Opinion
DOCKET NO. A-5252-12T1
06-24-2014
ROBERT A. NORMAN, Plaintiff-Appellant, v. ROBERT UNTIG, JOHN ARMENO, DAVID DIMARCO, EDWARD PANDISCIA, CHRISTOPHER LYNCH, JOHN KERNUSZ, JOHN BANNON, JASON KIMBLE, RICHARD NEMETH, ANTHONY MASUCCI, KEOGH-DWYER CORRECTIONAL FACILITY, COUNTY OF SUSSEX AND COUNTY OF SUSSEX BOARD OF CHOSEN FREEHOLDERS. Defendants-Respondents.
Jeffrey M. Patti argued the cause for appellant (Patti & Patti, LLC, attorneys; Mr. Patti, of counsel and on the brief). James M. McCreedy argued the cause for respondents (Wiley Malehorn Sirota & Raynes, attorneys; Mr. McCreedy, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Simonelli and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0749-11.
Jeffrey M. Patti argued the cause for appellant (Patti & Patti, LLC, attorneys; Mr. Patti, of counsel and on the brief).
James M. McCreedy argued the cause for respondents (Wiley Malehorn Sirota & Raynes, attorneys; Mr. McCreedy, of counsel and on the brief). PER CURIAM
In this matter, plaintiff Robert A. Norman, a former inmate at Sussex County's Keogh-Dwyer Correctional Facility (KDCF), alleges that corrections officers subjected him to cruel and unusual punishment in violation of the federal and State constitutions and New Jersey Civil Rights Act, N.J.S.A. 10:6-2, when they inflicted extreme punishment on him by first beating him and then restraining him in a restraint chair for nineteen continuous hours for no legitimate purpose. Plaintiff also asserted a conspiracy claim and a Monell claim. He appeals from the May 24, 2013 Law Division orders, which granted summary judgment to defendants and dismissed the complaint with prejudice, and denied his motion to extend discovery. He also challenges the court's refusal to consider his cross-motion for summary judgment. We affirm in part and reverse in part.
Monell v. New York City Dep't. of Soc. Servs., 436 U.S. 658 98 S. Ct. 2018; 56 L. Ed. 2d 611 (1978).
I.
We first address the grant of summary judgment. Plaintiff was incarcerated in the KDCF in January 2010. On October 4, 2010, he was housed on the second floor in a disciplinary detention cell awaiting transport to a State prison. The following is defendants' version of what happened that day.
While in his cell, plaintiff was banging on his cell door and yelling back and forth with inmate Christopher Richards, who was secured in a restraint chair located in the corridor. Corrections Sergeant Christopher Lynch ordered plaintiff to stop yelling and banging, but plaintiff refused. A general call went out for available corrections officers to assist with both inmates.
Lynch and Corrections Sergeant John Bannon entered plaintiff's cell and ordered him to stop yelling and banging. Plaintiff yelled obscenities and grabbed Lynch's shirt. Upon seeing this, Corrections Sergeant John Kernusz entered the cell and pepper-sprayed plaintiff. Plaintiff continued to resist as the officers tried to subdue him. Lynch and Bannon handcuffed plaintiff, while Kernusz and Corrections Officer Jason Kimble placed him in leg restraints. Once restrained, the officers immediately took plaintiff to the shower to decontaminate him from the pepper spray by washing him off with cold water. After plaintiff was decontaminated, he was given dry prison clothes and placed into a restraint chair without the use of force. Lynch ordered plaintiff's placement in the restraint chair because plaintiff displayed combative and abusive behavior and was a threat to himself and others.
Nurse Nancy Vander Berg examined plaintiff soon after he was placed in the restraint chair. She found the restraints were correctly applied, and noted that plaintiff had clear vision and no inflammation or redness on his skin; however, he had "a small abrasion on the right side of his forehead, origin unknown."
Plaintiff remained in the restraint chair in his cell for ten hours, during which corrections officers checked on him every fifteen minutes. In addition, plaintiff was released from the restraint chair at various times to use the bathroom, or at least was offered the opportunity to use the bathroom, but refused. He was also served dinner and used his inhaler. While in the restraint chair, he screamed obscenities and shook the chair.
Plaintiff has asthma and requires the use of an inhaler.
At approximately 8:00 p.m., Nurse Amy Ferraro gave plaintiff his medication. Approximately two hours later, she checked plaintiff's restraints and found he had adequate movement and no complaints. At approximately midnight, plaintiff was again released from the restraint chair to shower and clean his cell. He was then transferred to another floor. While there, he was released from the restraint chair to use the bathroom and his inhaler. He was screaming again.
At approximately 8:00 a.m. on October 5, 2010, plaintiff was served breakfast and given his medication. Lynch released plaintiff from the restraint chair because plaintiff finally apologized for his behavior and promised to behave going forward. Plaintiff would have been released sooner if he had apologized earlier. Plaintiff was then transferred to a State prison. His Inmate Discharge Form noted he was in good physical condition and had no complaints. Plaintiff never produced any medical records or expert reports describing any injury he received as a result of this incident.
Plaintiff's version differed significantly. According to plaintiff, during his nine months in the KDCF, he witnessed corrections officers, including Lynch, Bannon, Kernusz, and Kimble, taunt, intimidate, and instill fear in inmates by threatening to place them in a restraint chair if they became unruly or failed to follow the rules. It was well-known that the officers routinely used the restraint chair with impunity to punish inmates regardless of whether they posed a threat of harm to themselves or others, and often used it as a means of first resort.
On October 4, 2010, Richards, inmate Gina Thornton, and two other female inmates were restrained in restraint chairs at the same time. From 11:00 a.m. to 12:00 p.m. that day, plaintiff repeatedly asked corrections officers for his inhaler because he was having difficulty breathing. His requests were ignored. At approximately 1:30 p.m., he heard a commotion involving Richards, which sounded like corrections officers were physically abusing the inmate. Plaintiff saw that Richards was strapped in a restraint chair and tried to speak to him.
Lynch and other corrections officers were standing by plaintiff's cell at the time. Plaintiff asked Lynch for his inhaler and began banging on his cell door to get Lynch's attention. Plaintiff and Lynch exchanged obscenities that continued after Lynch, Bannon, and Kernusz entered plaintiff's cell. Plaintiff was "immediately blinded" when Kernusz pepper-sprayed him in the face. Someone then grabbed plaintiff and punched him in the right side of his face. Plaintiff was then thrown against the wall. He fell to the floor and was handcuffed and placed in leg restraints. He never raised a hand to Lynch and was not resisting. He was unable to resist because the pepper spray incapacitated him and he was outnumbered. He was yelling and pleading for the officers to stop beating him.
The officers then took plaintiff to the shower, where he was "subjected to a merciless beating at the hands of Lynch, Bannon, Kimble and Kernusz" for over fourteen minutes while other corrections officers stood by and watched. Lynch and Bannon pushed plaintiff to the shower floor and poured freezing cold water over his face for two or three minutes. While on the floor, Lynch, Bannon and Kimble kicked plaintiff. Plaintiff was "literally crying out for them to stop beating" him and feared for his life. After the beating stopped, plaintiff was placed in a restraint chair still handcuffed and in leg restraints and in wet prison clothes. He was then placed back into his cell. The handcuffs and leg restraints were "painfully too tight" and the nurse who examined plaintiff ordered them to be loosened. After the nurse left, Lynch ordered the handcuffs and leg restraints to be re-tightened.
Plaintiff was transported to the third floor, placed in a room with no lights, and left strapped in the restraint chair for nineteen hours. He was never released from the chair, never permitted to use the bathroom or shower, and never examined by a second nurse. He pleaded for permission to use the bathroom, but was refused. He urinated on himself and was left in his soiled clothing until the following morning.
Plaintiff was released from the restraint chair the next morning, escorted back to the second floor, chained to a bench, and served breakfast. He was then transported to State prison. While in State prison, he "repeatedly sought psychological/medical treatment for what had happened to [him.]" He has nightmares and flashbacks and suffers psychological trauma "from the torture [he] endured."
Inmate Gina Thornton substantially corroborated plaintiff's version. She certified that corrections officers routinely threatened to place inmates in a restraint chair "to keep law and order," and routinely used the restraint chair to punish inmates. On October 4, 2010, she had a confrontation with a corrections officer and was handcuffed, placed in leg restraints, assaulted, and then placed in a restraint chair. Although she was not peppered-sprayed, she was taken to the shower and placed under freezing cold water face first for approximately five minutes. She was then wheeled into the cell adjacent to plaintiff's cell and left in the restraint chair in her wet prison clothes for six hours.
Thornton described what she saw and heard with respect to plaintiff:
First, I saw two [corrections officers] walking past my [cell] door [in] the other direction toward the sally port pushing Chris Richards in the restraint chair. Soon thereafter, I could see Sgt. Lynch standing near [plaintiff's] cell. [Plaintiff] banged on his [cell] door to get Sgt. Lynch's attention. [Plaintiff] was asking [Lynch] when he could have his inhaler. . . . Lynch opened [plaintiff's cell] door and initially he and Sgt. Bannon entered [plaintiff's cell]. . . . From the reflection in the bubble I did not see [plaintiff] grab Sgt. Lynch or touch him in any manner.
Suddenly four or five more [corrections officers] entered [plaintiff's] cell and began beating him. I heard [plaintiff] grunting as he was being punched and/or kicked. I heard [plaintiff] hit the floor. I also heard what sounded like [plaintiff's] head hit the wall.
Next thing I saw was [plaintiff] being escorted past my cell. It appeared that he was bleeding from his forehead. For at least the next 10 minutes I heard [plaintiff] screaming from the shower room for the officers to stop beating him and leave him alone. It sounded as though he was crying as he begged them to stop. You could hear the echoing cries and pleas from the bathroom. You could tell by the sound [plaintiff] was making each time he was struck by a corrections officer. It was awful. [Plaintiff] was not being disruptive. He was securely locked alone in his cell posing a threat to no-one. He was not resisting the officers once they entered his cell. He did nothing to deserve the beating he got nor did he do anything to deserve being put in the restraint chair.
Eventually, [plaintiff] was brought back to his cell in the restraint chair. However, prior to that, I observed Sgt. Lynch in the reflection in the bubble glass shaking his hand as if in pain from punching someone.
They brought [plaintiff] back to his cell and left him there all day into the night. He never once was permitted to go to the bathroom. At one point later in the evening I heard [plaintiff] pleading with [a corrections lieutenant] to allow him to use the bathroom. [The lieutenant] told [plaintiff] that he was causing a ruckus for [the lieutenant's] corrections staff and refused to allow [plaintiff] to go to the bathroom. [Plaintiff] was never permitted
to go to the bathroom. He urinated on himself and was left there in his wet jumper.
While discussing the competing certifications at oral argument, the following colloquy occurred:
THE COURT: What is your client's criminal history?
[PLAINTIFF'S COUNSEL]: Well, . . . I think there [ere] some violations of probation and I think in this particular one it was a theft.
[DEFENDANT]: Shoplifting.
. . . .
THE COURT: Well, he went to State Prison, what did he go to State Prison on?
[PLAINTIFF'S COUNSEL]: The shoplifting [charge].
THE COURT: What's his whole criminal history, how many felony convictions does he have?
[PLAINTIFF'S COUNSEL]: I believe two. I don't know off the top of my head . . . .
THE COURT: You have to give me an answer, because when we talk about . . . competing certifications, one thing I can consider is the criminal history, who the affiant is, who is certifying.
. . . .
THE COURT: How much time did he do on the matter?
. . . .
[PLAINTIFF'S COUNSEL]: So, your Honor, . . . what we're left with, the actual certifications from the defendants, I feel that the plaintiff's certification is no less self-serving than the actual defendants in this case, because as I said, we don't have a video to
THE COURT: Except that he's a criminal, an admitted criminal, why should I give any credence whatsoever to his certification?
[PLAINTIFF'S COUNSEL]: Because, your Honor, . . . we also have a companion certification from an inmate that was in the cell next to [plaintiff].
THE COURT: Another criminal?
[PLAINTIFF'S COUNSEL]: Understood. But at least it's another witness.
THE COURT: What's his name?
[PLAINTIFF'S COUNSEL]: Gina Thor[n]ton.
The judge later questioned why plaintiff was moved from several prisons during his incarceration. The judge then commented about his years of experience with the criminal justice system before concluding, "[w]ell, there's only one plausible explanation in my mind and that is that [plaintiff] was a pain in the neck in the correctional system, to bounce around like that on a three year hit. . . . You don't wind up in Trenton [State Prison] unless you're a real problem."
The judge also said he disagreed "with the present status of the law that" precluded him from assessing credibility on a summary judgment motion and from considering plaintiff's criminal record as effecting his credibility. The judge expressed his personal belief that "the certification of a convicted criminal is certainly less worthy of belief than that of any other citizen." The judge then made factual findings favorable to defendants, and concluded that defendants did not unlawfully use the restraint chair or abuse plaintiff and were entitled to qualified immunity. For procedural reasons, the judge declined to consider plaintiff's cross-motion for summary judgment.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). "Summary judgment must be granted if "'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)). Thus, we consider, as the motion judge did, whether "'the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo and. Nicholas, supra, 213 N.J. at 478.
We are constrained to address the judge's comments about plaintiff and the expression of his personal beliefs about the untrustworthiness of a convicted criminal's certification. A judge's personal views must never play a role in determining the legal viability of a case. A judge must always "act in a manner that reassures all affected . . . that he or she will be guided exclusively by the factors established by law and not by the judge's personal code of conduct." State v. Tindell, 417 N.J. Super. 530, 571 (App. Div. 2011).
Although the judge in this case ultimately acknowledged it was inappropriate to consider credibility on a summary judgment motion, his factual findings show otherwise. The judge relied almost exclusively on defendants' facts and completely ignored Thornton's certification, which alone created factual and credibility disputes that only a jury can resolve. Viewing the facts both plaintiff and Thornton presented in a light most favorable to plaintiff, which the judge failed to do, a reasonable jury could resolve the disputed issues in plaintiff's favor and find that defendants inflicted cruel and unusual punishment on plaintiff by first beating him and then restraining him in a restraint chair for nineteen continuous hours for no legitimate purpose. See Rhodes v. Chapman, 452 U.S. 337, 346, 101 S. Ct. 2392, 2399, 60 L. Ed. 2d 59, 68 (1981) (holding that and Eighth Amendment violation will be found where the punishment at issue served no legitimate penological interest).
For these reasons, we reverse the grant of summary judgment. Prior to trial, plaintiff shall be afforded the opportunity to renew his cross-motion for summary judgment. The matter shall be assigned to a different judge.
II.
We next address the denial of plaintiff's motion to extend discovery. Plaintiff filed his complaint on August 23, 2011. Discovery originally ended on December 28, 2012, but was extended with defendants' consent to February 28, 2013. Plaintiff conducted no discovery during the extension period. On April 30, 2013, the court scheduled the trial for June 17, 2013.
Plaintiff originally filed his complaint in federal court in February 2011. Plaintiff voluntarily dismissed that complaint.
The parties had exchanged some discovery during the discovery period, but no depositions were taken in this case and plaintiff never served an expert report.
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On May 8, 2013, plaintiff filed his motion to extend discovery. Plaintiff's attorney certified there were exceptional circumstances for the extension because: (1) an who an associate who worked on the case left his law firm in September 2012; (2) his office had no power from October 29, 2012 through November 12, 2012 as a result of Hurricane Sandy; (3) his mother, who was a vital assistant in the firm, experienced a serious illness in November that resolved by December 2012; (4) he had a heavy motion practice; (5) he was representing himself in his matrimonial matter; and (6) he was preoccupied with preparing for trial in another matter.
We generally defer to a trial court's decision regarding discovery matters, including extensions of time for discovery, absent an abuse of discretion or mistaken understanding of the applicable law. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011); see also Pressler & Verniero, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2014). We discern no abuse of discretion here.
Plaintiff's motion was not filed and made returnable before the discovery end date, as required by Rule 4:24-1(c). Thus, the motion was procedurally defective.
In addition, plaintiff filed the motion after the trial date was scheduled. After an arbitration or trial date has been fixed, the court is precluded from extending discovery absent a showing of exceptional circumstances. Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 396-97 (2005). "[E]xceptional circumstances generally denote something unusual or remarkable. The moving party must demonstrate counsel's diligence in pursuing discovery, establish the essential nature of the discovery sought, explain counsel's failure to request an extension within the original time period, and show that the circumstances presented were clearly beyond counsel's control." Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 479 (App. Div.), certif. denied, 212 N.J. 198 (2012). "'[W]here the delay rests squarely on plaintiff's counsel's failure to retain an expert and pursue discovery in a timely manner, and the [above] factors are not present, there are no exceptional circumstances to warrant an extension.'" Ibid. (alterations in original) (quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div.), certif. denied, 185 N.J. 296 (2005)) (internal quotation marks omitted).
Plaintiff failed to show exceptional circumstances. The circumstances involving the loss of power and counsel's mother's illness resolved by December 2012, well before the discovery deadline. In addition, problems with staff or "an excessive workload" "are not sufficient to justify an extension of time." Rivers, supra, 378 N.J. Super. at 79. What occurred here was nothing more than a lack of diligence in pursuing discovery in a timely manner. Thus, the trial judge properly denied plaintiff's motion to extend discovery.
Affirmed in part, and reversed in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION