filing a motion for

reconsideration to submit “a brief setting forth concisely the

matter or controlling decisions which the party believes the Judge

or Magistrate Judge has overlooked.” Mere disagreement with the

Court’s decision is not a sufficient basis for a motion for

reconsideration. See Rich v. State, 294 F. Supp. 3d 266, 273

(D.N.J. 2018) (collecting cases). “The purpose of a motion for

reconsideration … is to correct manifest errors of law or fact or

to present newly discovered evidence.” Max's Seafood Cafe ex rel.

Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)

(quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.

1985)).

1. Factual Error

The Court clearly mistakenly attributed to Defendant Balicki

the statement that it would have been a “good idea” to have a no

contact order in place between a JDO and a juvenile resident of a

juvenile detention center, while criminal charges were pending

against the juvenile for assaulting the JDO. As the parties

concede, the statement was made by a now-dismissed defendant,

William M. Burke, who was a supervisor for the compliance

monitoring unit of the New Jersey Juvenile Justice Commission.

(See Burke Depo., Plaintiff’s Ex. HH at T58:23-T59:16, Dkt No.

130-10 at 55.) (This Court granted summary judgment as to Defendant

Burke because Plaintiff failed to bring a timely claim against

him. (Opinion, Dkt. No. 144.) This mistake informs the Court’s

reconsideration as follows.

2. Deliberate Indifference

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.’” Id. (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.

Id. “The question of whether conduct amounting to deliberate

indifference is sufficient to “shock the conscience” requires an

‘exact analysis of [the] circumstances’ in a given case.” Id. at

(quoting Lewis, 523 U.S. at 850.) The deliberate indifference

standard is appropriate where the persons responsible for the

juvenile in a juvenile detention center had time to deliberate

concerning the juvenile’s welfare. A.M. ex rel. J.M.K., 372 F.3d

at 579.

It is significant to this Court’s reconsideration that it was

not the Warden, Defendant Balicki, who made the statement that

having a no contact order in a case like this would have been a

“good idea.” Upon his hiring as warden for CCJDC in 2008 or 2009,

Balicki was charged with revising all of CCJDC’s old written

policies. (Balicki Depo, Pl’s Ex. FF at T17:3-T19:5; T22:9-12; Dkt

No. 130-10 at 8-9.) The policies had to be updated every year, and

Balicki delegated the responsibility to update the policies to

Tammie Pierce and Veronica Surrency, and when Pierce left CCJDC,

he delegated the duty to Defendant Surrency, while maintaining his

authority to approve the policies. (Id. at T22:18-T24:10.)

Surrency acknowledged that she had authority to create policy.

(Surrency Depo., Pl’s Ex. EE at T24:7-T25:13, Dkt. No. 130-9 at

192-93.)

With this in mind, it is undisputed that Burke, who made the

statement, did not have authority to make specific policies for

CCJDC,4 but testified that such a policy would be left to the

4 Burke testified that if he learned of a serious incident at a

juvenile detention center, he would write a report that requested

an action plan from the juvenile detention center, describing how

they planned to address the issue. (Burke Depo., Pl’s Ex. HH at

T19:3-21.) As supervisor of the monitoring unit that evaluated

juvenile detention centers, if there was a problem, Burke would

individual facility. (Burke Depo., Pl’s Ex. HH at T58:23-T59:7.)

The only policies or procedures that Burke put in place were in

the State’s Manual of Standards for all juvenile detention

facilities; he could not tell the facilities what to put in their

SOPs.5 (Id. at T52:3-13; T83:16-T84:2.) Plaintiff has pointed to

no evidence, and this Court can find none, where Burke shared his

belief about the propriety of a no contact order with either

Defendant Balicki or Defendant Surrency.

Moreover, while it may be that Burke, in his capacity as

supervisor of the compliance monitor unit for all New Jersey

juvenile detention centers, had knowledge of the use of no contact

orders from his experience at other juvenile detention centers,

Plaintiff has not presented any evidence of such knowledge or why

Burke thought it was a “good idea.” That Burke may have been

engaging in an evaluation with hindsight — an issue not explored

by Plaintiff — is also problematic. More to the point, Plaintiff

points to no evidence that Burke shared this information with

Defendants Balicki and Surrency, or even recommended a no contact

order policy for any facility. Burke’s role in the Juvenile Justice

Commission was to monitor CCJDC’s compliance with the State’s

ask the detention center to come up with a solution because his

unit did not run the facilities. (Id. at T21:11-T22:2.)

5 SOPs stands for Standard Operating Procedures. (Burke Depo., Pl’s

Ex. HH at T97:10-11.)

Manual of Standards, and the Manual of Standards did not require

no contact orders under the circumstances at issue here. (Burke

Depo, Pl’s Ex. HH at T10:1-10; T58:23-T59:16.) The Manual of

Standards contains only general standards, a facility’s Standard

Operating Procedures were much more detailed. (Id. at T97:20-

T98:3.) Burke testified that a no contact order policy in “a

situation where a guard is injured by a juvenile inmate and charges

are pressed against that juvenile inmate” would be a policy for

the facility to make. (Id. at T58:23-T59:16.)

“[T]o defeat [a] summary judgment motion,” on a failure to

protect claim “[plaintiffs] must present enough evidence to

support the inference that the defendants ‘knowingly and

unreasonably disregarded an objectively intolerable risk of

harm.’” Beers-Capitol v. Whetzel, 256 F.3d 120, 132 (3d Cir. 2001)

(quoting Farmer v. Brennan, 511 U.S. 825, 846 (1994)). “To be

liable on a deliberate indifference claim, a defendant prison

official must both ‘know[ ] of and disregard[ ] an excessive risk

to inmate health or safety.’” Id. at 133 (quoting Farmer, 511 U.S.

at 837.)) “[T]he official must actually be aware of the existence

of the excessive risk; it is not sufficient that the official

should have been aware.” Id. (citing Farmer, 511 U.S. at 837-38.))

“[S]ubjective knowledge … can be proved by circumstantial

evidence” if “the excessive risk was so obvious that the official

must have known of the risk.” Id. (citing Farmer, 511 U.S. at 842.)

Plaintiff relies on the fact that Burke, who has expertise in

the State of New Jersey in the field of juvenile detention centers,

thought it was a good idea for the CCJDC to enact a no contact

order policy under the circumstances present here. The Third

Circuit has held that even when a policymaker fails to implement

a standard or recommended policy in the juvenile detention field,

such a failure constitutes negligence not deliberate indifference.

See Beers-Capitol, 256 F.3d at 137-38 (failure to enact standard

or recommended policies constitutes negligence not deliberate

indifference).

As noted, Plaintiff had an opportunity to explore Burke’s

statement in discovery, but did not do so. Indeed, as the Court

found, Plaintiff failed to bring timely claims against Burke, the

only individual whom Plaintiff introduced as opining as to a no

contact policy. Plaintiff has introduced no evidence that

Defendants Balicki and Surrency believed there was good reason to

have a no contact policy in place in situations such as those here.

In order for a jury to reasonably find deliberate indifference

by Defendants Balicki and Surrency for failing to enact such a

policy, there must be evidence that they were aware of the

existence of excessive risk to Plaintiff’s safety or there must be

circumstantial evidence that the risk was so obvious they must

have known of it. Here, the only evidence Plaintiff has put forward

is that Jordan asked Defendant Surrency whether there was a no

contact order in place and she said there was not. (See Pl’s Ex.

SS (video recording) at 25:25 to 27:07, Dkt. No. 130-11 at 49-50.)

Indeed, Surrency testified that when Jordan asked her about the no

contact order, she was unaware of the incident between Jordan and

Plaintiff Scanlon from one year prior. (Surrency Depo., Pl’s Ex.

EE at T145:9-20, Dkt. No. 130-9 at 223.) Despite the lack of a

written policy, according to Surrency, an administrator could put

in place a no contact order to keep a juvenile and staff member

separate; but unless the officer was the person who assaulted the

juvenile, a no contact order was not deemed necessary beyond the

day that the juvenile assaulted the officer.. (Id. at T105:24-

T107:4, T108:21-T109-2.) Moreover, although Jordan testified that

there were other occasions when the CCJDC put a no contact order

in place between a juvenile and a juvenile detention officer,

Plaintiff did not explore that testimony. Jordan did not testify,

nor does the record otherwise establish, about the circumstances

under which another no contact order was put in place.6 (See Jordan

Depo., Pl’s Ex. KK at T39:17-T43:9, Dkt. No. 130-10 at 119-20.)

Plaintiff Scanlon alleges that a few weeks after Jordan

learned from Defendant Surrency that a no contact order was not in

place between himself and Plaintiff, he encouraged Plaintiff to

6 If Plaintiff can point to such evidence in the record, he should

file a motion for reconsideration within 14 days of entry of this

Opinion and the accompanying Order.

fight other juveniles while he watched. Yet, this was almost one

year after charges had been brought against Plaintiff and the

record is void of any evidence that the contact between Plaintiff

and Jordan for that time period had raised any concerns. But

Plaintiff must do more than put forward what hindsight has clearly

taught: no doubt, a vigorously enforced no contact order would

seemingly have prevented Plaintiff Scanlon’s injuries, but

Plaintiff must show Defendants Balicki and Surrency were aware of

the risk to Plaintiff’s safety by not having such an order in place

or that the risk was so obvious that they must have known of the

excessive risk to Plaintiff’s safety. Plaintiff has not introduced

any evidence that Defendants Balicki and Surrency were aware of

any other incidents when Jordan, or any other JDOs for that matter,

had encouraged juvenile residents to fight each other, nor has

Plaintiff introduced evidence of JDOs retaliating against

juveniles who had assaulted them.7

Although there is evidence that Jordan was reprimanded for

excessive force against a juvenile resident in 2003, (See 2003

formal reprimand of Wesley Jordan, Ex. U, Dkt. No. 130-8 at 177-

88), this is insufficient to show an obvious risk that Jordan would

retaliatorily encourage Plaintiff to fight other juveniles almost

a year after the criminal charges were filed. The Supreme Court

7 See supra n. 4.

has explained the type of circumstantial evidence, in the context

of a prison official’s alleged failure to place an inmate in

protective custody to protect against assault by another inmate,

that would be sufficient to show the prison official must have

been aware of the risk to the plaintiff’s safety:

if [a] … plaintiff presents evidence showing

that a substantial risk of inmate attacks was

‘longstanding, pervasive, well-documented, or

expressly noted by prison officials in the

past,’ and the circumstances suggest that the

defendant-official being sued had been exposed

to information concerning the risk and thus

‘must have known’ about it, then such evidence

could be sufficient to permit a trier of fact

to find that the defendant-official had actual

knowledge of the risk.

Hamilton v. Leavy, 117 F.3d 742, 747–48 (3d Cir. 1997) (quoting

Farmer, 511 U.S. at 842-43. Recently, the Third Circuit held that

a plaintiff made a sufficient showing that detention facility staff

must have known of the risk of sexual assault to an immigration

detainee, although there was no evidence of the staff’s actual

awareness of the risk. E.D. v. Sharkey, 928 F.3d 299, 309 (3d Cir.

2019). In that case, there was evidence that the detention facility

was small; there was frequent interaction between the staff and

detainees that permitted staff to observe the intimate

interactions between plaintiff and the alleged perpetrator; and

other inmates had complained of staff’s behavior toward the

plaintiff. The evidence Plaintiff has adduced falls short of this

standard, there is no evidence of inappropriate conduct between

Jordan and Plaintiff Scanlon or between Jordan and any other

juvenile between the date Plaintiff Scanlon was charged with

assaulting Jordan and the March 2012 fighting incidents. Clearly

- it seems worthy of repeating - Jordan’s alleged actions are

reprehensible. Unfortunately, Plaintiff failed to bring timely

claims against him.

For these reasons, the Court finds that Plaintiff Scanlon has

failed to show any evidence that Defendants Balicki and Surrency

were deliberately indifferent to the risk that Jordan would

retaliate against Plaintiff for the filing of criminal charges

against him. Thus, Plaintiff has not established a constitutional

violation for failure to protect and the Court need not proceed to

the qualified immunity analysis. See Beers-Capitol, 256 F.3d at

140 (3d Cir. 2001) (finding plaintiffs failed to establish failure

to protect claim without evidence that directly showed the

defendant either knew of the excessive risk to the plaintiffs or

the defendant was aware of such overwhelming evidence of the risk

that defendants had to know of such a risk.)

For the sake of completeness, however, the Court notes

Plaintiff has not pointed to a case establishing a constitutional

right to a no contact order in a similar situation as this. Nor

has this Court found precedent “that is sufficiently clear that

every reasonable official would have understood that what he is

doing violates that right" such that "existing precedent must have

placed the statutory or constitutional question beyond debate."

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotations

and citations omitted) (warning courts not to define clearly

established law at a high level of generality). Therefore, even

if deliberate indifference could be established on this record,

Defendants Balicki and Surrency, in their individual capacities,

would be entitled to qualified immunity. See Pearson v. Callahan,

555 U.S. 223, 236 (2009) (holding courts need not first determine

whether there has been a constitutional violation before granting

qualified immunity on the grounds that the relevant facts do not

violate clearly established law).

III. CONCLUSION

On the record before this Court, it cannot be said that

Defendants Balicki and Surrency were deliberately indifferent to

Plaintiff’s safety. What happened to Plaintiff Scanlon, however,

should never have happened, and should never happen again to

anyone. This case should serve as a valuable lesson going forward

as to the wisdom of enacting a no contact order under similar

circumstances. Unfortunately, the individual allegedly responsible

for Plaintiff Scanlon’s injuries was not sued timely, and that

should never happen again. An appropriate order follows.

Date: September 29, 2020 s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge