George Bresnihan v. the Kintock Group of New Jersey

• Court: New Jersey Superior Court Appellate Division
• Decided: February 28, 2024
• Docket: A-2628-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2628-21

GEORGE BRESNIHAN, FOUNTAIN HAMLETT, SEAN WILLIAMS, CHRISTOPHER DRAKES, TROY BARBER,

Plaintiffs-Appellants,

and

DERRICK M. MURPHY,

Plaintiff-Respondent,

v.

THE KINTOCK GROUP OF NEW JERSEY,

Defendant-Respondent.

Submitted October 24, 2023 – Decided February 28, 2024

Before Judges Rose and Perez Friscia.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0020-17. Law Offices of Stephen Steinberg, PC, attorneys for appellants (Stephen Steinberg, of counsel and on the briefs; Jeff Edward Thakker, of counsel; Eltia I. Montano Galarza, on the briefs).

Kiernan Trebach, LLP, attorneys for respondent The Kintock Group of New Jersey (Mark A. Lockett, on the brief).

PER CURIAM

Plaintiffs George Bresnihan, Fountain Hamlett, Sean Williams,

Christopher Drakes, and Troy Barber appeal from a March 15, 2022 Law

Division order dismissing their complaint on the summary judgment motion of

defendant, The Kintock Group of New Jersey.1 Plaintiffs argue that while

residents of Kintock's halfway house facility in Bridgeton, they were unlawfully

strip searched by officers assigned to the Special Investigations Division of the

New Jersey Department of Corrections (DOC or NJDOC), and Kintock failed to

intervene. Because there was no cognizable evidence in the record to support a

reasonable inference Kintock was responsible for plaintiffs' alleged injuries, we

affirm.

1 Plaintiff Derrick M. Murphy represented himself before the trial court after appellants' attorney moved to be relieved as counsel but did not file a brief in the trial court in response to Kintock's motion. Nor has Murphy filed a brief in this appeal. A-2628-21 2 We summarize the facts from the motion record in a light most favorable

to plaintiffs as the non-moving parties under the seminal Brill standard. Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

In essence, the incident occurred on November 18, 2014, when DOC officers

conducted a "mass" strip search of Kintock's residents during an approximately

three-and-one-half-hour timeframe. Kintock's employees did not partake in the

searches. Plaintiffs did not sue the DOC.

Kintock holds itself out as "a non-profit organization[,] which contracts

with federal and state law enforcement agencies to provide cost effective

alternatives to incarceration and re-entry services for individuals transitioning

from the criminal justice system to the community." See N.J.S.A. 30:4-91.2. In

2013, Kintock and the DOC executed a contract for the operation of a halfway

house in Bridgeton, which was designated by the Commissioner of Institutions

and Agencies "as a place of confinement." See N.J.S.A. 30:4-91.1.

The contract contained a provision entitled, "Indemnity/Liability to Third

Parties," requiring Kintock to indemnify and defend the State against "all claims

demand, suits, actions, recoveries, judgments, and costs and expenses" for an

injury arising from "the work and/or materials supplied under th[e] contract."

In its request for proposal, the DOC advised, "[s]pecific facility searches . . .

A-2628-21 3 may be conducted whenever" the DOC deems the search "necessary and

appropriate," without notice to the contractor.

More than two years after the incident, in December 2016, plaintiffs filed

an eight-count complaint against Kintock. In the first four counts, plaintiffs

alleged violations of: the state and federal constitutions; the strip search statute,

N.J.S.A. 2A:161A-1 to -10, and the Attorney General Guidelines issued

thereunder; the NJDOC regulation governing strip searches; and Kintock's

sexual assault policy which prohibited cross-gender strip searches. Plaintiffs'

remaining claims alleged negligent hiring and training; intentional and negligent

infliction of emotional distress; and breach of custodial duty. Plaintiffs sought

compensatory and punitive damages, and counsel fees. They also raised

allegations of a potential class action.

In their complaint, plaintiffs asserted they were strip searched by NJDOC

officers in an area known as "the alley," which is "a corridor" that "runs the

length of the facility." The alley was within view of "several surveillance

cameras." A "control room" with clear glass windows was located in the center

of the alley, affording staff the ability to observe the alley. "Male and female

staff members . . . were on duty and working in the control room and observed

the residents being strip searched." Contending the facility had "private rooms

A-2628-21 4 . . . where private searches could have been conducted," plaintiffs claimed the

"strip searches were performed in the open in an extremely non-private

location."

When deposed, Bresnihan asserted Kintock's director, Michael Kenney,

"was like supervising . . . getting [the residents] where [they] needed to go and

getting [them] ready for the strip." Kenney told Bresnihan "if [he] didn't shut

up they would take [him] out of line and put [him] in a holding cell." Bresnihan

said "about fifteen people" were around when Kenney made the statement, but

Bresnihan could not name any of them. Without elaborating, Bresnihan further

stated Kenney was "ex-DOC so they knew him, so they let him run the show,"

i.e., Kenney "was in charge."

After Kintock answered the complaint, the matter followed a tortured

procedural path, the details of which are not relevant here. Suffice it to say, the

case was referred to mediation and arbitration without staying the litigation;

both parties filed discovery motions; and various attorneys were substituted for

the parties. In early 2020, Judge James R. Swift denied plaintiffs' application

for class certification and granted their unopposed motion to file an amended

complaint. More than one year later, plaintiffs filed their amended complaint,

which included forty-one counts and bore little resemblance to the proposed

A-2628-21 5 amended complaint attached to their earlier motion. The judge dismissed the

amended complaint for that reason on Kintock's motion to dismiss the

complaint, but denied its application to dismiss the original complaint claims on

statute of limitation grounds as waived for reasons that are not pertinent to this

appeal.

Ultimately, the parties cross-moved for summary judgment. Immediately

following oral argument, Judge Swift dismissed almost all of plaintiffs' claims.

In particular, the judge was not persuaded that the indemnity provision set forth

in the 2013 contract between Kintock and the DOC afforded "plaintiffs some

independent right of action against Kintock for actions of the DOC." Rather,

under the provision, "if somehow the DOC is held liable for some incident, then

Kintock . . . must identify them."

Nor was the judge convinced plaintiffs demonstrated a prima facie claim

of negligent or intentional infliction of emotional distress as DOC officers

conducted the strip searches. Even assuming plaintiffs were embarrassed and

humiliated by the searches, the judge found there was no evidence the DOC

officers had any "direct involvement in the way the strip search was conducted."

Similarly, the judge dismissed plaintiffs' punitive damages claim, finding there

A-2628-21 6 was no evidence of any "willful" or "wanton disregard of persons" by any

Kintock employees.

Although he found Kintock owed plaintiffs a duty of care vis-à-vis their

constitutional rights, the judge reserved decision only as to whether Kintock

violated that duty by failing to intervene during the DOC's strip searches. All

other counts were dismissed.

Shortly thereafter, Judge Swift issued a cogent written decision, granting

Kintock's motion in its entirety. The judge reiterated that Kintock owed a duty

of care to its residents and reasoned a significant public interest supported that

finding because Kintock was "housing the residents as a place of confinement."

Turning to the remaining elements of a negligence action, the judge was

not convinced plaintiffs established Kintock's conduct was the proximate cause

of their alleged injuries. The judge elaborated:

In this case, the proximate cause of . . . [p]laintiffs' injury was the humiliating and demeaning strip search that took place in a public portion of Kintock's facility while in the presence of many other residents. However, the strip search was not carried out by any Kintock employees, and was not done under the direction of anyone at Kintock. Kintock's only connection with the strip search was they aided in directing some of the residents to the area of the facility where the strip search took place. The search itself was done entirely by NJDOC staff. As the perpetrators of the action in question, it is the NJDOC that could

A-2628-21 7 possibly be found to be the proximate cause of [p]laintiff[s'] injuries, not the Kintock staff. There is no evidence to support the idea that Kintock['s] actions could be the proximate cause of [p]laintiff[s'] damages.

The judge therefore held Kintock was not liable under a negligence theory. See

e.g., Robinson v. Vivirito, 217 N.J. 199, 208 (2014) (reiterating "[t]he

fundamental elements of a negligence claim are a duty of care owed by the

defendant to the plaintiff, a breach of that duty by the defendant, injury to the

plaintiff proximately caused by the breach, and damages").

Judge Swift also rejected plaintiffs' contentions that Kintock had a duty to

intervene by either directing DOC staff to cease the strip searches or conduct

them "in a less intrusive manner" and that Kintock breached that duty to

plaintiffs. The judge acknowledged plaintiffs' argument that Kintock's legal

authority to detain residents obligated the facility to follow "all relevant laws,

regulations, and guidelines." However, the judge recognized the lack of

authority "support[ing] the notion that employees of a halfway home have a duty

to intervene when NJDOC is performing a function at their facility."

Referencing the 2013 agreement between the DOC and Kintock, the judge

noted the contract "specifically reserve[d] the right for NJDOC to perform

searches completely at the discretion of NJDOC, without prior notice to

Kintock." The judge distinguished the Third Circuit's decision in Smith v.

A-2628-21 8 Mensiger, 293 F.3d 641, 651 (3d Cir. 2002), which addressed the liability of the

law enforcement officers "for failing or refusing to intervene when a

constitutional violation takes place in his [or] her presence if there exists a

'realistic and reasonable opportunity to intervene.'" Noting "the credible

evidence" in the record and affording plaintiffs the benefit of "all rational

inferences," the judge determined "it [wa]s not realistic or reasonable t hat a

civilian employee of Kintock would have authority to stop or redirect armed

NJDOC officers who ha[d] the contractual authority to conduct such a search."

On appeal, plaintiffs agree with Judge Swift's decision that Kintock owed

plaintiffs a duty of care under the common law but argue whether Kintock

breached that duty was a question for the trier of fact. Plaintiffs maintain they

were third-party beneficiaries under the indemnity provision of the 2013

contract between the DOC and Kintock. In various overlapping arguments,

plaintiffs further claim Kintock's employees acted under color of state law and,

as such, they violated plaintiffs' constitutional rights, and the administrative

regulations and Attorney General Guidelines governing strip searches conducted

by the DOC. Plaintiffs also assert the judge failed to decide certain claims and

erroneously decided others.

A-2628-21 9 After de novo review, Conforti v. County of Ocean, 255 N.J. 142, 162

(2023), we reject plaintiffs' unsupported claims. We affirm the order under

review substantially for the well-founded reasons expressed by Judge Swift in

his accompanying oral and written decisions. Having employed the same

standard as the judge, we conclude there are no material factual disputes and

defendant is entitled to judgment as a matter of law. See Samolyk v. Berthe,

251 N.J. 73, 78 (2022); Brill, 142 N.J. at 540; R. 4:46-2(c). Plaintiffs'

contentions therefore lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E). We add only the following brief remarks.

The gravamen of plaintiffs' argument is that Kintock's employees acted

"under color of state law," or they assumed responsibility for the DOC's actions

under the 2013 contract and, as such, they assumed the risk for the DOC's

constitutional violations. Plaintiffs' claims are mistakenly premised on their

misconception that they were beneficiaries under the contract, or the designation

of the Kintock facility under N.J.S.A. 30:4-91.2 imputed liability to Kintock for

the DOC's actions. Plaintiffs cite no authority to support their claims, and we

have found no such precedent.

It is beyond peradventure that "no constitutional deprivation occurs

without State action." Santa Barbara v. Heart of Cedar Lane, 226 N.J. Super.

A-2628-21 10 509, 511 (App. Div. 1988) (citing Callen v. Sherman's Inc., 92 N.J. 114, 123-24

(1983)). Under both 42 U.S.C. § 1983, and the New Jersey Civil Rights Act

(CRA), N.J.S.A. 10:6-1 to -2, a plaintiff must establish two steps. See Rezem

Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 115 (App.

Div. 2011). "The first step 'is to identify the state actor, "the person acting under

the color of law," that has caused the alleged deprivation.'" AmeriCare

Emergency Med. Serv., Inc. v. City of Orange Twp., 463 N.J. Super. 562, 574

(App. Div. 2020) (quoting Rezem, 423 N.J. Super. at 114). "Next the party must

'identify a right, privilege or immunity secured to the claimant' by the

constitutions of the state and federal governments or by state and federal laws. "

Ibid. Pursuant to the CRA, private actions for violations of an individual's

substantive rights only lie against persons acting under "color of law," N.J.S.A.

10:6-2(c), meaning the exercise of power "possessed by virtue of state law and

made possible only because the wrongdoer is clothed with the authority of state

law." Polk County v. Dodson, 454 U.S. 312, 317-18 (1981) (quoting United

States v. Classic, 313 U.S. 299, 326 (1941)).

Under some circumstances, a private party can be civilly liable for damage

caused by violations of constitutional rights accomplished through their

cooperation with a state actor. For example, "a challenged activity may be state

A-2628-21 11 action . . . when a private actor operates as a 'willful participant in joint activity

with the State or its agents.'" Brentwood Acad. v. Tenn. Secondary Sch. Ath.

Ass'n, 531 U.S. 288, 296 (2001) (quoting Lugar v. Edmondson Oil Co., 457 U.S.

922, 941 (1982)). However, a private action "is not converted into one under

color of state law merely by some tenuous connection to the state action."

Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).

In the present matter, the parties do not dispute that the strip searches were

conducted exclusively by DOC officers. Thus, as the motion judge found, there

was no evidence in the record to suggest that Kintock participated in the DOC-

conducted strip searches, other than Kintock "aided in directing some of the

residents to the area of the facility where the strip search took place." Further,

the DOC contractually reserved full authority to conduct all searches at the

facility without notice to Kintock. Thus, there is no evidence in the record to

suggest the strip searches were conducted as a "joint activity" between the DOC

and Kintock.

Affirmed.

A-2628-21 12