SCANLON v. LAWSON

Opinion

NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE EDWARD SCANLON, IV Civ. No. 16-4465 (RMB-JS) Plaintiff v. VALERIE LAWSON, et al., OPINION (REDACTED) Defendants APPEARANCES: KEVIN T. FLOOD, Esq. 181 Route 206 Hillsborough, NJ 08844 On behalf of Plaintiff PATRICK JOSEPH MADDEN, Esq. Madden & Madden, PA 108 Kings Highway East, Suite 200 P.O. Box 210 Haddonfield, NJ 08033 On behalf of Defendants Robert Balicki, Veronica Surrency and Michael Baruzza BUMB, United States District Judge This matter comes before the Court upon Defendants Robert Balicki, Veronica Surrency and Michael Baruzza’s motion for summary judgment (Defs Balicki, Surrency and Baruzza’s Mot. for Summ. J., ECF No. 115); Brief in Supp. of Summ. J. (“Defs’ Brief, ECF No. 116); Statement of Material Facts in Supp. of Summ. J. (“Defs’ SOMF,” ECF No. 116-1); Plaintiff’s Opposition to Summary Judgment Motions (“Pl’s Opp. Brief,” ECF No. 130); Plaintiff’s Reply to Statement of Material Facts in Support of Motion for Summary Judgment (“Pl’s Reply to SOMF,” ECF No. 130-2); Plaintiff’s

Counter-statement of Material Facts (“Pl’s CSOMF,” ECF No. 130- 5); Reply Brief of Defs. Robert Balicki, Veronica Surrency and Michael Baruzza (“Defs’ Reply Brief,” ECF No. 143); and Defs. Veronica Surrency, Robert Balicki and Michael Baruzza’s Response to Pl’s Counter-statement of Material Facts (“Resp. to Pl’s CSOMF,” ECF No. 143-2.) Pursuant to Federal Rule of Civil Procedure 78(b), the Court will determine the motion for summary judgment on the briefs without oral argument. I. BACKGROUND Plaintiff filed this action in the New Jersey Superior Court, Law Division, Cumberland County on March 29, 2016, alleging civil

rights violations under 42 U.S.C. § 1983; the New Jersey Civil Rights Act (“NJCRA”), § 10:6-2, and tort claims under the New Jersey law, N.J.S.A. §§ 59:1-1 et seq. (Compl., ECF NO. 1-1 at 8- 18.) The defendants to the original complaint were Valeria Lawson (“Lawson,”)1 Felix Mickens (“Mickens”), Robert Balicki (“Balicki”), Veronica Surrency (“Surrency”), Michael Baruzza

1 Plaintiff sued “Valerie” Lawson and Lawson corrected her name to “Valeria” upon answering the complaint. (Answer, ECF No. 26 at 1.) (“Baruzza”), and John and/or Jane Does 1-45 (fictitious individuals) and ABC Corps. 1-45 (fictitious corporations). (Compl., ECF No. 1-1 at 8.) The action arose out of incidents

alleged to have occurred at the Cumberland County Juvenile Detention Center (“CCJDC”) in March 2012. (Id.) Plaintiff alleged [O]n or about March 2, 2012 through March 5, 2012, Plaintiff was made to fight other inmates at the Cumberland County Detention Center whereby he suffered serious injuries solely for the enjoyment and entertainment of Cumberland County Detention guards, who were instead responsible to safeguard the minor.

(Id., ¶3.) Plaintiff also alleged he had numerous mental and behavioral disabilities and generally that he was subject to physical and psychological abuse and depravation of medication at the CCJDC. (Id. at 11-10, ¶¶2, 14, 26.) Defendants removed the action to this Court on July 22, 2016. (Notice of Removal, ECF No. 1.) On August 3, 2016, Balicki, Surrency and Baruzza, represented by Patrick J. Madden, Esq., filed an answer to the original complaint, and a cross-claim for contribution and indemnification against Lawson and Mickens. (Answer, ECF No. 6.) Plaintiff filed a motion to amend the complaint on July 26, 2017. (ECF No. 44.) The motion to amend was granted on October 20, 2017. (Order, ECF No. 56.) Plaintiff filed a redacted amended complaint on October 26, 2017, and later filed an unredacted amended complaint. (Am. Compl., ECF Nos. 58, 88.) The amended complaint added claims against William M. Burke (“Burke”) Supervisor, Compliance Monitoring Unit, New Jersey Juvenile Justice System; Bobby Stubbs (“Stubbs”) Senior Juvenile Detention Officer at CCJDC; David

Fuentes (“Fuentes”) Juvenile Detention Officer at CCJDC; Harold Cooper (“Cooper”) Senior Juvenile Detention Officer at CCJDC; Wesley Jordan (“Jordan” or “Officer Jordan”) Juvenile Detention Officer at CCJDC; and Carol Warren LPN (“Warren” or “Nurse Warren”), at CCJDC. (Am. Compl., ECF No. 88, ¶¶28-32.) Balicki, Baruzza and Surrency filed the present motion for summary judgment on August 15, 2019. (Defs’ Mot. for Summ. J., ECF No. 115.) II. THE AMENDED COMPLAINT Plaintiff was born on April 1, 1996, and was a minor at all relevant times alleged in the amended complaint. (Am. Compl., ECF No. 88, ¶19.) Prior to the incidents alleged, Plaintiff was diagnosed with numerous mental and behavioral disabilities. (Id.,

¶20.) He was committed to the New Jersey Juvenile Justice Commission (“JJC”) following his adjudication of delinquency. (Am. Id., ¶1.)2 Throughout his commitment, Plaintiff alleges that he was subjected to excessive use of force during unlawful room

2 Discovery revealed that Plaintiff was a detainee not yet adjudicated delinquent at all relevant times alleged in the complaint. (Pl’s CSOMF, ¶¶11-12, ECF No. 130-5; Ex. M, ECF No. 130-8 at 100-101.) extractions, physical and psychological abuse and deprivation of medication. (Am. Compl., ¶¶2, 3, ECF No. 88.) On May 21, 2011, Stubbs, Senior Juvenile Detention Officer at

CCJDC, ordered Juvenile Detention Officers Jordan and Fuentes to remove Plaintiff from his room. (Id., ¶¶4, 28, 29, 31.) Plaintiff was charged with aggravated assault for injuring Jordan and Fuentes during the room extraction on May 21, 2011. (Id., ¶¶4-5.) Jordan received a notice to appear in court regarding the incident. (Id., ¶6.) Jordan asked Surrency, Division Head at CCJDC, and Senior Juvenile Detention Officer Cooper whether there was a “No Contact Order” in place for Plaintiff, and they told him “no.” (Id., ¶¶6, 26, 30.) In March 2012, Plaintiff alleges that he was forced to fight other inmates at CCJDC for Jordan’s entertainment. (Id., ¶8.) On March 2, 2012, Plaintiff reported to Nurse Warren at CCJDC, and

she noticed a bruise or bruises on Plaintiff’s lower extremities but she did not report the injuries to any supervisor. (Id., ¶¶7, 32.) Plaintiff saw Warren again on March 5, 2012, and she noticed more injuries on his body and, this time, notified a supervisor. (Id., ¶9.) Plaintiff alleges Lawson, Mickens and Burke of the New Jersey JJC “were responsible for ensuring that the JJC complies with state and federal law.” (Id., ¶¶21 22, 23.) Balicki, Warden of CCJDC, and Baruzza, Division Head of CCJDC, are also named as defendants. (Am. Compl., ¶¶25-27, ECF No. 88.) In Count One, Plaintiff alleges violations of substantive due

process for excessive use of force, inhumane conditions, lack of health care and failure to protect from harm under 42 U.S.C. § 1983. (Id., ¶¶36-43.) Count Two of the amended complaint is for the same conduct in violation of the New Jersey Civil Rights Act, N.J.S.A. § 10:6-2. (Id., ¶¶44-47.) In Count Three, Plaintiff alleges negligence under New Jersey state law. (Id., ¶¶48-51.) In Count Four, Plaintiff alleges Defendants’ actions and failure(s) to act constituted a failure to act and/or discipline, which proximately caused a violation of plaintiffs’ civil rights to procedural and substantive due process which violations are made actionable by the N.J.C.R.A.

Defendants knew or should have known of the violation of plaintiff’s rights, and acted and failed to act so as to permit the violation of plaintiff’s rights intentionally and/or recklessly and with deliberate indifference.

(Id., ¶¶53, 54.) Count Five is for punitive damages under New Jersey law. (Id., ¶¶58-61.) Counts Six and Seven are for intentional and negligent infliction of emotional distress under New Jersey law. (Id., ¶¶62-69.) Count Eight is alleged against Jordan, Stubbs and Fuentes for excessive force in violation of the Fourth and Fourteenth Amendments. (Id., ¶¶70-72.) Counts Nine and Ten are alleged against Balicki, Surrency, Cooper, Baruzza, Burke, Lawson and Mickens for supervisory liability of their subordinates’ violations of Plaintiff’s constitutional rights in violation of 42 U.S.C. § 1983. (Am. Compl., ¶¶73-88, ECF No. 88.)

III. DISCUSSION

A. Summary of Arguments

As an initial matter, Plaintiff does not oppose summary judgment in favor of Baruzza on all claims. (Pl’s Opp. Brief, ECF No. 130 at 9.) Further, Plaintiff does not oppose summary judgment on the tort claims in favor of Balicki and Surrency. (Id.) Therefore, the Court need address only the Section 1983 and NJCRA claims against Balicki and Surrency. The NJCRA, N.J.S.A. 10:6-2(c), was modeled on 42 U.S.C. § 1983, and courts have repeatedly construed NJCRA claims as nearly identical to § 1983, using § 1983 jurisprudence as guidance for the analogous NJCRA claims. See Trafton v. City of Woodbury, 799 F.Supp.2d 417, 443-44 (D.N.J. June 29, 2011) (collecting cases)). Because the parties have not identified any differences between the § 1983 and NJCRA claims, the Court will address the claims together, guided by § 1983 jurisprudence. Defendants assert there is nothing in the record that shows that any of the defendants directly participated in violating Plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in their subordinates' violations. (Defs’ Brief, ECF No. 116 at 11.) Therefore, Defendants can only be liable if Plaintiff can establish that they established a policy, practice or custom which directly caused the constitutional harm to plaintiff. (Id. at 10-11.)

Balicki, the warden, and Surrency, a division head, did not directly supervise Jordan and were quite removed in the chain of command. (Id. at 12 citing Defs’ SOMF, ¶50; Ex. V, ECF No. 116-6 at 3-4.) As to Plaintiff’s policy claims, Defendants contend Plaintiff cannot show their deliberate indifference to a known risk that a juvenile detention officer would permit juveniles to fight each other under his supervision. (Defs’ Brief, ECF No. 116 at 13.) Defendants contends that evidence does not show a pattern of such abuses nor does it show that Defendants had knowledge of any such incident occurring. (Id. at 13-14.) Moreover, Defendants anticipated that Plaintiff would argue

they should have enacted policies to prevent bullying of juveniles with special needs and they maintain that there is nothing in the record suggesting Plaintiff’s injury was caused by his susceptibility to bullying. (Id.) Instead, Defendants argue this was a unique situation where a juvenile detention officer permitted two juveniles to “go body to body” with each other to resolve their differences. (Id.) The risk of harm that this would occur was not so obvious to Defendants that they were deliberately indifferent for failing to enact a policy that would have prevented it. (Defs’ Brief, ECF No. 116 at 14.) In opposition, Plaintiff asserts there is evidence that

Balicki and Surrency were responsible for developing policies and procedures for the CCJDC. (Pl’s Opp. Brief, ECF No. 130 at 51.) Incident reports involving Plaintiff provided notice that Plaintiff was continuously: 1) removed from rooms; 2) placed in 24-hour lock down; 3) had issues with other residents; and 4) had severe behavior problems. (Id. at 53.) Plaintiff asserts “there is absolutely no evidence that Balicki [and] Surrency … did anything to correct the numerous issues affecting [Plaintiff.]” (Id.) Plaintiff also contends Surrency and Balicki were deliberately indifferent to his serious mental health needs by housing him, for several months, on D-wing with the worst violent juvenile offenders. (Id. at 50.) In sum, Plaintiff argues there is

a genuine factual dispute as to whether Surrency and Balicki failed to establish policies to address his mental health needs and protect him from harm. (Id.) B. Summary Judgment Standard of Review

Summary Judgment is proper where the moving party “shows that there is no genuine dispute as to any material fact,” and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Daubert v. NRA Group, LLC, 861 F.3d 382, 388 (3d Cir. 2017). “A dispute is “genuine” if ‘a reasonable jury could return a verdict for the nonmoving party,’” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019) (quoting Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “[A] fact is ‘material’ where ‘its existence or nonexistence might impact the outcome of the suit under the applicable substantive law,’” Id. (citing Anderson, 477 U.S. at 248). The burden then shifts to the nonmovant to show, beyond the pleadings, “‘that there is a genuine issue for trial.” Id. at 391 (quoting Celotex Corp. v. Catrett, 447 U.S. 317, 324 (1986) (emphasis in Daubert)). “With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Conoshenti v. Public Serv.

Elec. & Gas, 364 F.3d 135, 145–46 (3d Cir. 2004) (quoting Celotex, 477 U.S. at 323). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). “At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. Rule Civ. Proc. 56(c)). The court’s role is “‘not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.’” Baloga, 927 F.3d 742, 752 (3d Cir. 2019) (quoting Anderson, 477 U.S. at 249)). C. Failure to Provide Proper Medications Plaintiff brings his failure to supervise claims against Surrency and Balicki in their individual and official capacities.3

3 A § 1983 claim against a municipal officer in his or her official capacity is treated like a claim against the municipality itself. Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658, 690 n. 55 (1978). “It is well established that in a § 1983 case a city or other local governmental entity cannot be subject to liability at all unless the harm was caused in the implementation of ‘official municipal policy.’” Lozman v. City of Riviera Beach, Fla., 138 S. Ct. 1945, 1951 (2018) (quoting Monell, 436 U.S. at 691)). “Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citations omitted).

While it is true, that Balicki and Surrency were not final-policy makers for the Manual of Standards, the record contains evidence Plaintiff alleged Defendants failed to provide him with proper medications throughout his commitment to the CCJDC. (Pl’s Opp. Brief, ECF No. 130 at 24-25.)

A juvenile detainee has a Fourteenth Amendment liberty interest in his personal security and well-being. A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572, 579 (3d Cir. 2004). To determine whether Defendants violated this right, the Court must decide “‘what level of conduct is egregious enough to amount to a constitutional violation and ... whether there is sufficient evidence that [the Defendants'] conduct rose to that level.’” A.M. ex rel. J.M.K., 372 F.3d at 579 (quoting Nicini v. Morra, 212 F.3d 798, 809 (3d Cir. 2000) (alterations in A.M. ex rel. J.M.K.)) A substantive due process violation “may be shown by conduct that ‘shocks the conscience.’” Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998)). The

deliberate indifference standard is employed to determine whether, in the custodial setting of a juvenile detention center, the defendants were deliberately indifferent to the plaintiff’s personal security and well-being. ” A.M. ex rel. J.M.K., 372 F.3d at 579. Whether the conduct of the defendants “shocks the conscience” depends on the circumstances of any given case. Id. 1. Standard for Supervisory Liability

that they had authority to make written policies and procedures for the CCJDC. In 2009, the Supreme Court held that state officials are liable in their individual capacities only for their own unconstitutional actions, not for those of their subordinates.

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). The Third Circuit considered whether Iqbal abolished § 1983 supervisory liability in its entirety and decided that it did not. Barkes v. First Corr. Med., Inc., 766 F.3d 307, 319 (3d Cir. 2014), cert. granted, judgment rev'd sub nom. Taylor v. Barkes, 135 S. Ct. 2042 (2015). In the Third Circuit, “there are two theories of supervisory liability, one under which supervisors can be liable if they established and maintained a policy, practice or custom which directly caused the constitutional harm, and another under which they can be liable if they participated in violating plaintiff's rights, directed others to violate them, or, as the persons in charge, had knowledge of and acquiesced in their subordinates'

violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010). A plaintiff may establish a claim based on knowledge and acquiescence if the supervisor knew about a practice that caused a constitutional violation, had authority to change the practice, but chose not to. Parkell v. Danberg, 833 F.3d 313, 331 (3d Cir. 2016). “[T]o establish a claim against a policymaker under § 1983 a plaintiff must allege and prove that the official established or enforced policies and practices directly causing the constitutional violation.” Parkell, 833 F.3d at 331 (quoting Chavarriaga v. New Jersey Dept. of Corrections, 806 F.3d 210, 223 3d Cir. 2015.) When the supervisory liability is based on a

practice or custom, a plaintiff may rely on evidence showing the supervisor “tolerated past or ongoing misbehavior.” Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 72 (3d Cir. 2011) (quoting Baker v. Monroe Township, 50 F.3d 1186, 1191 n. 3 (3d Cir. 1995) (citing Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 724–25 (3d Cir. 1989)). For practice or custom liability, a plaintiff must typically show “a prior incident or incidents of misconduct by a specific employee or group of employees, specific notice of such misconduct to their superiors, and then continued instances of misconduct by the same employee or employees.” Id. at 74; see Wright v. City of Philadelphia, 685 F. App'x 142, 147 (3d Cir.), cert. denied sub

nom. Wright v. City of Philadelphia, Pa., 138 S. Ct. 360 (2017) (“a custom stems from policymakers’ acquiescence in a longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local governmental entity”) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). A supervisor’s conduct occurring after the alleged constitutional violation cannot be shown to have caused the violation. Logan v. Bd. of Educ. of Sch. Dist. of Pittsburgh, 742 F. App'x 628, 634 (3d Cir. 2018). To establish liability on a claim that a supervisory defendant failed to create proper policy, the plaintiff must “(1) identify the specific supervisory practice or procedure that the supervisor

has failed to employ, and show that (2) the existing custom and practice without the identified, absent custom or procedure created an unreasonable risk of the ultimate injury, (3) the supervisor was aware that this unreasonable risk existed, (4) the supervisor was indifferent to the risk, and (5) the underling's violation resulted from the supervisor's failure to employ that supervisory practice or procedure.” Brown v. Muhlenberg Township, 269 F.3d 205, 216 (3d Cir. 2001). 2. Undisputed Material Facts Based on Plaintiff’s deposition testimony, Defendants seek summary judgment on Plaintiff’s claim of supervisory liability for failure to provide him with his proper medications. (Defs’ Brief,

ECF No. 116 at 15-16.) Plaintiff testified as follows: Q: Were you getting meds when you were at the Cumberland County Youth Facility?

A: Yes.

Q: Any issues getting your meds there?

A: No.

(Defs’ SOMF, ¶49.)

In opposition to summary judgment, Plaintiff argues the following facts create a disputed issue of material fact regarding his claim that he was not provided his prescribed medications. (Pl’s Opp. Brief, ECF No. 130 at 26-27.) On March 23, 2011, an officer gave Plaintiff a pill that was crushed. (Pl’s CSOMF, ¶28,

ECF No. 130-5; Ex. NN, ECF No. 130-11 at 2.) On July 21, 2011, Plaintiff’s father complained that Plaintiff’s medication was sent with him to court. (Id., ¶30; Ex. NN, ECF No. 130-11 at 3.) Nurse Warren acknowledged that Plaintiff’s father always called with concerns about Plaintiff’s medications. (Id., ¶31; Ex. II at T34:10-20, ECF No. 130-10 at 79.) When Plaintiff was transferred to Capitol Academy on May 25, 2012, Plaintiff’s father counted Plaintiff’s medications and found the following medications missing: 48 pills of Vyvance, 87 pills of Tryleptal, 148 pills of Invega, and 38 pills of Lexapro. (Id., ¶¶36-37; Ex. A, ECF No. 130-8 at 2.) 3. Analysis

The Court holds that Plaintiff has not established a genuine issue of disputed fact that Defendants were deliberately indifferent to Plaintiff’s need for his prescribed medications. The fact that a pill was crushed on one occasion, that Plaintiff was given his medications to take to court on one occasion, and the disappearance of pills when Plaintiff was transferred from CCJDC to Capitol Academy on May 25, 2012, would not permit a reasonable jury to conclude that Surrency and Balicki had knowledge of and acquiesced in a failure to provide Plaintiff with his prescribed medications throughout his stay at CCJDC or that Defendants were aware of a custom of a failing to provide Plaintiff with his medications and did nothing. See Ledcke v. Pennsylvania

Dep’t of Corr., 655 F. App’x 886, 889 (3d Cir. 2016) (per curiam) (district court properly dismissed supervisory liability claims where plaintiff failed to demonstrate any supervisory defendants were involved in alleged unconstitutional conduct or that they directly caused constitutional harm by establishing a policy, practice or custom). Indeed, Plaintiff’s own testimony that he had no issues with getting his medication is contrary to his contention that there was a pattern of failing to make certain that he took his prescribed medications. Further, while it is troubling that pills were missing when Plaintiff was transferred to Capitol Academy, there is nothing in the evidence to explain why the pills were

missing or to suggest Balicki and/or Surrency had any reason to know the pills were missing. Thus, Plaintiff has not shown that Balicki and Surrency were deliberately indifferent to a substantial risk that Plaintiff was not receiving his prescribed medications. Accordingly, Balicki and Surrency, in their official and individual capacities, are entitled to summary judgment on the § 1983 and NJCRA claims for failure to provide Plaintiff his prescribed medications. D. Room Extractions and Excessive Force

In his amended complaint, Plaintiff alleged he was subjected to excessive force when he was removed from his room on May 21, 2011. In his opposition to Defendants’ motion for summary judgment, he alleged he was subject to improper use of room extractions. (Pl’s Opp. Brief, ECF No. 130 at 36-37.) 1. Elements of Fourteenth Amendment Excessive Force Claim

Plaintiff, as a detainee not yet adjudicated as delinquent, has a Fourteenth Amendment right to be free from excessive use of force. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (stating pretrial detainee has a right under the Due Process Clause to be free from excessive force that amounts to punishment). To state a Fourteenth Amendment excessive force claim, a pretrial detainee must show “that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley, 135 S. Ct. at 2473-74. Objective reasonableness is determined “from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id. at 2473 (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). “A court must also account for the ‘legitimate interests that stem from [the government's] need to manage the facility in which the individual is detained,’ appropriately deferring to ‘policies and practices that in th[e] judgment’ of jail officials ‘are needed to preserve internal order and discipline and to maintain institutional security.’” Kingsley, 135 S. Ct. at 2473-74 (quoting Bell v. Wolfish, 441 U.S. 520, 540 (1979)). Courts should consider

the following factors: [1] the relationship between the need for the use of force and the amount of force used; [2] the extent of the plaintiff’s injury; [3] any effort made by the officer to temper or to limit the amount of force; [4] the severity of the security problem at issue; [5] the threat reasonably perceived by the officer; and [6] whether the plaintiff was actively resisting.

Robinson v. Danberg, 673 F. App'x 205, 209 (3d Cir. 2016) (quoting Kingsley, 135 S. Ct. at 2473). 2. Undisputed Material Facts Fuentes, who was injured during the May 21, 2011 room extraction, authored the following Incident Report. On that above date and time, [Plaintiff] was banging and kicking his door on A-Wing. Officer Jordan repeatedly asked [Plaintiff] what [was] wrong. [Plaintiff] continued to kick the door harder and cuss Officer Jordan out using racial remarks. Supervisor Stubbs then came down to [Plaintiff’s] room to try to talk to him. [Plaintiff] continued to kick the door and cuss at Supervisor Stubbs also and using racial remarks. Supervisor Stubbs then instructed Officer Jordan and Officer Fuentes to cuff and remove [Plaintiff] from the room and place him in a D-Wing room. [Plaintiff] then became physically combative and struck Officer Jordan and Officer Fuentes in the face as they physically restrained and cuffed [Plaintiff]. Officer Fuentes and Officer Jordan then walked [Plaintiff] up to room #221A on D-Wing. Supervisor Stubbs then removed the cuffs from [Plaintiff].

(Defs’ SOMF, ¶43; Ex. Y, ECF No. 130-9 at 6.) (alterations added). Jordan also wrote an Incident Report about the May 21, 2011 room extraction. At the above date and time, I (Mr. Jordan) asked [Plaintiff] why was he punching and kicking the door and walls in his room. He did not respond to my question, so, I call Mr. Stubbs and he asked [Plaintiff] the same question why he was punching and kicking the door and walls, and he did not respond to him. So, Mr. Stubbs told [Plaintiff] if you keep kicking the door you are going to go upstairs and [Plaintiff] kept on kicking the door. Mr. Stubbs told Mr. Fuentez (sic) and myself (Mr. Jordan) to escort [Plaintiff] to a room on D- Wing. While entering into [Plaintiff’s] room he kicked me on the leg and punched me in the face calling me a nigger while throwing his punches. I (Mr. Jordan) grabbed [Plaintiff] and placed him on his bed[,] while placing [Plaintiff] on the bed Mr. Fuentez (sic) and myself (Mr. Jordan) fell to the floor from [Plaintiff’s] bed. While escorting [Plaintiff] to his new room upstairs on D-Wing I (Mr. Jordan) felt a sharp pain in my neck and back.

(Ex. Y, ECF No. 130-9 at 5) (alterations in brackets added; alterations in parentheses in original). Plaintiff testified that, during his time at CCJDC, he had numerous altercations wherein he hit juvenile detention officers but they never hit him back or caused him any injuries. (Defs’ SOMF ¶¶44-47; Ex. B. at T40:5-41- 7, ECF No. 116-3 at 33.) Defendants do not dispute the following assertions made by Plaintiff in his Counter-statement of Material Facts, at least insofar as the deposition testimony speaks for itself. (Defs’

Response to Pl’s CSOMF, ECF No. 143-2.) Surrency knew that room extractions occurred at CCJDC and Plaintiff was involved in a number of them. (Pl’s CSOMF ¶228, ECF No. 130-5; Ex. EE at T70:6- 17, ECF No. 130-9 at 204.) There was no specific policy governing under what circumstances an officer should remove a juvenile from his room by force; any force used was guided by the general policy on the use of force. (Pl’s CSOMF ¶220; Ex. EE at T:74:3-75:6, ECF No. 130-9 at 205.) The decision to remove a special needs juvenile from his room was at the discretion of the supervisor in charge at the time. (Pl’s COSMF ¶231, Ex. EE at T75:7-76:1, ECF No. 130-9 at 205.) The doors on the rooms in the A and B-wings could easily be

kicked open. (Id., ¶232; Ex. EE at T77:3-19, ECF No. 130-9 at 206.) According to Surrency, the doors on the second floor were heavy and secure and would not open if kicked, which was a reason why Plaintiff would be removed from his room on A-wing. (Id., ¶¶233- 34, Ex. EE at T80:24-81-14, ECF No. 130-9 at 206-07.) 3. Analysis The exact basis for Plaintiff’s excessive force claim is unclear. It would appear, by virtue of his allegation that there is no policy governing when a juvenile detention officer should physically remove a juvenile with mental health disorders from his room, that Plaintiff is arguing any force, under such circumstances, is excessive.4

Excessive force claims require courts to consider the totality of the circumstances surrounding the use of force. The record is undisputed that on May 21, 2011, Plaintiff was unresponsive to verbal attempts to talk to him about why he was punching and kicking the doors and walls, an attempt by the officers to avoid using force. Plaintiff does not dispute that he did not stop his behavior when warned that he would be moved to another wing. It is true that some use of force, therefore, was objectively reasonable to protect Plaintiff from hurting himself, destroying property or breaking the door open, and allowing him to access other juveniles in the area. Reasonable officers might have

perceived a need to remove Plaintiff from his room based on these concerns. Furthermore, Plaintiff physically attacked Officer Jordan when he approached, a fact he does not dispute, requiring the officers to physically restrain and handcuff Plaintiff in order to move him to another room.

4 If the Court has misconstrued or misunderstood Plaintiff’s claim, he may file a motion for reconsideration under Local Civil Rule 7.1(i). Based on the above undisputed material facts, the Court finds that it was not objectively unreasonable to restrain and handcuff Plaintiff in order to remove him from his room. The Court

recognizes that Plaintiff was diagnosed with a number of mental and behavioral disorders, including mild mental retardation. Yet, the record indicates that many of the juvenile inmates with Plaintiff had mental and behavioral disorders. At the end of this Court’s analysis, this Court does not find a constitutional injury. As such, Balicki and Surrency are not liable in their individual or official capacities. See Marable v. W. Pottsgrove Twp., 176 F. App'x 275, 283 (3d Cir. 2006) (municipality is not liable for officers’ actions when officers did not inflict a constitutional injury). E. Failure to investigate other incidents, including those prior to March 2, 2012 Plaintiff contends Surrency and Balicki failed to investigate whether there were incidents, prior to March 3, 2012, where Jordan encouraged Plaintiff or other juveniles to “go body to body” to resolve their differences. As part of this claim, Plaintiff also maintains there were no policies or procedures requiring a nurse to report injuries that were observed on a juvenile detained at

the CCJDC. (Pl’s CSOMF, ¶193, ECF No. 130-5 at 31; Exhibit II at T27:4-28:2, ECF No. 130-10 at 77.) Nurse Warren did not notify Surrency that she observed bruising on Plaintiff on March 2, 2012. (Ex. EE at T127:17–24, ECF No. 130-9 at 218.) Plaintiff also submits evidence suggesting that neither DCF nor Internal Affairs expanded their investigations beyond Plaintiff’s fights on March

3 and March 4, 2012. (Pl’s CSOMF, ¶¶325-46; Ex. Q, p. 001-019, ECF No. 130-8 at 143-162; Ex. P, p.001-002, ECF No. 130-8 at 117-18.) Defendants counter with Plaintiff’s testimony that the only occasions when Plaintiff fought other juveniles under Jordan’s supervision were on March 3 and 4, 2012. (Defs’ Reply Brief, ECF No. 143 at 10.) On March 5, 2012, Nurse Warren reported Plaintiff’s injuries to Surrency, who ordered the investigation that led to Jordan’s discipline. (Defs’ Reply Brief, ECF No. 143 at 10.) The undisputed material facts show that Nurse Warren referred Plaintiff to a nurse practitioner or doctor for further evaluation of an injury to his shin on March 2, 2012. (Ex. II at T26:12- 29:5.) There is nothing in the record suggesting how Plaintiff

sustained the injury on his shin. Plaintiff did not tell the nurse how he hurt his shin. In an interview with DCF, Plaintiff said the incidents on March 3 and March 4, 2012 were the first time he went “body to body” with another resident, and he had never seen another resident go “body to body” before this. (Ex. Q, ECF No. 130-8 at 150.) According to Supervising Officer Tara Butler, after seeing a nurse about his injuries on March 5, 2012, and telling her that his injuries were caused by officers when they removed him from his room, Plaintiff then told Butler the “actual truth,” that he went “body to body” with other juvenile residents on March 3 and March 4, 2012, with Officer Jordan’s permission.

A policy requiring medical staff to report all juvenile injuries to a supervisor would not have led to discovery of Jordan’s alleged misconduct because Plaintiff did not sustain the bruise to his shin on March 2, 2012, or on any previous occasion, by going “body to body” with other juvenile residents. Further, Plaintiff did not tell the nurse how he bruised his shin on March 2, 2012, but he did confess after March 5, 2012 that he sustained the bruises to his body fighting other juveniles on March 3 and March 4, 2012 under Jordan’s supervision. As the record stands, there is no evidence of a pattern or practice of juvenile detention officers permitting juveniles to fight each other. This case is distinguishable from cases where plaintiffs demonstrated an

affirmative link between prior inadequate investigations into complaints and the subsequent injuries suffered by the plaintiffs when the misconduct continued. See Merman v. City of Camden, 824 F.Supp.2d 581, 593-94 (D.N.J. 2010) (collecting cases); cf. Huaman v. Sirois, No. 13CV484 (DJS),2015 WL 5797005 at *11-13 (D. Conn. Sept. 30, 2015) (32 excessive force complaints over 12-year span without disciplinary action was inadequate to show a custom of deliberate indifference to constitutional rights); see also Brown v. New Hanover Twp. Police Dep’t, 2008 WL 4306760, at *15 (E.D. Pa. Sept. 22, 2008) (“Rather than reciting a number of complaints or offenses, a Plaintiff must show why those prior incidents deserved discipline and how the misconduct in those situations was

similar to the present one.”) For these reasons, Plaintiff has not established facts sufficient for a jury to find a constitutional violation based on failure to investigate other instances of staff permitting juveniles to fight each other. F. Staffing Ratios and Failure to Train

Plaintiff contends Surrency and Balicki are liable for Plaintiff’s constitutional injuries based on deficiencies in staffing and training. (Pl’ Opp. Brief, ECF No. 130 at 42.) Plaintiff submits that CCJDC employees were permitted to work before receiving any type of law enforcement training. (Pl’s CSOMF ¶294, ECF No. 130-5 at 48; Ex. EE at T115:8-15; 118:22, ECF No. 130-9 at 215-16.) Officers at CCJDC received on the job training; then they went to the Sea Girt training academy. (Id., ¶295, Ex. EE at T116:21-117:3, ECF No. 130-9 at 215-16.) Surrency stated in her deposition, “[t]here is no special training that anyone receives before they’re allowed to supervise a group of juveniles, except from what we go through with agency training on the job.” (Id. ¶297; Ex. EE at T119:3-7, ECF No. 130-9 at 216.) According to Balicki, he could not always get training for CCJDC officers at the academy, so he had to train them at CCJDC. (Id., ¶301; Ex. FF at T59:20-60:5, ECF No. 130-10 at 18.) The JJC did not mandate specific training, only that officers were to have 24 hours of training. (Id., ¶311;; Ex. HH at T86:2-19, ECF No.

62.) The CCJDC was also understaffed at times, likely while Plaintiff was a resident. (Id., ¶319; Ex. JJ at T61:16-63:16, ECF No. 130-10 at 106.) The staffing ratios should have been eight juveniles to one guard during the day and sixteen juveniles to one guard at night. (Pl’s SCOMF, ¶318, ECF No. 130-5; Ex. JJ at T61:16- 63:16, ECF No. 130-10 at 106.) Defendants contend there is no evidence that CCJDC was insufficiently staffed or that any juvenile detention officer was rebuked for failing to supervise the residents. (Defs’ Reply Brief, ECF No. 143 at 13-14.) In response to Plaintiff’s claim of inadequate training, Defendants maintain Plaintiff has not demonstrated that the lack of a specific training program caused

Jordan to permit juveniles to fight each other under his supervision. (Id. at 14.) Defendants note that Jordan recalled reviewing the Manual of Standards, which mentions being vigilant to resident safety. (Id.) Additionally, Jordan recalled receiving training in 2010 entitled “Recognizing a Person with Mental Illness.” (Id.) Jordan also testified that he understood fighting between juveniles was not permitted. (Id.) 2. Analysis of staffing ratio claim Plaintiff has garnered evidence that CCJDC was understaffed at unspecific times and might have been understaffed at times when Plaintiff was committed to the CCJDC. Unlike A.M. ex rel. J.M.K.,5

where there was evidence linking understaffing to specific instances of inability to adequately supervise residents, the evidence submitted by Plaintiff is too tenuous to establish that Balicki and Surrency were deliberately indifferent to a substantial risk that understaffing would result in Officer Jordan permitting juveniles to fight each other. Thus, the Court turns to Plaintiff’s allegation that his injuries were caused by Balicki and Surrency’s failure to train staff. 2. Failure to Train Standard of Law “A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick v.

Thompson, 563 U.S. 51, 62 (2011) (quoting Bryan Cty., 520 U.S. at 409.) To prove causation on a failure to train theory of liability, the plaintiff must also show “‘the injury [could] have been avoided had the employee been trained under a program that was not deficient in the identified respect.’” Thomas v. Cumberland Cty., 749 F.3d 217, 226 (3d Cir. 2014) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989)).

5 372 F.3d at 581. In an extraordinary case, “a [] decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for

purposes of § 1983.” Connick, 563 U.S. at 61. “Single-incident” liability may arise where the constitutional violation was the “obvious” consequence of failing to provide specific training. Id. at 63-64. To establish such a claim, frequency and predictability of a constitutional violation occurring absent training might reflect deliberate indifference to a plaintiff’s constitutional rights. Id. at 64 (citing Board of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 409 (1997)). 4. Analysis of failure to train claim Plaintiff has not shown a pattern of juvenile detention officers permitting juveniles to fight to resolve their differences. The only deficiency in training that Plaintiff

identified was that employees were permitted to work before attending Sea Girt Academy, and received only 24 hours of on the job training. What is more, Jordan testified that the academy taught “rather be tried by 12 than carried by 6,” meaning that it is “your life over their life [sic].” The policy for dealing with aggressive juveniles at the CCJDC, according to Jordan, was “[l]et the kids beat you up and they’ll figure it out later.” (Ex. KK at T16:15-21, ECF No. 130-10 at 113.) Based on Jordan’s testimony, and absent evidence showing a pattern of constitutional injuries resulting from a failure to employ a specific training program, Plaintiff has not established

a causal link between a specific training deficiency and Jordan’s alleged misconduct. Therefore, Balicki and Surrency, in their official and individual capacities, are entitled to summary judgment on the § 1983 and NJCRA claims for failure to train. G. Lack of Policy For No Contact Orders Plaintiff seeks to hold Balicki and Surrency liable for failing to require a No-Contact Order between a juvenile and a corrections officer when the juvenile had been charged with assaulting that officer. (Pl’s Opp. Brief, ECF No. 130-5 at 52; Pl’s CSOMF, ¶321; Ex. EE at T105:24-108:17, ECF No. 130-9 at 213.) CCJDC did not put a No-Contact Order in place after Jordan charged Plaintiff, in a criminal action, with assaulting him on May 21,

2011. (Id., ¶324; Ex. Q, ECF No. 130-8 at 156.) Defendants contend there is no evidence that this lack of a “no contact order” was a factor in Jordan permitting Plaintiff to go “body to body” with other residents in March 2012. (Defs’ Reply Brief, ECF No. 143 at 14.) Additionally, they argue it would severely hamper the ability to staff a correctional facility if there was a policy requiring a No-Contact Order every time a juvenile assaulted a corrections officer. (Id.) 1. Undisputed Material Facts The undisputed material facts show that on May 27, 2011, Tammie D. Pierce of the Juvenile Justice Commission filed a criminal charge of fourth degree aggravated assault against

Plaintiff for punching Jordan in the face in the course of his duties on May 21, 2011. (Ex. QQ, ECF No. 130-11 at 18.) In his deposition, Jordan does not remember when he became aware of the crime charges but during the internal affairs investigation about the March 2012 fights, he recalled asking Surrency, two weeks prior to the March 2012 fights, whether there was a no contact order in place between himself and Plaintiff. (Ex. KK at T39:17-T42:13, ECF No. 130-10 at 119-20.) Jordan specifically recalled another incident where there were charges by an officer against a juvenile and there was a no contact order in place at CCJDC. (Ex. SS (video) at 25:25 to 27:07). Surrency stated there was no policy at CCJDC requiring a no

contact order between a juvenile and an officer the juvenile was charged with assaulting. (Ex. EE at T108:3-110:11.) Balicki agreed that there was no written policy in the manual, but he thought it would have been a good idea to have a no contact order between a juvenile and the officer with whom the juvenile was charged with assaulting. (Ex. FF at T58:23-T59:16.) The charge against Plaintiff by Jordan was not resolved until April 23, 2012, when the charges were dismissed with a plea. (Ex. M, ECF No. 130-8 at 101.) 2. Analysis The Court holds that a reasonable jury could conclude, on this record, that Surrency and Balicki were deliberately

indifferent to a substantial risk of harm to a juvenile resident, by the failure to have a no contact order, while criminal charges were pending disposition, between a juvenile and the officer whom the juvenile assaulted. A jury could find that, after learning a no contact order was not in place, Jordan retaliated or held an animus against Plaintiff by arranging for him to fight other juveniles. Retaliation by corrections officers against inmates who assaulted them creates an obvious risk of retaliation absent a no contact order, particularly during the pendency of criminal charges when tensions are high and, as here, where the officer had been reprimanded for excessive force against a juvenile in the past.6

A jury could also find that CCJDC had placed no contact orders in similar situations, and that Balicki thought it was a good idea. Certainly, a no contact order between Jordan and Plaintiff from May 21, 2011 and April 23, 2012, when the charges were dismissed upon a plea,7 would have prevented the March 2012 instances where

6 See 2003 formal reprimand of Wesley Jordan, Ex. U, ECF No. 130- 8 at 188.

7 See Ex. M, ECF No. 130-8 at 14. Jordan facilitated the fights between Plaintiff and other juveniles. See Heggenmiller v. Edna Mahan Correctional Institution for Women, 128 F. App’x 240, 247 (3d Cir. 2005) (vigorously

enforced no contact order was a reasonable step in protecting inmates from sexual contact by correctional officers.) Defendants assert qualified immunity in their individual capacities. There are unknown facts concerning the failure to issue a no contact order that are jury issues. For example, in the internal affairs interview, Jordan stated that there was a no contact order between an officer and a juvenile with whom that officer had filed an assault charge. Although Surrency states there was no written policy requiring a no contact order, it is not known whether there was a general practice of issuing no contact orders and if so, what factors were considered in issuing a no contact order and why was Jordan’s situation different. Also unknown is

why Jordan questioned Surrency, two weeks before the March 2012 fighting incidents, whether there was a no contact order in place. Unresolved issues of material fact preclude the grant of qualified immunity to Surrency and Balicki in their individual capacities. See Barton v. Curtis, 497 F.3d 331, 335 (3d Cir. 2007) (qualified immunity is question for a jury where relevant historical facts are disputed). Furthermore, Plaintiff also sued Surrency and Balicki in their official capacities. (Am. Compl. ¶¶25-26, ECF No. 58.) Although the Court agrees with Defendants that they are not final policymakers with respect to the Manual of Standards, the record shows that Balicki had final authority to make written policies and procedures specific to the CCJDC. See supra note 3.

In fact, in his deposition, Balicki says he was charged with updating CCJDC’s outdated policies when he was hired in 2008 or 2009. (Ex. FF at T17:3-24:23, ECF No. 130-8 at 8.) He delegated that responsibility to Surrency. (Id.) According to Surrency, the policy changes to the 1989 CCJDC policies and procedures were never made because it was announced that CCJDC would close in 2015. (Ex. EE at T26:21-28:3, ECF No. 130-9 at 193.) Therefore, because Plaintiff sued Balicki and Surrency in their official capacities, which, legally, is the same as suing the county, and because Balicki had final policy-making authority with respect to the CCJDC, which he delegated to Surrency, the Monell claim may proceed

to trial. See Board of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 410 (1997) (single incident municipal liability may be found where a municipal actor disregarded a known or obvious consequence of his action). There is no qualified immunity for § 1983 Monell claims. Defendants are not entitled to summary judgment on the failure to protect claim based on their failure to institute a policy requiring no contact orders between a juvenile and an officer with whom there are criminal assault charges pending. H. 24-Hour Administrative Lock Downs Plaintiff submits that Surrency and Balicki are liable for the improper use of 24-hour administrative lock down (a/k/a room

restriction) to punish him. Defendants counter that Plaintiff did not raise the issue of 24-hour administrative lock down in his amended complaint or answers to interrogatories, nor is there mention of it in his deposition transcript. (Defs’ Reply Brief, ECF No. 143 at 12.) Furthermore, the Manual of Standards permitted a 24-hour room restriction as a last resort when a juvenile’s behavior posed a substantial threat to himself, others or property. (Pl’s Ex. BB, Manual of Standards § 13:92-7.4, ECF No. 130-9 at 81.) 1. Undisputed material facts Surrency stated in her deposition that juveniles were not locked down for punitive reasons at CCJDC. (Ex. EE, T84:12-17, ECF

No. 130-9 at 207.) However, Surrency knew Plaintiff was placed in 24-hour lock down for acting out in class on March 22, 2012. (Ex. W, ECF No. 130-8 at 194.) It was the custom at CCJDC to put Plaintiff in 24-hour lock down for acting out in class. (Ex. EE, T94:18-96:11, ECF No. 130-9 at 210.) According to Balicki, there were no policies regarding whether a juvenile with mental and behavioral issues should be put in lock down. (Ex. FF, T32:13- 33:5, ECF No. 130-10 at 11-12.) According to the Manual of Standards governing CCJDC during the relevant time period, a child should only be placed in lock down if his/her behavior posed a substantial threat to

himself/others or property. (Ex. HH, T50:7-22; T56:1-25, ECF No. 130-10 at 53-54.) Lock down was not for punitive purposes, but to gain control of a juvenile who was acting out, and should not exceed 24 hours. (Ex. BB, ECF No. 130-9 at 81.) Placing a juvenile in lock down for refusing school was a violation of the Manual of Standards. (Ex. HH, T50:7-22; T56:1-25, ECF No. 130-10 at 53-54.) Despite the provisions of the Manual of Standards, CCJDC has a resident rooms and regulations form, one of which was signed by Plaintiff on January 27, 2012. (Ex. CC, ECF No 130-9 at 92-93.) The form advised of a 72-hour lock down as punishment for Class A violations, which included Acting Out in Class, Refusing School, Hindering Head Count, Off Limits, Gambling, and Tampering with

Locks. (Id.) 2. Analysis Defendants are correct that Plaintiff’s first allegation of improper use of 24-hour administrative lock down was in his opposition to Defendants’ motion for summary judgment. The fact that Plaintiff generally alleged “inhume conditions of confinement” in the amended complaint does not make this claim timely. The only “conditions” that Plaintiff described in the amended complaint were deprivation of his medication, improper room extractions, and failure to protect him against Officer Jordan permitting him to fight other juveniles. Defendants were not timely notified of Plaintiff’s claim that

subjecting him to 24-hour lock down violated his constitutional rights. See Jones v. Treece, 774 F. App’x 65, 67 (3d Cir. 2019) (“a plaintiff generally ‘may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment’”) (quoting Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996)). The statute of limitations expired two days after Plaintiff filed the original complaint on March 29, 2016. By the time Plaintiff first raised his claim about 24-hour administrative lock down in his opposition to summary judgment, filed on November 5, 2019, the statute of limitations had long expired, and it was too late to add new claims to the amended complaint. Therefore, Defendants are entitled to summary judgment on this claim.

I. Failure to Protect Plaintiff asserts several policy failures caused the staff’s failure to protect vulnerable juveniles, like himself, from abuse. First, Plaintiff claims that Surrency and Balicki failed to create a classification system designed to separately house vulnerable juveniles and violent juveniles. (Pl’s Opp. Brief, ECF No. 130 at 30-32.) Second, Plaintiff contends that there was no policy requiring CCJDC staff to be made aware of his mental and behavioral disorders or to disseminate instructions to maintain his safety. (Pl’s Opp. Brief, ECF No. 130 at 27-30.) Third, Plaintiff asserts Defendants failed to create a written policy requiring staff to review a

juvenile’s incident reports and take corrective action. (Id. at 35-36.) Defendants maintain that Plaintiff did not show how these alleged failures created an unreasonable risk of the injury he sustained, that Officer Jordan permitted him to “go body to body” with other residents. (Defs’ Reply Brief, ECF No. 143 at 7-8.) Further, Defendants submit that there is nothing in the record showing that Plaintiff was injured from bullying by other residents. (Defs’ Reply Brief, ECF No. 143 at 8.) Defendants distinguish A.M. ex rel. J.M.K., 372 F.3d 572 (3d Cir. 2004), where a juvenile was housed in a wing with other juveniles who had previously assaulted him. (Id. at 9.) In that

case, the failure to review incident reports showing continuous assaults on the plaintiff by other juveniles permitted the assaults to continue. (Id. at 11-12.) Here, Plaintiff was injured after a juvenile detention officer arranged for Plaintiff to fight other juveniles in order to settle their differences. Unlike A.M. ex rel. J.M.K., Plaintiff’s incident reports did not show repeated assaults on Plaintiff by other juveniles or that Plaintiff was injured from bullying by other residents. (Defs’ Reply Brief, ECF No. 143 at 11-12.) 1. Undisputed Material Facts a. Plaintiff’s diagnoses Plaintiff offers the expert report of Wayne A. Robbins. (Ex.

MM, ECF No. 130-10 at 157-210.) Robbins opined, in relevant part: Plaintiff Edward Scanlon IV was identified to have a medical and mental health history that clearly should have identified him to the New Jersey Juvenile Justice Commission (JJC) and the Cumberland County Juvenile Department of Corrections (CCJDC) as a juvenile “Special Needs” detainee. Documents reviewed identified that Scanlon had been diagnosed with Klinefelter’s Syndrome and received testosterone supplements as prescribed. Additionally, Scanlon suffers from Bipolar II Disorder, Mood Disorder, NOS, Learning Disorder, NOS, Impulse Control Disorder and Oppositional Defiant Disorder. Psychological testing in March of 2008 found that Scanlon functions in the low average range, with significant unevenness in his learning skills, coping with stress, frustration tolerance and problem resolution. Scanlon was also noted to have difficulty with impulsiveness, interpersonal boundaries and rules. Testing indicated a Full Scale IQ of 69, and a diagnosis indicating a mild mental handicap. (Ex. MM at ECF No. 130-10 at 161.) Records concerning Plaintiff’s juvenile delinquency proceedings included a psychiatric evaluation performed when Plaintiff was five years old. (Ex. F, ECF No. 130-8 at 57.) Plaintiff was diagnosed with attention deficit hyperactivity disorder and adjustment disorder with mixed disturbance of emotions and conduct and academic inhibition, severe. (Id. at 61.) Regarding his psychosocial stressors, the evaluator noted Plaintiff had been removed from school on a temporary basis due to violent, physically aggressive behavior in the schoolroom setting. (Ex. F, ECF No. 130-8 at 61.)

Plaintiff underwent another psychiatric evaluation later that year, upon his first day at a new school. (Id. at 63.) Plaintiff was described as “very hyperactive, oppositional and impulsive,” verbose, with mood vacillating from happy to angry, with poor insight and judgment. (Id. at 63.) He was diagnosed with Oppositional Defiant Disorder and R/O Attention Deficit Hyperactivity Disorder, combined type. (Id. at 64.) Plaintiff was detained in CCDJC from November 29, 2011 through May 29, 2012 for “out of control behavior causing risk to self[.]” (Ex. M, ECF No. 130-8 at 94-95.) In April 2012, a probation officer was ordered to create a predisposition report for Plaintiff. (Id.) Plaintiff’s supervising probation officer wrote that Plaintiff’s

psychiatric and psychological evaluations spanned a ten year period but “all of the evaluations indicate that Edward Scanlon IV is a severely emotionally, developmentally, and educationally impaired juvenile.” (Id. at 99-100.) Prior to his placement in CCJDC in November 2011, Petitioner had multiple sexual assault charges that were dismissed due to his incompetence, and aggravated assault and other charges that were dismissed by his plea. (Id. at 100-101.) b. Housing assignments at CCJDC Warden Balicki was deposed concerning the placement of juvenile offenders in appropriate housing in CCJDC. (Ex. FF at T63:20-66-17, ECF No. 130-10 at 19-20.) Balicki knew that adult

jails had intake classification procedures that took into account inmate offenses and disciplinary history, which were used to classify inmates as maximum, medium or minimum custody. (Id.) There was no such policy at CCJDC, housing was left to the discretion of the division head, Surrency, or shift commanders. (Id.) Surrency was a division head at CCJDC during the relevant time period, and her supervisor was Warden Balicki. (Ex. EE at T14:8-15:6, ECF No. 130-9 at 190.) Her responsibilities included overseeing the daily operations of the facility, for all the departments. (Id. at T24:7-26:20, ECF No. 130-9 at 192-93.) She was responsible for protecting the welfare and safety of the juveniles in CCJDC. (Id.)

Surrency had authority to create policy. (Id.) Balicki did not work onsite at CCJDC, so she did not discuss issues with him unless she felt an investigation was necessary. (Id.) Surrency and Balicki did not discuss policies much because policies and procedures were already in place. (Id.) If a juvenile was identified as vulnerable during admission, the juvenile would be placed in A-wing at CCJDC, which was less volatile than the other wings. (Id. at T62:15-24.) They tried to keep Plaintiff on A-wing, which was closer to the social workers, medical department and administration. (Ex. EE at T47:25-48:4, ECF No. 130-9 at 198.) Juveniles were removed from A-wing to another wing when they repeatedly kicked the doors to their rooms, because

the doors on A-wing were not very secure. (Id. at T80:24-82:3, ECF No. 130-9 at 206-7.) Captain Tara Butler testified that there was no particular wing assignment for individuals with mental health needs. (Ex. GG, T11:12-14:5, ECF No. 130-10 at 27-28.) Placement of the juveniles depended on their behavior within CCJDC. (Id. at T13:25-14:5.) Officer Jordan testified that Plaintiff was on D-wing more than A- wing, and D-wing housed the most violent and troubled kids. (Ex. KK, T:25:16-28:1, T31:4-19, ECF No. 130-10 at 97-98.) Another juvenile who was known for troubling behavior was housed next to Plaintiff on D-wing at one time. (Id. at T34:16-38:12, ECF No. 130-10 at 99-100.)

b. Communication to staff of mental health issues The CCJDC had an admissions process. (Ex. EE at T32:19-34:14, ECF No. 130-9 at 194-95.) The only questions juveniles were asked about mental health during admissions were whether they were depressed, suicidal or used any alcohol or drugs. (Id.) Within 24- hours of a juvenile’s admission, medical staff would further assess his or her physical and mental health. (Id.) The facility had many juveniles with mental health issues. (Id.) When Plaintiff was admitted to CCJDC, Surrency was not immediately made aware of his mental health issues, although she learned within a few days. (Ex. EE at T29:20-31:19, ECF No. 130-9

at 194.) There was no policy requiring the rest of the staff to be made aware of a juvenile’s mental health disorders. (Id. at T38:5- 39:5, ECF No. 130-9 at 196.) In February 2011, Nurse Austin wrote a behavior log entry, indicating that Plaintiff had multiple medical diagnoses including mild mental retardation, and that he should be protected from bullying by others. (Id. at T63:2-64:23, ECF No. 130-9 at 202.) The shift supervisors were in charge of disseminating information from the behavior log during shift changes, and such information was shared orally. (Id. at T64:24-68:9, ECF No. 130-9 at 202-3.) Surrency acknowledged that Plaintiff was a “special needs” child. (Id. at T47:8-11, ECF No. 130-9 at 198.) She agreed that

Plaintiff was vulnerable to bullying but that all juveniles were subject to bullying, and Plaintiff “fit in after [a] while . . . everybody liked him.” (Id. at T59:4-12, ECF No. 130-9 at 201.) Surrency was not aware of any incidents, apart from the fights permitted by Jordan, when Plaintiff was bullied by any other juvenile inmates. (Id. at T147:5-10, ECF No. 130-9 at 223.) Plaintiff submits evidence that he was detained at CCJDC from November 29, 2011 through May 25, 2012, and he was involved in 35 incidents or disciplinary issues, which resulted in 57 written Incident Reports. (Pl’s CSOMF, ¶208; Ex. Z, ECF No. 130-9 at 17- 72.) Surrency acknowledged there was no policy or procedure requiring staff to review a case where a juvenile had this many

incident reports and determine a corrective course of action for managing the juvenile’s behavior. (Pl’s CSOMF, ¶210, ECF No. 130- 5 at 36; Exhibit EE at T83:1-24, T97:12-101:22, ECF No. 130-9 at 207, 211-12.) Near the end of his placement at CCJDC, Plaintiff’s supervising probation officer recommended that the juvenile remain in detention until a bed is available at an appropriate residential facility. It is recommended that this facility meet all of Edwards [sic] sex offender specific needs, mental health needs, and be able to ensure his safety and the safety of the community. Probation would ask that the program have a plan to deal with some of Edwards [sic] negative and dangerous issues (ie.running away) that took place while he was at The Children’s Home.

(Ex. M, ECF No. 130-8 at 102.)

2. Analysis

Plaintiff has not explained how these alleged policy failures caused his constitutional injury. Again, it bears repeating that the sole constitutional injury that Plaintiff alleges is the injuries resulting from Jordan’s reprehensible conduct in arranging for him to fight other juveniles. If Plaintiff’s argument is that these policy failures resulted in the failure to properly treat his mental health disorders, this claim suffers the same procedural defect as Plaintiff’s claims regarding administrative lock down; they were first raised in Plaintiff’s opposition to summary judgment, and it is too late to amend the complaint to

bring claims separate from the constitutional injuries alleged in the amended complaint. The injuries Plaintiff specifically alleged in his amended complaint were (1) not receiving his proper medication; (2) excessive force during room extractions; and (3) failure to protect against Officer Jordan arranging for him to fight other juveniles. As set forth above, the Court has determined that Plaintiff failed to show a reasonably jury could conclude that Surrency and Balicki were deliberately indifferent to a substantial risk that Plaintiff was not receiving his prescribed medications or that excessive force was used during Plaintiff’s room extractions. The Court, however, will address whether the alleged policy failures

regarding Plaintiff’s mental disorders were the proximate cause of Officer Jordan’s alleged misconduct. The Due Process right to safety of incarcerated juveniles encompasses the right to reasonable protection from the aggression of others. See Thomas S. ex rel. Brooks v. Flaherty, 699 F. Supp. 1178, 1200 (W.D.N.C. 1988), aff'd, 902 F.2d 250 (4th Cir.), cert. denied, 498 U.S. 951 (1990) (defining substantive due process rights of mentally disabled adults). Juveniles at [a] correctional facility should be screened and classified so that aggressive juveniles are identified and separated from more passive juveniles, with the level of restraint to be used for each juvenile based on some rational professional judgment as to legitimate safety and security needs; there should also be periodic review of initial placement to evaluate whether subsequent events demonstrate need for reclassification of juvenile security requirements.

Alexander S. By & Through Bowers v. Boyd, 876 F. Supp. 773 (D.S.C. 1995), as modified on denial of reh'g (Feb. 17, 1995). Certainly, detention centers, whether adult or juvenile, should have a classification system to identify violent and non- violent persons for the purpose of protecting the safety of those more vulnerable. Notwithstanding Plaintiff’s vulnerabilities, his long history of physical aggression in school, since age five, and the fact that he was detained for sexual assault of other children, suggests that he would not have been classified as nonviolent. Assuming, however, that Plaintiff should have been classified as needing protection from violent juveniles, Plaintiff cites to nothing in the record to support a reasonable inference that he was attacked by another juvenile because he was vulnerable; rather, the record evidence is that Officer Jordan arranged for Plaintiff to voluntarily fight other juveniles to settle their differences.8

8 Plaintiff has offered no evidence that other juveniles preyed on his vulnerabilities and assaulted him, other than the incidents that occurred as result of Officer Jordan’s misconduct on March 3 and March 4, 2012. Plaintiff submitted his incident reports from Absolutely, Surrency and Balicki were required to protect Plaintiff from staff. They are not liable as supervisors under § 1983 and the NJCRA, however, unless they were deliberately indifferent to a substantial risk that staff would have permitted

or encouraged juveniles to fight each other. See Brown, 269 F.3d at 215-16 (municipality not liable for officer who shot pet dog where plaintiff failed to show an official policy endorsing such conduct, a custom of condoning such conduct, and where no reasonable jury could conclude the need for further training was

the CCJDC. As discussed below, Plaintiff’s incident reports reflect his difficulty following directions in the classroom and his tendency to react to discipline by staff with physical aggression. The incident reports include very few occasions where Plaintiff argued with another juvenile and no occasions where Plaintiff was injured in a fight with another juvenile. As to the investigations of the March 3 and 4, 2012 fights, it was learned that on March 3, 2012, when the residents were being locked down for the night, Officer Jordan asked Plaintiff if he wanted to go in another resident’s room and “go body to body,” meaning they would punch each other repeatedly on the body until the other submitted. Plaintiff agreed to fight, and the juveniles were permitted to fight briefly in an area with no surveillance cameras. (Ex. P, ECF No. 130-8 at 129-30.) The investigation also revealed that on March 4, 2012, Officer Jordan was in the t.v. room with a group of residents, including Plaintiff. Another juvenile was harassing Plaintiff by putting his feet on Plaintiff’s chair and pushing the chair back. Officer Jordan joined in on the bullying by pushing and tripping Plaintiff, and then other residents began to reach out toward or swat at Plaintiff. This was caught on video, which then showed Plaintiff and other residents going to a corner of the room and rearranging furniture. The investigation revealed that Officer Jordan permitted Plaintiff and the other juveniles to “go body to body” in a blind spot of the security cameras. Plaintiff quit fighting after receiving a painful punch in the chest. (Id.) so obvious that municipality was deliberately indifferent to such a risk.) Plaintiff also asserts Surrency and Balicki should be held

liable for not creating a policy to make staff aware of a juvenile’s mental and behavioral disorders, especially messages communicated by medical staff, advising staff of a juvenile’s vulnerabilities. The record shows that CCJDC that does not have a written policy requiring dissemination of behavior log entries, but Surrency related that the practice was for shift supervisors to orally disseminate information from the behavior log to staff during shift changes. As with the lack of a classification policy, the record does not permit a reasonable jury to conclude that Surrency and Balicki were deliberately indifferent to a substantial risk that failure to communicate Plaintiff’s mental disorders and his vulnerability

to bullying to staff would result in a staff member bullying Plaintiff by encouraging him to fight other juveniles. Finally, Plaintiff contends Surrency and Balicki should be liable for not creating a policy requiring staff to review a juvenile’s incident reports and take corrective action. Plaintiff cites to A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572 (3d Cir. 2004). In that case, the plaintiff was physically assaulted on numerous occasions by other juvenile residents in a juvenile detention center. Id. at 575-76. Although the plaintiff was supposed to be kept away from the boys who had previously assaulted him, this directive was not always followed. Id. at 576. The incident reports involving the plaintiff in that

case supported an inference that it was predictable the plaintiff would suffer recurrent harm at the hands of other residents. In this case, Plaintiff’s incident reports generally show that he refused to follow directions in class, refused to go to school and argued with staff and became aggressive when they tried to physically remove him from the situation. There were very few physical fights between Plaintiff and other juveniles described in his incident reports. Given this record, a reasonable jury could not conclude that the incident reports alerted Surrency and Balicki to the risk that Officer Jordan would encourage Plaintiff to fight other juveniles to settle their differences. See Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir. 1996) (municipality not liable for

rape by a police officer because there was no patently obvious need to train officers not to commit rape and no evidence that failure to train caused the rape). The standard for supervisory liability under § 1983 is high. Supervisors, without some type of personal involvement in the constitutional harm, are not liable for the misconduct of their employees. Iqbal, 556 U.S. at 676. Thus, the Court must grant summary judgment to Surrency and Balicki on Plaintiff’s § 1983 and NJCRA claims in their individual and official capacities. IV. CONCLUSION For the reasons discussed above, the Court grants in part and denies in part Defendants Balicki, Baruzza and Surrency’s motion

for summary judgment.

An appropriate order follows. Date: February 21, 2020 s/Renée Marie Bumb RENÉE MARIE BUMB United States District Judge