Edward Scanlon, IV v. Valerie Lawson

• Court: Court of Appeals for the Third Circuit
• Decided: June 6, 2022
• Docket: 20-3212
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 20-3212 _____________

EDWARD SCANLON, IV, Appellant

v.

VALERIE LAWSON; FELIX MICKENS; ROBERT BALICKI; VERONICA SURRENCY; JOHN AND/OR JANE DOES 1-45, (fictitious individuals); ABC CORPS 1-45, (fictitious corps), jointly, and severally; WILLIAM M. BURKE, also known as BILL BURKE; BOBBY STUBBS; DAVID FUENTES; HAROLD COOPER; WESLEY JORDAN; CAROL WARREN ________________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 1:16-cv-04465) District Judge: Honorable Renee M. Bumb ________________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 30, 2022 ________________ Before: CHAGARES, Chief Judge, SHWARTZ, Circuit Judge, and ROSENTHAL, District Judge *

(Opinion filed: May 17, 2022) ____________ OPINION ** ___________

* Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of Texas, sitting by designation. ** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. CHAGARES, Chief Judge.

Plaintiff Edward Scanlon, IV brought this civil rights action for injuries sustained

while he was held as a juvenile detainee not yet adjudicated delinquent at the Cumberland

County Juvenile Detention Center (“CCJDC”). In a series of orders, the District Court

granted summary judgment for the defendants, who include both CCJDC personnel and

New Jersey state administrators, holding that some claims were barred by the statute of

limitations while others failed on the merits. For the reasons that follow, we will affirm.

I.

We write primarily for the parties and recite only the facts essential to our

decision. While Scanlon’s complaint broadly asserts that he was subjected to physical

and psychological abuse throughout his detention at the CCJDC, the allegations focus

primarily on a series of incidents involving defendant Wesley Jordan, who was a juvenile

detention officer at the facility. Scanlon was removed from his room by Jordan and

another officer on May 21, 2011. During this “room extraction,” Scanlon struck Jordan

and was subsequently charged with aggravated assault. Scanlon asserts, however, that

Jordan used excessive force in removing Scanlon from the room.

The next incidents occurred on March 3 and 4, 2012, when Jordan allowed and

possibly encouraged Scanlon to engage in fights or go “body to body” with other juvenile

detainees. Scanlon was injured in these fights and sought medical treatment from

defendant Carol Warren, a nurse who reported Scanlon’s injuries to her supervisors.

Both the CCJDC and the New Jersey Department of Children and Families (“DCF”)

subsequently commenced investigations. As part of these investigations, a “no contact

2 order” was issued on April 30, 2012, which prohibited interaction between Jordan and

Scanlon.

Scanlon initially filed this action in New Jersey state court asserting claims under

42 U.S.C. § 1983 and the New Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6–2 against

defendants including CCJDC supervisors Veronica Surrency and Robert Balicki, as well

as state administrators and fictitious persons. 1 The defendants removed the action to the

United States District Court for the District of New Jersey, and Scanlon thereafter

amended his complaint. The amended complaint added as defendants Jordan, Warren,

and William Burke. 2 The District Court read the amended complaint to cover three types

of conduct at the CCJDC: (1) Scanlon being subject to unlawful room extractions; (2)

Jordan permitting and possibly promoting fights between Scanlon and other juveniles;

and (3) a failure to provide Scanlon with proper medications. The District Court

determined that in Scanlon’s opposition to summary judgment he advanced additional

claims not covered by the complaint, including the CCJDC’s allegedly unlawful practice

and procedure of placing juveniles in 24-hour administrative lockdowns and a lack of

training related to treating juveniles with mental health issues. The District Court

1 Scanlon also asserted claims under the New Jersey Tort Claims Act, N.J. Stat. Ann. § 59:1–1, et seq. The District Court granted summary judgment for the defendants on these claims, and Scanlon does not pursue them on appeal. 2 The District Court granted summary judgment for defendant David Fuentes, and the parties have stipulated to his dismissal from this appeal. Scanlon similarly does not pursue his claims against Bobby Stubbs or Harold Cooper on appeal. We entered stipulations of dismissal as to defendants Felix Mickens, Valerie Lawson, and Michael Baruzza.

3 ultimately granted summary judgment for defendants Jordan, Warren, and Burke on

statute of limitations grounds and for defendants Surrency and Balicki on the merits.

II. 3

Scanlon argues the District Court erred in concluding that the claims against

Jordan, Warren, and Burke were barred by the statute of limitations. The parties agree

that New Jersey law applies here and provides a two-year statute of limitations for both

Scanlon’s claims under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act. See

N.J.S.A. § 2A:14-2; Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010).

Because Scanlon was a minor when the relevant conduct occurred, his claims were tolled

until he turned eighteen on April 1, 2014. See N.J. Stat. Ann. § 2A:14-21. Scanlon’s

claims were therefore required to be asserted by April 1, 2016. Two days before the

limitations period expired, on March 29, 2016, Scanlon filed his complaint in New Jersey

state court. The initial complaint did not assert claims against Jordan, Warren, and Burke

but did name fictitious “John and/or Jane Does” as defendants. On October 26, 2017,

Scanlon filed an amended complaint in federal court that added these individuals as

defendants.

We first address the claims against Jordan. There is no dispute that these claims

are untimely unless they relate back to the date that Scanlon initially filed his complaint.

Federal Rule of Civil Procedure 15(c)(1)(A) provides that “[a]n amendment to a pleading

3 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291 and review the District Court’s grant of summary judgment de novo. Freedom From Religion Found., Inc. v. County of Lehigh, 933 F.3d 275, 279 (3d Cir. 2019).

4 relates back to the date of the original pleading when . . . the law that provides the

applicable statute of limitations allows relation back.” We therefore “may apply the state

law that establishes the limitations period to determine whether relation back is

permissible.” DeRienzo v. Harvard Indus., Inc., 357 F.3d 348, 353 (3d Cir. 2004).

Jordan was substituted for a “John Doe” defendant in the amended complaint. In

substituting Jordan, Scanlon relies on New Jersey Court Rule 4:26-4 that permits the

naming of a fictitious defendant with “an appropriate description sufficient for

identification” until the plaintiff amends the complaint with the “defendant’s true name.”

N.J. Ct. R. 4:26-4. Relation back under this rule requires that a plaintiff exercise due

diligence in determining the true identity of a fictitious defendant both “before and after

the filing of the complaint.” DeRienzo, 357 F.3d at 353. What constitutes due diligence

“will vary with the facts of each case,” but a failure to exercise due diligence precludes

reliance on the fictitious party rule. Id. at 354 (quoting O’Keefe v. Snyder, 416 A.2d 862,

873 (N.J. 1980)). At a minimum, the plaintiff has “an obligation to investigate all

potentially responsible parties in a timely manner.” Matynska v. Fried, 811 A.2d 456,

457 (N.J. 2002). Courts must also consider whether application of the rule would

prejudice the defendant. DeRienzo, 357 F.3d at 354.

Scanlon argues that the District Court erred in determining that he did not act

diligently in identifying Jordan as the officer involved in the March 2012 fighting

incidents. During the DCF’s investigation, Scanlon’s father was told that information

regarding the identity of the officer involved could not be released, and at the time the

complaint was filed, Scanlon asserts that this information was still unavailable.

5 Scanlon’s father further states that Scanlon could not remember the officer’s name after

the incidents due to memory issues.

We agree with the District Court that these actions fail to establish the required

level of diligence. While Scanlon’s father made early attempts to identify the officer in

2012, no further efforts were made until the complaint was filed two days before the

statute of limitations expired. Plaintiff’s counsel similarly filed a notice pursuant to New

Jersey’s Tort Claims Act dated September 18, 2012 based on the same underlying

conduct in this action, but the record is devoid of actions taken by counsel to discover

Jordan’s identity. Prior to filing the complaint, Scanlon, his father, and his counsel failed

to demand information formally, attempt to speak with other juveniles or employees at

the CCJDC, file a request under the New Jersey Open Public Records Act, or search

public records. We conclude that Scanlon cannot rely on New Jersey’s fictitious party

rule and therefore his claim against Jordan based on the March 2012 fighting incidents

does not relate back. 4

With respect to Scanlon’s claim based on the May 2011 “room extraction,” he

argues that New Jersey’s discovery rule tolls the statute of limitations. New Jersey’s

discovery rule “postpones the accrual of a cause of action so long as a party reasonably is

unaware either that he has been injured, or that the injury is due to the fault or neglect of

4 Scanlon forfeited his argument concerning the shared attorney doctrine, by failing to raise it in the District Court. See Sun Chem. Corp. v. Fike Corp., 981 F.3d 231, 235 n.1 (3d Cir. 2020). The argument, moreover, lacks merit because Jordan did not share an attorney with an earlier named defendant. See Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 196 (3d Cir. 2001).

6 an identifiable individual or entity.” Caravaggio v. D’Agostini, 765 A.2d 182, 186 (N.J.

2001) (quotation marks omitted). We have explained that this “inquiry boils down to

‘whether the facts presented would alert a reasonable person, exercising ordinary

diligence, that he or she was injured due to the fault of another.’” Cetel v. Kirwan Fin.

Grp., Inc., 460 F.3d 494, 513 (3d Cir. 2006) (quoting Caravaggio, 765 A.2d at 186–87).

We agree with the District Court and conclude that Scanlon cannot rely on the

discovery rule. Jordan’s name appears on the document charging Scanlon with assault in

connection with the May 2011 room extraction, and there is no claim that Scanlon did not

have access to this document. Because Scanlon should have known of Jordan’s

involvement in the incident, this claim is barred by the statute of limitations.

We next address the claims against Burke and Warren, who similarly were added

as defendants in Scanlon’s amended complaint. 5 Scanlon again argues that New Jersey’s

discovery rule should toll the statute of limitations. We disagree. There is nothing in the

record supporting that Scanlon made any inquiry into whether Burke or Warren were at

fault for his injuries. While Scanlon urges that the discovery materials he received in

January 2017 alerted him to Burke’s and Warren’s involvement, he fails to identify the

documents at issue or how they shed light on these individuals’ conduct. We conclude

that the District Court properly granted summary judgment for Burke and Warren.

5 During the relevant period, Burke was the supervisor of the New Jersey Juvenile Justice Commission’s Compliance Monitoring Unit. The District Court held that the supervisory liability claims asserted against Burke also failed on the merits. We agree that summary judgment in favor of Burke was proper because there is no evidence that Burke was “involved in the day-to-day operations of the CCJDC” or had any “responsibility to enforce its policies and procedures.” Burke Br. 21.

7 III.

Similar to our decision in A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr.,

which involved § 1983 claims asserted by a juvenile detainee not yet adjudicated

delinquent, “[t]here appears to be no dispute between the parties that [the plaintiff] has a

liberty interest in his personal security and well-being, which is protected by the

Fourteenth Amendment.” 372 F.3d 572, 579 (3d Cir. 2004) (citing Youngberg v. Romeo,

457 U.S. 307, 315–19 (1982)). Scanlon here asserts § 1983 claims against Surrency and

Balicki in both their official and individual capacities. Surrency was the Division Head

of the CCJDC, and Balicki was the Warden of the Cumberland County Jail System,

which oversees the CCJDC.

A claim asserted against a municipal government official in his or her official

capacity is treated as a suit against the municipal entity itself. Id. at 580. Municipal

liability may attach where a plaintiff asserts that “an unconstitutional policy or custom of

the municipality led to his or her injuries, or that they were caused by a failure or

inadequacy by the municipality that reflects a deliberate or conscious choice.” Forrest v.

Parry, 930 F.3d 93, 105 (3d Cir. 2019) (internal citations and quotation marks omitted).

A claim based on a failure to train or supervise municipal employees “requires a showing

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

those employees will come into contact.” Thomas v. Cumberland County, 749 F.3d 217,

222 (3d Cir. 2014) (quotation marks omitted) (quoting Carter v. City of Philadelphia, 181

F.3d 339, 357 (3d Cir. 1999)). A plaintiff must also establish the required casual nexus

8 between the identified deficiency in training or supervision and the alleged constitutional

violation. City of Canton v. Harris, 489 U.S. 378, 391 (1989).

Scanlon first contends that summary judgment was not appropriate because the

CCJDC failed to have a policy of instituting no-contact orders when a juvenile has been

charged with assaulting an officer, such as the charges against Scanlon stemming from

the May 2011 room extraction. Scanlon points to the fact that Burke, who is not a

policymaker, testified it would be a “pretty good idea” to have such a policy and that

Jordan asked Surrency whether there was a no-contact order in place for him and

Scanlon. We conclude, however, that the District Court properly granted summary

judgment for the defendants because Scanlon failed to establish deliberate indifference as

a matter of law. There is no evidence that Surrency, Balicki, or other municipal

policymakers were aware that Jordan permitted juveniles to engage in fights prior to the

incidents involving Scanlon or evidence of other instances where an officer retaliated

against a juvenile who had been previously charged with assaulting that officer.

Scanlon next argues that the District Court erred in granting summary judgment

for the defendants because the CCJDC lacked a policy requiring medical personnel to

report all injuries. Although only a few days before the March 2012 incidents Nurse

Warren examined Scanlon for a “mark on his shin,” there is no evidence that these

bruises came from fights permitted by Jordan. Appendix 430. Because there is not a

9 casual nexus between the alleged policy deficiency and Scanlon’s injuries, the District

Court properly granted summary judgment on this claim. 6

In addition to the official capacity claims, Scanlon asserts claims of supervisory

liability against Surrency and Balicki in their individual capacities. A supervisor may be

liable if, with deliberate indifference to the consequences, he or she “maintained a policy,

practice or custom which directly caused the constitutional harm,” including a failure to

adopt a practice or a failure to train. Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir.

2016); Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev’d on other

grounds sub nom. Taylor v. Barkes, 575 U.S. 822 (2015) (per curiam).

Scanlon reasserts his claims against Balicki and Surrency in their individual

capacities regarding the CCJDC’s failure to have a policy for issuing no-contact orders.

These claims fail for the reasons discussed above in connection with Scanlon’s official

capacity claims. Scanlon’s final claim asserts that Balicki and Surrency failed to provide

him with proper medications while he was committed to the CCJDC. For the reasons

explained by the District Court, we agree that this claim presented no viable theory of

supervisory liability.

6 Scanlon asserts additional claims based on the CCJDC’s improper use of 24-hour lockdowns and inadequate policies for treating juveniles with mental health issues. We agree with the District Court, which declined to consider these claims because Scanlon raised them for the first time in his opposition to summary judgment. See Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996). While the amended complaint alleges deprivations in the “conditions of confinement,” even under a broad reading of the complaint the defendants were not put on notice of the conduct described in his opposition brief. Scanlon further did not make a post-summary judgment motion to amend his complaint.

10 IV.

For the foregoing reasons, we will affirm the District Court’s orders granting

summary judgment for the defendants.