THE ESTATE OF LUIS E. ANDUJAR v. COUNTY OF CUMBERLAND

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

THE ESTATE OF LUIS E. ANDUJAR

by and through its

Administrators Ad

Prosequendum, Michelle

Kincaide and Teresa E.

Vasquez

No. 1:22-cv-06372(NLH-AMD)

Plaintiff,

OPINION

v.

COUNTY OF CUMBERLAND;

RICHARD SMITH, WARDEN (NOW

FORMER WARDEN); and CHARLES

WARREN, DEPUTY WARDEN (NOW

FORMER DEPUTY WARDEN),

individually, jointly,

severally, and/or in the

alternative

Defendants.

APPEARANCES:

Arthur J. Murray, Esq.

Stuart J. Alterman, Esq.

Alterman & Associates, LLC

8 South Maple Avenue

Marlton, NJ 08053

Attorneys for Plaintiff

A. Michael Barker, Esq.

Barker, Gelfand & James

Linwood Greene

210 New Road

Suite 12

Linwood, NJ 08221

Attorney for Defendants

HILLMAN, District Judge

The instant matter is being brought by the estate of a

deceased prison guard, claiming various federal and state

violations for allegedly denying a request for the decedent to

leave work early when he was not feeling well. Currently

pending before the court are Defendants’ Motion to Dismiss (ECF

No. 10) and Motion for Sanctions (ECF No. 16).

For the reasons that follow, Defendants’ Motion to Dismiss

will be granted and their Motion for Sanctions denied.

BACKGROUND1

A global pandemic involving the Coronavirus (“Covid-19”)

began in China in December of 2019. (Compl. ¶ 7.) The first

known case of Covid-19 was reported in the United States on

January 21, 2020. (Compl. ¶ 8.) Under the leadership of

Defendant Warden Richard Smith (now resigned) and Defendant

Deputy Warden Charles Warren (now resigned), the Cumberland

County Correctional Institution (“Cumberland County Jail”) was

on explicit notice as of January 21, 2020 that the Covid-19

pandemic was a threat to the United States and could directly or

indirectly impact certain vulnerable communities such as jails,

1 This recitation of facts is taken from Plaintiff’s complaint.

As set forth more fully below, when considering a motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

court must accept all well-pleaded allegations in the Complaint

as true and view them in the light most favorable to the

plaintiff. Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005).

their inmate populations, employees, officers, agents, and

servants. (Compl. ¶ 9.)

Until his death on January 22, 2021, Luis Andujar was a

resident of the State of New Jersey and a former member of PBA

Local 231, which was and is the Collective Bargaining Unit for

rank-and-file correctional police officers employed by Defendant

County of Cumberland. (Compl. ¶ 3.) Plaintiff alleges that in

the hours immediately preceding Andujar’s death on January 22,

2021, he was feeling ill and showing symptoms of Covid-19 while

on duty at Cumberland County Jail.2 (Compl. ¶ 13.) He made his

symptoms known to multiple supervisory officers within the jail,

including Defendants Smith and Warren. (Compl. ¶ 14.)

All supervisory officers, including Defendants Smith and

Warren, ignored Andujar’s clearly visible signs of illness.

(Compl. ¶ 15.) Andujar was repeatedly denied immediate medical

attention and the ability to use collectively bargained-for sick

leave time to end his shift early and seek medical attention on

his own. (Compl. ¶ 16.) On January 22, 2021, Andujar promptly

and repeatedly brought his concerns to Defendants Smith and

Warren (by and through his other supervisors) about his health

and its interplay with policies, procedures, rules, regulations,

and other information concerning the operation of the Cumberland

2 As discussed below in conjunction with their Motion for

Sanctions, Defendants contest Plaintiff’s timeline of events.

County Jail in light of the global pandemic. (Compl. ¶ 17.)

Upon doing so, Andujar was implicitly and explicitly discouraged

from raising the issues to which he brought attention concerning

his health and safety and its potential impact on his fellow

employees, as well as inmates of the Cumberland County Jail.

(Compl. ¶ 18.)

In light of the foregoing, Plaintiff alleges that despite

having actual notice, Defendants Smith and Warren failed to

develop timely and effective policies and procedures to combat

the threat of the pandemic, failed to order the equipment

necessary to adequately protect the employees of Defendant

County of Cumberland, failed to communicate effectively with the

employees of County of Cumberland, including Andujar, and

allowed certain policies and procedures to stay in place that

actually made employees of County of Cumberland, including but

not limited to Andujar, not only less safe, but vulnerable to

Covid-19. (Compl. ¶ 10.)

Because of the global pandemic, PBA Local 231, on behalf of

its members, including Andujar, promptly and repeatedly brought

their concerns about policies, procedures, rules, regulations,

and other information concerning the operation of the Cumberland

County Jail to the attention of Defendants Smith and Warren.

(Compl. ¶ 11.) The concerns of PBA LOCAL 231, included, but

were not limited to: (1) issuing a press release on March 27,

2020 that read in part that “The Cumberland County Freeholders

and Jail Administration have done nothing to protect the

Cumberland County Correctional Police Officers from Covid 19”

and “The Jail Administration has not included the PBA in any

discussions about dealing with the Covid 19 crisis”; (2) filing

an Order to Show Cause with the Public Employment Relations

Commission on March 30, 2020 concerning a Memorandum issued by

then Defendant Smith through Captain Michael Palau on September

25, 20l9 that limited the amount of fresh air to which

corrections officers were entitled during their 12- or 16-hour

work shifts, which said limitation took on a heightened

significance upon the onset of the Pandemic; (3) filing a

grievance that members of PBA Local 231 were being forced to use

their own banked vacation, sick and administrative time when

being forced to quarantine by order of physicians or supervisors

due to possible exposure to Covid-19 on the job, leading to the

depletion of accumulated banks of vacation, sick, and

administrative time, thereby exposing the officer to discipline

for abuse of vacation, sick, and administrative leave policies

upon complete depletion; (4) by being exposed to potential

discipline for abuse of vacation time, sick time, and

administrative time, members of PBA Local 231 were without

banked time to use at their convenience to tend to their

families during this global pandemic; (5) lobbying for Hazard

Pay via Letter of Counsel dated April 28, 2020 and lobbying for

increased transparency in reporting results of Covid-19 testing

for inmates and employees via Letter of Counsel dated May 1,

2020; (7) itemizing nine separate concerns in a letter to

outside labor counsel for Cumberland County dated May 26, 2020

from counsel for PBA Local 231 and sending a plethora of Covid-

19 related emails; (8) letters from PBA Local 231 President

Victor Bermudez to Administration for Cumberland County,

including, but not limited to March 21, 2020, March 28, 2020,

April 2, 2020, April 10, 2020, April 29, 2020, May 12, 2020, and

May 22, 2020; (9) issuing repeated Covid-19 related OPRA

requests by and through PBA Local 231 President Victor Bermudez

and/or counsel for PBA Local 231 and repeatedly requesting, if

not demanding, testing and contact tracing of officers, inmates,

and employees. (Compl. ¶ 12.)

As a result of the foregoing, Andujar’s estate now claims

Defendants denied him various State and federal constitutional

and civil rights. Additionally, Plaintiff asserts a disability

discrimination claim under New Jersey’s Law Against

Discrimination, as well as common law claims for the Tort of

Outrage, the Tort of Gross Insult, Wrongful Death, and Survival.

Defendants have filed the instant Motion to Dismiss, in

which they assert Plaintiff has failed to state a claim because

the Complaint is devoid of any allegation that Andujar in fact

had Covid-19, ever tested positive for Covid-19, or that Covid-

19 was the cause of death. (ECF No. 10-3 at 1.) Defendants

further claim Plaintiff’s Complaint contains no facts to

plausibly demonstrate that Andujar’s death was caused by their

Covid-19 policies. Although Plaintiff opposes Defendants’

Motion, he does not dispute Defendants’ statements regarding

Covid-19 or Defendants’ policies being the actual cause of

Andujar’s death. (ECF No. 15.)

DISCUSSION

I. Subject Matter Jurisdiction

This Court has subject matter jurisdiction over Plaintiff’s

federal claims pursuant to 28 U.S.C. § 1331. The Court

exercises supplemental jurisdiction over Plaintiff’s state law

claims under 28 U.S.C. § 1367.

II. Standards of Review

A. Motion to Dismiss

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court

must accept all well-pleaded allegations in the Complaint as

true and view them in the light most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). A pleading

is sufficient if it contains “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of a cause of action’s

elements will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (alteration in original) (citation omitted).

To determine the sufficiency of a Complaint, a court must

take three steps:

First, the court must tak[e] note of the elements a

plaintiff must plead to state a claim. Second, the

court should identify allegations that, because they

are no more than conclusions, are not entitled to the

assumption of truth. Third, whe[n] there are well-

pleaded factual allegations, a court should assume

their veracity and then determine whether they

plausibly give rise to an entitlement for relief.

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 664, 675, 679 (2009)) (cleaned

up).

In reviewing a Rule 12(b)(6) motion, a court must only

consider the facts alleged in the pleadings, the documents

attached thereto as exhibits, and matters of judicial notice.

S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,

181 F.3d 410, 426 (3d Cir. 1999). “A motion to dismiss should

be granted if the plaintiff is unable to plead ‘enough facts to

state a claim to relief that is plausible on its face.’”

Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at 570).

B. Motion for Sanctions

The Federal Rules of Civil Procedure provide:

(b) Representations to the Court. By presenting to the

court a pleading, written motion, or other paper —

whether by signing, filing, submitting, or later

advocating it — an attorney . . . certifies that to

the best of the person’s knowledge, information, and

belief, formed after an inquiry reasonable under the

circumstances:

(1) it is not being presented for any improper

purpose, such as to harass, cause

unnecessary delay, or needlessly increase

the cost of litigation;

(2) the claims, defenses, and other legal

contentions are warranted by existing law or

by a nonfrivolous argument for extending,

modifying, or reversing existing law or for

establishing new law;

(3) the factual contentions have evidentiary

support or, if specifically so identified,

will likely have evidentiary support after a

reasonable opportunity for further

investigation or discovery; and

(4) the denials of factual contentions are

warranted on the evidence or, if

specifically so identified, are reasonably

based on belief or a lack of information.

Fed. R. Civ. P. 11(b).

Fed. R. Civ. P. 11(c)(1) states in relevant part that

“[i]f, after notice and a reasonable opportunity to respond, the

court determines that Rule 11(b) has been violated, the court

may impose an appropriate sanction on any attorney, law firm, or

party that violated the rule or is responsible for the

violation.” Pursuant to Subsection (c) of said Rule,

A motion for sanctions must be made separately

from any other motion and must describe the

specific conduct that allegedly violates Rule

11(b). The motion must be served under Rule 5,

but it must not be filed or be presented to the

court if the challenged paper, claim, defense,

contention, or denial is withdrawn or

appropriately corrected within 21 days after

service or within another time the court sets. If

warranted, the court may award to the prevailing

party the reasonable expenses, including

attorney's fees, incurred for the motion.

Fed. R. Civ. P. 11(c)(2).

Finally,

A sanction imposed under this rule must be

limited to what suffices to deter repetition of

the conduct or comparable conduct by others

similarly situated. The sanction may include

nonmonetary directives; an order to pay a penalty

into court; or, if imposed on motion and

warranted for effective deterrence, an order

directing payment to the movant of part or all of

the reasonable attorney’s fees and other expenses

directly resulting from the violation.

Fed. R. Civ. P. 11(c)(4).

As such, Rule 11 is intended to discourage the filing of

frivolous, unsupported, or unreasonable claims by “impos[ing] on

counsel a duty to look before leaping and may be seen as a

litigation version of the familiar railroad crossing admonition

to ‘stop, look, and listen.’” Lieb v. Topstone Indus. Inc., 788

F.2d 151, 157 (3d Cir.1986).

Sanctions awarded under Rule 11 “are warranted ‘only in the

“exceptional circumstances” where a claim or motion is patently

unmeritorious or frivolous.’” Goldenberg v. Indel, Inc., No.

09-5203, 2011 U.S. Dist. LEXIS 31851, at *5-6 (D.N.J. Mar. 25,

2011) (quoting Watson v. City of Salem, 934 F. Supp. 643, 662

(D.N.J. 1995)). Courts assessing whether to impose sanctions

under Rule 11 must apply an objective standard of

“reasonableness under the circumstances.” Ford Motor Co. v.

Summit Motor Prods. Inc., 930 F.2d 277, 289 (3d Cir. 1991).

Reasonableness in the context of a Rule 11 inquiry has been

defined as “an objective knowledge or belief at the time of the

filing of a challenged paper that the claim was well grounded in

law and fact.” Id. “[T]he central purpose of Rule 11 is to

deter baseless filings in District Court and thus, consistent

with the Rule Enabling Act’s grant of authority, streamline the

administration and procedure of the federal courts.” Cooter &

Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990); see also

Reardon v. Murphy, Civ. A. No. 1811372, 2019 U.S. Dist. LEXIS

166213, at *10 (D.N.J. Sept. 27, 2019) (same). Accordingly, the

Third Circuit has recognized that Rule 11 sanctions should only

be imposed in those rare instances where the evident

frivolousness of a claim or motion amounts to an “abuse[ ] of

the legal system.” Goldenberg, 2011 U.S. Dist. LEXIS 31851 at

* 6 (quoting Doering, 857 F.2d at 194).

III. Analysis

A. Motion to Dismiss

1. Federal Claims

Defendants seek dismissal of all civil rights claims

contained within Count One through Seven of Plaintiff’s

Complaint on the bases of: failure to plead proximate cause

under Title 42, United States Code, Section 1983, i.e., that

Plaintiff ever actually contracted, tested positive for, or died

from Covid-19; and that none of the defendants were acting under

color of state law with regard to Andujar’s request to leave

work early. (ECF No. 10-3 at 6-7.)

A plaintiff may have a cause of action under 42 U.S.C. §

1983 for certain violations of his or her constitutional rights.

Specifically, Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for

redress[.]

42 U.S.C. § 1983.

Section 1983 is not itself the source of any substantive

rights but rather requires an additional claim of an underlying

plausible constitutional tort. Graham v. Connor, 490 U.S. 386,

393-94 (1989); see also Demby v. City of Camden, 1:20-cv-13893,

2022 U.S. Dist. LEXIS 171428, at *6 n.2 (D.N.J. Sept. 22,

2022)(same).

Whether an individual was acting under color of state law

at any given time, is assessed under the following rubric:

“[A]ction under state law must be addressed after

considering the totality of the circumstances and

cannot be limited to a single factual question.”

Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 607

(3d Cir. 2011). However, “the traditional definition

of action under color of state law ... requires that

one liable under § 1983 ‘have exercised power

possessed by virtue of state law and made possible

only because the wrongdoer is clothed with the

authority of state law.’” Abbott v. Latshaw, 164 F.3d

141, 146 (3d Cir. 1998) (quoting West v. Atkins, 487

U.S. 42, 49, 108 S. Ct. 2250, 101 L. Ed. 2d 40

(1988)). Additionally, while “purely private acts

which are not furthered by any actual or purported

state authority are not acts under color of state

law,” it is also true that “acts of a state or local

employee in [his] official capacity will generally be

found to have occurred under color of state law ...

whether the complained of conduct was in furtherance

of the state’s goals or constituted an abuse of

official power.” Barna v. City of Perth Amboy, 42 F.3d

809, 815-16 (3d Cir. 1994) (citations omitted). The

Third Circuit has held that “a state employee who

pursues purely private motives and whose interaction

with the victim is unconnected with his execution of

his official duties does not act under color of law.”

Bonenberger v. Plymouth Twp., 132 F.3d 20, 24 (3d Cir.

1997) (emphasis added).

Aguilar v. Moyer, Civil No. 3:21-CV-595, 2021 U.S. Dist. LEXIS

234511, at *11-12 (M.D. Pa. Dec. 7, 2021); see also Estate of

Conroy v. Balicki, Civil Action No. 17-7183, 2018 U.S. Dist.

LEXIS 90720, at *4 (D.N.J. May 31, 2018) (“The traditional

definition of acting under color of state law requires that the

defendant in a § 1983 action have exercised power possessed by

virtue of state law and made possible only because the wrongdoer

is clothed with the authority of state law.”) (cleaned up).

In this case, Defendants’ second line of defense – namely

that they were not acting under the authority of state law – is

almost as frivolous as they contend Plaintiff’s claims are.

Plaintiff’s Complaint clearly alleges that while on duty as a

county correctional officer at a county-run jail, his

supervisors, who were also county employees, denied his request

“to obtain immediate medical attention or use collectively

bargained sick leave time to end his shift early and seek

medical attention on his own[,]” despite Andujar conveying to

them his subjective feelings of illness and despite displaying

objective symptoms. (Compl. ¶¶ 14, 16.) It should go without

saying that if Plaintiff had indeed left his place of employment

without authority, he would have subjected himself to discharge

from his county position or a disciplinary hearing for

insubordination. It is hard to imagine a situation more imbued

with the exercise of official authority.

Accordingly, Defendants’ argument that the allegations are

no more than a dispute over employment conditions akin to those

common in the private sector, does nothing to strip Defendants

of their status as public officials discharging their official

duties and Defendants cite no authority to the contrary. See

Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994)

(“[A]cts of a state or local employee in her official capacity

will generally be found to have occurred under color of state

law . . . This will be so whether the complained of conduct was

in furtherance of the state’s goals or constituted an abuse of

official power.”)

However, Defendants’ primary argument – that Plaintiff has

failed to allege facts sufficient to constitute a plausible

claim that the conduct of the Defendants was the proximate cause

of a cognizable injury – has merit. That failure, coupled with

other pleading defects in certain counts, render each of

Plaintiff’s federal claims defective and readily dismissible.

Each of Plaintiff’s federal claims are addressed in turn.

a. 1st Amendment Retaliation

In the First Count of Plaintiff’s Complaint, it is alleged

Defendants violated Andujar’s First Amendment right to free

speech when they denied his request to leave work early and did

not provide medical attention after he had “subjective feelings

of illness as well as [ ] objective demonstrations of

illness[.]”. (Compl. ¶¶ 14, 16-17.) Plaintiff claims that

during the time Andujar felt sick on January 22, 2021, he

“promptly and repeatedly brought his concerns about his health

and its interplay with policies, procedure, rules, regulations,

and other information concerning the operation of the Cumberland

County Correction Institution in light of the global pandemic”

but was “implicitly and explicitly discouraged from raising the

issues[.]” (Compl. ¶¶ 17-18.) Defendants seek dismissal of this

Count, arguing Plaintiff’s Complaint is devoid of any allegation

of protected speech or retaliatory action. (ECF No. 10-3 at 9-

10.)

“Actionable retaliation for the exercise of First Amendment

rights requires Plaintiff to establish (1) that the conduct in

which Plaintiffs engaged was constitutionally protected, and (2)

that it was a substantial or motivating factor for the alleged

retaliatory conduct by Defendants.” Ferraioli v. City of

Hackensack Police Dep’t, No. CIV. A. 09-2663, 2010 U.S. Dist.

LEXIS 8527, at *27-28 (D.N.J. Feb. 2, 2010) (citing Baldassare

v. State of N.J., 250 F.3d 188, 194-95 (3d Cir. 2001)).

Critically, “[t]he First Amendment protects speech by a

government employee only when it relates to a matter of public

concern.” Id. at *28. Also salient to the analysis is whether

the employee was speaking in the scope of their employment or as

a private citizen.

The linchpin in this analysis is “whether the speech at

issue is itself ordinarily within the scope of an employee’s

duties, not whether it merely concerns those duties.” Lane v.

Franks, 573 U.S. 228, 240 (2014). “[W]hen public employees make

statements pursuant to their official duties, the employees are

not speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communications from

employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421

(2006). “[P]ublic speech cannot constitute merely personal

grievances.” Brennan v. Norton, 350 F.3d 399, 412 (3d Cir. 2003)

(cleaned up).

Here, Plaintiff’s Complaint is unclear as to exactly what

“speech” is being relied upon in support of its First Amendment

claim. Andujar’s conveyance to his supervisors of how he felt

physically on January 22, 2021 cannot be deemed

“constitutionally protected speech.” (Compl. ¶ 14.) Such a

declaration, while certainly “concerning” his official duties in

the sense he sought to go home, was also wholly personal in

nature. However, Plaintiff additionally alleges (in pertinent

part) that correctional officers:

[W]ere being forced to use their own banked vacation

time, their own banked sick time, and their own banked

administrative time when being forced to quarantine by

order of physicians or supervisors due to possible

exposure to Covid-19 on the job leading to the

depletion of accumulated banks of vacation time, sick

time, and administrative time thereby exposing the

officer to discipline for abuse of vacation time, sick

time, and administrative time upon complete depletion.

By being exposed to potential discipline for abuse of

vacation time, sick time, and administrative time,

members of PBA Local 231 were without banked time to

use at their convenience to tend to their families

during this global pandemic.

(Compl. ¶ 12(c).)

Accepting all well-pleaded allegations in the Complaint as

true and viewing them in the light most favorable to Plaintiff

as this Court must, Plaintiff’s statements regarding the

prison’s Covid-19 sick leave and overall Covid-19 policies

qualify as public speech. Plaintiff’s alleged advocacy for a

safe working environment for staff as well as inmates, both

individually and as a member of his union, has a sufficient

nexus to a matter of public concern to be worthy of First

Amendment protection.

However, while the court finds a plausible allegation of

protected speech, Court One is nevertheless defective because it

fails to allege facts setting out a sufficient connection

between that speech and Plaintiff’s injury. More specifically,

the Complaint fails to sufficiently plead that Andujar’s alleged

act of voicing “his concerns about his health and its interplay

with policies, procedures, rules, regulations, and other

information concerning the operation of the Cumberland County

Correctional Institution in light of the global pandemic”

(Compl. ¶ 17) was the cause or reason his supervisors denied his

requests for medical attention or leave. To allege that

Plaintiff was denied leave under the policy he had previously

complained of is not the same as alleging he was denied leave

because of his complaints on a matter of public concern.

Moreover, the Complaint provides no details whatsoever

about Andujar’s death and the reason for it, nor is there any

indication in Plaintiff’s Complaint that the denial of Andujar’s

request to use sick leave contributed to, aggravated, or

otherwise caused his death later that day.

To be clear, as it relates to Count One, there is no need

for Plaintiff to allege Andujar died of Covid-19. Andujar could

have died of a heart attack that evening and if his denial of

sick leave that day was motivated to punish him for protected

speech or to chill such speech and such delay in treatment

caused him injury, Count One would state a plausible claim.

But whatever caused Plaintiff’s demise, Count One fails to

allege any facts to show a causal connection between the

expression of protected speech and his injury. Having failed to

sufficiently plead causation, the First Count fails and

dismissal is warranted.3

3 While a pleading may not be amended by statements made in a

brief, the Court notes that at best, Plaintiff’s theory of

causation has shifted since the Complaint was filed.

Plaintiff’s brief in opposition to the motion to dismiss appears

to argue that Andujar was denied leave not as an act of

retaliation for protected speech but because the jail was so

poorly staffed guards were compelled to work against their will

because of chronic understaffing and mandatory overtime. (ECF

15 at pg. 14-25.)

b. 8th & 14th Amendment Claims for Cruel and

Unusual Punishment and State Created Danger

Defendants next seek dismissal of Plaintiff’s Eighth and

Fourteenth Amendment claims, as contained in the Second and

Third Counts of the Complaint. With respect to the Eighth

Amendment, Defendants argue Andujar “was not an inmate, nor

. . . subjected to any form of punishment, certainly not cruel

and unusual punishment.” (ECF No. 10-3 at 10.) In response,

Plaintiff argues that under the circumstances, Andujar could “be

considered a de facto inmate of the Facility[.]” (ECF No. 15 at

27.) However, Plaintiff provides no case law to support this

novel contention, nor has this Court found any.

The Supreme Court has characterized the Eighth Amendment4

as “prohibit[ing] punishments which, although not physically

barbarous, involve the unnecessary and wanton infliction of

pain, or are grossly disproportionate to the severity of the

crime. Among unnecessary and wanton inflictions of pain are

those that are totally without penological justification.”

Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (internal quotation

marks and citations omitted). In this case, Andujar was a

4 The protections of the Eighth Amendment apply to convicted

prisoners. Rhodes v. Chapman, 452 U.S. 337, 344-46 (1981).

Pretrial detainees are protected by the Fourteenth Amendment,

which provides protections “at least as great as the Eighth

Amendment[.]” Natale v. Camden Cty. Corr. Facility, 318 F.3d

575, 581 (3d Cir. 2003) (quoting City of Revere v. Massachusetts

Gen. Hosp., 463 U.S. 239, 244(1983)).

corrections officer — not a prisoner. As such, he was not

entitled to the claimed Eighth Amendment protection.

Moreover, Count Two suffers from the same causation defect

as Count One. As discussed above, even if Plaintiff were

somehow entitled to Eighth Amendment protection, the Complaint

is devoid of any indication that a purported “detention” on

January 22, 2021 contributed to, aggravated, or caused Andujar’s

death later that day.

With respect to the Fourteenth Amendment, the Third Count

of Plaintiff’s Complaint alleges a state created danger.

(Compl. ¶¶ 34-43.) Defendants seek dismissal of that Count,

arguing “[t]he Complaint does not allege Defendant(s) used state

authority to limit Andujar’s ability to act on his own behalf.”

(ECF No. 10-3 at 12.) While that argument is only partly

persuasive in the sense that Andujar – unlike the prisoners he

guarded – could have engaged in self-help by simply abandoning

his post and going home or to the doctor if he was willing to

face the employment consequences, this Court need not resolve

this issue, as Count Three is dismissible on other grounds.

To assert a claim under the state-created danger doctrine,

a plaintiff must prove: (1) that the harm was “foreseeable and

fairly direct,” (2) the “state actor acted with a degree of

culpability that shocks the conscience,” (3) the plaintiff was

not merely a member of the general public, but rather a

relationship existed between the state and the plaintiff that

made the plaintiff a “foreseeable victim” or a member of a

discrete class of individuals subjected to the potential harm

caused by the state’s action, and (4) “a state actor

affirmatively used his or her authority in a way that created

danger to the citizen or that rendered the citizen “more

vulnerable to danger than had the state not acted at all.”

Brown v. Sch. Dist. of Phila., 456 F. App’x 88, 91 (3d Cir.

2011) (citing Sanford v. Stiles, 456 F.3d 298, 304-05 (3d Cir.

2006)). Importantly, the Court of Appeals for the Third Circuit

has noted that “negligent behavior can never rise to the level

of conscience shocking.” Kaucher v. County of Bucks, 455 F.3d

418, 426 (3d Cir. 2006)(citing County of Sacramento v. Lewis,

523 U.S. 833, 849 (1998)). In this case, Plaintiff has failed

to allege sufficient facts to make out two of four elements

outlined above.5

As a preliminary matter, it is clear from the Complaint

that Count Three is premised entirely on the theory that

Cumberland County failed to formulate, implement, and enforce a

5 This Court assumes without holding that Andujar, as an

employee within the jail itself, could be said to be a

foreseeable victim if he were protected by the state created

danger doctrine and similarly that Defendants’ denial of

Andujar’s request to leave work early constituted an affirmative

use of their authority that created, or made Andujar more

vulnerable to, danger if the other elements could be met.

comprehensive and effective Covid-19 policy meeting basic

constitutional requirements applicable to a government facility

housing pre-trial detainees and that such a failure had a

negative impact on the staff who worked there. This Court

accepts that factual and legal premise. But that alone does not

show that Mr. Andujar, a prison guard, either suffered harm as a

result of that failure or was otherwise a person whose interests

in such a situation are protected by the Constitution.

More specifically, as to the first element, Plaintiff must

show that the harm he suffered was “foreseeable and fairly

direct.” Here, the foreseeable harm from the lack of an

effective and appropriate Covid-19 policy is an excessive,

unreasonable, or unwarranted risk beyond the ordinary risk of

contracting a preventable and potentially deadly disease. It is

here that Plaintiff’s unwillingness or inability to allege that

he died of Covid-19 or suffered worse symptoms for lack of

immediate medical care (or perhaps suffered for fear of

contracting it), defeats the asserted claim. Absent a

connection between the reasonably foreseeable harm – that in the

absence of an effective policy that Covid-19 would spread like

wildfire through the Cumberland County Jail infecting inmates

and staff alike - and the harm that Plaintiff suffered (the

cause of his death or suffering), Plaintiff cannot prove the

first element.

Plaintiff fares no better on the second element – that the

state acted with a degree of culpability that shocks the

conscience. Putting aside the constitutional obligations the

County may have owed to its pretrial detainees and whether the

County’s practices shock the conscious as it relates to them,

even the extraordinary events of a worldwide deadly pandemic do

not alter the fundamental nature of the relationship between

Andujar and Defendants - that is, one of employee and employer.

Even assuming that prison staff and prison guards are within the

zone of persons protected by a jail’s rational and effective

Covid-19 policy which presumably protects all who work in, are

housed in, or visit that facility, the Third Circuit Court of

Appeals has held in an analogous situation that a prison guard

has no constitutional right to be free from the risks of

contracting and infectious decease or an otherwise safe working

environment within the four walls of a jail. Kaucher v. County

of Bucks, 455 F.3d 418, 424 (3d Cir. 2006)(“[T]he Constitution

does not guarantee public employees a safe working

environment.”) (citing Collins v. City of Harker Heights, Tex.,

503 U.S. 115, 129 (1992)).

In Kaucher, the Third Circuit rejected a state created

danger argument brought by a corrections officer and his wife

who contracted staph infections, finding Collins precluded such

a claim based on a prison’s “fail[ure] to provide a safe working

environment at the jail, free from risk of infection.” Kaucher,

455 F.3d at 424. The same is true here. Jails are dangerous

places and whatever duties the municipality may owe to those

held against their will, those duties do not necessarily apply

to other persons who are there for voluntary reasons and whose

relationships are governed by other protections and legal

standards.

Moreover, even if Kaucher did not foreclose Plaintiff’s

Fourteenth Amendment claim and Andujar was afforded some level

of constitutional protection, no facts alleged could be said to

amount to the level of unconscionable conduct. As noted

previously, the Complaint is devoid of any facts regarding the

cause of Andujar’s death. Nor are there any allegations in

Plaintiff’s Complaint to indicate that Defendants’ denial of

Andujar’s request to leave early on January 22, 2021 contributed

to, aggravated, or caused his death later that day. Similarly,

there are no facts to indicate Andujar appeared so ill as to

render it foreseeable that had he not been given permission to

leave, he would die. Plaintiff’s allegations of “subjective”

and “objective” signs of illness (Compl. ¶¶ 13-15) may

constitute negligence or even recklessness but they are not of

the kind that “shock the conscience” within the scope of the

tort of a state created danger. See id. at 426 (“negligent

behavior can never rise to the level of conscience shocking”)

(citing County of Sacramento v. Lewis, 523 U.S. 833, 849

(1998)). Accordingly, Defendants’ Motion will be granted as to

the Second and Third Counts of Plaintiff’s Complaint.6

c. 4th Amendment Unreasonable Seizure

The Fourth Count of Plaintiff’s Complaint alleges in

pertinent part that Defendants violated 42 U.S.C. § 1983 via an

“unreasonable seizure in violation of the Fourth Amendment” when

they “denied permission to leave the Cumberland County

Correctional Facility in order to seek immediate medical

treatment[.]” (Compl. ¶¶ 44-46.) Defendants seek dismissal of

this Count, arguing “[t]he Complaint does not allege Andujar was

seized under any definition of the word seizure.” (ECF No 10-3

at 13.)

The Fourth Amendment is applicable to the States through

the Fourteenth Amendment. Baker v. McCollan, 443 U.S. 137, 142

(1979). The Fourth Amendment guarantees “[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures.” U.S.

6 To the extent Plaintiff in his opposition brief alleges new

facts to support these claims, the court declines to consider

them in this procedural posture. A complaint may not be amended

via an opposition brief to a motion to dismiss. Com. of Pa. ex

rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.

1988); see also Hamza v. United Cont’l Holdings, LLC, Civil

Action No. 19-8971, 2020 U.S. Dist. LEXIS 177853, at *7 (D.N.J.

Sept. 28, 2020) (“It is well established that a plaintiff may

not amend his complaint in a brief in opposition [to] a motion

to dismiss.”).

Const. amend. IV. The elements of a § 1983 claim for

unreasonable seizure are: (1) actions of the state actors that

constituted a seizure within the meaning of the Fourth

Amendment; and (2) the actions were unreasonable in light of the

surrounding circumstances. Brower v. County of Inyo, 489 U.S.

593, 597-99 (1989). A “‘seizure’ alone is not enough for § 1983

liability; the seizure must be ‘unreasonable.’” Id. at 599.

To that end,

It is clear . . . that a Fourth Amendment seizure does

not occur whenever there is a governmentally caused

termination of an individual’s freedom of movement

. . . nor even whenever there is a governmentally

caused and governmentally desired termination of an

individual’s freedom of movement . . . but only when

there is a governmental termination of freedom of

movement through means intentionally applied.

Brower, 489 U.S. at 596-97.

In this case, Plaintiff alleges Andujar “became an

individual unreasonably seized[.]” (Compl. ¶ 45; ECF No. 15 at

33.) However, as noted above, “a plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires

more than labels and conclusions, and a formulaic recitation of

a cause of action’s elements will not do.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(citation omitted). Andujar was free to leave the prison on

January 22, 2021, regardless of whether sick leave would be

granted for the absence. He was not “detained” for purposes of

the Fourth Amendment. Further, as before, Plaintiff alleges no

facts to indicate that Andujar’s completion of a full shift on

January 22, 2021 had any effect on his illness . . . whatever

that illness might have been. In other words, the Complaint

contains no facts to show that serving his full shift

aggravated, contributed to, or caused Andujar’s death later that

day. Therefore, even assuming Andujar suffered an unlawful

seizure as defined by the Fourteenth Amendment, Plaintiff fails

to allege any factual connection between that detention and any

harm suffered by Andujar. Accordingly, Defendants’ Motion to

Dismiss this claim will be granted.7

d. 42 U.S.C. § 1983

The Seventh Count of Plaintiff’s Complaint contains a cause

of action against Defendant County of Cumberland for Failure to

Train under 42 U.S.C. § 1983. (Compl. ¶¶ 58-63.) In presenting

this claim, Plaintiff relies upon Berg v. County of Allegheny,

219 F.3d 261 (3d. Cir. 2000)8 in an attempt to classify it as

something other than a Monell claim but fails to identify in

exactly what regard. (Compl. ¶ 63.) Nevertheless, Defendants

7 To the extent Plaintiff is again attempting to supplement this

claim via the “minimum staffing and mandatory overtime”

language, he may not do so for the reasons set forth in the

preceding footnote.

8 Plaintiff’s Complaint incorrectly cites Berg at 219 F.3d 362

(3d Cir. 2000). The correct citation is 219 F.3d 261 (3d Cir.

2000). (Compl. ¶ 63.)

seek dismissal claiming that even “assuming . . . Plaintiff has

sufficiently pled a Defendant acted under color of law, that

there was an underlying constitutional violation, and Defendants

Smith and Warren are not entitled to qualified immunity,

Plaintiff has failed to plead Cumberland County caused the

constitutional violation.” (ECF No. 10-3 at 17.)

As discussed above, in order to state a plausible claim for

relief under § 1983, a plaintiff must first allege a violation

of a right secured by the Constitution or laws of the United

States. See West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v.

Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Therefore,

“[t]he first step in evaluating a [S]ection 1983 claim is to

identify the exact contours of the underlying right said to have

been violated and to determine whether the plaintiff has alleged

a deprivation of a constitutional right at all.” Kaucher v.

County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006).

In this case, the Administrators of Andujar’s estate allege

the County was responsible for the “supervision, control,

instruction, training and/or hiring” of Defendants Smith and

Warren, and that the County was “deliberately indifferent to the

constitutional rights of [Luis Andujar]” by failing to “equip

[Smith and Warren] with the specific tools necessary to manage

recurring and predictable situations such as the one involving

[Luis Andujar].” (Compl. ¶¶ 59-60.) As a result thereof,

Plaintiff alleges Andujar suffered various physical and mental

damages. (Compl. ¶ 61.) Again, as set forth more extensively

above, Plaintiff’s Complaint fails to adequately plead the

deprivation of any constitutional right owed to Andujar.

To the extent Plaintiff relies upon Berg, the Third

Circuit’s holding in that matter do not help Plaintiff establish

a claim, as Berg itself specifically reiterated that “[a]

showing of simple or even heightened negligence will not suffice

[for municipal liability under § 1983]” and “[f]ailure to

adequately screen or train municipal employees can ordinarily be

considered deliberate indifference only where the failure has

caused a pattern of violations.” Berg, 219 F.3d at 276 (cleaned

up). Here, Plaintiff lacks standing to assert claims of

constitutional violations suffered by inmates and has failed to

allege facts sufficient to show that Andujar suffered a

violation of his constitutional rights. Absent a plausible

violation of his constitutional rights, no municipality

liability may arise as to Plaintiff’s claims. Smith v. Gransden,

553 F. App’x 173, 178 (3d Cir. 2014); see also Reiff v. Marks,

511 F. App’x 220, 222-23 (3d Cir. 2013) (same). Since

Plaintiff’s Complaint is devoid of any facts to establish

municipal liability as discussed in Berg or in any other context

under § 1983, Defendants’ Motion to Dismiss shall be granted as

to the § 1983 Municipal Liability claim as set forth in the

Seventh Count of Plaintiff’s Complaint.

2. State Claims

Plaintiff raises seven Counts based upon New Jersey State

law: Violations of New Jersey’s Constitutional Right to Enjoy

Life and Liberty and New Jersey’s Civil Rights Act (Fifth

Count); New Jersey’s Constitutional Right to Pursue Safety and

Happiness and New Jersey’s Civil Rights Act (Sixth Count);

Failure to Accommodate Under New Jersey’s Law Against

Discrimination (Eighth Count); Tort of Outrage (Ninth Count);

Tort of Gross Insult (Tenth Count); Wrongful Death (Eleventh

Count); and, Survival Action (Twelfth Count). In addition to

the foregoing, Plaintiff raises hybrid federal/state claims

under the New Jersey State Constitution for Freedom of

Expression, Cruel and Unusual Punishment and Unreasonable

Seizure (First, Second and Fourth Counts); and, Failure to Train

under New Jersey’s Civil Rights Act (Seventh Count).

Where a federal court has original jurisdiction over

certain claims, it also has supplemental jurisdiction over all

other claims that are related to the action in that the other

claims form part of the “same case or controversy” under Article

III of the United States Constitution. 28 U.S.C. § 1367(a); see

also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725

(1966) (same). Title 28 U.S.C. § 1367 additionally provides

under subsection (c)(3) that district courts “may decline to

exercise supplemental jurisdiction . . . if . . . the district

court has dismissed all claims over which it has original

jurisdiction.” 28 U.S.C. § 1367 (c)(3); see also Kach v. Hose,

589 F.3d 626, 650 (3d Cir. 2009) (same). However, in this

Circuit, “where the claim over which the district court has

original jurisdiction is dismissed before trial, the district

court must decline to decide the pendent state law claims unless

considerations of judicial economy, convenience, and fairness to

the parties provide an affirmative justification for doing so.”

Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (emphasis in

original). “Additionally, the federal court should be guided by

the goal of avoiding needless decisions of state law . . . both

as a matter of comity and to promote justice between the

parties.” Gibbs, 383 U.S. at 726.

Unless and until Plaintiff provides this Court with at

least one plausibly sustainable federal claim, the court shall

defer any decision regarding Plaintiff’s state-based claims.

3. Amendment

Federal Rule of Civil Procedure 15(a)(2) provides that “a

party may amend its pleading . . . with the opposing party’s

written consent or the court’s leave.” 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.”).

In this case, Plaintiff does seek leave to amend in the

event this Court finds its claims deficient. (ECF No. 15 at

46.) Defendants oppose the granting of any such leave on the

basis of futility. (ECF No. 19 at 12.) While dismissal of the

current Complaint is clearly justified and the hurdles to

successfully plead one of more federal claims are unlikely to be

overcome, the court is not prepared to bar amendment based on

futility. Plaintiff’s Complaint is notable not so much for what

if alleges but what it fails to allege. Given the unprecedented

events of a global pandemic, the well-documented problems at the

Cumberland County Jail, and the sui generis nature of

Plaintiff’s claims, this Court is not prepared to hold that

Plaintiff may plead no facts that might support a plausible

violation of Andujar’s constitutional rights, as unlikely as

that seems on the current record. Accordingly, consistent with

long-standing Third Circuit precedent, leave to amend will be

granted with the understanding that Plaintiff will note well the

deficiencies in the current Complaint, as discussed above.

B. Motion for Sanctions

In addition to dismissal of Plaintiff’s claims, Defendants

seek sanctions, claiming Plaintiff was notified on December 13,

2022 that the facts contained within its Complaint were belied

by prison documentation regarding Andujar’s illness, decisions

regarding the denial of sick leave, and the last day of

employment at the prison before his death. (ECF No. 16-3 at 5-

6. Ex. 1.) In Defendants’ December 13, 2022 letter to

Plaintiff, Defendants demanded that in accordance with

Fed.R.Civ.P. 11, Plaintiff withdraw all claims against them

within ten days. (ECF No. 16-3 at 6, Ex. 1.)

In response to Defendants’ Motion for Sanctions, Plaintiff

argues it should be denied because: (1) Defendants filed their

Motion to Dismiss four days prior to serving the December 12,

2022 letter upon Plaintiff’s counsel; (2) no Orders regarding a

Rule 16 Conference or date within which to amend have been

issued yet; and (3) the documents relied upon by Defendants have

not been certified as accurate or complete, therefore Plaintiff

should have an opportunity to investigate them. (ECF No. 18 at

4-5.)

Plaintiff does not contest the fact that it received notice

of dispositive factual discrepancies prior to filing its

Opposition to Defendants’ Motion to Dismiss. In fact, Plaintiff

had ten days within which to ascertain the veracity of the

documents relied upon by Defendants yet has given this Court no

indication that it ever attempted to do so. As discussed above,

reasonableness in the context of a Rule 11 inquiry has been

defined as “an objective knowledge or belief at the time of the

filing of a challenged paper that the claim was well grounded in

law and fact.” Ford Motor Co., 930 F.2d at 289.

At first glance, Defendants’ sanctions motion is more than

colorable. If only some of the facts alleged in the motion are

true, a serious issue is raised as to whether Plaintiff’s

counsel took the appropriate measures to “stop, look, and

listen” as to the factual allegations in the Complaint. And the

court has already set forth in detail the lack of a viable

federal claim.

On the record, however, the court will decline to impose

sanctions at this time for several reasons. First, our Court of

Appeals has made clear that Rule 11 sanctions should be awarded

in only the most extraordinary circumstances. Here, it is

obvious from the nature of the claims that the most reliable

source of information about the events leading to his death –

Andujar himself - is no longer with us to recount those facts

(ECF No. 18-1 at ¶ 11). Moreover, it appears counsel for

Plaintiff endeavored in good faith to learn information from

third parties, including family members. (ECF No. 18-1 at ¶¶ 15-

17.)

While one can presume Plaintiff’s counsel would have been

privy to Andujar’s personal medical records, a portion of the

records Defendants rely on for their motion – his employment

records – would not have clearly been available to Plaintiff

pre-suit. The Court is also mindful, as noted, of the unusual

circumstances of a pandemic, a public institution roiled by

various challenges, and a contentious labor dispute centered on

the jail’s woefully inadequate Covid-19 policy and overall

medical staffing and procedures. Moreover, as doubtful as a

viable federal constitutional claim may seem at this stage, the

court has erred on the side of allowing amendment, as is common

in cases alleging violations of our cherished civil rights.

This is not to say that Plaintiff may repeat these

mistakes. Having now been informed of the possibility, even

likelihood, that fundamental facts asserted in the Complaint are

simply wrong, this Court will carefully and thoroughly

scrutinize any renewed motion to dismiss and motion for

sanctions if any Amended Complaint suffers from the same factual

and legal defects as the first.

CONCLUSION

Plaintiff’s attempt to recast what appears to be a personal

labor and employment dispute between Andujar and his government

employer into a claim of constitutional dimension akin to the

rights afforded those he had the responsibility of guarding,

fails in its first iteration. Accordingly, and for the reasons

set forth above, the court will grant Defendants’ Motion to

Dismiss as to Plaintiff’s federal claims but grant Plaintiff

leave to file an Amended Complaint within 30 days if Plaintiff

may do so consistent with Federal Rule of Civil Procedure 11.

If Plaintiff elects not to file an Amended Complaint, the state

law claims will be dismissed without prejudice. Defendants’

motion for sanctions will be denied on the current record.

An appropriate Order will accompany this Opinion.

Dated: _7/27/23 __ /s/ Noel L. Hillman _

Camden, New Jersey Noel L. Hillman, U.S.D.J.