# BROWN v. WARREN

> District Court, D. New Jersey · March 3, 2022

URL: https://www.frixlaw.com/law-library/cases/10272510

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 3, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10272510. Public record. Not legal advice.