ORTIZ v. CUMBERLAND COUNTY FREEHOLDERS

*NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

NELSON ORTIZ, :

: Civ. No. 21-19953 (RMB-SAK)

Plaintiff :

:

v. : OPINION

:

CUMBERLAND COUNTY :

FREEHOLDERS et al., :

:

Defendants :

____________________________________

APPEARANCES:

Matthew A. Hamermesh, Esq.

Hangley, Aronchick, Segal & Pudlin, P.C.

20 Brace Road, Suite 201

Cherry Hill, NJ, 08034

Kyle M. Heisner, Esq.

Hangley, Aronchick, Segal & Pudlin & Schiller, P.C.

One Logan Square, 27th Floor

Philadelphia, PA 19103

Pro Bono Counsel on behalf of Plaintiff

A. Michael Barker, Esq.

Barker, Gelfand & James, P.C.

Linwood Greene

210 New Road, Suite 12

Linwood, NJ 08221

On behalf of Defendants

RENÉE MARIE BUMB, CHIEF UNITED STATES DISTRICT JUDGE

This matter comes before the Court upon the motion to dismiss the first

amended complaint (“FAC”) by Defendant Sergeants Mendibles, Govan, Hines and

Fazzolari1 (Defs’ Mot. to Dismiss, Dkt. No. 81) and Plaintiff’s brief in opposition to

Defendants’ motion to dismiss (“Pl’s Opp. Brief” Dkt. No. 90.) For the reasons

discussed below, the Court will grant in part and deny in part the motion to dismiss.

I. FIRST AMENDED COMPLAINT

In his FAC, Plaintiff alleges the following incidents occurred on October 2,

2021, while he was a pretrial detainee in Bridgeton, New Jersey. (FAC ¶¶ 1, 3, 10;

Dkt. No. 52.) Plaintiff was yelling to a friend and ignored Sergeant Fazzolari’s

(“Fazzolari”) direction to “shut up.” Fazzolari and Sergeant Hines (“Hines”)

handcuffed Plaintiff to take him to the disciplinary pod for four hours confinement.

(Id. ¶¶ 5, 6, 20.) Plaintiff asked if he could wear his sweatsuit and bring his coffee

with him, and Hines and Fazzolari said yes, if he went quietly. (Id. ¶ 21.) While

Hines and Fazzolari began escorting Plaintiff toward an elevator, Sergeant

Mendibles (“Mendibles”) appeared and told Plaintiff to throw his coffee away. (Id.

¶¶ 3, 22.) When Plaintiff responded that he had permission to bring his coffee with

him, Mendibles “violently smacked the hot coffee out of [Plaintiff’s] hand-cuffed

hands and struck [him] in the face, causing burns to [his] leg and injuries to his

face….” (“the Coffee Incident”) (Id., ¶ 22.) After this incident, Plaintiff verbally

expressed anger at Mendibles and took a step in his direction without touching him.

1 Sergeant Fazzolari’s name is spelled in different ways throughout the pleadings and

motions filed in this matter. The court will use the spelling provided in the

amended notice of appearance, entered by Greg DiLorenzo, Esq., on behalf of

Sergeant Fazzolari and others. (Dkt. No. 62.)

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(Id. ¶ 23.) In response, Mendibles, Hines and Sergeant Govan (“Govan”) dragged

Plaintiff onto the nearby elevator while punching and striking him (“the Elevator

Incident”). (Id. ¶¶ 5, 24.) Fazzolari stood by and watched the assault without

intervening or making any attempt to stop the assault. (Id. ¶ 25.) Plaintiff suffered

severe injuries from the assault by Mendibles, Hines and Govan, and he was

subsequently denied medical care. (Id. ¶¶ 27-29.) Plaintiff alleges there was a video

recording of the assault from cameras installed in Cumberland County Jail, but it

was destroyed before the Special Investigations Unit began an investigation of the

incident in January 2022. (Id., ¶¶ 31-36.)

Plaintiff alleges Mendibles, Hines and Govan subjected him to excessive use

of force in violation of the Fourth, Fifth, Eighth and Fourteenth Amendments in

violation of 42 U.S.C. § 1983, and Fazzolari violated the Fourth, Fifth, Eighth and

Fourteenth Amendments under 42 U.S.C. § 1983 by failing to intervene in the

excessive force used by Mendibles, Hines, and Govan. Subsequently, Plaintiff

voluntarily dismissed his Eighth Amendment and state tort claims. Plaintiff now

agrees to dismiss his Fifth Amendment claims. (Pl’s Opp. Brief, Dkt. No. 90 at 4.)

The remaining § 1983 claims are based on alleged violations of Plaintiff’s rights

under the Fourth and Fourteenth Amendments. (Defs.’ Mot. to Dismiss, Dkt. No.

81-1 at 5.)

II. DISCUSSION

A. Rule 12(b)(6) Standard of Law

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Under Federal Rule of Civil Procedure 12(b)(6), a party may assert the defense

of failure to state a claim for relief and bring a motion to dismiss the pleading. To

survive a motion to dismiss, a complaint must contain sufficient facts “to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim for

relief is deemed "plausible" where the court is able "to draw the reasonable inference

that the defendant is liable for the misconduct alleged." Twombly, 550 U.S. at 556.

When determining a Rule 12(b)(6) motion, a reviewing court must “accept as true”

all well-pled factual allegations. Id. at 572 (quoting Swierkiewicz v. Sorema N. A., 534

U.S. 506, 508, n. 1 (2002)). Thus, to determine the sufficiency of a complaint under

the Rule 12(b)(6) standard, courts must: 1) determine the elements necessary to

state a claim; 2) identify conclusory allegations that are not entitled to the

assumption of truth; 3) identify well-pleaded factual allegations, assume their

veracity and determine whether they plausibly give rise to an entitlement for relief.

Santiago v. Warminster Twp., 629 F.3d 121, 129–30 (3d Cir. 2010) (internal quotation

marks and quotations omitted). In determining a Rule 12(b)(6) motion to dismiss,

courts consider allegations contained in the complaint, exhibits attached to the

complaint, matters of public record, and “an undisputedly authentic document that a

defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are

based on the document.” Levins v. Healthcare Revenue Recovery Grp. LLC, 902 F.3d

274, 279 (3d Cir. 2018) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus.,

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Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

B. Excessive Force Claim: The Coffee Incident

Plaintiff’s first allegation of excessive force in the FAC is that Mendibles

knocked the coffee out of Plaintiff’s hands and struck or smacked him in the face,

which Defendants contend was an objectively reasonable use of force. (Defs’ Mot.

to Dismiss, Dkt. No. 81-1 at 8-9, 19-20.) Defendants describe the following

circumstances: 1) Plaintiff did not follow the direction to throw the coffee away; 2)

it is unreasonable to infer the spilled coffee caused a significant burn; 3) Plaintiff does

not allege Mendibles intended to cause injury; 4) striking Plaintiff was objectively

reasonable because he made verbal threats and stepped toward Mendibles; and 5)

Plaintiff does not allege his injury from the slap by Mendibles was more than

minimal.

Plaintiff asserts Defendants mischaracterized the allegations in the FAC.

(Pl’s Opp. Brief, Dkt. No. 5-6, 8-10.) Plaintiff alleged the following: (1) he was

handcuffed when Mendibles approached and told him to throw his coffee away; (2)

Plaintiff told Mendibles the other officers who were present gave him permission to

bring his coffee with him; (3) Mendibles “violently smacked” the coffee out of

Plaintiff’s hands and slapped his face; and (4) it was only after Mendibles slapped

him that Plaintiff verbally expressed anger and took a step toward Mendibles,

without touching him. Plaintiff contends Mendibles’ lack of intent to cause injury is

not a factor in the excessive force analysis. Finally, Plaintiff argues that he is not

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required to plead evidence of the extent of his injury, nor is the extent of his injury a

controlling factor in the determination of what constitutes an objectively reasonable

use of force under the circumstances.

Defendants further contend Mendibles is entitled to qualified immunity.

Plaintiff opposes qualified immunity because striking a physically restrained and

nonthreatening inmate is a clearly established violation of the Fourteenth

Amendment’s protection against punishment of a pretrial detainee.

1. Application of Fourth and/or Fourteenth Amendment

Plaintiff seeks to bring his excessive force and failure to intervene claims under

the Fourth and Fourteenth Amendments, but Defendants contend only the

Fourteenth Amendment governs excessive force or failure to intervene claims by

pretrial detainees, and Plaintiff’s Fourth Amendment claims should be dismissed.

The Third Circuit has recognized that the Supreme Court left open the

possibility that the Fourth Amendment protects pretrial detainees from excessive use

of force. See Rosser v. Donovan, No. 20-3278, 2021 WL 5055837, at *2 (3d Cir. Nov.

1, 2021) (quoting Lombardo v. City of St. Louis, Missouri, 594 U.S. 464, 466 n.2 (2021)

(per curiam) (additional citations omitted) (“[w]hatever the source of law, in

analyzing an excessive force claim, a court must determine whether the force was

objectively unreasonable in light of the facts and circumstances of each particular

case”); Jacobs v. Cumberland Cnty., 8 F.4th 187, 194 (3d Cir. 2021) (citing Kingsley v.

Hendrickson, 576 U.S. 389, 408) (Alito, J., dissenting); Graham v. Conner, 490 U.S.

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386, 395 n. 10) (1989) (“[t]he Supreme Court has not yet determined whether pretrial

detainees can bring excessive-force claims under the Fourth Amendment.”))

Plaintiff, therefore, may potentially bring a Fourth Amendment excessive force

claim, and by logical inference, a Fourth Amendment failure to intervene claim.

Defendants, however, are entitled to qualified immunity under the Fourth

Amendment because the right of pretrial detainees to be free from excessive

force, and by inference the limited right to intervention in the use of excessive

force, are not clearly established rights of pretrial detainees under the Fourth

Amendment. See Mack v. Yost, 63 F.4th 211, 228 (3d Cir. 2023) (a § 1983 defendant

is entitled to qualified immunity if the right at issue was not clearly established at the

time it was allegedly violated) (citation omitted). Therefore, the Court will grant

Defendants’ motion to dismiss the Fourth Amendment claims in the FAC.

2. Elements of Fourteenth Amendment Excessive Force Claim

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of

a right secured by the Constitution or laws of the United States, and that the alleged

deprivation was committed or caused by a person acting under color of state law.

West v. Atkins, 487 U.S. 42, 48 (1988). The Due Process Clause of the Fourteenth

Amendment protects a pretrial detainee from “‘the use of excessive force that

amounts to punishment.’” Robinson v. Danberg, 673 F. App'x 205, 209 (3d Cir. 2016)

(quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). To establish a due

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process violation, a detainee must prove “‘that the force purposely or knowingly used

against him was objectively unreasonable….’” Id. Objective reasonableness is

determined based on the “facts and circumstances of each particular case” from the

perspective of a reasonable officer on the scene, without the vision of hindsight. Id.

(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). Where the plaintiff is a

pretrial detainee, courts must consider the legitimate interest in maintaining internal

order, discipline and security in the detention facility. Id. Additional factors courts

should consider in determining whether the use of force was objectively reasonable

include:

(1) the relationship between the need for the use of force

and the amount of force used; (2) the extent of the

plaintiff’s injury; (3) any effort made by the officer to

temper or to limit the amount of force; (4) the severity of

the security problem at issue; (5) the threat reasonably

perceived by the officer; and (6) whether the plaintiff was

actively resisting.

Rosser v. Donovan, No. 20-3278, 2021 WL 5055837, at *2 (3d Cir. Nov. 1, 2021)

(quoting Kingsley, 576 U.S. at 397) (citing Graham, 490 U.S. at 396)).

3. Analysis

Based on the allegations in the FAC, Plaintiff posed little or no threat to

Defendants or others because he was handcuffed and escorted by two officers to the

disciplinary pod for ignoring an order to shut up. Plaintiff had not been involved in

an argument, he was yelling to a friend, and he alleges he had permission to take his

coffee to the disciplinary pod. Plaintiff alleges he did not immediately follow

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Mendibles’ order to dispose of his coffee. Instead, he responded that the other

officers, who were present to confirm or deny his claim, gave him permission to

bring his coffee with him. The Court recognizes a legitimate security interest in

controlling the circumstances under which a pretrial detainee in a detention center

may have hot coffee, which could be thrown at someone to cause injury or

disruption. Furthermore, to maintain security and order in a detention facility,

detainees must follow staff directions. Plaintiff, however, alleged Mendibles reacted

violently where no violence was required. Accepting the truth of the factual

circumstances alleged in the FAC, Mendibles did not make an effort to temper or

limit the amount of force necessary to obtain Plaintiff’s compliance with his order to

dispose of his coffee. Plaintiff alleged he was burned by the coffee and suffered an

injury from the slap to his face. The injuries alleged may be minimal, but this factor

alone does not preclude a finding that Mendibles’ use of force was objectively

unreasonable under the circumstances. See Robinson, 673 F. App'x at 209–10

(quoting Brooks v. Kyler, 204 F.3d 102, 104 (3d Cir. 2000) (“‘there is no fixed

minimum quantum of injury that a prisoner must prove that he suffered through

objective or independent evidence in order to state a claim for ... excessive force.’”)

Subjective intent to punish is also not necessary to state a Fourteenth Amendment

excessive force claim. Kingsley, 576 U.S. at 398. Rather, “a pretrial detainee can

prevail … [on] objective evidence that the challenged governmental action is not

rationally related to a legitimate governmental objective or that it is excessive in

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relation to that purpose.” Id. When all facts and circumstances alleged in the FAC

are accepted as true under the Rule 12(b)(6) standard, Plaintiff sufficiently pled

Mendibles used force that was objectively unreasonable and amounted to

punishment under the Fourteenth Amendment.

This does not end the analysis because Defendants contend Mendibles is

entitled to qualified immunity. (Defs’ Mot. to Dismiss, Dkt. No. 81-1 at 21.)

Plaintiff disagrees. (Pl’s Opp. Brief, Dkt. No. 90 at 10.) Qualified immunity

protects an official from liability under § 1983 “‘unless it is shown that the official

violated a statutory or constitutional right that was ‘clearly established’ at the time of

the challenged conduct.’” Dean v. Borough of Glassboro, No. 21-2468, 2023 WL

2597586, at *2 (3d Cir. Mar. 22, 2023) (quoting Plumhoff v. Rickard, 572 U.S. 765,

778 (2014)). A constitutional right is clearly established when “‘any reasonable

official in the defendant's shoes would have understood that he was violating it.’”

Id. This can be shown where existing precedent establishes beyond debate that the

official’s conduct, under the circumstances, violated a constitutional right. Id.

(internal quotation marks and quotations omitted). Broad general propositions in

precedential cases, without sufficient factual context, do not clearly establish a

constitutional right for purposes of qualified immunity. Id. (citing Mullenix v. Luna,

577 U.S. 7, 12 (2015) (per curiam) (additional citations omitted)). On the other

hand, qualified immunity does not require caselaw that is directly on point. Jacobs v.

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Cumberland Cnty., 8 F.4th 187, 195–97 (3d Cir. 2021) (quoting al-Kidd, 563 U.S. at

741.))

In the Third Circuit, it is clearly established that “striking a physically

restrained and nonthreatening inmate” constitutes objectively unreasonable force

under the Fourteenth Amendment. Id. at 197 (citations omitted). Plaintiff’s

response to Mendibles’ command to dispose of his coffee would not cause an

objectively reasonable officer to feel threatened under the circumstances alleged and

other actions were available to dispose of Plaintiff’s coffee. Therefore, the Court

will deny Defendants’ motion to dismiss Plaintiff’s Fourteenth Amendment

excessive force claim against Mendibles for the coffee incident.

C. The Elevator Incident

Defendants argue Plaintiff’s excessive force claim against Mendibles, Hines,

and Govan should be dismissed because the allegation that Plaintiff verbally

expressed anger at Mendibles and took a step toward him justified their actions to

maintain and restore discipline. (Defs’ Mot. to Dismiss, Dkt. No. 81-1 at 21-23.)

Furthermore, Defendants submit the claim is deficient because Plaintiff did not

describe the extent of his injuries, and Plaintiff acknowledges his claim will not be

supported by evidence obtained in discovery because there is no video recording of

the incident, and Plaintiff has no medical records to corroborate his alleged injuries.

Finally, Defendants contend Plaintiff did not sufficiently allege each defendant’s

personal involvement in the incident by identifying which defendant struck him and

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caused injury. Moreover, the injuries alleged are de minimus.2

Plaintiff disagrees with Defendants’ recitation of the allegations in the FAC

and conclusion that the force used was objectively reasonable under the

circumstances alleged. (Pl’s Opp. Brief, Dkt. No. 90 at 11-12.) The FAC alleges

Hines, Govan and Mendibles reacted to Plaintiff’s verbal expression of anger about

the coffee incident and his step toward Mendibles, by punching, striking and

dragging him. Plaintiff’s maintains his allegation that surveillance video was

destroyed is an improper basis for dismissal. Plaintiff also contends the federal

notice pleading standard of Rule 8(a)(2) does not require that he plead details

describing each defendant’s involvement in the assault in which all participated.

3. Analysis

Accepting the allegations as true, as this Court must in determining a Rule

12(b)(6) motion, punching, striking and dragging a handcuffed and outnumbered

inmate in response to his verbal expression of anger and merely taking a step in the

direction of an officer, is excessive in relation to the legitimate purpose of escorting

the inmate to a disciplinary pod for a nonviolent infraction. Plaintiff’s admission

that he lacks medical records or video surveillance to prove his claims does not

require dismissal on a Rule 12(b)(6) motion. “[A] well-pleaded complaint may

proceed even if it strikes a savvy judge that actual proof of those facts is improbable.”

2 Defendants do not assert qualified immunity on this claim.

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Plaintiff alleges t Mendibles,

Hines and Govan were personally involved in the alleged Fourteenth Amendment

excessive force claim by punching and striking him. “The extent of each officer's

participation is [] a classic factual dispute to be resolved by the fact finder.” Meronvil

v. Doe, No. CV178055KMCLW, 2023 WL 4864383, at *9 (D.N.J. July 31, 2023)

(quoting Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002)). Furthermore, “any

inference that the degree of harm alleged is a threshold requirement to pleading an

excessive force claim is contradicted by relevant precedent” Goenaga v. MacDonald,

No. 3:14-CV-2496, 2017 WL 1178072, at *4-5 (M.D. Pa. Mar. 30, 2017) (citing

Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010); Smith v. Mensinger, 293 F.3d 641, 648 (3d

Cir. 2002)). Therefore, the Court will deny Defendants’ motion to dismiss

Plaintiff’s Fourteenth Amendment claim of excessive force against Mendibles,

Govan and Hines.3

D. Failure to Intervene in the Use of Excessive Force

Defendants also seek dismissal of the Fourteenth Amendment failure to

intervene claim against Fazzolari. They assert Plaintiff failed to plead sufficient

facts, such as how long the assault lasted, to show Fazzolari had a reasonable

opportunity to intervene in the Elevator Incident. (Defs’ Mot. to Dismiss, Dkt. No.

81-1 at Plaintiff counters that he has pled sufficient facts to meet the notice

3 Defendants did not raise qualified immunity as a defense to the excessive force

claim against Mendibles, Hines and Govan.

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pleading standard of Federal Rule of Civil Procedure 8(a)(2). (Pl’s Opp. Brief, Dkt.

No. 90 at 13.)

“A corrections officer who witnesses but fails to intervene in the beating of an

inmate by other officers is culpable if the officer had a ‘reasonable opportunity’ to

intervene but refused to do so.” A.M. ex rel. J.M.K. v. Luzerne Cty. Juv. Det. Ctr., 372

F.3d 572, 587 (3d Cir. 2004) (quoting Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir.

2002)). Plaintiff alleged Defendant Fazzolari “stood by and watched the assault

without intervening or making any attempt to stop” Mendibles, Govan and Hines

“from punching and striking Ortiz.” (FAC ¶ 25, Dkt. No. 5.) Allegations that

Fazzolari “stood by and watched” and failed to make “any attempt to stop” the

assault, is sufficient to state a claim. See e.g., Cook v. Carney, No. 24-CV-0314, 2024

WL 3204458, at *5 (E.D. Pa. June 26, 2024) (finding allegations of officers’ presence

and failure to intervene in inmate assault sufficient to state a Fourteenth Amendment

claim) (citing Bistrian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012) abrogation on other

grounds recognized by Mack v. Yost, 968 F.3d 311, 319 n.7 (3d Cir. 2020)). Therefore,

the Court will deny Defendants’ motion to dismiss Plaintiff’s Fourteenth

Amendment failure to intervene claim.

IV. CONCLUSION

The Court will dismiss Plaintiff’s Fourth Amendment excessive force claims

and Plaintiff’s Fourth Amendment failure to intervene claim based on qualified

immunity, and the Court will deny the motion to dismiss the Fourteenth

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Amendment excessive force and failure to intervene claims in the FAC.

An appropriate Order follows.

Date: September 24, 2024

s/Renée Marie Bumb

RENÉE MARIE BUMB

Chief United States District Judge

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