Opinion
DOCKET NO. A-2904-13T2
08-07-2015
RONALD RAGIN, Plaintiff-Appellant, v. POLICE OFFICER HERRAN, POLICE OFFICER MUHAMMAD, POLICE DIRECTOR GARRY MCCARTHY, POLICE COMMISIONER ANTHONY CAMPOS, MAYOR COREY BOOKER, and CITY OF NEWARK, Defendants-Respondents, and RON MCGEE, Defendant.
Ronald M. Gutwirth argued the cause for appellant. Gary S. Lipshutz, Assistant Corporation Counsel, argued the cause for respondents (Karen Brown, Corporation Counsel, attorney, Mr. Lipshutz, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0042-10. Ronald M. Gutwirth argued the cause for appellant. Gary S. Lipshutz, Assistant Corporation Counsel, argued the cause for respondents (Karen Brown, Corporation Counsel, attorney, Mr. Lipshutz, on the brief). PER CURIAM
In this civil rights action brought under 42 U.S.C.A. § 1983, plaintiff Ronald Ragin appeals a February 7, 2014 order granting defendants' motion for summary judgment and dismissing his complaint. After reviewing the record and controlling legal principles, we affirm in part, reverse in part and remand for further proceedings.
I
On December 26, 2007, plaintiff was arrested in Newark for loitering. Although patted down by the police at the time of his arrest, plaintiff claims he was not searched at any time before he was placed in the municipal jail. The following morning he was moved to a holding cell adjacent to a municipal courtroom where he was to be arraigned. While in the holding cell, plaintiff observed other inmates using heroin and smoking marijuana and crack cocaine.
Plaintiff contends police officer Alonzo Herran, who was stationed outside of and responsible for securing the holding cell at that time, failed to prevent the inmates from using drugs. Plaintiff claims that when the inmates smoked drugs, Herran's reaction was merely to spray air freshener into the cell.
Later that day, plaintiff appeared before a municipal judge, who ordered his release. Before his actual release, plaintiff was required to wait in the holding cell until the necessary paperwork was processed. Another inmate, Rodney Lee, began smoking crack cocaine from a pipe. Concerned Lee's drug use would jeopardize his own release, plaintiff asked Lee to refrain from using drugs. According to plaintiff, Lee responded by stabbing plaintiff in his right eye with the pipe. Plaintiff was transported to a hospital where he was diagnosed with a ruptured globe of the eye. He eventually lost his eye.
Defendants dispute plaintiff's account of the incident, claiming plaintiff was physically aggressive toward Lee and, in self defense, Lee put his hands up. Defendants claim plaintiff injured his eye when he ran into one of Lee's knuckles. However, as this was defendants' motion for summary judgment, for purposes of our review we must accept as true plaintiff's version of the facts. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
In his complaint plaintiff's primary allegation is that defendants failed to protect him while he was in the holding cell. Among other things, plaintiff claims that police officer Toye Muhammad, the housing officer at the jail, failed to search the inmates when they initially arrived at the jail. Plaintiff further asserts Herran knew the inmates in the holding cell had not been searched and thus posed a risk of harm to plaintiff, yet failed to take any steps to insure the inmates' safety. Plaintiff also alleges the following defendants were supervisors of the employees at the municipal jail: Garry McCarthy, the director of the Newark Police Department; Anthony Campos, the chief of police; and Cory Booker, the mayor. Plaintiff claims all of the defendants violated his eighth and fourteenth amendment rights under the federal constitution, as well as his civil rights under 42 U.S.C.A. § 1983.
Rodney Lee was named as a defendant in the complaint but was never served. The complaint against him was eventually dismissed for lack of prosecution, see Rule 1:13-7, on January 13, 2012.
U.S. Cont. amend. XIII.
U.S. Cont. amend. XIV. --------
During discovery plaintiff obtained certified statements from some of the inmates who were in the holding cell on the day he was injured. Many claimed they had not been searched before they were initially placed in the jail. Others certified that various inmates were using drugs while in the holding cell. Plaintiff also produced certifications from police officers who previously worked at the same jail where plaintiff had been held, as well as certifications from inmates who had been detained in the same jail in previous years. These certifications indicated that inmates were not always searched before being placed in the jail.
Defendants do not deny that, at the time of the incident, there was a written policy mandating that the housing officer at the jail search all incoming inmates. Police Director McCarthy indicated that one of the purposes for searching an inmate is to remove any item that could be used as a weapon.
Plaintiff retained a former Deputy Inspector General of the New York Department of Corrections as an expert. In his report, the expert opined that the Newark Police Department grossly deviated from "correction standards" by failing, among other things, to conduct pat down searches before the inmates were placed in the jail and by permitting the inmates to use illicit substances. The expert opined that these deviations put the inmates at risk for harm.
II
Our review of a trial court's summary judgment order is de novo, and an appellate court applies the same legal standard as the trial court. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). Evidence must be viewed in the light most favorable to the non-moving party. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). A motion for summary judgment should be granted only when the moving party establishes the absence of any genuine issue as to a material fact. Brill, supra, 142 N.J. at 539-40. When determining whether there is a genuine issue of material fact in dispute, the court must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 540. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
"Generally speaking, [42 U.S.C.A. § 1983] provides a cause of action in state or federal courts to redress federal constitutional and statutory violations by state officials." General Motors Corp. v. City of Linden, 143 N.J. 336, 341, cert. denied, 519 U.S. 816, 117 S. Ct. 66, 136 L. Ed. 2d 27 (1996). However, although § 1983 allows
an aggrieved party to bring suit for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws[,]" courts have found "only specific constitutional guarantees of the bill of rights incorporated into the Fourteenth Amendment (i.e., liberty and property interests protected by the Due Process Clause) and substantive fundamental limitations on government action implicit in
the liberty concept of the Fourteenth Amendment can form the basis for a § 1983 action."
[Bernstein v. State, 411 N.J. Super. 316, 336 (App. Div. 2010) (alteration in original) (quoting Delgado v. City of Newark, 165 N.J. Super. 477, 479-80 (Law Div. 1979)).]
Because plaintiff was a pretrial detainee, his § 1983 claims are analyzed under the Fourteenth Amendment; protection under the Eighth Amendment does not attach until a party is convicted. Vargo v. Plum Borough, 376 Fed. Appx. 212, 215 (3d Cir. 2010) (citing Colburn v. Upper Darby Twp. (Colburn I), 838 F.2d 663, 668 (3d Cir. 1988), cert. denied, 489 U.S. 1065, 109 S. Ct. 1338, 103 L. Ed. 2d 808)). However, the Fourteenth Amendment Due Process Clause provides "at a minimum, no less protection" than the Eighth Amendment. Colburn I, supra, 838 F.2d at 668. Thus, although plaintiff does not have the protections afforded by the Eighth Amendment, his claims are analyzed as though he did.
The Eighth Amendment prohibits cruel and unusual punishment, and is violated when prison officials act with deliberate indifference toward "a substantial risk of serious harm to an inmate." Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970, 1974, 128 L. Ed. 2d 811, 820 (1994). A constitutional violation of this kind provides grounds for a § 1983 claim. For plaintiff to prevail, he must meet the following two requirements:
First, the deprivation alleged must be, objectively, sufficiently serious, a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities. For a claim . . . based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.
The second requirement follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. To violate the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable state of mind. In prison-conditions cases that state of mind is one of deliberate indifference to inmate health or safety . . . .
[Id. at 834, 114 S. Ct. at 1977, 128 L. Ed. 2d at 823 (citations omitted) (internal quotation marks omitted).]
"Deliberate indifference" consists of three components: "(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence." McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). However,
a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.
[Farmer, supra, 511 U.S. at 837, 114 S. Ct. at 1979, 128 L. Ed. 2d at 825.]
Applying the above standards and viewing the facts in a light most favorable to plaintiff, we conclude the trial court erred when it granted summary judgment to Herran, Muhammad and the City of Newark. In our view, plaintiff presented sufficient evidence to withstand a motion for summary judgment as to these three defendants.
First, there is evidence Muhammad was obligated to search the inmates before they were admitted into the jail. One of the purposes of a search is to look for objects that could be used as a weapon. Plaintiff and some of the other inmates who were in the holding cell on December 27, 2007, certified they were not searched before their admission into the jail. Because we must accept plaintiff's version of events as true, the logical inference to be drawn from plaintiff's proffered evidence is that Muhammad knew his failure to search the inmates created a substantial risk of harm to all the detainees because some of the inmates could have had on their person weapons or contraband that could be used as a weapon.
It is axiomatic that an inmate who has a weapon or anything that could be used as a weapon exposes others in a jail or holding cell to a substantial risk of serious harm. There is a material question of fact in dispute concerning whether Muhammad failed to search the inmates and whether this was an isolated incident of negligent conduct or an example of a pattern of misconduct showing a deliberate indifference to the safety of the inmates housed in the jail.
As for Herran, there is evidence the inmates were smoking various illicit narcotics while in the holding cell. More important, there is evidence Herran was aware of such conduct; specifically, when the inmates smoked marijuana or crack cocaine, Herran sprayed the holding cell with air freshener in an attempt to dissipate or dilute the incriminating odor. In addition to showing Herran's brazen failure to take action to stop this illegal activity and seize the contraband, the fact this activity was taking place inside a holding cell is ipso facto a prima facie showing that inmates were not searched before they were placed inside the cell. If the inmates were not searched for illicit narcotics, then it is entirely plausible that an inmate could be in possession of an object that could be used as a weapon. A crack pipe is a drug delivery device that can easily be used as a weapon.
"Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence . . . and a fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id. at 842 (citing J. Hall, General Principles of Criminal Law at 118 (2d ed. 1960); Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.7 (1986)). "'If the risk is obvious, so that a reasonable man would realize it, we might well infer that [the defendant] did in fact realize it; but the inference cannot be conclusive, for we know that people are not always conscious of what reasonable people would be conscious of.'" Ibid. (quoting LaFave & Scott, supra, § 3.7).
Herran may claim he failed to appreciate that the use of drugs signaled that the inmates had not been searched at the time they were admitted to the jail. But
prison officials may not simply bury their heads in the sand and thereby skirt liability. "[E]ven a guard able to prove that he was in fact oblivious to an obvious injury of sufficient seriousness may not escape liability if it is shown, for example, that he merely refused to verify 'underlying facts that he strongly suspected to be true,'" or that he "'declined to confirm inferences of risk that he strongly suspected to exist.'"
[Makdessi v. Fields, ___ F.3d ___,___ (4th Cir. 2015) (quoting Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995)).]
Reviewing the evidence in the light most favorable to plaintiff, Brill, supra, 142 N.J. at 539-40, the trial court erred in granting summary judgment in favor of Herran. Plaintiff presented sufficient evidence Herran knew or should have known that the inmates had not been searched, and that this created a substantial risk to the inmates' safety.
With respect to the City of Newark, plaintiff produced certifications from police officers who worked at the jail in the past who attested inmates were not always searched before being admitted to the jail. Although "[t]he doctrine of respondeat superior is not a basis for rendering municipalities liable under § 1983 for the constitutional torts of their employees[,]" Monell v. Dep't of Soc. Servs., 436 U.S. 658, 663 n.7, 98 S. Ct. 2018, 2022 n.7 56 L. Ed. 2d 611, 619 n.7 (1978), "a municipality . . . can be held liable for acts committed by one of its employees or agents, pursuant to a government policy or custom, that violate the Constitution," Besler v. Bd. of Educ., 201 N.J. 544, 564-65 (2010) (citing Monell, supra, 436 U.S. at 694, 98 S. Ct. at 2037-38, 56 L. Ed. 2d at 638)).
An "'official policy' usually refers to formal governmental rules or practices." Stomel v. City of Camden, 192 N.J. 137, 146 (2007) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452, 463 (1986)). A custom is a practice by officials that "'may not be authorized by written law, [but] such practices . . . could well be so permanent and well settled as to constitute a "custom or usage" with the force of law.'" Monell, supra, 436 U.S. at 691, 98 S. Ct. at 2036, 56 L. Ed. at 635-36 (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-168, 90 S. Ct. 1598, 1613-14, 26 L. Ed. 2d 142, 160 (1970)). In addition, a plaintiff in a § 1983 action must also prove causation, specifically, that the "custom, or policy, or the action of [a] final policymaker, is the moving force that causes a violation of a constitutional right." Besler, supra, 201 N.J. at 566-567 (citing Monell, supra, 436 U.S. at 694, 98 S. Ct. at 2037-38, 56 L. Ed. 2d at 638)).
Here, despite the fact there was an ostensible policy requiring that inmates be searched before they were admitted into a jail, plaintiff has produced evidence this policy was not consistently followed for a prolonged period of time before plaintiff's injury. Under these circumstances, a jury may find the municipality liable if the failure to follow that policy became a de facto customary practice and plaintiff's constitutional rights were violated as a proximate cause of such a practice. Stated differently, there is a material issue of fact in dispute concerning the municipality's liability. The trial court's decision granting summary judgment to the City of Newark under these circumstances was also premature.
Plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We thus reverse the part of the trial court's order granting summary judgment in favor of defendants Herran, Muhammad and the City of Newark; affirm the part of the order granting summary judgment in favor of defendants McCarthy, Campos, and Booker, and remand for further proceedings as may be warranted.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION