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NOT FOR PUBLICATION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 and Veronica Surrency’s (“Defendants”) motion for reconsideration of the Court’s Opinion and Order dated February 21, 2020 (Mot. for Reconsideration, Dkt. No. 168); Plaintiff’s Reply to the Motion for Reconsideration Filed by Defendants Veronica Surrency and Robert Balicki (“Pl’s Opp. Brief,” Dkt. No. 184) and Defendants’ Reply Brief (Defs’ Reply Brief, Dkt. No. 186.) For the reasons discussed below, the Court will grant the motion for reconsideration and grant Defendants’ summary judgment, in

their individual and official capacities, on Plaintiff’s last remaining claims, Fourteenth Amendment claims under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act (“NJCRA”) for failure to protect based on Defendants’ failure to impose a no contact order at the Cumberland County Juvenile Detention Center (“CCJDC”) between Juvenile Detention Officer (“JDO”) Wesley Jordan (“Jordan”) and Plaintiff Edward Scanlon, IV (“Plaintiff” or “Plaintiff Scanlon”). I. BACKGROUND The Court recited the procedural background in this matter in its Opinion dated February 21, 2020, and need not repeat it for the parties here. (Opinion, Dkt. Nos. 155, 156.)1 The Court granted

summary judgment to all Defendants, with the exception of Defendants Warden Robert Balicki and CCJDC Division Head Veronica Surrency, primarily because Plaintiff had failed to file his claims against them within the statute of limitations. (Opinions, Dkt. Nos. 144, 147, 150, 151, 155.) Plaintiff did not oppose summary judgment in favor of Defendants Balicki and Surrency on his tort

1 The Court filed both a sealed opinion (Dkt. No. 155) and a redacted Opinion (Dkt. No. 156) and will cite to the sealed Opinion hereafter. claims. (Defs’ Summ. J. Brief, Dkt No. 116 at 21-23;2 Pl’s Opp. Brief, ECF No. 130 at 9.) Therefore, the Court’s Opinion was restricted to Defendants’ motion for summary judgment on the only

remaining claims, Plaintiff’s § 1983 and NJCRA claims. Defendants seek reconsideration of the denial of summary judgment on Plaintiff’s § 1983 and NJCRA failure to protect claims under the Fourteenth Amendment. This Court quotes here from the relevant portion of the Court’s Opinion: 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

2 Page citations refer to the page number assigned by the Court’s electronic case filing system, CM/ECF. 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.)

The Court held 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.

(Opinion, Dkt. No. 155 at 31-34) (emphasis added.)

II. DISCUSSION A. Defendants’ Argument Defendants Balicki and Surrency seek reconsideration alleging an erroneous finding of fact by the Court when it attributed to Defendant Balicki the testimony that it would have been a “good idea” to have a no contact order between a juvenile and the alleged victim officer. (See Brief in Supp. of Mot. for Reconsideration by Surrency and Balicki (“Defs’ Brief”) Dkt. No. 169.) (Opinion, Dkt. No. 155 at 31.) Defendants concede, in their reply brief, that the statement was made by one of the dismissed Defendants, William M. Burke, the Supervisor of New Jersey Juvenile Commission’s Compliance Monitoring Unit. (Def’s Reply Brief, Dkt. No. 186 at 5.) In fact, Defendant Balicki’s deposition testimony concerning no contact orders was limited to the fact that there was no policy or procedure in place to keep separate, during a pending criminal proceeding, a juvenile resident and the JDO whom the juvenile was

criminally charged with assaulting. (Plaintiff’s Ex. FF at T66:18- 22, Dkt. No. 130-10 at 20.) Both Defendants also suggest that it was a clear error of law for the Court to rely on a factually distinguishable Third Circuit case, Heggenmiller v. Edna Mahan Correctional Institution for Women, 128 F. App’x 240 (3d Cir. 2005). In Heggenmiller, state prisoners brought a § 1983 action against prison administrators alleging that they were deliberately indifferent to the risk of sexual assaults on inmates by guards. There was a policy at the prison prohibiting sexual contact between prison guards and inmates. The Third Circuit held that the plaintiffs in Heggenmiller could not show deliberate indifference by the administrative

defendants because the prison’s no contact rule was vigorously enforced by the firing and/or prosecution of five of the six guards responsible for the six documented sexual assaults between 1994 and 1998. Vigorous enforcement of the no contact order established that the administrators took reasonable steps to reduce the risk of sexual assaults. Defendants maintain that the present case is not analogous to Heggenmiller because it was Plaintiff who had assaulted Jordan in the past, not the other way around. Finally, Defendants submit that it was a clear error of law to find that they acted with deliberate indifference. Defendants maintain there is nothing in the record to show that they were

aware that their failure to implement a policy for “no contact orders” between a juvenile resident and the JDO whom the juvenile was criminally charged with assaulting. Specifically, Defendants highlight the fact that the record does not contain any prior incidents at CCJDC where a JDO retaliated against a juvenile resident under similar circumstances. Once they became aware of Jordan arranging fights between Plaintiff and other juveniles in March 2012, however, Defendants put a no contact order in place between Plaintiff and Jordan at that time. (Defendants’ Statement of Material Facts at ¶¶38-39; Plaintiff’s Reply to Defendants Statement of Material Facts admitting to ¶¶38-39). Furthermore, Defendants argue there is no evidence that Jordan, by his actions

in March 2012, was retaliating against Plaintiff for assaulting him. In essence, Defendants conclude there is no connection between the lack of a policy for no contact order in this situation and Plaintiff’s ultimate injuries. B. Plaintiff’s Counter-Argument Plaintiff Scanlon acknowledges that William M. Burke, the Supervisor of New Jersey Juvenile Commission’s Compliance Monitoring Unit, not Defendant Balicki, was the person who testified that it would have been a “good idea” to have a no contact order between a juvenile resident and the officer he assaulted, pending criminal proceedings regarding the assault. (Pl’s Opp. Brief, Dkt. No. 184.) (See Burke Depo., Plaintiff’s Ex.

HH at T58:23-T59:16, Dkt No. 130-10 at 55.) Plaintiff argues that this mistake by the Court only bolsters the Court’s decision that Defendants Balicki and Surrency were deliberately indifferent to his safety because it was Burke, who supervised all juvenile detention centers for the State of New Jersey, who testified that it would have been a “good idea” to have a no contact order in place. Notably, however, Plaintiff points to no evidence that Burke made this “good idea” known to Defendants Balicki and Surrency. Plaintiff also argues that, while his case is factually distinguishable, the Court did not err in its reliance on Heggenmiller in holding that vigorous enforcement of a no contact order is a reasonable step to protect inmates from harm. As a final

point, Plaintiff contends that Defendants’ objection to the Court’s finding of deliberate indifference is nothing more than an attempt to relitigate an issue solely because they disagreed with the Court’s decision.3

3 After reading the parties’ briefs, the Court determined that it would rule on the motion without oral argument under Federal rule of Civil Procedure 78(b). (Text Order, Dkt. Nos. 185, 189.) C. Analysis Local Civil Rule 7.1(i) requires a party filing a motion for reconsideration to submit “a brief setting forth concisely the

matter or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked.” Mere disagreement with the Court’s decision is not a sufficient basis for a motion for reconsideration. See Rich v. State, 294 F. Supp. 3d 266, 273 (D.N.J. 2018) (collecting cases). “The purpose of a motion for reconsideration … is to correct manifest errors of law or fact or to present newly discovered evidence.” Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). 1. Factual Error The Court clearly mistakenly attributed to Defendant Balicki

the statement that it would have been a “good idea” to have a no contact order in place between a JDO and a juvenile resident of a juvenile detention center, while criminal charges were pending against the juvenile for assaulting the JDO. As the parties concede, the statement was made by a now-dismissed defendant, William M. Burke, who was a supervisor for the compliance monitoring unit of the New Jersey Juvenile Justice Commission. (See Burke Depo., Plaintiff’s Ex. HH at T58:23-T59:16, Dkt No. 130-10 at 55.) (This Court granted summary judgment as to Defendant Burke because Plaintiff failed to bring a timely claim against him. (Opinion, Dkt. No. 144.) This mistake informs the Court’s reconsideration as follows.

2. Deliberate Indifference 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.’” Id. (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. Id. “The question of whether conduct amounting to deliberate indifference is sufficient to “shock the conscience” requires an ‘exact analysis of [the] circumstances’ in a given case.” Id. at (quoting Lewis, 523 U.S. at 850.) The deliberate indifference standard is appropriate where the persons responsible for the juvenile in a juvenile detention center had time to deliberate concerning the juvenile’s welfare. A.M. ex rel. J.M.K., 372 F.3d at 579.

It is significant to this Court’s reconsideration that it was not the Warden, Defendant Balicki, who made the statement that having a no contact order in a case like this would have been a “good idea.” Upon his hiring as warden for CCJDC in 2008 or 2009, Balicki was charged with revising all of CCJDC’s old written policies. (Balicki Depo, Pl’s Ex. FF at T17:3-T19:5; T22:9-12; Dkt No. 130-10 at 8-9.) The policies had to be updated every year, and Balicki delegated the responsibility to update the policies to Tammie Pierce and Veronica Surrency, and when Pierce left CCJDC, he delegated the duty to Defendant Surrency, while maintaining his authority to approve the policies. (Id. at T22:18-T24:10.) Surrency acknowledged that she had authority to create policy.

(Surrency Depo., Pl’s Ex. EE at T24:7-T25:13, Dkt. No. 130-9 at 192-93.) With this in mind, it is undisputed that Burke, who made the statement, did not have authority to make specific policies for CCJDC,4 but testified that such a policy would be left to the

4 Burke testified that if he learned of a serious incident at a juvenile detention center, he would write a report that requested an action plan from the juvenile detention center, describing how they planned to address the issue. (Burke Depo., Pl’s Ex. HH at T19:3-21.) As supervisor of the monitoring unit that evaluated juvenile detention centers, if there was a problem, Burke would individual facility. (Burke Depo., Pl’s Ex. HH at T58:23-T59:7.) The only policies or procedures that Burke put in place were in the State’s Manual of Standards for all juvenile detention

facilities; he could not tell the facilities what to put in their SOPs.5 (Id. at T52:3-13; T83:16-T84:2.) Plaintiff has pointed to no evidence, and this Court can find none, where Burke shared his belief about the propriety of a no contact order with either Defendant Balicki or Defendant Surrency. Moreover, while it may be that Burke, in his capacity as supervisor of the compliance monitor unit for all New Jersey juvenile detention centers, had knowledge of the use of no contact orders from his experience at other juvenile detention centers, Plaintiff has not presented any evidence of such knowledge or why Burke thought it was a “good idea.” That Burke may have been engaging in an evaluation with hindsight — an issue not explored

by Plaintiff — is also problematic. More to the point, Plaintiff points to no evidence that Burke shared this information with Defendants Balicki and Surrency, or even recommended a no contact order policy for any facility. Burke’s role in the Juvenile Justice Commission was to monitor CCJDC’s compliance with the State’s

ask the detention center to come up with a solution because his unit did not run the facilities. (Id. at T21:11-T22:2.)

5 SOPs stands for Standard Operating Procedures. (Burke Depo., Pl’s Ex. HH at T97:10-11.) Manual of Standards, and the Manual of Standards did not require no contact orders under the circumstances at issue here. (Burke Depo, Pl’s Ex. HH at T10:1-10; T58:23-T59:16.) The Manual of

Standards contains only general standards, a facility’s Standard Operating Procedures were much more detailed. (Id. at T97:20- T98:3.) Burke testified that a no contact order policy in “a situation where a guard is injured by a juvenile inmate and charges are pressed against that juvenile inmate” would be a policy for the facility to make. (Id. at T58:23-T59:16.) “[T]o defeat [a] summary judgment motion,” on a failure to protect claim “[plaintiffs] must present enough evidence to support the inference that the defendants ‘knowingly and unreasonably disregarded an objectively intolerable risk of harm.’” Beers-Capitol v. Whetzel, 256 F.3d 120, 132 (3d Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 846 (1994)). “To be

liable on a deliberate indifference claim, a defendant prison official must both ‘know[ ] of and disregard[ ] an excessive risk to inmate health or safety.’” Id. at 133 (quoting Farmer, 511 U.S. at 837.)) “[T]he official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware.” Id. (citing Farmer, 511 U.S. at 837-38.)) “[S]ubjective knowledge … can be proved by circumstantial evidence” if “the excessive risk was so obvious that the official must have known of the risk.” Id. (citing Farmer, 511 U.S. at 842.) Plaintiff relies on the fact that Burke, who has expertise in the State of New Jersey in the field of juvenile detention centers, thought it was a good idea for the CCJDC to enact a no contact

order policy under the circumstances present here. The Third Circuit has held that even when a policymaker fails to implement a standard or recommended policy in the juvenile detention field, such a failure constitutes negligence not deliberate indifference. See Beers-Capitol, 256 F.3d at 137-38 (failure to enact standard or recommended policies constitutes negligence not deliberate indifference). As noted, Plaintiff had an opportunity to explore Burke’s statement in discovery, but did not do so. Indeed, as the Court found, Plaintiff failed to bring timely claims against Burke, the only individual whom Plaintiff introduced as opining as to a no contact policy. Plaintiff has introduced no evidence that

Defendants Balicki and Surrency believed there was good reason to have a no contact policy in place in situations such as those here. In order for a jury to reasonably find deliberate indifference by Defendants Balicki and Surrency for failing to enact such a policy, there must be evidence that they were aware of the existence of excessive risk to Plaintiff’s safety or there must be circumstantial evidence that the risk was so obvious they must have known of it. Here, the only evidence Plaintiff has put forward is that Jordan asked Defendant Surrency whether there was a no contact order in place and she said there was not. (See Pl’s Ex. SS (video recording) at 25:25 to 27:07, Dkt. No. 130-11 at 49-50.) Indeed, Surrency testified that when Jordan asked her about the no

contact order, she was unaware of the incident between Jordan and Plaintiff Scanlon from one year prior. (Surrency Depo., Pl’s Ex. EE at T145:9-20, Dkt. No. 130-9 at 223.) Despite the lack of a written policy, according to Surrency, an administrator could put in place a no contact order to keep a juvenile and staff member separate; but unless the officer was the person who assaulted the juvenile, a no contact order was not deemed necessary beyond the day that the juvenile assaulted the officer.. (Id. at T105:24- T107:4, T108:21-T109-2.) Moreover, although Jordan testified that there were other occasions when the CCJDC put a no contact order in place between a juvenile and a juvenile detention officer, Plaintiff did not explore that testimony. Jordan did not testify,

nor does the record otherwise establish, about the circumstances under which another no contact order was put in place.6 (See Jordan Depo., Pl’s Ex. KK at T39:17-T43:9, Dkt. No. 130-10 at 119-20.) Plaintiff Scanlon alleges that a few weeks after Jordan learned from Defendant Surrency that a no contact order was not in place between himself and Plaintiff, he encouraged Plaintiff to

6 If Plaintiff can point to such evidence in the record, he should file a motion for reconsideration within 14 days of entry of this Opinion and the accompanying Order. fight other juveniles while he watched. Yet, this was almost one year after charges had been brought against Plaintiff and the record is void of any evidence that the contact between Plaintiff

and Jordan for that time period had raised any concerns. But Plaintiff must do more than put forward what hindsight has clearly taught: no doubt, a vigorously enforced no contact order would seemingly have prevented Plaintiff Scanlon’s injuries, but Plaintiff must show Defendants Balicki and Surrency were aware of the risk to Plaintiff’s safety by not having such an order in place or that the risk was so obvious that they must have known of the excessive risk to Plaintiff’s safety. Plaintiff has not introduced any evidence that Defendants Balicki and Surrency were aware of any other incidents when Jordan, or any other JDOs for that matter, had encouraged juvenile residents to fight each other, nor has Plaintiff introduced evidence of JDOs retaliating against juveniles who had assaulted them.7

Although there is evidence that Jordan was reprimanded for excessive force against a juvenile resident in 2003, (See 2003 formal reprimand of Wesley Jordan, Ex. U, Dkt. No. 130-8 at 177- 88), this is insufficient to show an obvious risk that Jordan would retaliatorily encourage Plaintiff to fight other juveniles almost a year after the criminal charges were filed. The Supreme Court

7 See supra n. 4. has explained the type of circumstantial evidence, in the context of a prison official’s alleged failure to place an inmate in protective custody to protect against assault by another inmate,

that would be sufficient to show the prison official must have been aware of the risk to the plaintiff’s safety: if [a] … plaintiff presents evidence showing that a substantial risk of inmate attacks was ‘longstanding, pervasive, well-documented, or expressly noted by prison officials in the past,’ and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known’ about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.

Hamilton v. Leavy, 117 F.3d 742, 747–48 (3d Cir. 1997) (quoting Farmer, 511 U.S. at 842-43. Recently, the Third Circuit held that a plaintiff made a sufficient showing that detention facility staff must have known of the risk of sexual assault to an immigration detainee, although there was no evidence of the staff’s actual awareness of the risk. E.D. v. Sharkey, 928 F.3d 299, 309 (3d Cir. 2019). In that case, there was evidence that the detention facility was small; there was frequent interaction between the staff and detainees that permitted staff to observe the intimate interactions between plaintiff and the alleged perpetrator; and other inmates had complained of staff’s behavior toward the plaintiff. The evidence Plaintiff has adduced falls short of this standard, there is no evidence of inappropriate conduct between Jordan and Plaintiff Scanlon or between Jordan and any other juvenile between the date Plaintiff Scanlon was charged with assaulting Jordan and the March 2012 fighting incidents. Clearly

- it seems worthy of repeating - Jordan’s alleged actions are reprehensible. Unfortunately, Plaintiff failed to bring timely claims against him. For these reasons, the Court finds that Plaintiff Scanlon has failed to show any evidence that Defendants Balicki and Surrency were deliberately indifferent to the risk that Jordan would retaliate against Plaintiff for the filing of criminal charges against him. Thus, Plaintiff has not established a constitutional violation for failure to protect and the Court need not proceed to the qualified immunity analysis. See Beers-Capitol, 256 F.3d at 140 (3d Cir. 2001) (finding plaintiffs failed to establish failure to protect claim without evidence that directly showed the

defendant either knew of the excessive risk to the plaintiffs or the defendant was aware of such overwhelming evidence of the risk that defendants had to know of such a risk.) For the sake of completeness, however, the Court notes Plaintiff has not pointed to a case establishing a constitutional right to a no contact order in a similar situation as this. Nor has this Court found precedent “that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right" such that "existing precedent must have placed the statutory or constitutional question beyond debate." Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotations and citations omitted) (warning courts not to define clearly

established law at a high level of generality). Therefore, even if deliberate indifference could be established on this record, Defendants Balicki and Surrency, in their individual capacities, would be entitled to qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding courts need not first determine whether there has been a constitutional violation before granting qualified immunity on the grounds that the relevant facts do not violate clearly established law). III. CONCLUSION On the record before this Court, it cannot be said that Defendants Balicki and Surrency were deliberately indifferent to Plaintiff’s safety. What happened to Plaintiff Scanlon, however,

should never have happened, and should never happen again to anyone. This case should serve as a valuable lesson going forward as to the wisdom of enacting a no contact order under similar circumstances. Unfortunately, the individual allegedly responsible for Plaintiff Scanlon’s injuries was not sued timely, and that should never happen again. An appropriate order follows.

Date: September 29, 2020 s/Renée Marie Bumb RENÉE MARIE BUMB United States District Judge