ORTIZ v. CUMBERLAND COUNTY FREEHOLDERS

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

:

NELSON ORTIZ, :

: Civil No. 21-19953 (RMB-MJS)

Plaintiff :

: OPINION

v. :

:

COUNTY OF CUMBERLAND, :

et al., :

:

Defendants :

________________________________

APPEARANCES:

Matthew A. Hamermesh, Esq.

Hangley Aronchick Segal Pudlin & Schiller

1415 Route 70 East, Suite 405

Cherry Hill, NJ 08034

Kyle M. Heisner

Hangley Aronchick Segal Pudlin & Schiller

One Logan Square, 27th floor

Philadelphia, PA 19103

On behalf of Plaintiff.

A. Michael Barker, Esq.

Greg Paul DiLorenzo, Esa.

Barker, Gelfand & James

210 New Road, Suite 12

Linwood, NJ 08221

On behalf of Defendants R. Mendibles, D. Govan, Sergeant Hines and

Sergeant Fazzolari

Justin Robert White

Testa Heck Testa & White, PA

424 W. Landis Avenue

Vineland, NJ 08360

On behalf of Defendant Cumberland County

RENÉE MARIE BUMB, Chief United States District Judge

This matter comes before the Court upon (i) the Motion for Summary

Judgment filed by Defendants Sergeant R. Mendibles (“Mendibles”), Sergeant D.

Govan (“Govan”), Sergeant Hines (“Hines’) and Corrections Officer Fazzolari

(“Fazzolari”) (collectively “the Officer Defendants”) [Docket No. 119]; and (ii) the

Motion for Summary Judgment [Docket No. 120], filed by Defendant Cumberland

County (“Cumberland County”). Plaintiff Nelson Ortiz (“Plaintiff” or “Ortiz”)

opposed both motions [Docket No. 125 (“Pl.’s Opp’n Br. to Officers.”); Docket No.

127 (“Pl.’s Opp’n to CC”)]. The Court has considered the parties submissions1 and

1 The Court will refer to the parties’ submissions as follows: (i) the Officer

Defendants’ Brief in Supp. of MSJ [Docket No. 119-4] (“Officers’ Br.”)], their

Statement of Undisputed Material Facts [Docket No. 119-3 (“Officers’ SOMF”),

their Reply Brief in Support of SJ [Docket No. 131 (“Officers’ Reply Br.”); their

Reply to Pl’s Responses to Officer Defs’ Statement of Facts [Docket No. 131-1

(“Officers’ RSOMF”)], and their Reply to Pl’s Counterstatement of Facts [Docket

No. 131-2 (“Officers’ RCSOMF”) (ii) Cumberland County’s Brief in Supp. of MSJ

[Docket No. 120-2 (“CC’s Br.”)]; Cumberland County’s Statement of Undisputed

Facts [Docket No. 120-1 (“CC’s SOMF”], their Reply Brief in Supp. of MSJ [Docket

No. 132 (“CC’s Reply Br.”)], and their Reply to Pl’s Statement of Material Facts

[Docket No. 132-1 (“CC’s RCSOMF”)] and (iii) P’s Brief in Opp’n to MSJ by

Defendants Mendibles, Hines, Govan and Fazzolari [Docket No. 125](Pl’s Br.

Opp’n Officers) Pl.’s Response to Officers’ SOMF [Docket No. 125-1 (“Pl.’s Resp.

Officers’ SOMF”), his Counterstatement of Facts to Officers’ MSJ [Docket No. 126

(“CSOMF to Officers”), his Brief in Opp’n to MSJ by Cumberland County [Docket

No. 127 (“Pl’s Br. Opp’n CC”)]; Response to Cumberland County’s Statement of

Undisputed Material Facts [Docket No. 127-1 (“Pl.’s Resp. CC’s SOMF”)], and Pl’s

Counterstatement of Facts to Cumberland County’s MSJ [Docket No. 128

will determine the motions without oral argument pursuant to Federal Rule of Civil

Procedure 78(b) and Local Civil Rule 78.1(b).

The Officer Defendants’ summary judgment motion presents the following

issues: (i) whether there is a genuine issue of disputed fact as to whether Mendibles

used excessive force against Plaintiff, in two incidents, in violation of the Fourteenth

Amendment, and if so, whether he is entitled to qualified immunity; (ii) whether

Hines and Govan used excessive force against Plaintiff, in one incident, in violation

of the Fourteenth Amendment; (iii) whether Fazzolari failed to intervene in violation

of the Fourteenth Amendment, when Mendibles, Govan and Hines used excessive

force against Plaintiff; (iv) whether a deficiency in Cumberland County’s training

and/or supervision concerning excessive use of force and failure to intervene caused

Mendibles, Hines, Govan and Fazzolari to violate Plaintiff’s Fourteenth

Amendment due process right to be free from punishment as a pretrial detainee; (v)

whether the Court should strike the Deposition of Charles Lawson; and (vi) whether

Plaintiff is entitled to an adverse inference based on the Defendants’ failure to

preserve surveillance video of the incident that occurred on October 2, 2021.

[Officers’ Br.]

Cumberland County’s summary judgment motion presents the following

issues: (i) whether Cumberland County adequately trained and supervised its

(“CSOMF to CC”). Page citations to the briefs and supporting documents are to the

page numbers assigned to the document by CM/ECF on the top right corner of the

page.

correctional officers; (ii) whether Cumberland County properly and adequately

investigated claims of excessive force; (iii) whether Cumberland County maintained

adequate policies for providing medical care to Inmates through CFG Health

Systems, L.L.C., a dismissed defendant. [CC’s Br.]

For the reasons that follow, the Court will GRANT in part Cumberland

County’s Motion for Summary Judgment; GRANT in part Mendibles’ Motion for

Summary Judgment based on qualified immunity; and DENY the remainder of the

Officer Defendants’ Motion for Summary Judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

The parties disagree on much, but they agree that Plaintiff was a pretrial

detainee in Cumberland County Jail on October 2, 2021, and Fazzolari, a

corrections officer, ordered Plaintiff to shut up because he was repeatedly yelling to

an inmate in another housing area. [Officers’ RSOMF ¶ 1; Pl’s Resp. CC’s SOMF ¶¶

1, 2.] When Plaintiff ignored Fazzolari’s order, Fazzolari told Plaintiff to “suit up,”

which they both understood to mean Plaintiff should put on his jumpsuit to go to the

disciplinary pod. [Officers’ RSOMF ¶ 3; Pl’s Resp. CC’s SOMF ¶ 3.] Plaintiff

responded that Fazzolari should call for backup, and he did. [Id. ¶¶ 3, 5; Pl’s Resp.

CC’s SOMF ¶¶ 3, 4.]

Plaintiff then asked Fazzolari if he could wear his sweatshirt instead of

“suiting up” and bring his cup of coffee to the disciplinary pod. [Officers’ RSOMF ¶

7; Pl’s Resp. CC’s SOMF ¶ 4.] Fazzolari consented, although it is typically not

permitted. [Officers’ RSOMF ¶ 8; Pl’s Resp. CC’s SOMF ¶ 4.] Hines and Fazzolari

began the escort to the disciplinary pod. [Officers’ RSOMF ¶ 9; Pl’s Resp. CC’s

SOMF ¶ 5.] Mendibles and Govan also responded to the call for backup. [Officers’

RSOMF ¶¶ 10, 16; Pl’s Resp. CC’s SOMF ¶¶ 5, 6.] Plaintiff, Mendibles, Hines and

Govan gave different accounts of the circumstances surrounding what happened

next, but Plaintiff and Mendibles agree that Mendibles smacked the coffee cup out of

Plaintiff’s hands. [Officers’ RSOMF ¶ 11, Pl’s Resp. CC’s SOMF ¶ 6.] Plaintiff

alleges he was burned by the coffee, but it is contested whether Plaintiff suffered any

injuries on October 2, 2021, burns or otherwise. [Am. Compl. ¶ 22; Officers’

RSOMF ¶ 21; Pl’s Resp. CC’s SOMF ¶¶ 15-18.]

After the coffee spill, Plaintiff submits Hines and Govan admitted they did not

see Plaintiff do anything threatening to the officers present at the scene, but

Cumberland County submits Hines testified that Plaintiff had “tensed up” and was

threatening Mendibles verbally and with his body language. [CC’s RCSOMF ¶ 14.]

The parties disagree on the circumstances that immediately followed the coffee spill,

but Plaintiff testified Mendibles slapped him in the face,2 and Mendibles testified that

2 Specifically, Plaintiff testified, “As it burned me, then that is when he told me to

shut the fuck up and he smacked me in my face.” [Ortiz Tr. 31:24-25 to 32:1.]

Plaintiff testified the whole incident with Mendibles took fifteen seconds, “so yes, he

knocked it [the coffee] out of my cup. I said I had permission he said—smacked me

and said shut the fuck up.” [Id. at 32:13-16.]

he pushed Plaintiff’s head back with an open hand (“the coffee incident”). [Officers’

RSOMF ¶ 11; Pl’s Resp. CC’s SOMF ¶ 6.]

It is undisputed that there was video surveillance of the coffee incident and

Plaintiff’s subsequent entry into the elevator, but the video was unavailable to

Plaintiff in this action. [Officers’ RCSOMF ¶ 1; Pl’s Resp. CC’s SOMF ¶ 1.]

It is also undisputed that Plaintiff submitted an inmate request form at

Cumberland County Jail because he wanted to file a criminal complaint against

Mendibles, and that Plaintiff was interviewed by Special Investigation Unit (“SIU”)

Investigator Hoffman (“Hoffman”). [Pl’s Resp. CC’s SOMF ¶¶ 7, 8.] Hoffman

watched the surveillance video and presented a certification of his observations from

the video. [Id.] Plaintiff disputes Hoffman’s portrayal of the video—that Mendibles

pushed Plaintiff’s head rather than smacking his face. [Id.]

The parties agree that after Mendibles slapped or pushed Plaintiff in the face,

Plaintiff did not resist their escort to the elevator, but they disagree on Plaintiff’s

description of the escort to the elevator (“the elevator incident”). [CC’s RCSOMF ¶

17.] Plaintiff testified that Govan held him in a chokehold from behind while

Mendibles and Hines struck and kicked him seven to ten times in the ribs, arm and

all along his right side, as Plaintiff tried to shield himself. [Officers’ RCSOMF ¶ 19.]

According to Plaintiff, this occurred while Govan was dragging him the very short

distance to the elevator and continued in the elevator, but Plaintiff could not recall if

they were striking him after the elevator doors closed. [Docket No. 119-6, Ortiz Tr.

42:9 to 44:23.] It is undisputed the Fazzolari was present, but it is disputed whether

there was any use of force by Mendibles, Hines and Govan after the slap or push in

the face. [Officers’ RCSOMF ¶ 22.] It is undisputed that Plaintiff later filed criminal

complaints against Hines, Govan and Mendibles, which triggered an Internal Affairs

investigation by the SIU at Cumberland County Jail. [Pl’s Resp. to CC’s SOMF ¶

10.] Investigator Holbrook called a detective at the Cumberland County prosecutor’s

office and learned the charges had been dismissed. [Id.]

As discussed below, Defendants object to the introduction of Inmate

Christopher Lawson’s deposition transcript. Lawson testified that he saw one of the

officers slap the coffee out of Plaintiff’s hands and then start slapping him and

grabbing him by his neck and dragging him onto the elevator. [Officers’ RCSOMF

¶¶ 24, 25.] After Plaintiff got on the elevator, but before it went down, Lawson

testified that he heard screaming and hollering “Please don’t. Please stop.” [Id.]

Lawson clarified that he only observed the “smack” and he heard the rest. [Id.]

After the incident, according to Lawson, an officer directed the inmate witnesses to

sign statements that they did not witness the assault, under threat of losing their

television and phone privileges. [Id. ¶ 26.]

Cumberland County Department of Corrections (“CCDOC”) Director

Charles Albino (“Albino”) testified in a deposition concerning CCDOC’s training on

use of force. [Pl’s Resp. CC’s SOMF ¶ 12.] He testified that the guiding principle of

the training is to use the least amount of force necessary, but he also responded “I

don’t believe we have a specific policy that addresses passive resistance.” [Id.] It is

undisputed CCDOC officers are required to attend a correctional police academy

prior to employment, annual training, including supplemental training on the use of

force, but that Albino could not confirm or deny whether Mendibles, Hines, Govan

or Fazzolari actually received annual training on the use of force. [Id. ¶ 13.]

Plaintiff points to the conflicting interpretations of Cumberland County’s use

of force policies by the Officer Defendants as evidence the training was deficient.

[Pl’s Br. Opp’n CC at 12.] As an example, Plaintiff notes Govan testified that

slapping, punching or kicking an inmate should never be permitted, but Fazzolari

and Hines testified such force could be appropriate under certain circumstances. [Id.

at 13; CC RCOMF ¶¶ 34, 36.] Mendibles and Govan agreed that if the October 2,

2021 incident occurred as Plaintiff alleged, the force Plaintiff alleged was used

against him was excessive. [Id. ¶ 35.] From this, Plaintiff concludes Mendibles and

Govan did not understand, and thus were not sufficiently trained on Cumberland

County’s use of force policy. [Pl’s Br. Opp’n CC at 13.]

Plaintiff also argues Cumberland County’s conflict de-escalation policies and

training were deficient. [Id. at 15.] Plaintiff notes the Third Circuit, in Thomas v.

Cumberland County, 749 F.3d 217, 227 (3d Cir. 2014), found there were genuine

issues of material fact as to whether Cumberland County was deliberately indifferent

to the need for preservice training for officers on conflict de-escalation and

intervention. [Id.] It is disputed whether Cumberland County now provides de-

escalation or conflict resolution training to its officers as part of the overall training.

[CC RCOMF ¶¶ 55-57.]

Next, Plaintiff argues the training was not frequent or substantial enough for

the Officer Defendants to learn appropriate use of force. [Pl’s Br. Opp’n CC at 13.]

In support, Plaintiff notes Mendibles testified post-academy training was limited to

signing an acknowledgment the officer received a copy of the policies, with no

further instruction; whereas Cumberland County points to testimony by Mendibles,

Hines and Govan that they undergo annual use of force training during firearms

qualification and via the NJ Learn online platform. [CC RCOMF ¶ 37.] Albino

testified that officers received annual training, but he could not confirm the training

was consistently offered, what topics were covered, and that there was meaningful

instruction on use of force. [Pl’s Br. Opp’n CC at 14; CC RCOMF ¶¶ 41-42.]

Plaintiff submits biannual training was 20-30 minutes and did not address proper

techniques for use of force or intervention in excessive use of force. [CC RCOMF ¶¶

43-47.] Training records suggest officers received little to no post-academy use of

force training. [CC RCOMF ¶¶ 49-53.] Finally, Cumberland County failed to

identify any written training materials on appropriate use of force in response to

Plaintiff’s discovery requests, which Cumberland County denies because it produced

training files and jail policies. [CC RCOMF ¶ 54.]

Govan testified he read the policies, but not in recent memory, and he did not

know exactly what the written policies stated. [CC RCOMF ¶¶ 38-39.] Albino

could not identify training provided to officers on conflict de-escalation and

intervention prior to October 2021, and none is found in the officers’ training files.

[CC RCOMF ¶¶ 55-56.]

Plaintiff also supports his deficient training claim with Mendibles’ testimony

that in 20-years at Cumberland County Jail, he never found an instance where use of

force was unjustified, despite the fact that one year prior to October 2, 2021,

Cumberland County’s SIU determined excessive use of force was used. [Pl’s Br.

Opp’n CC at 13-15; CC RCOMF ¶¶ 40, 73, 74.]

Finally, Plaintiff contends Cumberland County’s deficient policies for inmate

reporting and investigative procedures render it liable for the alleged constitutional

violations by Mendibles, Hines, Govan and Fazzolari. [Pl’s Br. Opp’n CC at 15-19.]

The deficiencies Plaintiff identifies are (i) in October 2021, lack of a written policy for

inmate reporting excessive use of force [CC RCOMF ¶¶ 58, 74]; (ii) Cumberland

County Jail lacked a warden on October 2, 2021, so even if there was an unwritten

policy to report incidents to the warden, there was no warden, [CC RCOMF ¶¶ 58,

59]; (iii) Cumberland County’s SIU investigative process is flawed because there is

no policy to interview all appropriate witnesses [CC RCOMF ¶¶ 70-71] and SIU

Investigator Holbrook has a custom of coaching officers on how to avoid discipline

[CC RCOMF ¶¶ 79-82.] Plaintiff offered three examples from 2017-2019, where SIU

found an excessive use of force but failed to recommend additional training. [Pl’s Br.

Opp’n CC at 17-18; CC RCOMF ¶¶ 75-78.]

In further support of his claim, Plaintiff notes Cumberland’s designee on its

use of force policies and training was unable to confirm or deny whether

Cumberland County was aware of: (i) a single reported complaint of excessive use of

force at Cumberland County Jail, (ii) any complaints by inmates at Cumberland

County Jail of excessive use of force within five years preceding October 2, 2021 or

(iii) any discipline imposed on officers following complaints of excessive use of force,

although Cumberland County states Director Albino was not employed until after

Plaintiff’s allegations arose, and the documents produced speak for themselves. [Id.

at 18-19; CC RCOMF ¶ 88.]

B. Procedural History

Plaintiff initiated this action by filing a pro se complaint on November 11, 2021

[Docket No. 1 (“Complaint”)], and an Amended Complaint against Cumberland

County, R. Mendibles, D. Govan, Sgt. Hines, Sgt. Fazzolar[i], Eugene Caldwell,

Gabrielle Frisbey, and CFG Health Systems, L.L.C. (“CFG”) on October 10, 2023.

[Docket No. 52 (“FAC”).] Relevant here, Plaintiff asserted the following claims in

his FAC: Count One—excessive force and failure to intervene in violation of the

Fourth, Fifth, Eighth and Fourteenth Amendments under 42 U.S.C. § 1983 against

Mendibles, Hines, Govan, Fazzolari, Caldwell in their individual and official

capacities, and Cumberland County; Count Two—failure to provide medical care in

violation of the Fourteenth Amendment under 42 U.S.C. § 1983 against Frisbey,

Cumberland County and CFG; Count Three—assault and battery under New Jersey

common law against Mendibles, Hines and Govan in their official and individual

capacities; Count Four—intentional infliction of emotional distress against

Mendibles, Hines and Govan in their official and individual capacities.

On December 8, 2023, Plaintiff stipulated to dismissal of his claims against

Frisbey, as well as his Eighth Amendment claims, and the state common law claims

in Counts Three and Four of the FAC. [Docket Nos. 64, 66, 71.] On March 14,

2024, Mendibles, Govan, Hines and Fazzolari filed a joint motion to dismiss all

claims against them. [Docket No. 82.] In response to the motion to dismiss,

Plaintiff did not oppose dismissal of his claims alleged under the Fifth Amendment,

and this Court granted the motion to dismiss Plaintiff’s excessive force and failure to

intervene claims alleged under the Fourth Amendment, but permitted Plaintiff’s

excessive force and failure to intervene claims under the Fourteenth Amendment to

proceed. [Docket Nos. 108, 109.] Plaintiff stipulated to dismissal of his claims

against Caldwell on November 18, 2024. [Docket No. 115.] The summary

judgment motions at issue here were filed in January 2025, with briefing completed

on March 17, 2025.

II. LEGAL STANDARD

Summary judgment shall be granted if “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only if it might impact the

“outcome of the suit under the governing law.” Gonzalez v. Sec'y of Dep't of Homeland

Sec., 678 F.3d 254, 261 (3d Cir. 2012) (citation modified). A dispute is “genuine” if

the evidence would allow a reasonable jury to find for the nonmoving party. Id.

“[A] party seeking summary judgment always bears the initial responsibility of

… identifying those portions of the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986) (internal quotations omitted). The nonmovant’s burden is

to “point to concrete evidence in the record” to defeat summary judgment; mere

allegations, conclusions, conjecture, and speculation are insufficient. Orsatti v. N.J.

State Police, 71 F.3d 480, 484 (3d Cir. 1995). District courts must view “the evidence

in the light most favorable to the nonmoving party, [and] ask whether there is any

genuine issue of material fact[.]” Turco v. City of Englewood, New Jersey, 935 F.3d 155,

161 (3d Cir. 2019). “[E]nough evidence must exist to enable a jury to reasonably

find for the nonmovant on the issue.” Id. (citation modified).

III. ANALYSIS

A. Deposition of Christopher Lawson

In opposition to the Defendants’ motions for summary judgment, Plaintiff

relies, in part, on the deposition testimony of Charles Lawson, an inmate witness to

the October 2, 2021 incident. [Pl’s Br. Opp’n Officers at 9-12; CSOMF to Officers,

Pl.’s Ex. 2, 126-2 (“Lawson Depo.”); Pl’s Br. Opp’n CC at 6-7; CSOMF to CC ¶¶ 23-

25.]

In their reply briefs, the Officer Defendants and Cumberland County object to

Plaintiff’s introduction of the Lawson Deposition because Lawson ended the

deposition shortly after defense counsel began cross-examining him. [Officers’ Reply

Br. at 10-11; CC’s Reply Brief at 5.] Defense counsel noted, on the record, that they

would move to strike the deposition if cross-examination was not completed.

[Officers’ Reply Br. at 11.] Plaintiff’s counsel never rescheduled the deposition. [Id.]

Defendants object, pursuant to FRCP 56(c), to admission of the transcript of

the Lawson Deposition in opposition to summary judgment because it “cannot be

presented in a form that would be admissible in evidence.” [Id.] Defendants contend

that hearsay evidence may not be considered on summary judgment unless “capable

of being admissible at trial[,]” for example, if the out-of-court declarant could later

present the evidence through direct testimony. [Id. at 12.] Defendants explain that if

Lawson is unable to testify at trial, his deposition transcript would be inadmissible

under Federal Rule of Evidence 804(b)(1).3 [Id. at 13.] Defendants do not argue

Lawson would be barred from testifying at trial, but that his deposition transcript

would not be admissible, and the deposition transcript is what Plaintiff relies on in

opposition to summary judgment. In addition, Defendants move to strike4 the

3 FRE 804(b)(1) provides that former testimony from a lawful deposition, when a

party had an opportunity to develop the testimony by direct, cross or redirect

examination, is not excluded as hearsay.

4 Federal Rule of Civil Procedure 7(b) provides, in relevant part:

(b) Motions and Other Papers.

(1) In General. A request for a court order must be

made by motion. The motion must:

(A) be in writing unless made during a hearing or

trial;

(B) state with particularity the grounds for seeking

the order; and

(C) state the relief sought.

See also Local Civil Rule 7.1(b).

deposition transcript based on the unfairness resulting from Lawson’s failure to

submit to cross-examination. [Officers’ Reply Br. at 14-15.]

The Court is unable to predict whether Lawson will testify at trial, and

therefore, whether his deposition transcript will be admissible. However, because the

Court ultimately concludes the Officer Defendants are not entitled to summary

judgment with respect to the elevator incident, with or without exclusion of the

Lawson Deposition from the record, the Court need not reach Defendants’

objection.

B. Inferences Based on Missing Surveillance Video

The record establishes the coffee incident was captured on surveillance video,

but the Defendants were unable to produce the video to Plaintiff in this action. In

opposition to the Officer Defendants’ motion for summary judgment, Plaintiff relies

on deposition testimony of Mendibles and Govan, who agreed that if the incident

took place as Plaintiff alleges, the slap by Mendibles and their subsequent punching

and kicking Plaintiff would constitute an excessive use of force. [Pl’s Br. Opp’n

Officers at 10-11.]

Plaintiff further cites Hines’ deposition testimony that he watched surveillance

video of the incident on October 2, 2021, but he did not request to preserve the video

By raising their motion to strike informally in their reply briefs, Defendants deprived

Plaintiff of the opportunity to formally respond to their motion. Therefore, the Court

will consider only whether the Lawson Deposition is admissible in the summary

judgment record.

because he assumed someone else would. [Id. at 11-12.] Warden Caldwell testified

that officers who are present when a use of force takes place should initiate a request

to preserve video surveillance. [Id. at 11.] Mendibles also testified he did not request

to preserve the video. [Id.]

Plaintiff submits that when a party spoliates tangible evidence, district courts

have inherent powers to sanction the spoliator. [Id. at 16.] The video existed after

Plaintiff put Defendants on notice by filing a criminal complaint, but the video was

not preserved. [Id. at 17.]

The Officer Defendants oppose Plaintiff’s request for sanctions because

Plaintiff never filed a formal motion for an adverse inference prior to the summary

judgment stage, and because Plaintiff’s spoliation claim is baseless. [Officers’ Reply

Br. at 17.] They argue they never possessed the video and had no duty to preserve it;

the duty belonged to the SIU Department. [Id. at 20.] They further argue there is no

evidence the video was concealed or destroyed but only missing, therefore, there was

no bad faith. [Id. at 22.]

Federal Rule of Civil Procedure 7 and this Court’s Local Civil Rule 7.1,

require, among others things, that a request for a court order be made by motion and

the motion must state the relief sought. See supra n. 4. Plaintiff did not file a motion

for sanctions. What’s more, Plaintiff did not explicitly ask the Court for specific

relief. In his response to the Officer Defendants’ SOMF, Plaintiff states that he

“intends to request an adverse inference at trial.” [Pl’s Resp. to Officers’ SOMF ¶

16.] The Court need not determine, at the summary judgment stage, whether

Plaintiff has established that Defendants violated Federal Rule of Evidence 37(e) by

failing to preserve electronically stored information.5

C. Mendibles Is Entitled to Qualified Immunity for the Slap

1. Legal standard

“Qualified immunity protects [government officials] who make wrong but

reasonable judgment calls absent clearly established law.” Urda v. Sokso, No. 24-

1804, 2025 WL 2046175, at *1 (3d Cir. July 22, 2025) (pertaining to police officers);

Mack v. Yost, 63 F.4th 211, 221 (3d Cir. 2023) (pertaining to corrections officers).

The burden of proof falls on the party asserting the affirmative defense. Id. at 227. A

claim of qualified immunity requires a two-prong analysis. Anglemeyer v. Ammons, 92

F.4th 184, 188 (3d Cir. 2024). The first prong is whether the plaintiff has established

the violation of a constitutional right. Id. The second prong is whether the

constitutional right at issue was clearly established at the time of the defendant's

alleged misconduct. Id. For the constitutional right to be clearly established the law

must have been sufficiently clear that every reasonable official would understand that

what he is doing is unlawful. Id. at 191. “Usually, that requires controlling

precedent or a robust consensus of cases of persuasive authority.” Urda, 2025 WL

2046175, at *1) (citation modified). Only in rare circumstances is an officer's

constitutional violation “so obvious that no precedent is needed.” Id. at *2 (citation

modified). In most cases, “existing law must clearly establish that what this officer

5 This matter will need to be resolved pre-trial before the Honorable Matthew J. Skahill.

did in these circumstances violated the plaintiff's rights.” Id. (citation modified).

“The central question is whether the existing law gave the officer fair warning that

his particular conduct was unlawful.” Anglemeyer, 92 F.4th at 191 (citation modified)

(emphasis in original).

2. There is no closely analogous clearly established law

In the context of pretrial detention, excessive force claims are evaluated under

the Fourteenth Amendment’s objective reasonableness standard, as set forth in

Kingsley v. Hendrickson, 576 U.S. 389, 396–97 (2015). This assessment considers

factors such as the need for force, extent of injury, and the detainee’s resistance. Id.

at 397.

Here, taking the facts in the light most favorable to Plaintiff, Plaintiff was

cooperatively walking with Fazzolari and Hines to disciplinary confinement after

refusing an order to stop yelling across his tier and refusing to suit up until he was

granted his request to wear his sweatshirt and bring his coffee. Mendibles responded

to Fazzolari’s call for backup because Plaintiff initially refused to change into his

jumpsuit to go to disciplinary confinement. When Mendibles saw the coffee cup, he

told Plaintiff to get rid of it, but before Plaintiff could respond that Fazzolari gave

him permission to bring it, Mendibles smacked Plaintiff’s coffee cup from his hands

because he was not supposed to have it. Plaintiff swore at Mendibles when the

coffee spilled and burned him, and Mendibles slapped Plaintiff once in the face.

Although this Court finds a slap is an objectively unreasonable use of force under the

circumstances alleged by Plaintiff, the law requires that the constitutional right be

clearly established by precedent in analogous circumstances, not broadly defined rights,

before qualified immunity is denied.

Neither the Supreme Court nor the Third Circuit has held that slapping a

pretrial detainee in these circumstances—after a minor verbal provocation while

escorting a detainee to disciplinary confinement for disobeying an order—is

objectively unreasonable as a matter of law. Without factually similar precedent or a

robust consensus of court decisions condemning such conduct, of which this Court

finds none, qualified immunity must therefore be granted to Mendibles for this

incident.

D. Mendibles, Hines and Govan Are Not Entitled to Summary Judgment

on the Elevator Incident

The Officer Defendants argue they are entitled to summary judgment on

Plaintiff’s Fourteenth Amendment excessive force and failure to intervene claims

because “Plaintiff has failed to present any evidence other than his unsupported self-

serving testimony that he was assaulted by any of the Defendants after the single

push to the face by Mendibles.” [Officers’ Br. at 28.] The Officer Defendants

contend, for the following reasons, that no reasonable juror could conclude they used

any force after the initial slap or shove to the face by Mendibles.

• Plaintiff did not report the use of force by Hines, Govan and Mendibles

and Fazzolari’s failure to intervene in any of his initial incident reports

to Cumberland County Jail or during the October 7, 2021 interview;

• There is no evidence of injuries consistent with punching and kicking;

• There are no other eyewitness accounts;

• On January 13 and 15, 2022, Plaintiff admitted to Hines and Govan

that he sued all officers present on the advice of his attorney, even

though Hines and Govan did not use force on him.

[Id. at 28-29.]

Plaintiff opposes summary judgment for Mendibles, Hines, Govan and

Fazzolari on the elevator incident, claiming there is ample evidence in the record to

support his claims. [Pl’s Br. Opp’n Officers at 18.] Plaintiff cites generally to his

Counterstatement of Material Facts. [Id.]

In their reply brief, the Officer Defendants discount Lawson’s Deposition

transcript and any adverse inference based on the allegation of spoliation of the

surveillance video and submit Plaintiff provides no evidence but his self-serving

testimony in support of his claims. [Officers’ Reply Br. at 27.] This is not a case of

competing testimony, they contend, because “Plaintiff essentially admits by omission

that the other officers never used any force.” [Id.] They explain: (1) Plaintiff

submitted written complaints about the coffee incident with Mendibles but never

complained about the conduct of the other officers; (2) Plaintiff only complained to

Investigator Hoffman about Mendibles spilling his coffee and slapping him; and (3)

Plaintiff has no evidence of injuries from the alleged assault. [Id. at 27-28.]

Plaintiff need not produce corroborating evidence of his deposition testimony;

a plaintiff’s sworn deposition testimony alone may be sufficient to create a genuine

dispute of material fact. v. Newsome, 885 F.3d 203, 209 (3d Cir. 2018). Defendants

point to inconsistencies in Plaintiff’s testimony, his failure to report the elevator

incident, and the absence of corroborating evidence of injury. These arguments go to

credibility, not admissibility. “Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury functions,

not those of a judge, whether he is ruling on a motion for summary judgment or for a

directed verdict. The evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986).

Accordingly, although Defendants make good arguments that cast great doubt

on Plaintiff’s credibility, those are more proper for trial. The Court thus concludes

that the elevator incident presents disputed issues of fact that must be resolved by a

jury. Summary judgment is inappropriate on the Fourteenth Amendment excessive

force and failure to intervene claims against Hines, Mendibles, Govan and Fazzolari.

E. Summary Judgment Is Granted to Cumberland County

Plaintiff, having settled his claims against CFG Health Systems, Inc., does not

oppose summary judgment in favor of Cumberland County on Count Three,

pertaining to Plaintiff’s medical care. [Pl’s Br. Opp’n CC at 7, n. 1.] Cumberland

County is granted summary judgment on that claim. The Court turns to

Cumberland County’s motion for summary judgment on Plaintiff’s excessive force

and failure to intervene claims against it, and considers the facts in the light most

favorable to Plaintiff.

1. Legal standard

A municipality may be held liable under 42 U.S.C. § 1983 only where the

alleged constitutional violation was caused by a municipal policy or custom. Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978). To prevail, a plaintiff must show:

(1) the existence of a policy or custom; (2) that policymakers acted with deliberate

indifference to the known or obvious consequences of that policy or custom; and (3)

that the policy or custom was the “moving force” behind the constitutional violation.

Bd. of Cnty. Comm’rs v. Brown (“Brown”), 520 U.S. 397, 404-06 (1997).

“The pleading requirements are different for failure-to-train claims because a

plaintiff need not allege an unconstitutional policy.” Est. of Roman v. City of Newark,

914 F.3d 789, 798 (3d Cir. 2019). A plaintiff seeking to impose municipal liability

for failure to train or supervise must show that the deficiency reflects the

municipality’s “deliberate indifference to the rights of persons with whom the

[employees] come into contact.” City of Canton v. Harris (“Harris”) 489 U.S. 378, 388

(1989). Deliberate indifference is a stringent standard; a municipal policymaker’s

“continued adherence to an approach that they know or should know has failed to

prevent tortious conduct by employees may establish the conscious disregard for the

consequences of their action—the ‘deliberate indifference’—necessary to trigger

municipal liability.” Brown, 520 U.S. at 407 (citation modified). Ordinarily, a

plaintiff demonstrates deliberate indifference through a pattern of similar

constitutional violations by untrained employees. Connick v. Thompson, 563 U.S. 51,

62 (2011). Where such a pattern exists, policymakers are on notice that a particular

omission in training or supervision is causing employees to violate constitutional

rights, and a failure to act supports liability. Id. at 62–63.

For example, in Thomas, the Third Circuit held that “[g]iven the frequency of

fights occurring between inmates in the CCCF that could lead to constitutional

violations for failure to protect, the lack of training [on conflict de-escalation] here is

akin to “a failure to equip law enforcement officers with specific tools to handle

recurring situations.” 749 F.3d at 225 (quoting Brown, 520 U.S. at 409)). On the

other hand, “[w]ithout notice that a course of training is deficient in a particular

respect, decisionmakers can hardly be said to have deliberately chosen a training

program that will cause violations of constitutional rights.” Connick, 563 U.S. at 62.

In limited circumstances, deliberate indifference may be established without a

pattern, where the need for training is “so obvious” and the lack of training “so likely

to result in the violation of constitutional rights” that a policymaker’s inaction

amounts to deliberate indifference. Harris, 489 U.S. at 390, n 10. The Supreme

Court hypothesized that failure to train officers pursuing fleeing felons on the

constitutional limits of deadly force may fall within this narrow exception. Id.

The Third Circuit has applied these principles, recognizing that inadequate

training or supervision concerning use of force and conflict de-escalation can sustain

a claim where deliberate indifference is shown. See A.M. ex rel. J.M.K. v. Luzerne Cnty.

Juvenile Det. Ctr., 372 F.3d 572, 582–86 (3d Cir. 2004) (juvenile facility staff training);

Estate of Roman, 914 F.3d at 798–99 (police training); Forrest v. Parry, 930 F.3d 93,

106–07 (3d Cir. 2019) (alleging inadequate supervision and discipline of police

officers by Internal Affairs).

2. The Parties’ Arguments

Cumberland County argues Plaintiff cannot establish lacking of training or

supervision caused Mendibles to unreasonably slap Plaintiff because (i) a slap is not

per se unconstitutional and may be reasonable depending on the Kingsley factors; (ii)

officers testified they understood that force like Plaintiff alleges would be excessive,

indicating training conveyed the constitutional limits; (iii) the County maintained

written policies and provided training via firearms recertification and NJ Learn; and

(iv) Plaintiff offers no expert testimony and points to no specific training deficiency

tied to the slap. [CC’s Reply Br. 4–7.] Cumberland County also highlights that

Plaintiff’s own post-incident grievance focused on the coffee incident without

reporting any further use of force. [Id. at 4–5.]

Plaintiff responds that corrections officers were not consistently trained on

passive, non-aggressive resistance; that Cumberland County lacked or failed to

implement clear guidance about use of force in such scenarios; and that officers

expressed inconsistent understandings about whether “slaps” or “punches” were ever

appropriate. [Pl.’s CSOMF ¶¶ 32–37, 34]. In reply, Cumberland County points to a

written “Passive Resistance/Work Stoppage” policy in effect since 2012, which was

produced to Plaintiff in discovery. [CC’s RCSOMF ¶ 32; Docket No. 132-2, Ex. 2,

Policy No. 10.21.] Policy No. 10.21 confirms procedures for passive resistance and

instructs that “Inmates shall be physically escorted … using the minimum action

necessary” and that “Levels of force shall be strictly adhered to.” [Policy No. 10.21

at 1-2.]

3. Cause of Fazzolari’s alleged misconduct

To begin the analysis, Plaintiff must tie a specific training or policy deficiency

to the officer’s decision in a way that makes the violation likely in such

circumstances. See Canton, 489 U.S. at 391; Brown, 520 U.S. at 404–05. The Court

looks to each Defendant’s conduct separately.

First, Fazzolari’s conduct of granting Plaintiff permission to wear his

sweatshirt and bring his coffee to the disciplinary pod reflects his practice of de-

escalation or conflict resolution. The parties agree Plaintiff began his escort with

Fazzolari and Hines cooperatively when those concessions were made. Cumberland

County’s guiding principle on use of force is to use as little as necessary, a policy

which requires attempting de-escalation and conflict resolution before resorting to

force. Cumberland County has a written passive-resistance policy requiring

“minimum action necessary” [Policy No. 10.21], which conforms, as discussed

below, to the officers’ understanding of Cumberland County’s use of force policy.

Fazzolari was a training supervisor at Cumberland County for a year,

approximately in 2016-2017. [Docket No. 119-7, Ex. 6, Deposition of Sergeant John

Fazzolar[i] (“Fazzolari Tr.”)]. He demonstrated a good understanding of

Cumberland County’s use of force policy. [See generally Fazzolari Tr.] Specifically,

he testified the use of force policy covers failure to intervene, for example, in the N.J.

Learn training. [Fazzolari Tr. 33:21 to 36:23.] The gist of the training is “you have

a duty to intervene [when you see excessive force being used]. It’s your legal

obligation as a law enforcement officer. You always try to prevent it ahead of time,

before it happens, if you can see it.” How you go about it depends on the scenario.

[Id. at 36:11-23.] After the coffee incident, Fazzolari testified Plaintiff refused an

order to turn around and go into the elevator. [Id. at 69:4 to 20.] The other officers

used physical force to get Plaintiff on the elevator, and Fazzolari did not join them

on the elevator. [Id.] Fazzolari agreed that punching, slapping or kicking a detainee

in response to a verbal statement would amount to corporal punishment, and he had

a duty to protect detainees from corporal punishment. [Id. at 15:5 to 17:15.]

Regarding Plaintiff’s claim that SIU only substantiated excessive force claims

that were corroborated by surveillance video, Fazzolari testified he was aware there

was a video of this incident, “the whole place is pretty much under video

monitoring.” [Id. at 70:19 to 71:9.] The elevator did not have a camera because it

was not logistically possible. [Id.] Here, however, the alleged force that Fazzolari

allegedly failed to intervene with occurred while Plaintiff was dragged onto the

elevator, and Plaintiff could not remember if it continued after the doors closed.

Fazzolari believed Internal Affairs watched all use of force incidents caught on

camera. [Id. at 71:17-73:13.] He believed it was common sense to watch and

preserve the video because it was the most objective evidence of what occurred. [Id.]

Based on the record, when the facts are viewed in the light most favorable to

Plaintiff, a reasonable jury could not conclude a deficient policy or deficiency in

training or supervising officers was the moving force behind Fazzolari’s alleged

unconstitutional conduct. Fazzolari understood Cumberland County’s use of force

policies, including the duty to intervene, and he knew most of the jail had

surveillance cameras and SIU would watch every use of force incident caught on

video, including the alleged coffee and elevator incidents here.

4. Cause of Mendibles alleged misconduct

When the facts are taken in the light most favorable to Plaintiff, Mendibles

knocked the coffee out of his hand without giving him a chance to explain why he

had it, and Mendibles slapped Plaintiff when he swore at Mendibles over spilling the

coffee on him. Plaintiff did not put forth sufficient evidence for a reasonable jury to

conclude Mendibles slapped Plaintiff due to an inadequate policy, training or

supervision. Mendibles testified that the use of force training during firearms

training covered every type of use of force. [Docket No. 120-6, Ex. D, Deposition of

Lt. Robert Joseph Mendibles (“Mendibles Tr.”)]. In general, Mendibles’ testimony

presents a good understanding of Cumberland County’s use of force policy. [See

generally Mendibles Tr.] Specifically, Mendibles acknowledged that if the

circumstances surrounding his slapping Plaintiff and then allegedly joining Hines in

punching and kicking Plaintiff while Govan dragged him by chokehold to the

elevator would be an inappropriate use of force. [Mendibles Tr. 17:8-11, 18:13-17.]

He also testified that, based on his training, it would be appropriate to slap, punch or

kick a detainee if the detainee was physically assaulting someone, but it was

otherwise inappropriate force. [Id. at 24:2 to 25:19.]

Third, although Mendibles did not watch the video of the incident, he

assumed that SIU would watch it because they review the videos for all uses of force.

[Id. at 52:5-12.] Officers will often write to SIU and suggest they “look at this camera

on this day” to determine what happened. [Id. at 53:1-18] Therefore, Plaintiff’s

suggestion that SIU’s failure to substantiate an unreasonable use of force unless there

is corroborating video evidence does little to suggest it was the cause of an

unreasonable use of force against Plaintiff. With respect to SIU’s alleged failure to

discipline, Plaintiff provides only three examples, not a sufficient pattern to suggest a

custom of failing to discipline that put Cumberland County on notice constitutional

violations were likely to occur if policies or training and supervision went

unchanged. Particularly when, like here, a pretrial detainee has the option of filing a

criminal complaint.

5. Cause of Govan’s alleged misconduct

Govan is alleged to have put Plaintiff in a chokehold and dragged him to the

elevator while Mendibles and Hines punched and kicked him. Govan testified about

his use of force training and displayed a good understanding of Cumberland

County’s policies. [See generally Docket No. 119-10, Ex. 6, Declaration of Sergeant

Darren Govan (“Govan Tr.”)] Officers have to fill out a use of force form whenever

one of five uses of force are used on an inmate. [Id. at 19:8-12.]

Govan did not know there was a video of the alleged coffee and elevator

incidents. [Id. at 28:19 to 29:4.] Govan believed the procedure was that after a use

of force report was completed, it was sent to Internal Affairs with the video, which

was the most objective evidence of what occurred. [Id. at 63:5-24.] The grievance

process for an inmate who alleges use of force is to refer them to SIU. [Id. at 70:25 to

71:6.] Based on the record, when the facts are viewed in the light most favorable to

Plaintiff, a reasonable jury could not conclude a deficient policy or deficiency in

training or supervising officers was the moving force behind Govan’s alleged

unconstitutional conduct.

6. Cause of Hines alleged misconduct

[Docket No. 119-8, Ex. 4, Deposition of Lt. Timothy Hines (“Hines Tr.”)].

Hines testified that he was trained on all types of use of force, twice a year. [Id. at

16:6 to 17:6.] He received copies of the jail’s policies and procedures, and he reads

them, particularly when they are updated. [Id. at 20:3 to 21:14.] Hines filled out a

use of force form on October 2, 2021 because officers are required to fill it out report

whenever force is used. [Id. at 41:6 to 24.] The physical force Hines reported was

pushing Plaintiff’s head back and “going in and grabbing him,” which he explained

was how Govan grabbed Plaintiff’s jumper and pushed him into the elevator. [Id. at

40:2-15, 42:6 to 13.] Hines believed it would be appropriate for an officer to slap an

inmate who was aggressive and threatening, but only if the inmate was advancing

toward him. [Id. at 50:5-51:1.] Hines understood it was Cumberland County’s

policy to only use “as much force as reasonably necessary … to accomplish an

objective….” [Id. at 51:2-6.] He also knew the coffee and elevator incidents

occurred “under a security video” and Hines watched the video to fill out his report.

[Id. at 55:10-56:2.] Hines believed Lieutenant Martinez, the Shift Commander,

probably watched the video as well. [Id. at 56:4-6.] Hines believed Internal Affairs

would preserve the video. [Id. at 60:4 to 11.] Hines understood Cumberland

County’s policy was to videotape any incident where an inmate refused an order.

[Id. at 65:12 to 66: 6.] Based on the record, when the facts are viewed in the light

most favorable to Plaintiff, a reasonable jury could not conclude a deficient policy or

deficiency in training or supervising officers was the moving force behind Hines’

alleged unconstitutional conduct. For the reasons discussed above, Cumberland

County is entitled to summary judgment.

IV. CONCLUSION

For the foregoing reasons, the Court will grant qualified immunity to

Mendibles on the excessive force claim regarding the coffee incident; the Court will

deny Mendibles, Hines, Govan and Fazzolari’s motion for summary judgment on

the excessive force and failure to protect claims regarding the elevator incident; and

the Court will grant Cumberland County’s motion for summary judgment on the

municipal liability claims. An appropriate Order follows.

Date: August 28, 2025

s/ Renée Marie Bumb

RENÉE MARIE BUMB

Chief United States District Judge