TOKA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

SCOTT TOKA,

Plaintiff,

Civil Action No. 23-1971

v. (RMB/EAP)

BURLINGTON COUNTY, et al., OPINION

Defendants.

APPEARANCES

LEVIN & ZEIGER, LLP

Brian J. Zeiger, Esq.

1500 JFK Blvd., Suite 620

Philadelphia, Pennsylvania 19102

Attorney for Plaintiff

MALAMUT & ASSOCIATES, LLC

James K. Grace, Esq.

457 Haddon Road, Suite 500

Cherry Hill, New Jersey 08002

Attorneys for Defendants

RENÉE MARIE BUMB, Chief United States District Judge:

This matter comes before the Court upon the cross Motions for Summary

Judgment filed by Plaintiff Scott Toka (“Plaintiff” or “Toka”) [Motion (Docket

No. 43); Pl.’s Br. (Docket No. 43-1)] and Defendants Burlington County (the

“County”) and Sergeant Matthew Peer (“Peer” and, together with the County,

the “Defendants”) [Motion (Docket No. 48); Defs.’ Br. (Docket No. 48-4)].1

The parties have opposed the motions [Defs.’ Opp’n (Docket No. 50); Pl.’s Opp’n

(Docket No. 52).] Plaintiff has also submitted a reply in further support of his motion.

[Pl.’s Reply (Docket No. 51).] The Court has considered the parties’ submissions

without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local

Civil Rule 78.1(b). For the reasons set forth below, Plaintiff’s Motion for Summary

Judgment is DENIED and Defendants’ Motion for Summary Judgment is

GRANTED, in part, and DENIED, in part.

I. FACTUAL BACKGROUND2

This dispute arises from an incident between Plaintiff and Defendant Peer that

occurred on October 5, 2022, while Plaintiff was detained in the Burlington County

Jail (the “Jail”). [Pl.’s SMF ¶ 1.] At that time, Peer was employed as a corrections

officer, at the rank of Sergeant, at the Jail. [Id. ¶ 2.]

1 Plaintiff has also filed an unopposed Motion to Seal [Docket No. 53] certain

documents. Having reviewed the Motion to Seal, the Court finds it patently deficient

and not in compliance with the mandates of Local Civil Rule 5.3. The Motion to Seal

does not describe with particularity the information required by Local Civil

Rule 5.3(c)(3), nor does it contain proposed findings of fact and conclusions of law, as

required by Local Civil Rule 5.3(c)(6). The Motion to Seal will be DENIED

WITHOUT PREJUDICE and the parties shall be afforded an opportunity to renew

the motion in accordance with Local Civil Rule 5.3.

2 The material facts underlying this matter are drawn from the parties’ respective

statements of material facts (“SMF”) [Pl.’s SMF (Docket No. 43-2); Defs.’ SMF

(Docket No. 48-3)], where admitted, as well as the exhibits of record. The Court

recites only the facts relevant to the motions before it.

On that date, Toka was involved in an altercation with another inmate.3 [Defs.’

SMF ¶ 1.] Officer Maxene Guillaume requested assistance from Defendant Peer to

address the altercation. [Id. ¶ 2.] By the time Peer arrived, Officer Guillaume had

already secured the area, and Plaintiff was the only inmate outside of his cell. [Id. ¶ 3.]

Officer Guillaume explained to Defendant Peer that Plaintiff and another inmate had

been involved in a physical altercation and Peer proceeded to place Plaintiff in

handcuffs and seated him at a table while he requested further assistance. [Id. ¶¶ 4–5.]

While handcuffed, Plaintiff began screaming to his cellmate despite Peer repeatedly

ordering him to stop. [Id. ¶ 6.] He “continued to scream and escalate into antagonistic

and belligerent behavior when Sgt. Peer decided to remove him from the tier.” [Id.]

While Plaintiff and Peer waited for the tier door to open so that Plaintiff could be

removed from the tier, Plaintiff continued to scream. [Id. ¶ 7.] According to

Defendants, Plaintiff also attempted to twist his body around and push back against

Peer, despite being handcuffed. [Peer Cert. ¶ 9, Defs.’ SMF Ex. 2 (Docket No. 48-6);

Peer Dep. Tr. 13:3–9, Pl.’ SMF Ex. A (Docket No. 43-1).] Plaintiff denies this.

[Pl.’s Resp. to Defs.’ SMF ¶ 7 (Docket No. 52).]

The remainder of the incident – beginning when the tier door opens and when

Peer and Plaintiff enter the sallyport – is captured on video. [Pl.’s SMF ¶ 4; Video of

Sallyport View 1, Pl.’s Br. Ex. B (Docket No. 43-1).] The Court has reviewed the

3 As a result of this altercation, Plaintiff was charged with Department

Disciplinary charge .002 – Assault. [Defs.’ SMF ¶ 12.]

footage. It is a sixteen-second-long clip that contains no audio.4 Plaintiff and Peer are

visible in only the first eight seconds of the clip. It shows the tier door open into the

sallyport. Plaintiff passes through the door first with his hands cuffed behind his back.

Defendant Peer holds Plaintiff by his arms with Peer’s forearms pressed on Plaintiff’s

back. Plaintiff is clearly noncompliant, and he and Peer are clearly struggling with

one another; in a matter of seconds, Plaintiff’s body makes contact with the sallyport

wall, with Peer directly behind him. Plaintiff appears to have jolted Peer to the wall.

Then, while Plaintiff remains handcuffed behind his back and Defendant Peer holds

his body, they turn around and proceed out of frame. Officer Guillame follows

through the tier door but does not get involved in the incident. Given the lack of audio,

blurry quality of the video footage, and the fact that both Defendant Peer and Officer

Guillame are wearing surgical masks, it is not possible to tell if any of the three men

are speaking or yelling during the incident and, if so, what they were saying.

The parties characterize the video differently. Plaintiff claims that the video

footage confirms his testimony that Defendant Peer slammed and threw him against

the sallyport wall despite him being compliant and subdued, and presenting no threat

to Defendant Peer in any way. [Pl.’s Opp’n at 10; Toka Dep. Tr. 57:18–23, Pl.’s Opp’n

Ex. C (Docket No. 52-4).] Defendants, on the other hand, contend that Plaintiff

continued to actively resist against Defendant Peer, trying to turn around to face Peer

4 Plaintiff submitted the video footage via USB drive to the Court.

and others and continuing to scream, despite being handcuffed. [Peer Dep. Tr. 13:3–

9, 14:1–3.] As a result, Defendant Peer guided Plaintiff to and restrained him against

the sallyport wall with his right arm and forearm on Plaintiff’s back. [Id. 13:10–14:3.]

After the incident, Plaintiff complained of injuries and was seen at the Jail’s

clinic by a nurse. [Defs.’ SMF ¶ 10.] The nurse examined him and noted “no

discoloration, swelling, or deformities and medically cleared him for Pre-Hearing

Detention Status.” [Peer Cert. ¶ 11.] Plaintiff has received no medical care for any

alleged injuries stemming from the October 5, 2022 incident. [Defs.’ SMF ¶ 17.]

On October 14, 2022, Defendant Peer received a Target Letter advising him that

he was the target of an Internal Affairs investigation by the Department of Corrections

concerning use of force allegations made by Plaintiff. [Id. ¶ 13; Target Letter, Defs.’

SMF Ex. 5 (Docket No. 48-9).] As a result, Defendant Peer was placed on modified

or administrative duty. [Peer Dep. Tr. 16:4–21.] Plaintiff’s complaint against

Defendant Peer was also forwarded to the Burlington County Prosecutor’s Office for

review as to whether an assault was committed by Peer. The Prosecutor’s Office

declined to pursue the matter due to insufficient evidence of an assault. [Defs.’ SMF

¶ 14.]

On January 17, 2023, the Deputy Administrator of the Jail sent Defendant Peer

a Letter of Counseling outlining the Jail’s findings and ordering Peer to complete

additional training. [Id. ¶ 15.] In particular, the Jail’s internal investigation

determined that Peer “did not use proper de-escalation tactics during [his] interaction

with [Plaintiff]” and “strongly advised [him] to maintain professionalism when

communicating with inmates.” [Ltr. of Counseling, Defs.’ SMF Ex. 7 (Docket No.

48-11).] Defendant Peer was ordered to review the Department of Corrections’ use of

force policies and de-escalation techniques with the training department. [Id. ¶ 16;

Blango Ltr., Defs.’ SMF Ex. 8 (Docket No. 48-12).]

II. PROCEDURAL HISTORY

Based upon these facts, Plaintiff filed suit in federal court on April 6, 2023

[Compl. (Docket No. 1)]. The Complaint asserted the following claims against the

County, Peer, and several other defendants:5

Count I: Sexual Assault pursuant to 42 U.S.C. § 1983 (“Section 1983”)

against Defendant Guillaume [id. ¶¶ 29–33.]

Count II: Excessive Force pursuant to Section 1983 against Defendant

Peer [id. ¶¶ 34–37.]

Count III: Failure to Protect and Denial of Medical Care in violation of

the Fourteen and Eighth Amendments to the U.S. Constitution pursuant

to Section 1983 against “All Defendants” [id. ¶¶ 38–50.]

Count IV: Failure to Protect in violation of the Fourteen and Eighth

Amendments to the U.S. Constitution pursuant to Section 1983 against

“All Defendants” [id. ¶¶ 51–58.]

Count V: Monell claim under Section 1983 against Defendant Burlington

County [id. ¶¶ 59–74.]

5 The Defendants named in the Complaint are the County and Peer, as well as

Corrections Officers Guillaume, Dunn, Duff, Wine, Markowitz, and John Doe

Corrections Officer.

Count VI: Retaliation [id. ¶¶ 75–78.]6

Thereafter, the parties engaged in discovery. Upon the conclusion of discovery,

Plaintiff filed his Motion for Summary Judgment on his excessive force claim only.

Two days later, he requested that the Court dismiss “Count I Sex Assault, Count III

Denial of Medical Care, and Count VI Retaliation, without prejudice” because he did

“not believe in the above counts would survive summary judgment.” [Docket No. 47.]

Plaintiff noted that dismissal of these claims would result in Defendants Guillaume,

Dunn, Duff, and Markowitz being “dismissed and terminated from the matter” [id.],

notwithstanding the fact that Count IV of the Complaint, which survived this request

for voluntary dismissal, was asserted against “All Defendants.” Plaintiff’s request

made no mention of Defendant Wine whatsoever. The Court granted Plaintiff’s

request to dismiss these claims [Docket No. 49]. Accordingly, the only remaining

claims in this action are Count II (excessive force against Defendant Peer); Count IV

(failure to protect against “All Defendants,” with the exception of Guillaume, Dunn,

Duff, and Markowitz); and Count V (Monell claim against the County only).

6 The Complaint does not specifically list the defendants against whom the

retaliation claim was asserted. Based on the allegations, it appears this claim was

asserted against either all named Defendants or, at the very least, all the individually

named Defendants. [Compl. ¶¶ 76–77 (alleging that Peer and “the other individual

Defendants” retaliated against Plaintiff”).]

Defendants Burlington County and Peer filed their Motion for Summary

Judgment on October 14, 2025. Both motions have been fully briefed and are now

ripe for determination.

III. LEGAL STANDARD

Summary judgment is granted where “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” if it “might affect the

outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). A dispute of material fact is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id. In determining

whether a genuine dispute of material fact exists, “all evidence is viewed in the light

most favorable to the non-moving party and ‘all justifiable inferences are to be drawn

in his favor.’” Morgan v. Allison Crane & Rigging LLC, 114 F.4th 214, 220 (3d Cir. 2024)

(quoting Anderson, 477 U.S. at 255). A “mere scintilla of evidence,” however, does

not generate a genuine dispute of material fact. Anderson, 477 U.S. at 252.

The movant “always bears the initial responsibility of informing the district

court of the basis for its motion, and 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) (quoting FED. R. CIV.

P. 56(c)). Then, “when a properly supported motion for summary judgment [has been]

made, the adverse party ‘must set forth specific facts showing that there is a genuine

issue for trial.’” Anderson, 477 U.S. at 250 (citing FED. R. CIV. P. 56(e)). The

nonmovant’s burden is rigorous. The nonmovant “must point to concrete evidence in

the record”; mere allegations, conclusions, conjecture, and speculation will not defeat

summary judgment. Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995);

accord Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing Acumed LLC v.

Advanced Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir. 2009) (“[S]peculation and

conjecture may not defeat summary judgment.”)). If the nonmoving party “‘fails to

make a showing sufficient to establish the existence of an element essential to [his]

case, and on which [he] will bear the burden of proof at trial,’ then summary judgment

is appropriate for the moving party.” SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183,

204 (3d Cir. 2022) (quoting Celotex, 477 U.S. at 322).

IV. DISCUSSION

Plaintiff has moved for summary judgment on his excessive force claim against

Defendant Peer only (Count II). Defendants have cross-moved for summary judgment

in their favor on the excessive force claim, as well as Plaintiff’s Monell claim against

the County only (Count V) and, separately, on Plaintiff’s allegations of failure to train

and deliberate indifference. [See Defs.’ Br. at 12–17, 17–18.] But there are no

separately pled failure to train or deliberate indifference claims in the Complaint.

Rather, these allegations appear to be subsumed within the Monell claim asserted in

Count V and the Court will treat them as such.7 [See Compl. ¶¶ 62, 67–71.]

The Court addresses each claim in turn.

A. Excessive Force Claim

Plaintiff alleges that Defendant Peer used excessive force against him in

violation of his Eighth Amendment rights during his incarceration. See Graham v.

Connor, 490 U.S. 386, 396 (1989) (“After conviction, the Eighth Amendment ‘serves

as the primary source of substantive protection . . . in cases . . . where the deliberate

use of force is challenged as excessive and unjustified.’”) (quoting Whitley v. Albers,

475 U.S. 312, 327 (1986)). The test for whether a claim of excessive force is

constitutionally actionable is “whether the force was applied in a good faith effort to

maintain or restore discipline or maliciously and sadistically for the very purpose of

causing harm.” Giles v. Kearney, 571 F.3d 318, 326–27 (3d Cir. 2009) (quoting Whitley,

7 Additionally, the Court observes that that the Complaint asserts a “failure to

protect” claim against all Defendants (Count IV). The allegations largely relate to

Defendants’ alleged failure to protect Plaintiff from excessive force, threats of being

poisoned, and suggestions that he commit suicide. [Compl. ¶¶ 54–56.] The Court

does not understand Defendants to be moving for summary judgment on this claim,

although there appears to be no such record evidence. What’s more, Plaintiff

apparently intends to proceed against Defendant Wine at trial because “the moving

Defendants did not include any counts against Defendant Wine in their Motion for

Summary Judgment.” [Pl.’s Opp’n at 1 n.1.] Given Plaintiff’s voluntary dismissal of

Counts I, III, and VI, and the fact that Counts II and V are alleged against only

Defendant Peer and the County, respectively, the Court presumes that Plaintiff’s

statement regarding Defendant Wine relates only to Count IV. In an effort to

streamline the case for trial, the parties shall promptly submit letters to the Court

setting forth their positions on Count IV and any remaining claim(s) against Defendant

Wine. If the Court has misunderstood Defendants’ arguments or Plaintiff’s pleadings,

the parties shall promptly advise the Court.

475 U.S. at 319). In conducting this inquiry, courts within the Third Circuit consider

the following factors:

(1) the need for the application of force; (2) the relationship between the

need and the amount of force that was used; (3) the extent of injury

inflicted; (4) the extent of the threat to the safety of staff and inmates, as

reasonably perceived by the responsible officials on the basis of the facts

known to them; and (5) any efforts made to temper the severity of a

forceful response.

Id. Importantly, it is well-established that an officer may not use gratuitous force

against an inmate who has been physically restrained and is otherwise compliant and

non-threatening. See, e.g., Jacobs v. Cumberland Cnty., 8 F.4th 187, 197 (3d Cir. 2021);

Giles, 571 F.3d at 326.

There can be no dispute that – if there were no video footage of the incident –

this would be a classic “he said, he said” situation clearly unfit for summary judgment.

Indeed, Plaintiff claims that, while he was handcuffed, non-threatening, and

compliant, Defendant Peer slammed him against a wall with great force. [Toka Dep.

Tr. 57:18–23.] Defendant Peer, by contrast, testified that, despite being handcuffed,

Plaintiff continued to scream, resist his removal from the tier, and attempted to turn

around to face Peer, and that any force used was necessary to maintain and restore

discipline and order. [Peer Dep. Tr. 13:3–9, 14:1–3.]

Each side instead argues that summary judgment is appropriate because the

eight second video clip blatantly contradicts their adversary’s narrative. The Court

disagrees. “When opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court should

not adopt that version of the facts for purposes of ruling on a motion for summary

judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). In Scott, “a videotape capturing

the events in question” presented an “added wrinkle” in the Court’s analysis.

Id. at 378. The videotape in question “utterly discredited” one party’s version of the

events. Id. at 380. Where such a recording exists, the Supreme Court fashioned a

narrow exception to the typical summary judgment standard requiring lower courts to

instead “view[] the facts in the light depicted by the videotape.” Id. at 380–81.

Unlike in Scott, however, the video recording here does not “blatantly

contradict” or “utterly discredit” either party’s version of the events, because it does

not fully capture the entire event. On the contrary, it is inconclusive on the key

disputed facts. It is true that the video clearly depicts Plaintiff and Defendant Peer

struggling with one another. But the video recording is blurry and contains no audio.

It is not possible to determine whether any of the three men captured in the recording

are speaking and, if so, what they said. And, especially given the lack of audio, it is

unclear whether Plaintiff was threatening or resisting Peer and Peer’s use of force was

an attempt to subdue and restrain him, as it appears to the Court, or whether Plaintiff

was subdued and compliant and Peer nonetheless violently shoved him into the

sallyport wall, as Plaintiff spins it. See Franklin v. Riverside Twp., 2020 WL 4218394,

at *1 (D.N.J. July 22, 2020) (denying summary judgment and qualified immunity

where video shows plaintiff, “who does not appear to be entirely cooperative, but may

not be actively resisting,” hit his head into a gas pump because video was “unclear as

to whether [plaintiff] controllably falls or trips into the gas pump, or whether the

officers deliberately slammed [his] head into the gas pump.”).

Here, given the lack of a full video, the video recording cannot be said to

“blatantly contradict” either party’s narrative. See Patterson v. City of Wildwood,

354 F. App’x 695, 698 (3d Cir. 2009); see also Koyi v. Cnty. of Monmouth,

2024 WL 1928474, at *8 (D.N.J. Apr. 30, 2024) (denying summary judgment where

surveillance video did not definitively resolve genuinely disputed material facts

“with respect to the relationship between the need for the use of force and the amount

of force used, the extent of the Plaintiff’s injury, the severity of the security problem at

issue, the threat reasonably perceived by the officers, and whether the Plaintiff’s

conduct justified the use of force.”). And so, given that the videotape may not be the

end-all that the parties believe it to be and cannot clearly resolve the facts in dispute,

summary judgment is inappropriate. Patterson, 354 F. App’x at 698 (collecting cases).

i. Qualified Immunity

Defendant Peer contends that even if there is sufficient evidence from which a

jury could find excessive force, he is protected from liability under the doctrine of

qualified immunity. “[Q]ualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly established

. . . constitutional rights of which a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (internal citation and quotation omitted).

The qualified immunity analysis first considers whether there was a constitutional

violation and, if so, whether the right violated was clearly established at the time of

the misconduct. Id. at 232. “A right is clearly established only if its contours are

sufficiently clear that ‘a reasonable official would understand that what he is doing

violates that right.’” Carroll v. Carman, 574 U.S. 13, 16 (2014) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

The Court has already determined that a jury must determine whether there was

a constitutional violation given the presence of genuine disputes of material facts.

As to the second prong, Plaintiff argues that the use of force against “an inmate when

he has already been restrained and has not otherwise posed a threat to safety” is a

clearly established constitutional violation under Third Circuit precedent for decades.

[Pl.’s Br. at 9 (citing Giles, 571 F.3d at 327–29).] It is true that the Third Circuit in

Giles found that “[n]o reasonable officer could agree that striking and kicking a

subdued, nonresisting inmate in the side, with force enough to cause a broken rib and

collapsed lung, was reasonable or necessary under established law.” 571 F.3d at 327.

The Giles court explained that, as of at least 2001, “it was clearly established that an

officer may not kick or otherwise use gratuitous force against an inmate who has been

subdued.” Id. at 326. This clearly established right has been reaffirmed by the Third

Circuit since. See, e.g., Jacobs, 8 F.4th at 197 (finding that “the specific conduct here—

striking a physically restrained and nonthreatening inmate—was clearly unlawful

under the precedent of this Court and our sister circuits.” (collecting cases)).

As Defendants point out, however, Plaintiff “improperly conflates being

handcuffed to being incapacitated,” subdued, or nonthreatening. [See Defs.’ Br. at 6.]

There is no dispute that Plaintiff was handcuffed behind his back throughout the

incident in question. There is, however, a significant dispute between the parties as to

whether Plaintiff was subdued, non-resisting, and non-threatening. Although this

Court would find that he was not based upon the limited video footage, it is not the

Court’s function to do so. These facts must be resolved by a jury before this Court can

determine the scope of the alleged violation for purposes of determining whether

Defendant Peer is entitled to qualified immunity.8 The Court defers this decision until

a jury has resolved the relevant factual disputes, which may be presented in the form

of special interrogatories as appropriate. Accordingly, for this reason too, summary

judgment as to the excessive force claim is denied.

B. Monell Claim

A municipality may be held liable under Section 1983 only where the alleged

constitutional violation was caused by a municipal policy or custom. Monell v. Dep’t

of Soc. Servs. of City of New York, 436 U.S. 658, 690–91 (1978). To prevail, a plaintiff

8 The Court notes that while it is generally preferable “to resolve qualified

immunity questions at the earliest possible stages of litigation,” this is not always

possible given “‘the reality that factual disputes often need to be resolved before

determining whether defendant’s conduct violated a clearly established constitutional

right.’” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 242 n.7 (3d Cir. 2008) (quoting Curley

v. Klem, 298 F.3d 271, 277–78 (3d Cir. 2002)). Thus, “[a] decision as to qualified

immunity is ‘premature when there are unresolved disputes of historical facts relevant

to the immunity analysis.’” Id. (quoting Curley, 298 F.3d at 278). That is the case here.

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 of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 404–06

(1997).

“Not all state action rises to the level of a custom or policy.” Natale v. Camden

Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003). A “policy” exists “when a

decisionmaker possess[ing] final authority to establish municipal policy with respect

to the action issues a final proclamation, policy[,] or edict.” Kneipp v. Tedder, 95 F.3d

1199, 1212 (3d Cir. 1996) (citation omitted). A “custom” is an act “that has not been

formally approved by an appropriate decisionmaker,” but that is “so widespread as to

have the force of law.” Bryant Cnty., 520 U.S. at 404.

Where, as here, a plaintiff’s identified policy or custom “concerns a failure to

train or supervise municipal employees, liability under section 1983 requires a showing

that the failure amounts to ‘deliberate indifference’ to the rights of persons with whom

those employees will come into contact.” Carter v. City of Phila., 181 F.3d 339, 357

(3d Cir. 1999) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). “Deliberate

indifference is a stringent standard of fault, requiring proof that a municipal actor

disregarded a known or obvious consequence of his action.” Bryant Cnty., 520 U.S. at

410 (cleaned up). A pattern of similar unconstitutional conduct by subordinate

employees is typically necessary to show deliberate indifference for failure to train or

supervise. Connick v. Thompson, 563 U.S. 51, 62 (2011) (citing Bryant Cnty., 520 U.S.

at 409). “Without 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.” Id.

Plaintiff claims that the County maintained policies or customs that fostered the

use of excessive force by failing to adequately train correctional officers on proper use

of force and failing to sufficiently discipline instances of excessive force. He recognizes

that “proof of a pattern of similar constitutional violations, knowledge and

acquiescence by the municipality, or evidence that the municipality failed to address

known risks” are typically required to “establish deliberate indifference.” [Pl.’s Opp’n

at 17 (citing Lankford v. City of Clifton Police Dep’t, 546 F. Supp. 3d 296, 328 (D.N.J.

2021); Costantino v. City of Atl. City, 152 F. Supp. 3d 311, 319–20 (D.N.J. 2015).]

Yet the only evidence he introduces to support this claim is Defendant Peer’s allegedly

“appalling” disciplinary record that he claims the County ignored or did not properly

address, as well as “13 additional instances of founded misconduct against correctional

officers at the Burlington County Prison, . . . two of which specifically involve

excessive force against inmates.” [Pl.’s Opp’n at 18, 19.] Plaintiff provides no

meaningful analysis of the record evidence.

Neither Defendant Peer’s disciplinary record nor the instances of misconduct

by other correctional officers at the Jail establish such a policy or custom, let alone

deliberate indifference to the rights of the inmates. The vast majority of Peer’s

disciplinary incidents involved time and attendance issues. [Pl.’s Counter-SMF ¶ 33

(Docket No. 52); Peer Dep. Tr. 40:10–12, 44:4–10.] Peer was also arrested for and

pled guilty to driving under the influence, for which he was suspended from work for

six days. [Pl.’s Counter-SMF ¶¶ 33–34; Peer Dep. Tr. 40:14–18, 43:24–44:3.] On one

occasion, he was reprimanded for failing to keep up with his weapons qualification.

[Pl.’s Counter-SMF ¶ 35; Peer Dep. Tr. 44:18–22.] And, over a decade prior to the

incident in question, he was disciplined for improper documentation of an incident in

which other officers allegedly struck an inmate. [Pl.’s Counter-SMF ¶ 31; Peer Dep.

Tr. 39:2–40:5, 44:10–17.]

The only other use of force incident in which Peer was involved is the so-called

“table incident.” During this incident in 2021, Peer responded to the scene of two

inmates fighting and, in an attempt to break up the fight, he got on top of a table,

jumped down from it, and struck one of the inmates. [Pl.’s Counter-SMF ¶ 37; Peer

Dep. Tr. 41:7–23.] As a result, Peer was suspended for ten days without pay. [Pl.’s

Counter-SMF ¶ 38; Peer Dep. Tr. 41:24–42:15.] Finally, because of the incident

involving Plaintiff, Defendant Peer was subject to an investigation by state

prosecutors, as well as an internal affairs investigation, and ultimately received a letter

of counseling and was required to complete additional training. [Defs.’ SMF

¶¶ 13–16.] In sum, the record establishes that Defendant Peer was involved in just two

instances of alleged excessive force during his lengthy career at the Jail, both of which

resulted in immediate disciplinary action against Peer by the Jail.

The Court has also considered the thirteen instances of misconduct against

other correctional officers at the Jail set forth by Plaintiff. [See generally Counter-SMF

¶ 39; Pl.’s Opp’n Ex. H (Docket No. 52-9); Pl.’s Opp’n Ex. I (Docket No. 52-10).]

As a preliminary matter, as Plaintiff acknowledges, only two relate to excessive force

against inmates. [Counter-SMF ¶¶ 39p, u.] The record establishes that, in at least one

of the two instances, the offending prison official received a disciplinary charge and

was suspended for an extended period. [Pl.’s Opp’n Ex. I (official suspended for 109

days).] The remaining incidents are wholly irrelevant to Plaintiff’s claim. [See, e.g.,

Counter-SMF ¶ 39r (prison official charged and prosecuted for theft); ¶ 39s (prison

official gave inmate hot beverages against regulations), ¶ 39t (prison official tested

positive for narcotics in a routine urine test).] These incidents cannot support a policy

or custom regarding failure to train or discipline in the context of use of force against

inmates. Indeed, a “mere pattern of a handful of vaguely similar constitutional

violations is generally insufficient to” establish a Monell claim. See Young v. Monmouth

Cnty., 2025 WL 354447, at *3 (D.N.J. Jan. 31, 2025) (citing Connick, 563 U.S. at 62

(holding that having four convictions overturned for Brady violations over ten years

was insufficient to support a failure to train claim where those violations were

dissimilar to the specific Brady violation at issue); see also Bernal v. Borough of Bogota,

2023 WL 5950398, at *6 (D.N.J. Sept. 13, 2023) (three prior instances of misconduct

“do not show a pattern of similar constitutional violations by untrained employees

because each of the prior instances of misconduct are factually dissimilar” to conduct

at issue).

At most, Plaintiff points to two use of force incidents involving Peer and two

others that do not involve Peer. The Court finds that neither Peer’s own disciplinary

record nor the evidence of other officials’ misconduct, considered either alone or

together, support Plaintiff’s Monell claim against the County. Compare Beck v. City of

Pittsburgh, 89 F.3d 966, 972 (3d Cir. 1996) (finding that five excessive force complaints

against same officer within five years was evidence of a pattern of tacitly approving

the use of excessive force) with Ortiz v. Cnty. of Cumberland, 2025 WL 2473703, at *12

(D.N.J. Aug. 28, 2025) (three examples of failure to discipline cannot establish “a

custom of failing to discipline that put [the] County on notice constitutional violations

were likely to occur if policies or training and supervision went unchanged.”).

The evidence simply does not establish “[a] pattern of violations” that put the County

or Jail “on notice that a new program [regarding use of force against inmates] is

necessary,” and that their “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.” Thomas v. Cumberland Cnty.,

749 F.3d 217, 223 (3d Cir. 2014). Without this, Plaintiff cannot establish “the

deliberate indifference” that is “necessary to trigger municipal liability.” Id. (quoting

Bryant Cnty., 520 U.S. at 407). Accordingly, summary judgment in favor of

Defendants must be granted on Plaintiff’s Monell claim.

V. CONCLUSION

For the above-stated reasons, Plaintiff’s Motion for Summary Judgment is

DENIED. Defendant’s Motion for Summary Judgment is GRANTED, in part, and

DENIED, in part. Plaintiff’s Motion to Seal is DENIED WITHOUT PREJUDICE.

An accompanying Order shall issue separately on this date. FED. R. CIV. P. 58(a).

/s/Renée Marie Bumb

RENÉE MARIE BUMB

Chief United States District Judge

DATED: May 29, 2026