Ewing v. Cumberland Cnty., Civil No. 09–5432 (JBS/AMD).

• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
• Writing for the Court: SIMANDLE, Chief Judge
• Citation: 152 F.Supp.3d 269
• Parties: Michael Alan EWING, Plaintiff, v. CUMBERLAND COUNTY, Cumberland County Department of Corrections, Lieutenant Dale Sciore, Sergeant Clint Ciangaglini, Sergeant Brad Pierce, Correctional Officer Edwin Pratts, The Estate of Correctional Officer Kevin Still, Correctional Officer Joshua L. Minguela, Correctional Officer Drew Ford, Correctional Officer John Fazzolari, Vineland Township, Vineland Police Department, Police Officer James Day, Police Officer Steven Houbary, Defendants.
• Docket Number: Civil No. 09–5432 (JBS/AMD).
• Decision Date: 25 March 2015

152 F.Supp.3d 269

Michael Alan EWING, Plaintiff,
v.
CUMBERLAND COUNTY, Cumberland County Department of Corrections, Lieutenant Dale Sciore, Sergeant Clint Ciangaglini, Sergeant Brad Pierce, Correctional Officer Edwin Pratts, The Estate of Correctional Officer Kevin Still, Correctional Officer Joshua L. Minguela, Correctional Officer Drew Ford, Correctional Officer John Fazzolari, Vineland Township, Vineland Police Department, Police Officer James Day, Police Officer Steven Houbary, Defendants.

Civil No. 09–5432 (JBS/AMD).

United States District Court, D. New Jersey.

Signed March 25, 2015.

152 F.Supp.3d 275

Martin P. Duffy, Esq., Cozen and O'Connor, Liberty View Bldg., Cherry Hill, NJ, for Plaintiff Michael Alan Ewing.

John C. Eastlack, Jr., Esq., Daniel Edward Rybeck, Esq., Weir & Partners LLP, Cherry Hill, NJ, for Defendants Cumberland County and Cumberland County Department of Corrections.

Arnold Robinson, Esq., Robinson & Andujar, LLC, Millville, NJ, for Defendants Dale Sciore and Brad Pierce.

Shanna McCann, Esq., Chance & McCann LLC, Woodstown, NJ, for Defendant Clint Ciangaglini.

Linda A. Galella, Esq., Richardson, Galella & Austermuhl, Woodbury, NJ, for Defendant Edwin Pratts.

Michael Louis Testa, Sr., Esq., Justin Robert White, Esq., Testa Heck Scrocca & Testa, PA, Vineland, NJ, for Defendant Estate of Kevin Still.

Salvatore J. Siciliano, Esq., Siciliano & Associates, LLC, Haddonfield, NJ, for Defendant Joshua Minguela.

Patrick J. Madden, Esq., Timothy R. Bieg, Esq., Madden & Madden, PA, Haddonfield, NJ, for Defendant Drew Ford.

Douglas E. Burry, Esq., Saponaro & Sitzler, The Newbold House, Mt. Holly, NJ, for Defendant John Fazzolari.

Judson B. Barrett, Esq., Barrett and Pavluk, LLC, Ocean, NJ, for Defendants Vineland Township, Vineland Police Department, James Day, and Steven Houbary.

152 F.Supp.3d 276

OPINION

SIMANDLE, Chief Judge:

Table of Contents

I.	INTRODUCTION	277
II.	BACKGROUND	277

A. Factual Background 277

1.	Arrest and Transport to Vineland Police Department and Cumberland County Jail	277
2.	Incident in the Processing room during Plaintiff's first trip to the CCDOC (Day, Ciangaglini, Minguela)	278
3.	Incident in the CCDOC control room and strip search room during Plaintiff's second visit (Houbary, Pratts, Still, Fazzolari, Sciore, Pierce, Minguela, Ford)	279
4.	Use of Force reports	281
5.	Defendants' Statements	281
6.	Plaintiff's injuries	282
7.	Expert reports of Dr. Fred Simon and Dr. Randall McCauley	283
8.	Training on the use of force at Cumberland County Jail	283
9.	Internal investigations into excessive force at Cumberland County Jail	285
10.	Plaintiff's expert report of Dr. Randall McCauley	285
11.	Notice of Claim	286

B. Procedural Background 286

III.	STANDARD OF REVIEW	287
IV.	ANALYSIS	288

A. Claims against Cumberland Correctional Officers 288

1.	Summary judgment is not warranted against Plaintiff's § 1983 claim of excessive force	289
2.	Minguela is not entitled to qualified immunity	295
3.	Plaintiff's state law claims are not barred by the NJTCA	296
4.	Defendants Pratts, Still, Minguela, Ford, Fazzolari, and Ciangaglini are not entitled to summary judgment on Plaintiff's assault and battery claim	299
5.	Fazzolari and Pratts are not entitled to summary judgment on Plaintiff's claim of intentional infliction of emotional distress	300
6.	Defendants Pratts, Still, Minguela, Ford, Fazzolari, and Pierce are not entitled to summary judgment on Plaintiff's conspiracy claim	300

B. Claims against Cumberland County and CCDOC 302

1.	Cumberland County is not entitled to summary judgment on Plaintiff's failure to train and failure to investigate claims	303
2.	Plaintiff's common law claims are not precluded by the New Jersey Tort Claims Act	306

C. Claims against the Vineland Defendants 307

1.	The City of Vineland is entitled to summary judgment on the § 1983 claim of failure to train and the common law claim of negligent training	307
2.	The Court will grant summary judgment on Plaintiff's § 1983 claim for failure to intervene against Officer Day but deny summary judgment on the claim against Officer Houbary	309

IV. CONCLUSION 311

152 F.Supp.3d 277

I. INTRODUCTION

This is a case involving excessive force against Plaintiff Michael Ewing by correctional officers at the Cumberland County Correctional Facility and police officers of the Vineland Police Department. After Ewing was arrested in Vineland, New Jersey for disorderly conduct, he was processed and sent to the Cumberland County Jail, where he was beaten by correctional officers. He suffered multiple traumatic injuries, fractures, and a concussion.

Plaintiff brought suit against the individual officers involved, as well as against Cumberland County, the Cumberland County Jail, Vineland Township (“City of Vineland” or “Vineland”),¹ and the Vineland Police Department, alleging constitutional violations under the Fourteenth Amendment and various state tort claims.

The individual officers and entity Defendants have filed nine motions for summary judgment seeking the dismissal of Plaintiff's § 1983 and state law claims. Because there is a genuine dispute as to whether Cumberland County correctional officers used excessive force against Plaintiff and whether the jail failed to adequately investigate and train officers in the use of force, the Court will deny the Cumberland County Defendants' motions for summary judgment. The Court will, however, grant the Vineland Defendants' motion for summary judgment for all Vineland Defendants except Steven Houbary, and will dismiss the City of Vineland (named as Vineland Township), the Vineland Police Department, and Vineland Police Officer James Day from this action.

II. BACKGROUND

A. Factual Background

Because Plaintiff suffers from memory problems allegedly related to post-traumatic stress and recalls very little of what happened to him, the following facts are taken primarily from other sources in the record.

1. Arrest and transport to Vineland Police Department and Cumberland County Jail

At around 11 p.m. on the evening of June 30, 2008, the Vineland police arrived at a Comfort Inn in Vineland, New Jersey, where Plaintiff was staying, in response to a disorderly persons call. Plaintiff, who was in the area because of a temporary job, had gotten into an argument with the clerk of the hotel, which prompted the clerk to call the police. The clerk refused to let Plaintiff into his room, so Plaintiff went to sleep near some trees behind the hotel. (Pl. Counterstatement of Facts (“Counter SMF”) [Docket Item 237] ¶¶ 6–11.)

Police Officer William Bontcue of the Vineland Police Department arrived at the scene and was told that Plaintiff was in the back of the hotel. (Bontcue Dep. 1 [Docket Item 237–4] 93:20–94:13.) According to Bontcue, Plaintiff was lying on the ground but was not acting disorderly. (Id. 94:17–96:2.) Bontcue called to Plaintiff, who then got up and became “quite agitated.” When Bontcue could not get him to calm down, Bontcue told Plaintiff that he was under arrest for disorderly conduct. (Bontcue Dep. 2 [Docket Item 221–8] 48:2–51:24.) After Plaintiff pushed Bontcue into a parked van, Bontcue released his police dog from his car. Bontcue and the

152 F.Supp.3d 278

dog pushed Plaintiff to the ground and another police officer who had arrived on the scene, Officer Michael Fransko, handcuffed Plaintiff. (Bontcue Dep. 252:20–55:12.) Plaintiff was bitten by the police dog and was pepper sprayed during this encounter. (Minguela Statement of Material Facts (“Minguela SMF”) [Docket Item 221–1] ¶¶ 12–13.)

Plaintiff was taken to the Vineland Police Department for processing, where he was pepper sprayed a second time for spitting at police officers. (Shaw Dep. [Docket Item 221–8] 20:24–21:5; Minguela SMF ¶ 16.) He was then taken to the hospital to be cleared for dog bites. As he was being secured into a stretcher by Defendant Officer James Day and Officer Shaw to go to the hospital, Plaintiff spit in Shaw's face. Shaw then struck Plaintiff with his hand, and Plaintiff fell off the stretcher and onto the pavement. Plaintiff sustained a cut over his left eye. (Shaw Dep. 66:12–25; Minguela SMF ¶¶ 17–18; Counter SMF ¶¶ 22–23.)

At the hospital, Plaintiff was given two sedatives and cleared for transport to the Cumberland County Correctional Facility (“CCDOC” or “Cumberland County Jail”), where he was to be held. Correctional officers at the Cumberland County Jail were told that Plaintiff was coming and that he was “belligerent” and “irate” and was “trying to fight with officers.” (Pratts Dep. [Docket Item 237–8] 157:17–23; Still Dep. [Docket Item 237–10] 214:4–23.)

Day transported Plaintiff to the CCDOC. He stated that it was the practice of the Vineland Police Department to assign the most junior police officer to transport prisoners to the jail. He had transported prisoners to jail before but had received no formal training on the proper procedures for bringing a prisoner to jail. He learned the procedures during his time shadowing another officer following his graduation from the police academy. (Day Dep. 34:18–35:22; 114:10–115:25.)

2. Incident in the processing room during Plaintiff's first trip to the CCDOC (Day, Ciangaglini, Minguela)

Defendant Day brought Plaintiff to a CCDOC processing cell. Defendants Sergeant Clint Ciangaglini and correctional officer Lisa–Brown Carter were in the room. Defendant Joshua Minguela observed from an outside monitor. Day testified that Plaintiff appeared sedated and calm, and was having some difficulty standing because of the sedatives. (Day Dep. [Docket Item 237–6] 134:1–135:7; CCDOC Video.) Minguela stated that Plaintiff was “acting in an irate manner.” (Minguela Use of Force report [Docket Item 237–13].) Nurse Moore, who was called into the processing cell to examine Plaintiff, did not observe any injuries to Mr. Ewing other than to his left eye. (See Deposition of Moore at page 17, lines 15–25, attached as Exhibit “N”).

Nurse Moore refused to accept Plaintiff into the jail...