CONROY, BY AND THROUGH ITS ADMINISTRATOR, JENNEY FERGUSON v. CUMBERLAND COUNTY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

__________________________________________

THE ESTATE OF DAVID CONROY, :

et. al., :

: Civ. No. 17-7183 (RBK) (AMD)

Plaintiffs, :

:

v. : OPINION

:

CUMBERLAND COUNTY, et al., :

:

Defendants. :

__________________________________________:

ROBERT B. KUGLER, U.S.D.J.

This matter comes before the Court by way of Plaintiffs, the Estate of David Conroy by

and through its administrator, Jenney Ferguson, and Ms. Ferguson in her own right’s (collectively

“Plaintiff”) Complaint. (ECF No. 1). Presently before the Court is Defendants Cumberland

County and Warden Smith’s motion for summary judgment. (ECF No. 136). Plaintiff filed an

Opposition, (ECF No. 144), and Defendants filed a Reply, (ECF No. 147). For the reasons set

forth below, the Court will grant the motion for summary judgment as to the John Doe Officers

and deny the remainder of the motion.

I. BACKGROUND

A. Factual History

As the parties are intimately familiar with the facts of this case, and because the Court has

already set forth the background of this matter in earlier Opinions, (ECF Nos. 42, 62, 89, 116), the

Court will only state those facts necessary to address the instant Motion.

This case arises from the suicide of David Conroy, during his detention at the Cumberland

County Jail. On May 23, 2017, CFG nursing staff accepted and cleared Mr. Conroy for

incarceration at the jail. The nurses completed a medical intake, mental health screening, and

mental health examination, and ultimately placed Mr. Conroy on level 2 suicide watch. On May

24, 2017, a CFG doctor continued Mr. Conroy’s level 2 suicide watch.

On May 27, 2017, at 7:00 a.m., then officers Cimino and Gomez began their tours of duty.

Level 2 suicide watch required them to check Mr. Conroy at least once every fifteen minutes.

Cimino and Gomez “completed” the watch forms, indicating that they had performed the required

checks, but the video surveillance revealed that they had falsified the relevant entries. (ECF No.

136-2, at ¶ 59).

Ultimately, Cimino testified that from 12:30 p.m., to 1:21 p.m., on May 27, 2017, he had

not conducted a cell check on Mr. Conroy. (Id. at ¶ 104). Gomez completed his last physical check

of Mr. Conroy on 12:47 p.m. (Id. at ¶ 106). When Gomez finally checked Mr. Conroy at

approximately 1:24 p.m., he discovered Mr. Conroy hanging from a vent and told Cimino to open

the door (Id. at ¶¶ 108–09). Although the parties do not specify exactly what transpired next,

according to one of Plaintiff’s experts, Mr. Conroy was unresponsive, taken to the hospital, and

pronounced dead on May 29, 2017. (ECF No. 143-6, at 1).

After discovering that Cimino and Gomez had falsified their logbooks, the jail suspended

them in September of 2017. Cimino resigned in April of 2018, and Gomez resigned in March of

2018. (ECF No. 136-2, at ¶¶ 111–14). The Cumberland County Department of Corrections

referred the matter to the Cumberland County Prosecutor’s Office, and a criminal investigation

ensued. (Id. at ¶ 60). The prosecutor’s office charged Cimino and Gomez with tampering with

public records and endangering another person. (Id. at ¶ 61). Ultimately, Cimino and Gomez

accepted a plea agreement where they had to complete a pretrial intervention program, forfeited

their positions, and agreed never to hold public employment in New Jersey. (Id. at ¶ 62).

B. Policy, Custom, and Training

Warden Smith began working at the Cumberland County Department of Corrections in

2016 and became warden in February of 2017. (ECF No. 136-2, at ¶ 71–72). Before becoming

Warden, Warden Smith worked as a confidential aide to former Warden Balicki beginning in June

of 2016. (ECF No. 143, at ¶ 37). During a conversation with Warden Balicki, Warden Smith

voiced his concerns about the suicide problem at the jail. (Id. at ¶ 38). Nevertheless, Warden

Balicki did not have any recommendations or plans to address the inmate suicide issue. (Id. at ¶

39).

Warden Smith acknowledged that officers “[n]ot making their rounds” and “[f]alse

reporting” were perennial problems at the jail, but one that they had “been diligently trying to

correct.” (ECF No. 136-11, at 34). According to Warden Smith, “[f]rom the very beginning . . .

when I sat and met with my supervisory staff and . . . talked to them about the thing[s] I wanted to

implement, there were conversations about officers not making their check[s], which was a big

part of some of the issues that we experienced with the suicides.” (Id. at 9).

In the past, jail policy provided for three levels of supervision: “Level 1 Suicide Watch”

which required 15-minute checks; “Level 2- Enhanced Observation” which required 30 minute

checks for inmates who were “not in immediate danger”; and “Level 3-Reduced Observation”

whereby the inmates had no restrictions. (ECF No. 136-2, at ¶ 32). The suicide prevention policy

requires officers to check inmates at specific times and document those checks on a suicide watch

form, also known as a “close watch form.” (Id. at ¶ 33).

In March of 2017, Warden Smith issued a memo which changed level 2 suicide watch to

require checks every 15 minutes, rather than every 30 minutes. (Id. at ¶ 74). That memo was meant

to supersede any existing policy. (Id. at ¶ 75). The jail allegedly distributed or explained the memo

during two roll calls that included Gomez, but Gomez did not recall ever receiving a copy of the

memo or any announcement regarding the memo. (Id. at ¶ 78; ECF No. 143, at ¶ 78). Similarly,

Cimino did not recall ever receiving the suicide watch memo, (ECF No. 143, at counterstatement

¶ 1), and believed that level 2 suicide watch still required checks every 30 minutes. (Id. at

counterstatement ¶ 64).

When asked whether “caught up or wrote up” was a saying at the jail, Cimino answered,

“Yes,” and explained:

[A.] It means if the book[s] aren’t caught up, you’re going to get an

earful.

Q. So what is it -- what should you do then as an officer?

A. Make sure the books are filled out.

Q. Whether you did something or not.

A. Yes.

Q. And is that, in fact, what you did?

A. Yes.

(Id. at counterstatement ¶ 2 (quoting ECF No. 136-23, at 12:2–15)). Gomez had a similar

understanding of what it meant to be caught up or wrote up. (Id. at counterstatement ¶ 13). Cimino

and Gomez were not aware of their supervisors ever reprimanding anyone for submitting false or

inaccurate information in their close watch forms. (Id. at counterstatement ¶¶ 3, 19). To Cimino’s

knowledge, supervisors never reprimanded or made an example out of officers who were caught

sleeping on the job. (Id. at counterstatement ¶ 6).

Further, Cimino was not aware if supervisors ever checked the accuracy of their logbooks

by comparing them to video camera footage. (Id. at counterstatement ¶ 3). Nor did Cimino recall

any changes made as a result of the previous suicides at the jail. (Id. at counterstatement ¶ 4).

Similarly, if Gomez were unable to complete a watch at the appropriate time, his

supervisors “would just say fill it out. . . keep it up or handle it.” (Id. at counterstatement ¶¶ 17–

18). He further stated that supervisors had watched them do that for years, and “never said [the

officers] were doing anything wrong.” (Id. at counterstatement ¶ 17).

As to their training, Gomez testified that their initial suicide training was “very, very

vague,” and that the only thing he remembered was the two trainers saying, “People that are on

suicide watch just want attention; they’re not going to do anything.” (Id. at counterstatement ¶ 8).

According to Gomez, after his academy and initial training, he received no additional suicide

prevention training, despite the recent suicides at the jail. (Id. at counterstatement ¶ 9, 15).

Officer Bermudez, the local union president, testified that the jail does not train officers

on policy changes. (Id. at counterstatement ¶ 21). Instead, “the supervisor calls you into the office

and says here, I need you to sign this. Q. Is it reviewed with you? A. No.” (Id.). According to

Officer Bermudez, Cimino and Gomez falsified their books, “as they were trained because they’re

told to either have the book caught up or you’re going to get, we say in jail, you know, caught up

or wrote up.” (Id. at counterstatement ¶ 22). As a result, Cimino and Gomez “caught the books up

and it was considered perjury and now they’re gone.” (Id.) As union president, Officer Bermudez

had to address liability issues and “voiced these concerns way before,” but they “were never

addressed.” (Id.).

As to the supervisors, Sergeant Mendibles and Lieutenant Martinez, they did not recall any

additional suicide prevention training prior to Mr. Conroy’s death. (Id. at counterstatement ¶¶ 23,

29). They also indicated that they had never conducted video reviews to see if officers actually

completed their suicide watch checks and had no knowledge of anyone doing such reviews. (Id. at

counterstatement ¶¶ 26, 27, 34).

C. Procedural History

On September 18, 2017, Plaintiff filed the Complaint in this case (“Conroy I”), naming

as defendants, Cumberland County, Warden Richard Smith, former Warden Robert Balicki, CFG

Health Systems, and John Doe Officers for violations of Mr. Conroy’s constitutional rights and

various state law claims.

As set forth in the Court’s earlier Opinion:

Former Warden Balicki filed a motion to dismiss on September 28,

2017. On February 20, 2018, CFG Health filed a motion for

summary judgment on Plaintiff’s medical malpractice/professional

negligence claims against CFG Health.

The Court granted Balicki’s motion to dismiss on May 31, 2018.

Plaintiff was permitted to file an amended complaint with their

claims against Balicki, but they declined to do so even after the

Court granted an extension of time to file the amended complaint.

As such, Balicki is now dismissed with prejudice from the case.

CFG’s motion for summary judgment was denied in September

2018. The Court also denied CFG Health’s motion for

reconsideration. While CFG Health’s motion was pending,

Cumberland County and Warden Smith filed a motion for partial

summary judgment on Plaintiffs’ state tort claims. The Court

dismissed the motion without prejudice based on a failure to comply

with Rule 56.1.

Estate of Conroy by & Through Ferguson v. Cumberland Cty., No. 17-7183, 2019 WL 3761129,

at *1 (D.N.J. Aug. 8, 2019) (citations omitted).

Thereafter, Cumberland County and Warden Smith refiled their motion for partial

summary judgment, and this Court found that Plaintiff had not substantially complied with the

New Jersey Tort Claims Act, N.J. Stat. § 59:1-1 et seq. Id. As a result, the Court granted summary

judgment as to Plaintiff’s state tort claims against Cumberland County and Warden Smith. Id.

During the pendency of those motions, on June 20, 2018, Plaintiff requested a 30-day

extension to file a motion for leave to amend, to add Cimino and Gomez, as defendants in Conroy

I. (See ECF No. 50). Judge Simandle granted counsel’s request, extending Plaintiff’s time to

amend to July 30, 2018. (Id.). Contrary to counsel’s representations, Plaintiff never filed a motion

to amend or an amended complaint in Conroy I, and requested no further extensions of time to

amend.

Instead, on September 21, 2018, Plaintiff’s counsel filed a new Complaint, under a new

docket number (“Conroy II”), naming Cimino and Gomez as Defendants. (Conroy II, No. 18-

14184, ECF No. 1). Both complaints involve the suicide of Mr. Conroy at the Cumberland County

Jail.

On November 26, 2018, Judge Donio consolidated Conroy I and II for discovery purposes

only. In Conroy I, Plaintiff filed a motion to consolidate the cases for all purposes, and in Conroy

II, Cimino and Gomez filed a similar motion to consolidate. Cumberland County opposed the

motion to consolidate in each case.1 The motions to consolidate remain pending.

Thereafter, in April of 2020, Cimino and Gomez filed a motion for summary judgment,

contending that the doctrines of judicial and equitable estoppel precluded Plaintiff from

prosecuting Conroy II. The Court rejected those arguments and denied the motion for summary

judgment in Conroy II. (Conroy II, No. 18-14184, ECF No. 47).

Now before the Court is Defendants Cumberland County and Warden Smith’s motion for

summary judgment. (ECF No. 136). Plaintiff filed an Opposition, (ECF No. 144), and Defendants

filed a Reply, (ECF No. 147). As a result of earlier motions, Plaintiff’s only remaining claims

against the County and Warden Smith are her federal § 1983 claims and corresponding state

constitutional claims under the New Jersey Civil Rights Act (“NJCRA”).

1 The County is a Third-Party Defendant and Cross-Claimant in Conroy II.

II. STANDARD OF REVIEW

A court should grant summary judgment “if the movant shows that there is no genuine

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

Civ. P. 56(a); see also Tolan v. Cotton, 572 U.S. 650, 656–57 (2014). In deciding a motion for

summary judgment, a court must construe all facts and inferences in the light most favorable to

the nonmoving party. See Cotton, 572 U.S. at 657. The moving party bears the burden of

establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S.

317, 322–23 (1986). “[W]ith respect to an issue on which the nonmoving party bears the burden

of proof,” the moving party may discharge its burden “by ‘showing’—that is, pointing out to the

district court—that there is an absence of evidence to support the nonmoving party’s case.” Id. at

325.

If the moving party meets its threshold burden, the opposing party must present actual

evidence that creates a genuine issue as to a material fact for trial. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); see also Fed. R. Civ. P. 56(c) (setting forth types of evidence that

may show that genuine issues of material fact exist). The non-moving party must at least present

probative evidence from which the jury might return a verdict in his favor. Anderson, 477 U.S. at

257. Where the non-moving party fails to “make a showing sufficient to establish the existence of

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

trial,” the movant is entitled to summary judgment. Celotex, 477 U.S. at 322. “[U]nsupported

allegations . . . and pleadings are insufficient to repel summary judgment.” Schoch v. First Fid.

Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990).

Further, under Rule 56(c)(1)(A), any party asserting that a fact is or is not in dispute must

support that assertion by “citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations, stipulations . . . ,

admissions, interrogatory answers, or other materials.” (emphasis added). When parties fail to

follow Rule 56, a court may “(1) give an opportunity to properly support or address the fact; (2)

consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion

and supporting materials—including the facts considered undisputed—show that the movant is

entitled to it; or (4) issue any other appropriate order.” Fed. R. Civ. P. 56(e).

Stated differently, expressing a general disagreement “without identifying the facts

disputed and without [citing] to evidence in the record that raises an issue of fact regarding that

point, is insufficient to survive summary judgment.” Malik v. Hannah, 799 F. Supp. 2d 355, 358

(D.N.J. 2011) (emphasis added); see, e.g., Juster Acquisition Co., LLC v. N. Hudson Sewerage

Auth., No. 12–3427, 2014 WL 268652, at *5 n. 4 (D.N.J. Jan. 23, 2014) (admonishing the

defendant for falsely claiming that facts were in dispute, and noting that “any statement that is not

explicitly denied with a proper citation to the record in a responsive Rule 56.1 statement is deemed

admitted.”); Walters v. Carson, No. 11–6545, 2013 WL 6734257, at *9 n.11 (D.N.J. Dec.19,

2013).

III. DISCUSSION

A. Section 1983 Claims

Defendants argue that summary judgment is appropriate because Plaintiff has failed to

support her municipal and supervisory liability claims under 42 U.S.C. § 1983. To succeed on a

§ 1983 claim, a plaintiff must allege two things: first, a violation of a right under the Constitution,

and second, that a “person” acting under color of state law committed the violation. West v. Atkins,

487 U.S. 42, 48 (1988); Piecknick v. Com. of Pa., 36 F.3d 1250, 1255–56 (3d. Cir. 1994). The

Supreme Court has established that § 1983’s definition of “person” includes municipalities and

other local government entities. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978).

A plaintiff may not, however, hold a local government unit “liable for the unconstitutional

acts of its employees on a theory of respondeat superior.” Thomas v. Cumberland Cty., 749 F.3d

217, 222 (3d Cir. 2014). To hold such an entity liable under § 1983, plaintiffs must demonstrate

that a local government unit adopted a policy or custom and that such policy or custom had been

“the moving force” behind the deprivation of their constitutional rights. See Monell, 436 U.S. at

694.

Municipal policy generally requires that a local governing body’s officers officially adopt

and promulgate a “statement, ordinance, regulation, or decision.” Id. at 690. A municipal custom,

although lacking the formal approval of a policy, refers to those official practices which are “so

permanent and well settled as to constitute . . . the force of law.” Id. at 691.

Under certain circumstances, a municipality’s failure to properly train its employees and

officers can amount to a “custom” under § 1983. See City of Canton v. Harris, 489 U.S. 378, 388

(1989). When a plaintiff alleges that a policy “concerns a failure to train or supervise municipal

employees, liability under section 1983 requires a showing that the failure amounts to ‘deliberate

indifference’ to the rights of persons with whom those employees will come into contact.” Thomas,

749 F.3d at 222 (quoting Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)). “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 Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 409 (1997)).

The “first inquiry in any case alleging municipal liability under § 1983 is . . . whether there

is a direct causal link between a municipal policy or custom and the alleged constitutional

deprivation.” Canton, 489 U.S. at 385. Plaintiff contends that Cimino and Gomez committed the

underlying constitutional violations.

1. Deliberate Indifference Resulting in Suicide

To state a Fourteenth Amendment2 claim for deliberate indifference resulting in suicide, a

plaintiff must show: “(1) that the individual had a particular vulnerability to suicide, meaning that

there was a strong likelihood, rather than a mere possibility,” that the individual would attempt

suicide; “(2) that the prison official knew or should have known of the individual’s particular

vulnerability; and (3) that the official acted with reckless or deliberate indifference, meaning

something beyond mere negligence, to the individual’s particular vulnerability.” Palakovic v.

Wetzel, 854 F.3d 209, 223 (3d Cir. 2017). Cumberland County may satisfy its burden for summary

judgment by showing “that there is an absence of evidence to support the nonmoving party’s case.”

See Celotex, 477 U.S. at 325.

With those principles in mind, Cumberland County appears to argue that Plaintiff cannot

establish municipal liability, stemming from Cimino and Gomez’s actions, if the former officers

are not parties to this case. The County cites to no authority for this proposition, and the Court has

found none. To the Court’s knowledge, Plaintiff could prove that Cimino and Gomez committed

a constitutional injury, without naming them as defendants in this case.

For example, Plaintiff could have theoretically settled with Cimino and Gomez prior to

filing suit against the County. In that scenario, Cimino and Gomez would not be parties to the

case, but Plaintiff could still raise evidence to show that Cimino and Gomez committed an

underlying constitutional violation.

2 From the papers, it appears that Mr. Conroy was a pretrial detainee at the time of the events in

question, but it is unclear. The Court will proceed under the assumption that Mr. Conroy was a

pretrial detainee at the time of his death.

If true, to the extent Plaintiff seeks to raise corresponding Eighth Amendment deliberate

indifference claims, the Court will dismiss those claims at a later date, as they only apply to inmates

who have received their conviction and sentence.

The County does cite generally to Rule 19(a)(1), and implies that Cimino and Gomez are

indispensable parties, but provides the Court no further analysis on that point. (See ECF No. 136-

1, at 15). Stated differently, the County does not attempt to prove that Cimino and Gomez are

indispensable parties.3 Accordingly, to the extent the County argues that summary judgment is

appropriate solely because Cimino and Gomez are not parties to this case, the Court will deny

summary judgment on that ground.

Turning then to the merits, the Court finds that genuine issues of material fact exist as to

whether Cimino and Gomez were deliberately indifferent to Mr. Conroy’s risk of suicide. Mr.

Conroy was on level 2 suicide watch, which could show that he had a “particular vulnerability to

3 Under Rule 19(a):

a party is a necessary or required party if ‘in that person’s absence,

the court cannot accord complete relief among existing parties.’

Fed. R. Civ. P. 19(a)(1)(A). A party is also deemed necessary if the

party has an interest in the action such that disposing of the interest

in the party’s absence might (1) ‘impair or impede the person’s

ability to protect the interest’ or (2) ‘leave an existing party subject

to a substantial risk of incurring double, multiple, or otherwise

inconsistent obligations because of the interest.’ Id. at

19(a)(1)(B)(i)—(ii).

If joinder of a ‘necessary’ party is infeasible . . . ‘the court must

determine whether, in equity and good conscience, the action should

proceed among the existing parties or should be dismissed.’ Fed. R.

Civ. P. 19(b); see also Gen. Refractories, 500 F.3d at 319. Factors

to consider include: (1) ‘the extent to which a judgment rendered in

the person’s absence might prejudice that person or the existing

parties;’ (2) ‘the extent to which any prejudice could be lessened or

avoided by protective provisions in the judgment, shaping relief, or

other measures;’ (3) ‘whether a judgment rendered in the person’s

absence would be adequate; and’ (4) ‘whether the plaintiff would

have an adequate remedy if the action were dismissed for

nonjoinder.’ Fed. R. Civ. P. 19(b).

Aetna Life Ins. Co. v. Found. Surgery Affiliates, LLC, 358 F. Supp. 3d 426, 437–38 (E.D. Pa.

2018)

suicide.” Palakovic, 854 F.3d at 223. Plaintiff could then demonstrate that the former officers

“knew or should have known” of that particular vulnerability, since they knew Mr. Conroy was on

suicide watch. Id. Finally, a jury could find that they acted with deliberate indifference by

disregarding their duties and failing to conduct their suicide watch checks. See id.

The County refers to Hopson v. Cheltenham Twp., No. 90-0587, 1990 WL 102883, at *5

(E.D. Pa. July 17, 1990), and Williams v. City of Lancaster, Pa., 639 F. Supp. 377, 384 (E.D. Pa.

1986), for the proposition that the “failure to perform timely cell checks as required . . . does not

constitute a § 1983 violation.” (ECF No. 136-1, at 19). In those cases, however, the officers were

not explicitly aware of the suicide risk of the decedents, and accordingly, the failure to perform

cell checks did not amount to a § 1983 violation. In contrast, in the present case, Mr. Conroy was

on suicide watch, and the officers in charge of performing suicide watch checks knew or should

have known of his particular vulnerability to suicide.

Consequently, to the extent the County argues that summary judgment is appropriate

because there is no underlying constitutional violation in this case, the Court will deny summary

judgment on that ground.

2. Policy, Custom, and Supervisory Liability

Turning then to whether the County had a policy or custom that caused Mr. Conroy’s death,

the County does not directly argue this point as to Cimino and Gomez. (ECF No. 136-1, at 14–16).

It appears that the County assumed that the actions of the former officers could not constitute an

underlying violation. (See id.). That said, when applicable, the Court will consider the County’s

policy and training arguments as to Warden Smith to apply also to Cimino and Gomez.

In their papers, Defendants show that Cimino and Gomez: (1) received suicide prevention

training generally; (2) that they should have been aware of Warden Smith’s new policy which

changed level 2 suicide watch from 30-minute checks to 15-minute checks; and (3) that they

consciously disregarded their duties and then falsified records in a way that showed that they

understood the 15-minute cell check requirement. (ECF No. 136-1, at 17–24). In addition to

changing the level 2 suicide watch policy, Warden Smith contends that on May 24, 2017, a few

days before Mr. Conroy’s death, he arranged for additional suicide prevention training and

provided suicide prevention booklets to Cimino and Gomez. (ECF No. 136-1, at 23). There

appears to be a dispute as to whether any of the relevant officers and supervisors attended that

training, received those booklets, or received the memo that changed the suicide watch

requirements. (Compare id., with ECF No. 143, at ¶ 78, counterstatement ¶¶ 9, 5, 23, 29).

What Defendants fail to address, however, is the testimony regarding the apparently

common practice of officers disregarding their suicide watch duties, forging those records

whenever they did so, and doing so with the implicit or explicit approval of their supervisors. (Id.

at counterstatement ¶¶ 2, 3, 17, 18, 19, 21, 22).

A jury could find that such practices constitute a municipal custom and that that custom

had a direct causal link to, and was the “moving force” behind, Cimino and Gomez’s underlying

violations. See Monell, 436 U.S. at 691, 694 (explaining that a municipal custom, although lacking

the formal approval of a policy, refers to those official practices which are “so permanent and well

settled as to constitute . . . the force of law”).

As to Warden Smith, as a general rule, government officials are not liable for the

unconstitutional conduct of their subordinates under a theory of respondeat superior. See Ashcroft

v. Iqbal, 556 U.S. 662, 676 (2009); Monell, 436 U.S. at 691 (finding no vicarious liability for a

municipal “person” under 42 U.S.C. § 1983); Robertson v. Sichel, 127 U.S. 507, 515–16 (1888)

(“A public officer or agent is not responsible for the misfeasances or position wrongs, or for the

nonfeasances, or negligences, or omissions of duty, of subagents or servants or other persons

properly employed by or under him, in discharge of his official duties”).

Instead, there are two ways in which supervisors may be liable for the unconstitutional acts

of their subordinates. First, liability may attach if a supervisor, “with deliberate indifference to the

consequences, established and maintained a policy, practice or custom which directly caused [the]

constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d

Cir. 2004) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).

Under the second approach, a supervisor “may be personally liable if he participated in violating

[] rights, directed others to violate them, or, as the person in charge, had knowledge of and

acquiesced in the subordinates’ unconstitutional conduct.” Estate of Moore v. Cumberland Cty.,

No. 17-2839, 2018 WL 1203470, at *4 (D.N.J. Mar. 8, 2018).

In the present case, Warden Smith acknowledged that officers “[n]ot making their rounds”

and “[false reporting” were perennial problems at the jail, but one that they had “been diligently

trying to correct.” (ECF No. 136-11, at 34). Indeed, Warden Smith stated, “[f]rom the very

beginning . . . when I sat and met with my supervisory staff . . . about the thing I wanted to

implement, there were conversations about officers not making their check[s], which was a big

part of some of the issues that we experienced with the suicides.” (ECF No. 143, counterstatement

at ¶ 36).

Accordingly, Warden Smith acknowledged the issue, but there appears to be a dispute as

to whether Cimino and Gomez actually received any additional training or materials, and whether

it remained a common practice for officers to disregard their suicide watch duties and then make

false entries with the implicit or explicit approval of their supervisors. (ECF No. 143, at

counterstatement ¶¶ 2, 3, 17, 18, 19, 21, 22). As a result, in the light most favorable to Plaintiff, a

jury could conclude that Warden Smith “had knowledge of and acquiesced in [his] subordinates’

unconstitutional conduct.” Moore, 2018 WL 1203470, at *4.

Finally, Defendants contend that “Plaintiff fails to identify any ‘specific training not

provided that could reasonably be expected to prevent the suicide that occurred.’” (ECF No. 136-

1 (quoting Joines v. Twp. of Ridley, 229 F. App’x 161, 163 (3d Cir. 2007)). Although Plaintiff’s

Complaint and briefing are not a model of clarity, she appears to suggest that Warden Smith could

have trained his supervisors to review video footage and cross-reference the footage with their

subordinates’ close watch forms. (ECF No. 143, at counterstatement ¶¶ 26, 27, 32, 34). Defendants

could have then explained the new policy to the subordinate officers, as well as the consequences

for failing to complete their rounds—or making false entries.

Indeed, Defendants acknowledge that Warden Smith “didn’t know if his supervisors were

comparing video to logbooks.” (ECF No. 147, at 13). Moreover, Defendants concede that such a

practice “may have not been occurring at the Cumberland County Jail,” and that it was “an action

that could have been taken in an effort to assure [that] proper cell checks were being done.” (Id.).

In the light most favorable to Plaintiff, a jury could find that the failure to supervise or the failure

to adopt such training was a direct link that caused Cimino and Gomez to shirk their duties on the

night of Mr. Conroy’s death. See Canton, 489 U.S. at 385 (explaining the requirement for a direct

causal link).

Additionally, as to the County, a jury could conclude that those failures to train or

supervise, amounted to “‘deliberate indifference’ to the rights of persons with whom those

employees will come into contact,” such as Mr. Conroy. Thomas, 749 F.3d at 222 (quoting Carter,

181 F.3d at 357).

As to the failures to train, Defendants alternatively argue that Plaintiff has failed to raise

evidence of a “pattern of similar constitutional violations by untrained employees,” which is

“ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.” (ECF

No. 136-1, at 23–24); see Connick, 563 U.S. at 62 (quotation marks omitted). Defendants argue

that Plaintiff has “failed to introduce any documents or testimony of any pattern with any other

jail suicide,” and improperly relies on certain evidence, such as press releases, in her Opposition.

(ECF No. 147, at 10).

In considering Defendants’ argument, the Court “need only consider those materials cited”

in the briefs, but it may also “consider any materials in the record.” Fed. R. Civ. P. 56(c)(3). For

example, a cursory review of the record reveals considerable testimony regarding the prior

suicides. Additionally, the parties’ expert reports appear to rely on evidence involving the prior

suicides at the jail. Defendants paint in broad strokes and do not specifically address the evidence

related to the prior suicides. Without more, Defendants have failed to convince the Court that the

record cannot establish a “pattern of similar constitutional violations by untrained employees,” or

that all such evidence is otherwise inadmissible. Connick, 563 U.S. at 62.

Instead, Defendants dispute the sufficiency of Plaintiff’s evidence in her counter statement

of material facts, (ECF No. 147, at 8–13), but it is the Defendants who must first show that no

genuine issues of material fact exist. Defendants have not met that burden here.

For all of those reasons, Defendants have not shown that summary judgment is

appropriate as to Plaintiff’s municipal and supervisory liability claims under § 1983. Additionally,

because the New Jersey Legislature modeled the New Jersey Civil Rights Act (“NJCRA”) after 42

U.S.C. § 1983 and created a private cause of action for violations of civil rights under either the

United States or New Jersey Constitutions, courts interpret NJCRA claims “analogously to §

1983.” Fisher v. Pratt, No. 19-273, 2019 WL 519569, at *5 (D.N.J. Feb. 11, 2019). Consequently,

the Court will not grant summary judgment on Plaintiff’s corresponding NJCRA claims.

B. Qualified Immunity

Defendants collectively assert that they enjoy qualified immunity from suit. As a

preliminary matter, qualified immunity protects individuals so that they can “perform their public

duties with[out] unwarranted timidity or be deterred from entering [a] line of work.” Filarsky v.

Delia, 566 U.S. 377, 392 (2012). It does not protect the government entities employing those

individuals. See Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 142 (3d

Cir. 2017). Consequently, to the extent the County contends that it can directly assert qualified

immunity as a defense, the Court will deny summary judgment on that ground.

Turning then to Warden Smith, government officials are generally immune from suit for

civil damages so long as their conduct “does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). To determine whether defendants are entitled to qualified immunity, a two-

step analysis is necessary. First, the Court must consider whether, “taken in the light most

favorable to the party asserting the injury, [] the facts . . . show [that] the officer’s conduct violated

a constitutional right.” Hamilton v. Leavy, 322 F.3d 776, 786 (3d Cir. 2003) (quoting Saucier v.

Katz, 533 U.S. 194, 201 (2001)).

Second, if the alleged facts support a finding of a constitutional violation, a court must “ask

whether the right was clearly established.” Id. This means that “there must be sufficient precedent

at the time of [the defendant’s] action, factually similar to the plaintiff’s allegations, to put [the]

defendant on notice that his or her conduct is constitutionally prohibited.” Bistrian v. Levi, 696

F.3d 352, 366 (3d Cir. 2012) (citing McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001))

(alterations in original).

With those principles in mind, Warden Smith merely incorporates his previous arguments,

maintaining that Plaintiff has failed to raise facts to show that he or any other officer violated Mr.

Conroy’s constitutional rights. (ECF No. 136-1, at 25–27). As set forth above, however, there is

sufficient evidence to survive summary judgment on Plaintiff’s supervisory liability claims.

It appears that Defendants assumed that they would succeed on the first prong and did not

argue, in the alternative, as to whether Warden Smith violated a clearly established right.

Accordingly, Warden Smith has not met his burden to show that he is entitled to qualified

immunity at this time, and the Court will deny summary judgment on this ground.

C. John Doe Officers

Finally, because Plaintiff does not contest the issue, the Court will grant summary judgment

as to the claims against the John Doe Officers at this time.

IV. CONCLUSION

For the foregoing reasons, the Court will grant in part Defendants’ motion for summary

judgment. The Court will grant summary judgment as to the John Doe Officers and deny the

remainder of the motion for summary judgment. An appropriate Order follows.

Dated: December 15, 2020

s/Robert B. Kugler

ROBERT B. KUGLER

United States District Judge