BROWN v. WARREN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

RAYMOND LAMAR BROWN, JOHN No. 20-cv-7907 (NLH) (AMD)

CLARK, DESMOND ROGERS, TODD

FORD, JR. and CARLOS SOLER,

individually, and on behalf of

others similarly situated, OPINION

Plaintiffs,

v.

EUGENE CALDWELL, in his

official capacity as Warden,

Cumberland County Department of

Corrections, and CUMBERLAND

COUNTY, NEW JERSEY, et al.,1

Defendants.

APPEARANCES:

Karen A. Confoy, Esq.

Paul W. Kalish, Esq.

Jeffrey M. Pollock, Esq.

Fox Rothschild LLP

Princeton Pike Corporate Center

997 Lenox Drive

Lawrenceville, NJ 08648

Attorneys for Plaintiffs

1 Defendant Charles Warren resigned from his position as the

Warden of the Cumberland County Jail on September 20, 2021. ECF

No. 205. The Court will direct the Clerk to substitute current

Warden Eugene Caldwell for the claims against Defendant Warren

in his official capacity only. Fed. R. Civ. P. 25(d).

Gregg L. Zeff, Esq.

Law Firm of Gregg L. Zeff

100 Century Parkway

Suite 305

Mt. Laurel, NJ 08054

Attorneys for County Defendants

John-Paul Madden, Esq.

Madden & Madden

108 Kings Highway East, Suite 200

P.O. Box 210

Haddonfield, NJ 08033-0389

Attorneys for Charles Warren

Michael L. Testa, Esq.

Testa Heck Testa & White, PA

424 Landis Avenue

Vineland, NJ 08360

Attorneys for Loren Joynes

William J. Hughes, Jr., Esq.

Porzio, Bromberg & Newman, P.C.

100 Southgate Parkway

P.O. Box 1997

Morristown, NJ 07962-1997

Special Master

HILLMAN, District Judge

Plaintiffs are proceeding on a First Amended Complaint

seeking injunctive relief, individually and on behalf of the

class of similarly situated present and future detainees in the

Cumberland County Jail (“Jail”), based on the conditions in the

Jail as they relate to COVID-19. ECF No. 43.

On January 21, 2022, Plaintiffs filed a motion to

supplement the First Amended Complaint. ECF No. 305.

Defendants have not filed any opposition to the motion and the

time to do so has expired.2 Therefore, the Court will grant the

unopposed motion to supplement the First Amended Complaint.

I. BACKGROUND

As this matter has a long and procedurally complex history,

of which the parties are well aware, the Court will limit its

present discussion of the history to the information necessary

to resolve the pending motion.

After filing the First Amended Complaint, Plaintiffs filed

a motion for preliminary injunction addressing the Jail’s

failures in COVID-19 testing, protection, and quarantine and

isolation procedures. ECF No. 44. The Court conducted an

evidentiary hearing on April 20, 21, 22, 26, 27, 29, 30, May 3

and 4, 2021, at which time it heard testimony and took evidence

by and on behalf of Plaintiffs and Defendants. On May 6, 2021,

the parties agreed to the appointment of a Special Master under

Federal Rule of Civil Procedure 53 to make findings and to

report and make recommendations to the Court concerning the

conditions at the Jail regarding COVID-19. ECF No. 126. The

2 Under the Clerk’s schedule issued pursuant to L. Civ. R.

78.1(a), oppositions were due on February 8, 2022 for motions

returnable on February 22, 2022. At the hearing on January 31,

2022, the Court granted Defendants’ oral request for a ten-day

extension, which made their opposition due February 18, 2022.

No opposition or request for a further extension has been

submitted.

Court subsequently appointed William J. Hughes, Jr., to serve in

that capacity. ECF No. 131.

In their motion to supplement, Plaintiffs allege that

former Jail Warden Charles Warren, Captain Loren Joynes,

Sergeant Shane Zanes, and Sergeant Roberto Ortiz (collectively

the “Officer Defendants”) “coordinated and conducted a

‘shakedown’ in C-Pod” as retaliation on May 11, 2021. ECF No.

305-1 at 4. Plaintiffs allege corrections officers at the Jail

“tossed” the cells in C-Pod and seized inmates’ “extra supplies,

including rags, cleaning solution, blankets, towels and cot

mattresses” that had been kept “with the knowledge, assent, and

express or implied permission of correctional officers staffing

the unit . . . .” ECF No. 305-2 at 9. Defendants Joynes and

Zanes allegedly took photographs during the shakedown, and

Defendant Joynes sent some pictures of C-Pod and the seized

items to Defendant Warren via text message. Id. at 10.

Plaintiffs allege Defendants Joynes and Warren used their

personal cell phones for this communication instead of phones

officially issued by Cumberland County. Id.

On May 13, 2021, Plaintiffs wrote to the Court and

requested a conference on the matter. ECF No. 128. The Court

issued a text order scheduling a conference for May 14, 2021.

ECF No. 129. Plaintiffs allege that after County Counsel

requested documentation about the shakedown from Defendant

Warren, Defendant Joynes texted Defendant Zanes: “‘Type up a

report from the C Pod shakedown and put it under my door. The

courts want to see our reports. They complained and said w

[sic] left them without sheets’.” ECF No. 305-2 at 12. In a

later exchange, Defendant Zanes asked Defendant Joynes “‘What

time did we start,’” to which Defendant Joynes responded “‘ ’”.3

Id. Plaintiffs allege that Defendant Zanes backdated his report

to May 12, 2021, and incorrectly indicated that the shakedown

occurred on May 12, 2021. Id. at 13. Plaintiffs further allege

that Defendant Joynes “change[d] date on Defendant Zanes report

to May 11 and incident date to May 11. Defendant Joynes

print[ed], but [did] not save, the edited report.” Id.

According to the proposed supplement, Defendant Ortiz

“‘created’” a report on May 14, 2021 at 8:11 a.m., which was

then sent to Defendant Joynes from a scanner with a Cumberland

County domain. Id. Defendant Joynes then sent Defendant Warren

an email “containing Defendant Joynes incident report, Defendant

Ortiz incident report, Defendant Zanes incident report (with May

11 dates), Martinez and Velez reports, three photos.” Id.

3 “The ‘person shrugging emoji’ can designate ignorance,

indifference, self-acceptance, passive-aggression, annoyance,

giving up, or not knowing what to make of something. It could

also be a visual form of the one-word response of indifference,

‘whatever.’” Person Shrugging Emoji, Dictionary.com,

https://www.dictionary.com/e/emoji/person-shrugging-emoji (last

visited Feb. 22, 2022).

The Court conducted evidentiary hearings on May 19 and 20,

2021. The Court issued an Order at the beginning of the hearing

“directing that all witnesses in this proceeding be sequestered

until such time as their testimony is complete . . . .” Tr. May

19, 2021 Hearing, ECF No. 140, 7:5-7 (“Sequestration Order”).

Defendant Joynes appeared as a witness and represented through

separate counsel that he understood the Sequestration Order.

Id. 11:9-11. Plaintiffs allege that “[w]ithin an hour of the

commencement of the hearing, Defendants Warren and Joynes began

text messaging on their personal cellphones about the

Plaintiffs’ testimony, the testimony of Defendant Ortiz and

other witnesses who were involved in the shakedown, the

evidence, the Plaintiffs’ attorney’s areas of questioning, and

rulings by the [Court].” ECF No. 305-2 at 14.

II. STANDARD OF REVIEW

Motions to amend a complaint are governed by Federal Rule

of Civil Procedure 15(a). That rule provides that once a party

has filed a responsive pleading to the complaint “a party may

amend its pleadings only with the opposing party’s written

consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Leave

to amend is to be freely granted unless there is a reason for

denial, “such as undue delay, bad faith or dilatory motive on

the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of

amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962); see

also Arthur v. Maersk, 434 F.3d 196, 204 (3d. Cir. 2006) (“Among

the factors that may justify denial of leave to amend are undue

delay, bad faith, and futility.”).

III. DISCUSSION

“On motion and reasonable notice, the court may, on just

terms, permit a party to serve a supplemental pleading setting

out any transaction, occurrence, or event that happened after

the date of the pleading to be supplemented.” Fed. R. Civ. P.

15(d). Plaintiffs now move to supplement the First Amended

Complaint to include claims against the individual Officer

Defendants for retaliation and civil conspiracy under 42 U.S.C.

§ 1985. ECF No. 305.

The Court concludes that there are no concerns that would

prevent amendment. Plaintiffs have not unduly delayed in filing

this request, nor is there any indication of bad faith or

dilatory motive on their part. Neither the County Defendants

nor the proposed Officer Defendants have filed opposition to the

amendment.4 Regardless, the Court notes that an objection based

on prejudice to any defendant would be meritless as it has been

known for quite some time that Plaintiffs were considering

4 Defendant Warren and Defendant Joynes have obtained separate

counsel. ECF Nos. 244, 254.

adding these claims. Discovery regarding the shakedown and its

aftermath are ongoing before this Court, and counsel for

Defendant Warren and Defendant Joynes have been active

participants in that process.

The Court also concludes supplementing the First Amended

Complaint would not be futile. The futility of a proposed

amended pleading is evaluated under the same standard of legal

sufficiency as a motion to dismiss under Rule 12(b)(6).

Travelers Indent. Co. v. Dammann & Co., 594 F.3d 238, 243 (3d

Cir. 2010). “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id.

“A prisoner alleging retaliation must show (1)

constitutionally protected conduct, (2) an adverse action by

prison officials sufficient to deter a person of ordinary

firmness from exercising his constitutional rights, and (3) a

causal link between the exercise of his constitutional rights

and the adverse action taken against him.” Mitchell v. Horn,

318 F.3d 523, 530 (3d Cir. 2003) (internal quotation marks and

citations omitted). Accepting the facts alleged in the proposed

supplement as true, this Court could reasonably infer that the

Officer Defendants retaliated against Plaintiffs for

participating in this civil action through the shakedown of C-

Pod on May 11, 2021.

The Court could also make a reasonable inference from the

alleged facts that the Officer Defendants conspired together to

deter Plaintiffs from participating and testifying in this

action, or to injure them for having attended or testified

before this Court. See 42 U.S.C. § 1985(2). Accordingly, the

Court will grant the motion to supplement the First Amended

Complaint.

IV. CONCLUSION

The Court will grant the unopposed motion to supplement the

First Amended Complaint. An appropriate order follows.

Dated: March 3, 2022 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.