# Ewing v. Cumberland County

> District Court, D. New Jersey · March 25, 2015 · 152 F. Supp. 3d 269

URL: https://www.frixlaw.com/law-library/cases/7235415

## Case

- **Full name:** Michael Alan EWING v. CUMBERLAND COUNTY, Cumberland County Department of Corrections, Lieutenant Dale Sciore, Sergeant Clint Ciangaglini, Sergeant Brad Pierce, Correctional Officer Edwin Pratts, The Estate of Correctional Officer Kevin Still, Correctional Officer Joshua L. Minguela, Correctional Officer Drew Ford, Correctional Officer John Fazzolari, Vineland Township, Vineland Police Department, Police Officer James Day, Police Officer Steven Houbary
- **Court:** District Court, D. New Jersey
- **Decided:** March 25, 2015
- **Citations:** 152 F. Supp. 3d 269; 2015 U.S. Dist. LEXIS 37543; 2015 WL 1384374
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Simandle
- **Judges:** Simandle
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7235415

## How later opinions describe it (automated extraction)

- finding that police officers who were in the room for and failed to stop an allegedly unlawful strip search “could likewise be found liable for failure to intervene.”
- finding summary judgment on assault and battery claim “not warranted” because “there is a dispute . . . whether [defendant’s] use of force was excessive”

## Opinion text

*276 OPINION
SIMANDLE, Chief Judge:
Table of Contents
I. INTRODUCTION.277
II. BACKGROUND. to -3
A. Factual Background. to ->3
1. Arrest and Transport to Vineland Police Department and Cumberland County Jail. to —3
2. Incident in the Processing room during Plaintiffs first trip to the CCDOC (Day, Ciangaglini, Mingúela). to S3
3. Incident in the CCDOC control room and strip search room during Plaintiffs second visit (Houbary, Pratts, Still, Fazzolari, Sciore, Pierce, Mingúela, Ford)... .* .
4. Defendants Pratts, Still, Mingúela, Ford, Fazzolari, and Ciangaglini are not entitled to summary judgment on Plaintiffs assault and battery claim
Plaintiff argues that Pratts, Still, Mingúela, Ford, and Fazzolari are liable to Plaintiff for assault and battery, and that Ciangaglini is also liable for pushing Plaintiff into the door in the processing room. 18
An individual is liable for the common law tort of i assault if .(a) he acts intending to cause a harmful or offensive contact with the person, or an imminent apprehension of such a contact, and (b) the person is thereby put in such imminent apprehension. Leang v. Jersey City Bd. of Educ., 198 N.J. 557 , 969 A.2d 1097, 1117 (2009) (citing Wigginton v. Servidio, 324 N.J.Super. 114 , 734 A.2d 798 (N.J.Super.Ct.App.Div.1999)). The New Jersey Supreme Court has held that “[a]ny non-consensual touching is a battery,” and that such a cause of action is established by “proof of an unauthorized invasion of the plaintiffs person, even if harmless.” Perna v. Pirozzi, 92 N.J. 446 , 457 A.2d 431, 439 (1983); see also Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84 , 675 A.2d 1077, 1087 (1996); Kelly v. Cnty. of Monmouth, 380 N.J.Super. 552 , 883 A.2d 411, 415 (N.J.Super.Ct.App.Div.2005).
There is more than sufficient evidence for a reasonable jury to infer that Defendants’ contact with Plaintiff in the strip search room amounted to assault and battery. Defendants’ argument, that the contact was neither “harmful” nor “offensive,” fails in the face of undisputed evidence of Plaintiffs extensive injuries. See Lewis v. Williams, 2008 WL 1809199 , at *6 (D.N.J. Apr. 22, 2008) (denying summary judgment on prisoner’s 'assault and battery claim against correctional officers where prisoner alleged that officers repeatedly struck his head and neck with' a closed fist and caused injuries severe enough to require treatment at hospital). Moreover, a reasonable factfinder could find from the uneontroverted facts that the contact was non-consensual, particularly in light of Plaintiffs statement to Defendants, “Y’all didn’t have to beat me up that way.” As *300 the Court has already explained above, a reasonable jury could find evidence in the record which substantially undermines the veracity of Defendants’ testimony about what happened.
Defendant Ciangaglini does not move for summary judgment on Plaintiffs assault and battery claim, and the Court finds that summary judgment is not warranted because there is a material dispute whether Ciangaglini slammed Plaintiff against the door in the processing room, and whether Ciangaglini’s use of force was excessive and done for the purpose of inflicting pain. (Ciangaglini Reply Br. [Docket Item 258], at 3 n. 1.) Accordingly, the Court will allow Plaintiff to proceed on this claim against all six Defendants.
5. Fazzolari and Pratts are not entitled to summary judgment on Plaintiff’s claim of intentional infliction of emotional distress
Only Fazzolari and Pratts move to dismiss on the merits of Plaintiffs claim of intentional infliction of emotional distress. The Court will deny Fazzolari and Pratts’ motion and permit this claim to proceed.
A claim of intentional infliction of emotional distress requires a plaintiff to establish intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe. Taylor v. Metzger, 152 N.J. 490 , 706 A.2d 685, 694 (1998); Buckley v. Trenton Sav. Fund Soc’y, 111 N.J. 355 , 544 A.2d 857, 863 (1988).
Plaintiff has proffered evidence from which a reasonable jury could find all elements of this claim. First, as the Court has explained above, the nature and severity of Plaintiffs injuries is more than enough for a reasonable jury to conclude that Defendants’ conduct was intentional or at the very least reckless. Defendants’ conduct was also outrageous in character. The evidence suggesting that five correctional officers, which included Fazzolari and Pratts, intentionally beat up an unarmed pretrial detainee causing his near death is without question an extreme and “utterly intolerable” act in any civilized community, and goes “beyond all possible bounds of decency.” Buckley, 544 A.2d at 863 . Because Plaintiff has come forth with evidence that he sustained permanent psychological injuries, including post-traumatic stress syndrome, as a direct result of the assault, the remaining elements are provable to a reasonable jury as well. See Subbe-Hirt v. Baccigalupi, 94 F.3d 111, 115 (3d Cir.1996) (reversing dismissal of intentional infliction of emotional distress claim where plaintiff suffered from stress, including post-traumatic stress disorder); Kane v. Chester Cnty. Dept. of Children, Youth and Families, 10 F.Supp.3d 671, 693 (E.D.Pa.2014) (allegation of post-traumatic stress disorder is sufficient to satisfy requirement of showing severe emotional distress).
6. Defendants Pratts, Still, Mingúela, Ford, Fazzolari, and Pierce are not entitled to summary judgment on Plaintiff’s conspiracy claim
Plaintiff argues that Defendants engaged in a conspiracy to “cover up the truth of what its Correctional Officers had actually done to Defendant.” (PI. Cumberland Officers Br., at 40.)
In New Jersey, a civil conspiracy is “a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means.” Banco Popular N. Am. v. Gandi, 184 N.J. 161 , 876 A.2d 253, 263 (2005). The principal element of a conspiracy is an agreement between the parties to inflict a wrong against or injury upon another person, and an overt act that results in damage. Morgan v. Union Cnty. Bd. of Chosen Freeholders, 268 *301 N.J.Super. 337 , 633 A.2d 985, 998 (N.J.Super.Ct.App.Div.1993). “The gravamen' of a conspiracy action is not the conspiracy itself but the underlying wrong which, absent the conspiracy, would give a right of action.” Bd. of Educ. of City of Asbury Park v. Hoek, 38 N.J. 213 , 183 A.2d 633, 646 (1962); see also Middlesex Concrete Prods. v. Carteret Indus. Ass’n, 37 N.J. 507 , 181 A.2d 774, 779 (1962).
Summary judgment is not appropriate on a claim of conspiracy against Defendants Pratts, Still,- Mingúela, Ford, -and Fazzolari. There is evidence that all five correctional officers conspired to cover up their actions by submitting Use of-Force reports that significantly downplayed the amount of force they used against Plaintiff in the strip search room. The five reports recounted- that Pratts and Fazzolari each took Plaintiff down once, and -Mingúela gave Plaintiff a one-second burst of pepper spray. Based on the medical treatment Plaintiff received as a result of the incident, and the severity of Plaintiffs physical and psychological injuries, a reasonable juror could conclude that Defendants’ statements about the force used on Plaintiff were false. Nurse Moore testified that when Pratts returned to Cumberland County Jail for his shift the next day and learned that Plaintiff had been airlifted to Cooper Hospital for his injuries, he told her that she “knew what to say” if people began to ask questions. A reasonable inference could be made that the reports were falsely written to try to cover up what happened. There was also evidence that Defendants entered into an agreement together. The five statements Defendants submitted were nearly identical in describing certain conduct that is unlikely given the other evidence in the record. Moreover, four of the five reports contained the same misspelling of the word “irate.” A juror could reasonably conclude based on this evidence that Defendants acted in concert to falsify the Use of Force reports.
Pierce is also not entitled to summary judgment. ■ There are irregularities in the w;ay Pierce reviewed the officers’ Úse of Force reports before deeming the force “justified.” First, he determined that the Defendants’ use of force was justified without attempting to get a statement from Plaintiff. He also wrote his report before even receiving two of the officers’ statements. In addition, the.evidence suggests that he misrepresented at least one piece of information ip the report. Pierce stated in the report, that Plaintiff was cleared by Nurse. Moore and had been placed in. a transitional holding cell for observation, but Plaintiff had not yet been cleared at the time Pierce completed the report. Finally, Pierce’s Use of Force report reiterated the statements of his officers, even though he was likely aware of what had happened. in the strip search room. Although these irregularities could suggest that Pierce was merely sloppy or incompetent or superficial, a reasonable jury could also conclude that Pierce was aware of and covered up the fact that his officers used excessive force against Plaintiff., See. Morgan, 633 A.2d at 998-99 .
The Court will dismiss the conspiracy claim against Sciore and Ciangagli-ni. Although Plaintiff brings a conspiracy claim against all Defendants, Plaintiffs brief makes no mention of either Sciore or Ciangaglini and how they are liable. (PI. Cumberland Officers Br. 38-40.) There is no evidence in the record that Ciangaglini was present or even aware of the incident in the strip search room, nor is there any evidence that he participated in, knew, or acquiesced in an agreement to cover up the beating. Likewise, Plaintiff has pointed to nothing in the record implicating Sciore in the conspiracy to cover up the incident. -Accordingly, the Court will dis *302 miss the conspiracy claim against Sciore and Ciangaglini.
B. Claims against Cumberland County and CCDOC
Plaintiff brings' a claim under § 1983 against Cumberland County and Cumberland County Department of Corrections for failure to train and failure to investigate claims of excessive force. The parties agree that Cumberland County Dé-pártment of Corrections should be dismissed as a defendant in the § 1983 claim because it is not a proper institutional party-defendant. See Vuocolo v. Clinton Cnty. Corr. Facility, 2013 WL 572444 , at *4 (M.D.Pa. Jan. 24, 2013) (stating that § 1983 “expressly limits liability to persons who violate constitutional rights, a limitation that courts have construed as not reaching county jails as institutions.”); Thomas v. Wilbert, 2011 WL 91001 , at *6 (D.N.J. Jan. 11, 2011) (dismissing county correctional institution from § 1983 case because it was-not a proper defendant); Grabow v. S. State Corr. Facility, 726 F.Supp. 537, 538-39 (D.N.J.1989) (New Jersey Department of Corrections and state prison facilities' are" not- “persons” under § 1983). The Court will therefore enter an order dismissing Cumberland County Jail from the case.
Municipalities and other government entities may be ■ sued ■ under § 1983 for constitutional rights violations, but the entity is not liable under the doctrine of respondeat superior for the- misconduct of its employees. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690-692 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978). Instead, to prevail on a Monell claim, a-plaintiff-must first establish that the municipality had a policy or custom that deprived him of his. constitutional rights. Pelzer v. City of Philadelphia, 656 F.Supp.2d 517, 531 (E.D.Pa.2009) (citing Bd. of the County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 403-404 , 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997)). In other words, the plaintiff must show that the municipality, through one of its policymakers,1 affirmatively proclaimed the policy, or acquiesced in the widespread custom, that caused the violation. Watson v. Abington Twp., 478 F.3d 144 , 155-156 (3d Cir.2007). A plaintiff may show the existence of a policy when a “decision-maker, with final authority issues an official proclamation, policy, or edict.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.1990). Custom may be established by showing that a given course of conduct, “although not specifically endorsed or authorized by law, is so well-settled, and permanent as virtually to constitute-law.” Id.; see also Watson, 478 F.3d.at 155-56. In other words, custom may be established by proving knowledge of, and acquiescence to, a practice. Fletcher v. O’Donnell, 867 F.2d 791, 793-94 (3d Cir.1989).
Proof of the existence of an unlawful policy or 'custom is not enough to maintain a § 1983 action. A plaintiff must additionally prove that the policy or' custom was the proximate cause of the injuries suffered. Watson, 478 F.3d at 156; Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir.1984). To establish causation, 'the plaintiff must demonstrate a “plausible nexus” or “affirmative link” between the custom and the specific deprivation of constitutional rights at issue. Bielevicz, 915 F.2d at 850 . And, “[a]s long as the causal link is not too tenuous, the question whether the municipal policy or custom proximately caused the constitutional infringement should be left to the jury,” Id. at 851 ; see also Merman v. City of Camden, 824 F.Supp.2d 581, 589 (D.N.J.2010).
Plaintiff argues that Defendant Cumberland County had- a custom of failing to train the correctional officers in the appro *303 priate use of force and failing to properly investigate incidents of officer misconduct, particularly instances of excessive forcé. Plaintiff argues that Defendants are. liable under 42 U.S.C. § 1983 because the institutional failures at CCDOC were linked to the beatings Plaintiff received from the correctional officers, in violation of his constitutional right to be free from excessive force. Plaintiff also argues that Defendants are liable under a theory of respon-deat superior for violations of state common law.
Defendant denies that excessive force was used in violation of the CCDOC’s policies. They also argue that even if Plaintiffs constitutional rights were violated, no evidence supports that the harm was caused by Defendant’s failure to train and to investigate. Defendant further argues that the New Jersey Tort Claims Act bars Plaintiffs state law claims because Defendant cannot be held liable for the willful misconduct of its employees.
1. Cumberland County is not entitled to summary judgment on Plaintiff’s failure to train and failure to inves- ■ tigate claims
Section 1983 liability may be imposed on a government entity that has a policy or custom of failing to train, manifesting deliberate indifference, to the violation of constitutional rights. Where the policy “ ‘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 Philadelphia, 181 F.3d 339 , 357 (3d Cir.1999) (quoting City of Canton v. Harris, 489 U.S. 378, 388 , 109 S.Ct. 1197 , 103 L.Ed.2d 412 (1989)). Additionally, plaintiff must show a causal link: “the identified deficiency in a city’s training program must be closely related to the ultimate injury.” Canton, 489 U.S. at 391 , 109 S.Ct. 1197 ; see also Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d Cir.2014).
Deliberate indifference is a “stringent standard of fault, requiring proof that a municipal'actor disregarded- a’known or obvious consequence of his action.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 , 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997). Ordinarily, deliberate indifference for purposes of failure to train is demonstrated by a “pattern of similar constitutional violations by untrained employees.” Connick v. Thompson, 563 U.S. 51 , 131 S.Ct. 1350, 1360 , 179 L.Ed.2d 417 (2011). A pattern of violations puts municipal decisionmakers on notice that a new program is necessary, and ‘‘[t]heir continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees” can establish the deliberate indifference necessary to trigger municipal liability. Bryan Cnty., 520 U.S. at 407 , 117 S.Ct. 1382 .
Nevertheless, in certain situations, the need for training is “ ‘so obvious’, thqt failure to do so could properly be characterized as ‘deliberate indifference’ to constitutional rights,” even without a pattern of constitutional violations. Canton, 489 U.S. at 390 n. 10, 109 S.Ct. 1197 . A municipality. may be liable after -a single incident when the violation of constitutional rights is a “highly predictable consequence of failing to equip [] officers with specific tools to '.handle recurring situations.” Bryan Cnty., 520 U.S. at 408-09 , 117 S.Ct. 1382 ; Connick v. Thompson, 563 U.S. 51 , 131 S.Ct. 1350, 1361 , 179 L.Ed.2d 417 (2011) (a single incident may trigger municipal liability where unconstitutional consequences for failure to «train are ‘‘patently obvious”).
Plaintiff has marshalled a number of facts to support his claim that Cumberland County failed to train its correctional offi *304 cers on the use of force. The evidence shows — and Defendant does not appear to dispute — that the CCDOC failed to meet the state-mandated timelines for completing use of force trainings. This appears to have been a habitual shortcoming, including for most officers who are defendants herein. In addition, the training logs reveal that specific training on the use of force was rarely, if ever, held before the events in this case unfolded. Mingúela, Ford, and Fazzolari, did not recall receiving use of force training other than during their initial. two-week training at the Jail and training at the police academy. While Sciore stated that officers reviewed the use of force policy during firearms re-certification training twice a year, no one else could recall that happening. 19 Based on these facts, a reasonable jury could conclude that in 2008, Cumberland County provided no periodic training at all on the appropriate use of force. At the very least, the record shows that there is a factual dispute over how frequently use of force training was held.
Plaintiff has also presented evidence that the trainings at CCDOC were inadequate and untimely. For instance, Pratts, the Issue Officer the day Plaintiff was brought in, stated that he never réceived any training in how to be an Issue Officer and had “minimal training” in pat downs arid strip searches. Several officers testified that they did not feel like they had received adequate training in how to be a correctional officer. In addition, there appeared to be a pattern of providing late trainings at the police academy.- Plaintiff presented evidence that some officers waited between one and a half to three years before attending the required academy training. Defendants frequently requested waivers from the State to delay the officers’ academy training, even though academy training was' far more thorough than the in-house training and was, in two officers’ opinions, essential to understanding the rules and procedures correctional officers had to follow. Academy training also included important training on the use of force.
The need for use of force training in a jail is obvious, as it is highly predictable that failure to understand its appropriate use would result in injury to inmates and officers alike. A reasonable jury could conclude based on the frequent daily interactions between jailers and inmates that there was a high likelihood constitutional violations might recur if training was not provided. Because it was patently obvious that failure to provide training oh the use of force would result in excessive force, the evidence is sufficient for a reasonable juror to conclude that Defendant’s failure to train amounted to deliberate indifference. See Thomas, 749 F.3d at 225-26 (finding summary judgment inappropriate on a failure to train claim where potential for conflict in prison was high and lack of training on de-escalation and intervention could establish deliberate indifference); Berg v. Cnty. of Allegheny, 219 F.3d 261 (3d Cir.2000) (failure to provide protective measures and fail safes against mistake in warrant-issuing procedures precluded summary judgment); Pelzer v. City of Philadelphia, 656 F.Supp.2d 517, 535-36 (E.D.Pa.2009) (denying summary judgment on failure to train claim where evidence showed that City provided no guidelines and offeréd little training to police officers in how to conduct foot pursuits).
The evidence is also sufficient to sustain a “causal link” between the lack of training and the injuries Plaintiff sustained at the *305 hands of correctional officers. At the time of the incident, four of the five officers in the strip search room (Still, Pratts, Min-gúela, and Fazzolari) had not yet received training from the academy; and three (Still, Pratts, and Mingúela) were supposed to have already received training, but Defendant had delayed it by requesting waivers from the State. According to the training log, none of the officers had attended a specific training on the use of force. Ciangaglini, Pierce, and Sciore, who were the commanding officers at the time, likewise had little training. In fact, the three of them had not had use of force training (or trainings of any kind, for that matter) in the eight years before this incident. It is patently obvious that the officers’ ignorance of the rules on how and when to use force against a prisoner might have contributed to their transgression of those rules. Defendant’s argument,, that there is no causal link between the failure to train and the excessive use of force against Plaintiff, thus cannot be sustained.
For similar reasons, the Court -Will permit the failure to investigate claim to proceed, since Plaintiff has shown more than a “mere scintilla” of evidence from which a jury could conclude that Defendants’ procedures were inadequate to protect from misuse of force. Although Defendant had a policy of reviewing Use of Force’ reports' to determine whether correctional officers acted appropriately, the reports were not used to root out misconduct. Officers who were present wer¿ required to write reports with accounts that matched, and" reports were sent back if they gave conflicting facts. Ford testified that in this case, all five correctional officers collaborate on the events inside the strip search room before submitting théir identical reports to Pierce. The reports' themselves were frequently not reviewed by the required personnel after 2004, and the Warden did not regularly review the reports.
Moreover, the vast majority of the reviews concluded that the use of force was justified. Few. internal investigations into excessive force ever resulted from the Use of Force reports, even though an analysis of the reports showed that investigations were warranted in far -more cases. Plaintiffs expert, Dr. McCauley, noted that out of the .364 reports of force submitted in 11 years. Defendants investigated only six incidents and found only three incidents of excessive force. Lieutenant Wroniuk from the Internal Investigations unit testified that the jail had no formal procedures in place to track complaints against individual officers, and did not take into consideration past misconduct when faced with a complaint of excessive force against that officer. In short, there were no real procedures in place to detect and prevent problematic behavior by particular officers. Even though the use of force went up steadily in the five years leading up to the incident in this case, the deficiencies in review persisted. A jury could reasonably conclude that the procedures in place were little more than a rubber stamp to justify officer conduct, including conduct that crossed the line into excessive force.
A jury could also conclude that there was a culture of ignoring and failing to investigate misconduct. When Sergeant Ciangaglini pushed Plaintiff against a door using force that appeared to be excessive, neither Mingúela nor Brown-Carter reported the incident because ■ Ciangaglini was their superior officer. Lieutenant Pierce testified that when there was a claim of misconduct, he took his officers at their word when they reported what had happened. Even before he visited Plaintiffs holding cell, Pierce had written his Use of Force report and had concluded that the use of force was justified. Although Plaintiffs injuries were severe and should have raised some suspicion, no ef *306 fort-was made to preserve physical evidence .for a future investigation.
Significantly, as discussed above, Luciano testified that she would frequently report incidents of misconduct, including incidents of excessive force, to her supervisor, but that her reports were consistently ignored. Indeed, her • supervisor, Captain Lamcken called her a “troublemaker” and , told her to “mind her own business.” ' Luciano’s testimony suggests that Defendants knew of past problems with officer misconduct against inmates, and, rather than investigate these claims, looked the other way. Dr. McCauley, Plaintiffs expert, testified that. Defendant’s . practice of conducting few investigations and ignoring complaints of excessive force amounted to a “complete indifference to the safety, security, and well-being of its personnel and inmates.”
A reasonable jury could conclude based on the evidence above that Defendant’s deliberate indifference was the moving force behind Plaintiffs injury. See Bielevicz, 915 F.2d at 851 (“If the City is shown to have tolerated known misconduct by police officers, the issue whether the City’s inaction contributed to the individual officers’ [unlawful action against the plaintiff] is a question of fact for the jury.”); Beck v. City of Pittsburgh, 89 F.3d 966, 974-76 (3d Cir.1996) (reversing grant of summary judgment on municipal liability claim where evidence showed that investigatory procedures into police misconduct were inadequate; there was no formalized tracking of complaints for individual officers; and there were civilian complaints of officer violence); Merman v. City of Camden, 824 F.Supp.2d 581, 591 (D.N.J.2010) (denying summary judgment on claim of inadequate investigations and finding persuasive the fact that there was a significant , number of civilian complaints against officers and a comparatively small number of disciplinary sanctions). Summary ■ judgment will be denied.
- 2. Plaintiffs common law claims are not precluded by the New Jersey Tort Claims Act
The New Jersey Tort Claims Act (“NJTCA”) imposesliability for a public entity “for injury proximately caused by an act or omission.of a public employee within the scope of ids employment in the same manner and to the same extent as a private individual under like circumstances.” N.J.S.A. 59:2-2(a). Section 59:2-2a of the NJTCA expressly adopts the general' 'concept of vicarious liability for public entities. Hoag v. Brown, 397 N.J.Super. 34 , 935 A.2d 1218, 1230 (N. J.Super.Ct.App.Div.2007); Tice v. Cramer, 133 N.J. 347 , 627 A.2d 1090, 1094 (1993). The NJTCA also'provides that a public entity is “not liable for the acts or omissions of a public employee constituting á crime, actual fraud,' actual malice, ■ or willful misconduct.” N.J.S.A. 59:2-10. Thus, there can be no vicarious liability by a public entity for intentional torts committed by its employees. Defendant Cumberland County argues that. Plaintiffs common law; claims against the municipality are barred by the NJTCA because Cumberland County, as a public entity, cannot be held liable for the willful misconduct of its employees. (Def. Br. 20-21.)
Defendant Cumberland County is not entitled to summary judgment on this ground. As Plaintiff correctly points out, the NJTCA does not immunize Defendant from liability for its employees’ negligent or grossly negligent conduct. See Graham v. Huevel, 2011 WL 1256607 , at *10 (D.N.J. Mar. 28, 2011) (noting that a “claim for negligent supervision is an independent claim for direct liability, rather than-one for vicarious .liability under a theory of respondeat superior.”)-, Hoag, *307 935 A.2d at 1230 (same). Plaintiffs theory, that Defendant is liable for its employees’ failure to properly supervise subordinates on the day Plaintiff was beaten, states a claim of negligent supervision that is not barred by the NJTCA. Plaintiff additionally states a claim of negligent failure to train. As Defendant does not otherwise challenge the sufficiency of Plaintiffs state law claims, the Court will permit Plaintiffs claims of negligent supervision and failure to train to proceed. 20
C. Claims against the Vineland Defendants
The parties agree that Vineland Police Department should be dismissed as a defendant in the § 1983 claim because it is not a proper institutional party-defendant. Accordingly, an Order will be entered to dismiss the Vineland Police Department.
With respect to the remaining parties, Defendants argue that the § 1983 claim against the City of Vineland (“Vineland”) for failure to train must be dismissed because the evidence does not support that Deféndant Vineland failed to train its officers, and because there is no causal nexus between Defendant’s failure to train and Plaintiffs injury. Defendants additionally argue that Plaintiffs state' law claims against Vineland for negligent training must be dismissed because Plaintiff did not file a timely Notice of Claim pursuant'to N.J.S.A. 59:8-8.
With respect to the. § 1983 claim against Day and Houbary for failure to intervene, Defendants argue that the claim must be dismissed because Day and Houbary did not have a realistic opportunity to intervene to prevent the violation of Plaintiffs rights. 21 Defendant Cumberland County filed an opposition to the Vineland Defendants’ motion for summary judgment,' arguing that -factual disputes remain as to whether Plaintiffs injuries were the result of Vineland’s conduct.
1. The City of Vineland' is entitled to summary judgment on the § 1983 claim of failure to train and the ■ common law claim of negligent training
Plaintiff argues that Vineland failed to train its police officers on the proper procedures for transporting prisoners to the jail. Day testified that Vine-land’s custom was to assign the most junior officers to transport prisoners to the jail, and that as the junior officer on duty that day, the task was left to him to bring Plaintiff to Cumberland County Jail. Day also testified that he received no specific in-house training on transportation and exchange procedures; he, learned how to transport prisoners only during the months he spent shadowing other officers following his graduation from the police academy. The opinion of Plaintiffs expert, Dr. McCauley, was that the Vineland Police Department’s training on transporting and exchanging prisoners was inadequate.
As discussed above, to prove a § 1983 constitutional violation for failure to train, *308 the plaintiff must show that the defendant’s conduct amounted to deliberate indifference, which, absent a pattern of similar constitutional violations by untrained employees, “require[es] proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 , 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997). In addition, the plaintiff must show an “affirmative link” between the failure to train and the specific constitutional violation that occurred. Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.1990). Although there is some evidence that Defendant failed to provide adequate training, that dispute is not material because the evidence does not link the lack of training of Vineland officers to the constitutional harm of which Plaintiff complains. Plaintiff has not presented sufficient evidence for a reasonable factfinder to conclude that Defendant Vineland’s failure rose to the level of deliberate indifference. Nor has is there enough evidence in the record for a rational jury to find a causal connection between Defendant’s failure to train arid the injuries Plaintiff suffered.
First, the lack of formal police training in this particular area of the transport of detainees does not create an obvious risk that a prisoner would be beaten by correctional officers at the receiving institution. Not knowing the specific procedures for presenting an inmate to the jail does not generally pose an obvious danger to the inmate’s health and safety. The process of transport and exchange requires a police officer to bring a prisoner to the jail and leave him in the custody of correctional officers, and there is no reason for a police officer to suspect that, correctional officers would mistreat an inmate. Thus, ignorance of the exact method by which an exchange of custody takes place at the Cumberland County Jail does not create a high risk of harm of which Defendant Vineland should have known.
Second, Plaintiff has not specified what additional training could have prevented the harm that occurred. See Woloszyn v. Cnty. of Lawrence, 396 F.3d 314 (3d Cir.2005) (failure to identify specific training that could reasonably have identified the prisoner’s suicidal tendencies was fatal). Plaintiff notes that without training, Day mistakenly believed that Plaintiff was in Ciangaglini’s custody when they were in the processing room and consequently did not speak up when excessive force was being used. But Day testified that this was only one of the reasons why he did not say anything to Ciangaglini; he also stayed silent because he was “brand new” and because Ciangaglini, a Lieutenant at the time, outranked him. More significantly, Day and Houbary both testified that they knew their obligations to report officer misconduct. Day stated that he “should have” said something to Ciangagli-ni and confirmed that his law enforcement training required him to speak up to an officer when he sees that, officer using excessive force. (Day Dep. 154:9-157:12.) Similarly, Houbary confirmed that based on his training, it was his responsibility.to report the use of excessive force by another officer., (Houbary Dep. 36: 1-21.) In other words, it was clear that Day and Houbary knew what they were supposed tp do in the present situation, whether or not they received formal training. Thus, even if Day and Houbary had been properly trained on transporting prisoners, there is no reason to believe it would have made a difference in how they reacted to the Cumberland Defendants’ conduct.
Because Plaintiff has not shown that Vineland ignored an “obvious risk” of constitutional violations, or that there is a causal link between Vineland’s failure to provide formal training on prison trans *309 port and the injuries Plaintiff suffered at the jail, the Court will grant summary judgment on Plaintiffs claim against Vine-land under 42U.S.C. § 1983 for failure to train. For similar reasons, the Court will grant summary judgment on Plaintiffs common law claim of negligent training. 22 Both claims will be dismissed..
2. The Court mil grant summary judgment on Plaintiffs § 1983 claim for failure to intervene against Officer Day but deny summary judgment on the claim against Officer Houbary
Plaintiff alleges that Pay and Houbary are liable under § 1983 for failure to intervene to prevent the deprivation of Plaintiffs constitutional rights. “It is clear that one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge.” Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir.1972). Under this principal, when a police officer fails to intervene when a constitutional violation such as a beating takes place in his presence, he may be liable under § 1983 for violating the victim’s Eighth Amendment rights. Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir.2002) (citing Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir.1986)); Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir.1981).
A police officer has a duty to take reasonable steps to protect a victim from another officer’s use of excessive force, but liability does not attach in all cases. An officer is liable for failing to intervene only if he saw the beating and there was a “realistic and reasonable, opportunity to intervene.” Mensinger, 293 F.3d at 650 . Generally, the constitutional violation must have occurred in the officer’s presence. Clark, 783 F.2d at 1007 ; Brishke, 466 F.2d at 11 (liability for failure to intervene exists only -if the • beating occurred in the officer’s presence or was otherwise within his knowledge).
The evidence shows that Defendant Day witnessed Ciangaglini forcefully push Plaintiffs face into, the door of a processing room during Plaintiffs first trip to Cumberland County Jail. Mingúela, who observed the incident from a monitor, believed that Ciangaglini used “excessive” force against Plaintiff. Day also admitted that he thought the use of force was “excessive.” . As Ciangaglini, does not seek summary judgment on Plaintiffs § 1983 claim of excessive force, the Court assumes for purposes of this motion that Ciangaglini’s conduct violated Plaintiffs rights under the Fifth and Eighth Amendments.
Nonetheless, the Court finds that Day is entitled to summary judgment, because even assuming a constitutional violation had occurred, no reasonable jury could find that there was a reasonable opportunity for Day to intervene before Plaintiff was mistreated by Ciangaglini. Day did not know that Ciangaglini would push Plaintiff intp the door, and nothing in the record suggests that Day knew Ciangaglini was about to use excessive force when he took Plaintiff by the arm to escort him out of the room. The evidence of record describes an instantaneous, perhaps impulsive shove by Ciangaglini, to which Day was only a witness. Even if Day had wanted to intervene, the evidence is insufficient as a matter of law to show that he had any opportunity to do so. See O’Neill v. Krzeminski, 839 F.2d 9 , 11-12 (2d Cir.1988) (finding no liability where blows were struck, too quickly for an officer to intercede); Sullivan v. Warminster Tp., *310 765 F.Supp.2d 687, 701-02 (E.D.Pa.2011) (finding that officers had no realistic or reasonable opportunity to intervene because they were far from where the constitutional deprivation took place and could not reasonably have reached area to prevent harm). 23
Because the- Court finds that the § 1988 claim against Day should be dismissed, the question of damages against Day is moot.
' The, Court will’ allow Plaintiffs failure to intervene claim' against Houbary to proceed. Houbary was not in the strip search' room when Plaintiff was beaten by the correctional officers, nor does the record show that he witnessed correctional officers use inappropriate force against Plaintiff in the strip search room.
Plaintiff argues, however, that. Houbary should have stayed at the jail because there were signs that Plaintiffs safety was at risk. For example, Houbary' testified that' there were more than the normal number of officers in the room for Plaintiffs pat-down and strip search, and the way Pratts performed his pat-down of Plaintiff in the control room was unusual. Houbary noticed that the nurse was not called down to examine Plaintiff before the strip' search. He also indicated that Pratt’s take down of Plaintiff may not have been jüstified, because he did not see Plaintiff kick Pratts. Although hé did not go into the strip search room, Houbary followed the officers when they took Plaintiff to the strip search room because he wanted to see what was happening.
In his supplemental briefing, Plaintiff cites Floyd v. City of Detroit, 518 F.3d 398 (6th Cir.2008) and Curley v. Suffern, 268 F.3d 65 (2d Cir.2001), for the proposition that an' officer may be liable for failing to act to prevent the use of excessive force where the officer “had reason to know” that excessive force will be used. See Floyd, 518 F.3d at 406 (police officer who fails to act to prevent- the use of excessive force may be held liable where officer -“had reason to know that excessive force would be or was being used” and had both the opportunity and the means to prevent the harm from occurring); Curley, 268 F.3d at 72 (“Failure to interceded results in liability where an officer observes excessive force is being used ór has reason to know that it will be.”); see also Hicks v. Norwood, 640 F.3d 839, 843 (8th Cir.2011) (reciting rule in Floyd); Turner v. Scott, 119 F.3d 425, 429 (6th Cir.1997). Plaintiff argues that the unusual behavior of the correctional officers should have alerted Houbary to the risk that Plaintiff would be subject to excessive force, and Houbary’s failure to stay in' the jail to protect Plaintiff therefore violated Plaintiffs constitutional rights.
Plaintiff has raised a material factual dispute whether Hqubary had reason to believe that Plaintiffs safety was in jeopardy when Houbary left the jail. Even though Houbary testified that he did not fear for Plaintiffs safety when he left (Houbary Dep. 135:7-12), a reasonable factfinder could reject this statement based on other evidence in the record. Here, immediately after Plaintiff was taken down in a manner Houbary believed might not have been justified, Houbary witnessed numerous officers grab Plaintiff and take him into a strip search room. Particularly when Plaintiff is given the benefit of all reasonable inferences, a reasonable fact finder could concludé that *311 Houbary should have known that Plaintiff would probably be mistreated, and that Houbary had an opportunity to prevent it by insisting on staying by Plaintiffs side until the strip search was completed. A reasonable jury could find from the evidence that Houbary’s. intervention, or even his mere personal presence* would have prevented the beating that Plaintiff alleges occurred in the strip search room. The Court will accordingly deny summary judgment on Plaintiffs § 1983 claim against Houbary for failure to intervene.
Y. CONCLUSION
For the foregoing reasons, the Court will dismiss Cumberland County Department of Corrections as a party in the case and deny the motion for summary judgment by Cumberland County. Plaintiff’s § 1983 claims against Cumberland County for failure to train and failure to investigate, and common law claims for negligent training and negligent supervision will be allowed proceed. The Court will also deny the motions for summary judgment by Defendants Ciangaglini, Pratts, Still, Fazzo-lari, Ford, Mingúela, Sciore, and Pierce. However, the Court will dismiss the conspiracy claim against Sciore and Ciangagli-' ni.
As to the Vineland defendants, the Court will dismiss the Vineland Police Department as a party in the case and grant summary judgment on all counts for Defendants City of Vineland, and Officer Day. Summary judgment will be denied on Plaintiffs'§ 1983 claim against Houbary for failure to intervene. The accompanying Order will be entered.
. Mingúela did not report the incident to anyone because he was "the youngest involved in that situation at the time” and felt like "a puppet.” He stated that he "did not have the proper training that [he] was supposed to have at the time and [he] kind of just went off of what [his] supervisors told [him].” (Min-gúela Dep. 165:5-17.) Day admitted that he should have said something to Ciangaglini but did not because he was "brand new,. Cianga-glini outranked him, and he believed Plaintiff was in Ciangaglini’s custody at the time. (Day Dep. 154:15-18; 150:23-154:6.) Carter did not report the incident because Ciangagli-ni was her supervisor and she did not want any repercussions. (Carter Dep. [Docket Item 237-12] 61:2-9.)
. Plaintiff included a transcript of a taped statement Pagan made in July 2008 with the *281 Cumberland County Prosecutor’s office. Defendants object that Pagan’s testimony is hearsay, as Pagan was not deposed in connection with this case. Pagan’s statement about what he saw and did is not hearsay, and is largely confirmed by the video evidence. As Pagan could conceivably be used as a witness at trial, the Court will accept his testimony in deciding these summary judgment motions.
. The “Training Requirements" of the AG Policy states:
Every law enforcement agency is required to conduct and document semi-annual training for all officers on the lawful and appropriate use of force and deadly force. This training must be designed to reflect current standards established by statutory and case law, as well as statewide, county and- individual agencypolicy. It should include but not necessarily be limited to the use of force in, general, the use of physical and mechanical force, the use of deadly force, and the limitations that govern the use of force and deadly force.
(Attorney General’s Use of Force Policy [Docket Item 237-40], at 7.)
. Still, Pratts, Fazzolari, .and Mingúela did not attend firearms training at any time before the incident. (Counter SMF ¶ 184.)
. The Training log shows some entries for "Training” which does not specify whether use of force training was included.
. Ford’s last training on use of force occurred nearly five years before the incident. Pratts had attended a training session two years before the incident. Two officers, Fazzolari and Mingúela, had been trained approximately one year before the incident. Still attended a training three months before the incident. (Training Log [Docket Item 237-42]; Counter SMF ¶ 173.)
. Correctional officers who have not yet completed police academy training are on probationary status and are considered "recruits.” (Mingúela Dep. 31:23-32:6.)
. Waivers from this requirement could be granted at the request of the CCDOC.
. Correctional Officers Marvin Church and Rena Miller were voluntarily dismissed from the suit on August 14, 2014. [Docket Item 222.]
. In July 2009, Fazzolari, Ford, Mingúela, Still and Pratts were indicted by a grand jury for aggravated- assault, official misconduct, falsifying records, , obstructing justice, . and ■ conspiracy in connection with the. June 30, 2008 incident. The Court stayed this case in -2010 pending resolution of the Cumberland County officers’ criminal cases. In April 2013, a verdict in favor of defendant Kevin Stills was entered in the case. Thereafter, the Cumberland County Prosecutor dismissed the criminal charges against the remaining indicted defendants, namely Pratts, Mingúela, Ford, and Fazzolari. (PL Mot. to Amend [Docket Item 112] ¶¶ 9-10.) This Court lifted the stay in June 2013.
. The Court does not discuss whether the Fourth Amendment should apply to Plaintiff's claim of excessive force because Plaintiff was beaten after an arrest but before being admitted to the general prison population and before a judicial determination of probable cause. See, e.g., Catherine T. Struve, The Conditions of Pretrial Detention, 161 U. Pa. L.Rev. 1009 (2013) (arguing that Graham v. Connor's objective reasonableness test under the Fourth Amendment is more appropriate for excessive force claims arising in pre-judi-cial detention). That argument was not briefed by either party and the Court will decline to address it. See Aetna Health Inc. v. Davila, 542 U.S. 200, 212 , 124 S.Ct. 2488 , 159 L.Ed.2d 312 (2004) (deeming an argument waived when the "[rjespondent did not identify this possible argument in their brief in opposition”).
. The law in this area among circuits is split, and the.question of what standard applies in a § 1983 excessive force claim brought by a pretrial detainee is currently before the Supreme Court. See Kingsley v. Hendrickson, 744 F.3d 443 (7th Cir.2014), cert. granted, — U.S. —, 135 S.Ct. 1039 , 190 L.Ed.2d 908 (2015).
. The Court also notes that in this párticular case, where there is evidence of inadequate oversight and accountability over the conduct of correctional officers, there is a higher risk that officers with little training on use of force will use inappropriate levels of force to subdue pretrial detainees. The use of a subjective Eighth Amendment recklessness or malice standard is not well-suited to curbing jailhouse violence where officers’ subjective sense of reasonableness may be distorted.
. Although the Court will permit the § 1983. claim of excessive force against Defendant *295 Ciangaglini to proceed, the Court notes that Plaintiff does not allege that he suffered any harm from being pushed against the door by Ciangaglini. Plaintiff’s § 1983 claim for compensatory damages will be limited to $1 exemplary damages unless Plaintiff can'prove at trial'that he was injured as a result of Cianga-glini’s conduct. ’
. The Court notes that the second prong may also be met because any violation of the Eighth Amendment’s prohibition against force "maliciously and sadistically to cause harm” may be considered a clearly established constitutional violation. See Skrtich v. Thornton, 280 F.3d 1295 , 1301 (11th Cir.2002) (holding that "a defense of qualified immunity is not available in cases alleging excessive force in violation of the Eighth Amendment, because the use of force ‘maliciously and sadistically to cause harm’ is clearly established to be a violation of the Constitution”); Thomas v. Ferguson, 361 F.Supp.2d 435 , 442 n. 7 (D.N.J.2004) (noting that "[mjalicious and sadistic use of force is always in violation of clearly established law.”); see also Beers-Capitol v. Whetzel, 256 F.3d 120 , 142 n. 15 (3d Cir.2001) (in excessive force case, holding that "to the extent that the plaintiffs have made a showing sufficient to overcome summary judgment on the merits, they have also made a showing sufficient to overcome any claim to qualified immunity.”).
. At oral argument, counsel for Defendant Ciangaglini argued that he never received notice because he personally did not receive the letter sent to Cumberland County. However, the NJTCA does not require Plaintiff to serve the individual employee. The statute explicitly provides that service “upon the public entity shall constitute constructive service upon any employee of that entity.” N.J.S.A. 59:8r 10(c). Thus, whether or not Ciangaglini ever received Plaintiffs letter notice to Cumberland County is immaterial to whether Plaintiff has satisfied the notice requirement.
. Plaintiff clarified-at oral argument that he does not make a claim of assault and battery against Defendants Pierce and Sciore.
. It does not appear that the twice-yearly requirement was cumbersome for Defendant. Indeed, 'the training log reveals that Defendants had no trouble with being punctual in their firearms re-certification.
. The Court will not consider Defendant’s argument that they failed to receive proper notice of claims, as it was not raised in Defendant’s opening brief. See Bayer AG v. Schein Pharm., Inc., 129 F.Supp.2d 705, 716 (D.N.J. 2001).
. • The Court sought additional briefing and on, the narrow question of- whether law enforcement officers have a duty to intervene when the officer has reason to believe excessive force will be used on a victim in the future. Following oral argument, the parties submitted -supplemental briefing, and the Court has considered only the portions of briefs relevant to this question. As the Court did not request additional briefing on any other issue, the parties’ submissions outside this topic were not considered.
. Because Plaintiff has no other common law claims against Vineland, the Court need not decide whether Plaintiff's tort claim is barred by the New Jersey Tort Claim Act.
. Cumberland argues that summary judgment should be denied because there are disputed issues of fact over whether Day failed to intervene' during Plaintiff’s ■ first. encounter near his hotel with officers from Vineland. As Plaintiffs claims against Day relate only to his failure to intervene at the jail and not to the earlier incident, whether Day failed to intervene at .the hotel is immaterial to resolving his liability in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7235415. Public record. Not legal advice.