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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TROY D., and O'NEILL S.,
HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 10-2902
Bruce W. Clark, Esq.
902 Carnegie CenterSuite 500Princeton, NJ 08540
Counsel for Plaintiffs
OFFICE OF THE NEW JERSEY ATTORNEY GENERALBy: Susan Marie ScottRJ Hughes Justice Complex25 Market StreetP.O. Box 112Trenton, NJ 08625
MICHAEL J. LUNGA, ESQ., LLCBy: Michael J. Lunga Esq.
23 Vreeland RoadSuite 23Florham Park, NJ 07932
Counsel for Defendants
, Senior District Judge:
Plaintiffs Troy D. ("Troy") and O'Neill S. ("O'Neill")
initiated this action seeking compensatory and punitive damages,
and declaratory and injunctive relief, for injuries they suffered
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while in the custody of the New Jersey Juvenile Justice
Commission ("JJC").1 Plaintiffs allege that they were subjected
to excessive room isolation and deprived of necessities such as
medical care, mental health treatment, proper clothing, and
nutrition, in violation of their substantive and procedural due
process rights under the Fourteenth Amendment of the United
States Constitution.2 Pending before the Court are Motions to
Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), or in the
alternative, Motions for Summary Judgment pursuant to Fed. R.
Civ. P. 56 by the Mental Health Providers and by the JJC
1 The JJC was created pursuant to Governor Christine Todd
Whitman's Juvenile Justice Reform Legislation codified atN.J.S.A. 52:17B-169 et seq. The JJC is "responsible foroperating State services and sanctions for juveniles involved inthe juvenile justice system and responsible for developing aStatewide plan for effective provision of juvenile justiceservices and sanctions at the State, county and local level . .
." N.J.S.A. 52:17B-169(k).
2 The Court exercises subject matter jurisdiction pursuant
to 28 U.S.C. §§ 1331 and 1367(a).
3 The Mental Health Providers are psychologists with the
University Correctional HealthCare ("UCHC") within the Universityof Medicine and Dentistry of New Jersey ("UMDNJ"). (See
Compl. ¶ 67-74.) The Mental Health Providers are represented byMichael Lunga, Esq. with respect to Troy's lack of medical careclaim pursuant to 42 U.S.C. § 1983 and medical negligence claim. (See
JJC Defs' Br. in Support at 39 n.8.)
The New Jersey Attorney General ("NJAG") represents the
Mental Health Providers on all other claims. The NJAG alsorepresents the JJC Defendants, which include: Administrators offacilities operated by JJC; Shift Commanders at facilitiesoperated by JJC; correctional officers at the Juvenile MediumSecurity Facility ("JMSF Correctional Officers"); correctional
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On February 25, 2009, Troy, then 15 years old, was
adjudicated delinquent by the Superior Court of New Jersey and
committed to the custody of the JJC.4 (Am. Compl. ¶ 75.) Troy
remained in custody until October 7, 2009, for a total of 225
at ¶ 81.) For approximately 178 to 188 of those
days, Troy was held in isolation under a special observation
status requiring close or constant watch, purportedly for his own
at ¶ 82; JJC Defs' Br. in Support at 17-18.)
On February 27, 2009, O'Neill, then 16 years old, was
officers at the New Jersey Training School ("NJTS correctionalofficers"); Disciplinary or Courtline hearing officers; stafffrom the JJC Office of Specialized Interagency Services ("OSISStaff"); Correctional Officer, Jeffrey Saville; Chairman of theNew Jersey State Parole Board, James Plousis; Deputy ExecutiveDirector for Operations of the JJC, Felix Mickens; and ExecutiveDirector of the JJC, Veleria Lawson (collectively, the "JJCDefendants").
4 Troy was adjudicated delinquent on three counts of
violation of probation, fourth degree criminal sexual contact,two counts of fourth degree aggravated assault, third degreeaggravated assault, and third degree criminal restraint. (LemaneCert. Ex. A.)
5 Troy spent a majority of the time confined at the
Juvenile Medium Security Facility ("JMSF") in Bordentown, NewJersey, but was also confined for shorter periods of time at theJuvenile Reception and Assessment Center ("JRAC") and the NewJersey Training School ("NJTS"). (Am. Compl. ¶ 78.) JMSF, JRACand NJTS are all JJC-operated facilities. (Id.
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adjudicated delinquent for conspiracy to distribute CDS6 and
committed to the custody of the JJC.7 (Id.
at ¶ 121.) Between
June 2009 and October 2010, O'Neill was held in isolation for
approximately 50 days, awaiting hearings for alleged disciplinary
at ¶ 126.) The practice of isolating
juveniles prior to disciplinary hearings is referred to as "pre-
hearing room restriction." (Id.
at ¶ 128.)
While Plaintiffs were placed in isolation for different
reasons, the conditions they experienced were similar. Each was
confined to a seven-foot-by-seven-foot room and allowed out only
for hygiene purposes. (Id.
¶¶ 86, 170.) The rooms contained
6 The Court understands "CDS" to refer to controlled
dangerous substances, notwithstanding Plaintiffs'characterization of O'Neill's offense as "conspiracy todistribute compact discs." (Am. Compl. ¶ 121.) While the Courtacknowledges the potential danger of modern pop music, it willnot reach the Justin Bieber question and instead make thereasonable inference that O'Neill's offense was drug-related.
7 O'Neill was initially placed in the Ocean Residential
program, a non-secure community home offering substance abusetreatment. (Am. Compl. ¶ 122.) However, after leaving thecampus without permission, O'Neill was adjudicated delinquent forescaping his placement and sent to JMSF. (Id.
at ¶¶ 123-24.) O'Neill remained at JMSF until he was transferred to NJTS, wherehe currently remains in custody. (Id.
8 According to the Amended Complaint, following repeated
assaults by other JMSF residents, O'Neill was unjustifiablypunished by being placed in isolation. (Am. Compl. ¶ 173.) O'Neill was also allegedly confined in isolation for days at atime for minor violations such as possession of a pen, cursingand horseplay in the shower. (Id.
¶¶ 131, 152, 165.)
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only a concrete bed slab, a toilet, a sink, and a mattress pad.9
¶¶ 87, 170.) Troy was allegedly held in extreme cold, while
O'Neill was allegedly isolated for four days in extreme heat.
¶¶ 88, 155.) Both Plaintiffs were denied any educational
materials or programming, and were prevented from interacting
with their peers. (Id.
¶¶ 86, 170.)
In addition, Plaintiffs were allegedly denied mental health
treatment during their periods in isolation. Troy was scheduled
for twice a week treatment sessions as part of his delinquency
adjudication for a sex offense. (Id.
96.) However, while Troy
was under close or constant watch, he was given only
approximately six of those treatment sessions and received only
nine other individual therapy sessions. (Id.
¶ 97.) While a
mental health clinician checked on Troy every day to assess his
classification status as a part of daily rounds, these visits,
conducted through the door of his cell, lasted an average of
twelve minutes and involved only basic questions about Troy's
mental state. (Id.
¶¶ 98-99.) Around the anniversary of his
mother's death, Troy made requests for counseling that were
9 The physical conditions of Troy's isolation appear to
have been harsher than O'Neill's. Troy's mattress pad was oftenremoved, a light remained on for 24 hours a day, and he was oftenrequired to wear a bulky, sleeveless smock. (Am. Compl. ¶¶ 87-88.)
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O'Neill was also deprived of therapeutic mental health
treatment while in isolation. (Id.
¶ 171.) Between June 29,
2010 and July 2, 2010, O'Neill asked to speak to a counselor, but
was told that counselors did not visit that part of the building.
¶ 154.) Like Troy, O'Neill was visited by mental health
clinicians on daily rounds, but these visits only assessed
whether O'Neill was experiencing distress.11 (Id.
The Amended Complaint further alleges that both Plaintiffs
were deprived of other necessary medical treatment. On several
occasions, Troy was injured when JJC staff used force to restrain
him, and his injuries were allegedly inadequately treated. (Id.
¶ 112.) O'Neill was similarly denied medical treatment, and on
one occasion suffered for four days with a broken jaw before
getting medical attention. (Id.
Both Plaintiffs sought to be removed from isolation. Troy
frequently made requests to JJC staff that he be removed from
10 Troy's mother died of a drug overdose when Troy was 10
years old. (Lemane Cert. Ex. C. at 1 of 7.) Since the age ofthree, Troy had been in the custody of Cumberland County DYFS. (Id.
at 2 of 7.)
11 In an August 2, 2010 letter, Defendant Mickens stated
"[t]here is no affirmative record indicating that Resident[O'Neill] was treated by Mental Health personnel during the fourdays he was assigned to UH-5. Even though JJC policy requiresthat residents on restricted status be seen regularly . .
mental health records did not have any record of visiting him atthe time in question." (Am. Compl. ¶ 154.)
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close or constant watch. (Id.
¶¶ 100-101, 107.) Such requests
were denied and Troy was told that additional requests would
result in longer periods of isolation. (Id.
¶ 100.) The Amended
Complaint alleges that there were no avenues available for
Plaintiffs to file formal grievances and that attempts by O'Neill
to obtain information on appeals procedures were met with threats
of longer periods of isolation. (Id.
¶¶ 156, 175.)
O'Neill appealed some of the decisions to place him in
isolation, but the treatment team upheld each decision that he
¶¶ 157, 159, 164.) On March 10, 2010, an
attorney with the Children's Justice Clinic at Rutgers School of
Law--Camden wrote to Defendant Thomas, Superintendent of JMSF,
that isolation was being used for O'Neill excessively and
¶ 147.) O'Neill also sought to address
the conditions of his confinement before the Superior Court of
New Jersey, but the court ruled that it had no jurisdiction to
consider the matter.13 (Id.
The Amended Complaint alleges that the periods of prolonged
isolation experienced by Plaintiffs were responsible for the
deterioration of their mental states. (Id.
¶¶ 102-104, 170-172.)
12 O'Neill appealed six of the eighteen disciplinary
sanctions. (Lemane Cert. Ex. E at 34-35.)
13 O'Neill's access to the courts was also allegedly
limited by the fact that he did not have access to any post-disposition advocate. (Am. Compl. ¶ 178.)
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Throughout his confinement, Troy attempted to commit suicide and
engaged in other destructive behavior including: cutting himself
using caulk or tile from the floor or walls, banging his head
against the wall, urinating out of his cell, and smearing feces
on the walls. (Id.
¶¶ 102-104, 106.) According to the Amended
Complaint, "isolation was contra-indicated for Troy because he
had a history of mental illness, psychiatric hospitalizations,
self-harm and suicidal actions."14 (Am. Compl. ¶ 109.)
On September 30, 2009, the Children's Justice Clinic of
Rutgers School of Law-Camden filed a motion on behalf of Troy in
the Superior Court of New Jersey, Chancery Division, Family Part,
in Cumberland County, seeking to have Troy immediately
transferred to a psychiatric hospital. (Id.
¶ 116.) The motion
argued that Troy's mental health problems were exacerbated by the
excessive isolation, the lack of mental health treatment, and
lack of educational materials. (Id.
) On October 7, 2009, Troy
was moved to Trinitas Psychiatric Hospital. (Id.
¶ 117.) In
late October 2009, Troy was transferred to the Carrier Clinic, a
Residential Treatment Center in Bell Meade, New Jersey, and is no
longer in JJC custody.15 (Id.
14 During his confinement, medical records show that Troy
was medicated with Zoloft, Abilify, Atarax. Prior medicationsincluded Depakote, Prozac, and Thorazine. (Lemane Cert. Ex. C.
at 3 of 114; 1 of 7.)
15 On October 15, 2009, the Superior Court of New Jersey,
Chancery Division, Family Part, Cumberland County, vacated its
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O'Neill remains in the custody of the JJC. (Id.
On June 7, 2010, Troy initiated this action by filing the
Complaint in this Court. On December 2, 2010, an Amended
Complaint was filed, adding O'Neill as a Plaintiff, along with
additional Defendants and causes of action.
Plaintiffs' First and Seventh Counts allege substantive due
process violations for unconstitutional conditions of
confinement, failure to protect and lack of medical care pursuant
to 42 U.S.C. § 1983.16
The Second and Eighth Counts assert claims under the New
Jersey Civil Rights Act against all Defendants, except Defendants
Lawson and Plousis.
The Third and Eleventh Counts are facial constitutional
challenges to N.J.A.C. §§ 13:101-6.17(e), 13:101-6.6(c), and
13:101-8.1(a), against Defendant Lawson in her official capacity.
The Twelfth Count is against Defendant Plousis in his official
capacity and alleges that the New Jersey Parole Board's policy of
prohibiting attorneys at juvenile parole hearings is facially
unconstitutional because it denies procedural due process.
order committing Troy to JJC custody. (Am. Compl. ¶ 118.)According to the Amended Complaint, Troy currently resides in theCumberland County Juvenile Detention Center. (Id.
16 Only Plaintiff Troy brings a claim for lack of medical
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The Fourth and Ninth Counts allege violations of procedural
due process pursuant to 42 U.S.C. § 1983 in the use of pre-
hearing room restriction, temporary close custody and special
The Sixth and Thirteenth Counts allege negligence against
On April 4, 2011, the JJC Defendants and the Mental Health
Providers filed Motions to Dismiss or, in the alternative,
Motions for Summary Judgment. The Mental Health Providers have
incorporated the arguments made by the JJC Defendants in their
The Mental Health Providers and the JJC Defendants each move
to dismiss the Amended Complaint for failure to state a claim
upon which relief may be granted and, because reference is made
to documents outside the pleadings, for summary judgment.17
Because the Court relies on documents outside of the pleadings,
17 Although discovery has not yet commenced, Defendants
have submitted with their Motions the following evidence: (1)Troy's medical records; (2) evidence of Troy's commitment status;(3) records of Troy's health and discipline during the course ofhis commitment; (4) forms assigning Troy to close or constantobservation status; (5) records of O'Neill's health anddiscipline during the course of his commitment; and (6) handbooksfor residents at JJC-operated facilities. The record before theCourt does not include any deposition testimony or any medicalexpert reports.
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and Defendants have moved in the alternative for summary
judgment, the Court will treat the pending motions as motions for
"[S]ummary judgment is proper ‘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 and that the moving party
is entitled to a judgment as a matter of law.'" Celotex Corp. v.
, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P.
56(c)). In deciding a motion for summary judgment, the Court
must construe the facts and inferences in a light most favorable
to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines
794 F.2d 860, 864 (3d Cir. 1986).
"‘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. &
, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex
The role of the Court is not "to weigh the evidence and
determine the truth of the matter, but to determine whether there
is a genuine issue for trial." Anderson v. Liberty Lobby, Inc.
477 U.S. 242, 249 (1986).
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As will become evident in the Court's consideration of
Defendants' arguments with respect to each of Plaintiffs' claims,
summary judgment on many of the issues in this case is premature.
The factual record is undeveloped and thus the Court is not able
to undertake the fact-intensive inquiry demanded by Plaintiffs'
constitutional claims. With this in mind, the Court will now
turn to the specific arguments made by Defendants in support of
Defendants argue that O'Neill's § 1983 claims are barred by
his failure to exhaust administrative remedies as required by the
Prisoner Litigation Reform Act ("PLRA").18 Failure to exhaust is
an affirmative defense which defendants bear the burden of
proving. Brown v. Croak
, 312 F.3d 109, 111 (3d Cir. 2002).
The PLRA provides that "[n]o action shall be brought with
18 In their Motion for Leave to File a Sur-Reply,
Plaintiffs clarify that Troy was not a prisoner for PLRA purposeswhen he initiated this action. Defendants concede that Troy isnot subject to the PLRA. (JJC Defs' July 7, 2011 Ltr.) Once aprisoner is released from detention, the prisoner is no longersubject to the PLRA. Ahmed v. Dragovich
, 297 F.3d 201, 210 (3dCir. 2002); see also Greig v. Goord
, 169 F.3d 165, 167 (2d Cir.
1999) ("[L]itigants. . who file prison condition actions afterrelease from confinement are no longer ‘prisoners' for purposesof § 1997e(a) and, therefore, need not satisfy the exhaustionrequirements of [the] provision.").
Accordingly, Plaintiffs' Motion for Leave to File a Sur-
Reply (Dkt. No. 33) will be granted and Defendants' Motion withrespect to Troy's failure to exhaust administrative remedies willbe denied.
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respect to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted." 42 U.S.C. § 1997e(a).
Under the PLRA, a prisoner is "any person incarcerated or
detained in any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of
criminal law or the terms and conditions of parole, probation,
pretrial release, or diversionary program." Id.
at § 1997e(h);
see also Alexander S. v. Boyd
, 113 F.3d 1373, 1384 (4th Cir.
1997)(explaining that PLRA prisoner definition includes those
incarcerated in juvenile detention facilities).
O'Neill is subject to the PLRA's administrative exhaustion
requirement because he was adjudicated delinquent on February 7,
2009, and remained in custody when added to this suit. (Am.
Compl. ¶¶ 121, 125.) Thus, the PLRA requires that O'Neill exhaust
his administrative remedies before pursuing his claims in this
In order to comply with the PLRA, prisoners must have
properly exhausted available administrative remedies before
filing suit. Woodford v. Ngo
, 548 U.S. 81, 94 (2006). Because
prison grievance procedures determine what steps are required for
exhaustion, the exhaustion analysis begins with an examination of
prisoner regulation and handbooks. Williams v. Beard
, 482 F.3d
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637, 639 (3d Cir. 2007); Womack v. Smith,
310 Fed. Appx. 547, 550
(3d Cir. 2009). "[C]ompliance with the administrative remedy
scheme will be satisfactory if it is substantial." Spruill
F.3d at 232 (quoting Nyhuis v. Reno
, 204 F.3d 65, 77-78 (3d Cir.
Each juvenile confined at JJC-operated facilities receives
two Handbooks: a "Handbook on Discipline" (hereinafter
"Discipline Handbook") and a "Juveniles' Handbook of Rules and
Regulations" (hereinafter "Rules Handbook"). (See
Ex. F.) Plaintiffs received each of these Handbooks. (Id.
Defendants point to three administrative remedies that
O'Neill was required to exhaust prior to filing suit. First,
they argue that O'Neill was required to submit completed Special
Classification Request Form J081 to a social worker. (JJC Defs'
Br. at 14 (citing N.J.A.C. 13:95-8.5).) However, this grievance
procedure is not included in either of the Handbooks that were
provided to O'Neill. While Defendants cite to the N.J.A.C. as
containing this provision, they fail to point to any evidence
demonstrating that they made reasonable efforts to make O'Neill
aware of this process in any way.
Absent any evidence that juveniles at JJC-operated
facilities were educated about this procedure or had access to
the materials necessary to utilize it, the Court cannot find this
to be an available remedy that O'Neill was required to exhaust.
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See Mitchell v. Horn
, 318 F.3d 523, 529 (3d Cir.
2003)(administrative remedy unavailable where prison officials
did not provide the required grievance forms); see also Goebert
v. Lee County
, 510 F.3d 1312, 1323 (11th Cir. 2007)(holding that
an administrative remedy "which is unknown and unknowable is
unavailable"); Hemphill v. New York
, 380 F.3d 680, 688 (2d Cir.
2004)(applying objective test examining whether a "similarly
situated individual of ordinary firmness" would have deemed a
particular remedy to be available). Defendants have not met
their burden of proving that O'Neill failed to exhaust this
Next, Defendants argue that O'Neill was required to appeal
each disciplinary sanction that resulted in his placement in
isolation within 48 hours of being provided written notice of
each. (JJC Defs' Br. at 14.) With respect to appeals of
disciplinary decisions, the Discipline Handbook provides:
The juvenile shall be advised in writing bythe Treatment Team of the opportunity toappeal to the Superintendent or his or herdesignee,
Superintendent, at the time the juvenile isprovided with the disciplinary decision. Juveniles shall have 48 hours from receipt ofthe disciplinary decision to make such appeal.
(Lemane Cert. Ex F. at 116/151.)
The Court finds that Defendants have not met their burden of
demonstrating that O'Neill failed to exhaust with respect to this
administrative grievance procedure. In order to trigger a
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juvenile's right to appeal, the juvenile must "be advised in
writing by the Treatment Team of the opportunity to appeal . .
." Defendants have presented no evidence that O'Neill was
notified in writing of his opportunity to appeal each of the
disciplinary sanctions imposed against him. Therefore, absent
written notification of the disciplinary decision and his right
to appeal, O'Neill's time to appeal was never triggered.19
Finally, Defendants argue that O'Neill was required to
submit a complaint to the Ombudsman in accordance with the Rules
Handbook. (JJC Defs' Br. at 13-14.) The section titled
An ombudsman is available to juveniles toregister their complaints and air theirgrievances. The ombudsman will investigatethe issues and assist to resolve or achieve afair settlement on issues at the institutionallevel. The ombudsman has a mailbox locatedwithin the institution for juveniles to submittheir complaint.
(Lemane Cert. Ex. F. 134/151.)
Plaintiffs argue that O'Neill properly exhausted when an
19 Moreover, in light of the nature of O'Neill's claims in
this suit--that the conditions of isolation and the process ofplacing him on pre-hearing room restriction violated hisconstitutional rights--it is not even clear to this Court thatappealing the reason he was placed in pre-hearing roomrestriction is required prior to filing suit. Neither of theHandbooks explicitly addresses administrative grievanceprocedures, and in the absence of clear guidance for what ajuvenile must do to satisfy proper administrative exhaustion,this Court concludes that this particular appeals process is nota mandatory step in addressing the legal issues presented byO'Neill's claims.
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attorney from the Children's Justice Clinic at Rutgers School of
Law-Camden wrote a letter to Defendant Linda Thomas,
Superintendent of JMSF, complaining on behalf of O'Neill that
isolation was being used "excessively and inappropriately."20
(Am. Compl. ¶ 147.) Defendant Veleria Lawson, JJC Executive
Director, responded that she would look into the matter and
copied Defendant Felix Mickens, Deputy Executive Director for JJC
Operations, on her response. (Id.
The Court concludes that this letter demonstrates proper
exhaustion of the Ombudsman grievance process, which requires a
juvenile to present his grievances so that they may be
"investig[ated]" and "resolve[d]" "at the institutional level."
The letter sent to Defendant Thomas on O'Neill's behalf presented
such an opportunity. (See
Am. Compl. ¶ 147 (ultimate
administrative authorities at JJC responded that they would
investigate the matter.)) Thus, Defendants were afforded, and
took advantage of, the opportunity to address O'Neill's claims.21
This Court's conclusion comports with the policy goals of
20 Defendants do not address this letter at all in any of
their motion papers.
21 Even if this Court were to find that O'Neill did not
properly comply with the Ombudsman process, it appears thatDefendants have waived their defense because JJC's ultimateadministrative authorities agreed to investigate his complaints. See Camp v. Brennan
, 219 F.3d 279, 281 (3d Cir. 2000)(exhaustiondefense is waived where highest administrative authority examinesthe grievance on the merits).
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the PLRA in that the letter gave the facility "an opportunity to
correct its own mistakes with respect to the programs it
administers before it is haled into federal court" and
demonstrates a reasonable attempt at compliance with JJC
, 548 U.S. at 89 (internal quotations
omitted). Moreover, the allegations in this case do not resemble
the frivolous claims Congress sought to "filter out" in enacting
the PLRA. See Porter v. Nussle
, 534 U.S. 516, 524-35 (2002).
Therefore, the Court finds that O'Neill properly exhausted
available administrative remedies. Accordingly, Defendants'
Motions will be denied with respect to their affirmative defense
of failure to exhaust.
The Complaint asserts substantive due process violations for
conditions of confinement, failure to protect from harm and lack
of mental health care. The Complaint also asserts procedural due
process violations for the use of room restriction for O'Neill,
and for the use of close custody and special observation statuses
for Troy. In addition, Plaintiffs bring facial constitutional
challenges to the New Jersey Parole Board's policy of denying
access to counsel at juvenile parole hearings and to specific
provisions in the New Jersey Administrative Code.22
22 The challenged provisions of the N.J.A.C. were
promulgated by the JJC pursuant to the grant of authority inN.J.S.A. § 52:17B-170(e)(22).
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The Court will first consider Plaintiffs' facial
constitutional challenges. Then the Court will turn to
Plaintiffs' conditions of confinement, failure to protect and
lack of medical care claims before evaluating Plaintiffs'
procedural due process violations.
Count Three is a facial constitutional challenge on
Fourteenth Amendment substantive due process grounds to N.J.A.C.
13:101-6.17(e), which provides: "[n]othing in this section shall
prevent the placement of a juvenile in room restriction for the
minimum time necessary to eliminate an immediate threat to the
safety of either the juvenile, staff or other juveniles, or to
the orderly operation of the facility." According to the Amended
Complaint, this provision is facially unconstitutional because it
"impermissibly permits a juvenile to be secluded in isolation for
an indefinite period of time." (Am. Compl. ¶ 269.)
Count Eleven is a facial constitutional challenge on
Fourteenth Amendment procedural due process grounds to N.J.A.C.
13:101-6.6(c) and 13:101-8.1(a). Section 13:101-6.6(c) provides:
Juveniles held in prehearing room restriction. . shall receive a hearing within threedays, including weekends and holidays, unlessthere
postponements. Should the third day fall on aSaturday, Sunday or holiday, the hearing shallbe held on the weekday immediately followingthe weekend or holiday.
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Section 13:101-8.1(a) provides:
A juvenile may be placed in room restrictionpending the hearing of disciplinary charges bya Disciplinary Hearing Officer, provided,however, that such prehearing room restrictionshall be served only in a secure facility withan assigned Disciplinary Hearing Officer, and,shall be limited to, instances where theSuperintendent or designee determines thatprehearing room restriction is necessary forthe safety of the juvenile, staff or otherjuveniles, or for the orderly operation of thefacility.
N.J.A.C. 13:101-8.1(a). According to the Amended Complaint,
these provisions are facially unconstitutional because they
permit "JJC to seclude a juvenile in prehearing room restriction
. . without any procedural due process, including the ability
to consult with counsel, the right to a meaningful opportunity to
be heard, and the right to appeal the decision." (Am. Compl. ¶
Finally, Count Twelve is a facial constitutional challenge
on Fourteenth Amendment procedural due process grounds to the New
Jersey Parole Board's policy of "prohibit[ing] attorneys from
being present at initial, quarterly, or annual review hearings."23
(Am. Compl. ¶ 309.)
23 Plaintiffs cite to section B2 of the First Edition of
The Parole Book as containing this policy. The Court notes thatthe identical provision remains in the most recent Fourth Editionof The Parole Book in section D10. The challenged policyprovides: "No one is permitted in the room during your hearingexcept Board staff and correction officers. You cannot havean attorney present, but your attorney, like anyone else, maysubmit a letter to the Board panel on your behalf."
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In Turner v. Safley
, the United States Supreme Court held
that four factors are relevant in reviewing allegations that a
prison regulation infringes constitutional rights: whether the
regulation has a "valid, rational connection" to a legitimate
governmental interest; whether alternative means are open to
inmates to exercise the asserted right; what impact an
accommodation of the right would have on guards and inmates and
prison resources; and whether there are "ready alternatives" to
the regulation.24 482 U.S. 78, 89-91 (1987).
Given the undeveloped record before the Court and the fact-
sensitive nature of the Turner
analysis, Defendants have not met
their burden of demonstrating entitlement to judgment as a matter
With respect to Count Twelve, the JJC Defendants argue that
24 Plaintiffs articulate the standard for facial
constitutional challenges as whether "no set of circumstancesexists under which the [the provision] would be valid," UnitedStates v. Salerno
, 481 U.S. 739, 745 (1987), or whether the[provision] lacks any "plainly legitimate sweep," Washington v.
, 521 U.S. 702, 740 n.7 (1997)(Stevens, J., concurringin judgments)(internal quotation marks omitted). However, thesestandards are applied to facial challenges to statutes, notregulations. See U.S. v. Stevens
, 130 S.Ct. 1577, 1587 (2010). Since the challenged provisions here include a New Jersey ParoleBoard policy and sections of the administrative code, they areprison regulations and not statutes adopted through a legislativeprocess. Therefore, Turner v. Safley
sets out the appropriatestandard for analyzing Plaintiffs' constitutional challenges. See Washington v. Harper,
494 U.S. 210, 224 (1990)(Turner
applieswhenever "the needs of prison administration implicateconstitutional rights"); see also Overton v. Bazzetta
, 539 U.S.
126 (2003)(analyzing facial challenges to sections of Mich.
Admin. Code under the Turner
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 22 of 37 PageID: 985
O'Neill's claim lacks merit "[b]ecause there is no constitutional
right to counsel at parole hearings." (JJC Defs' Br. at 28.) In
Swarthout v. Cooke
, the Supreme Court reaffirmed its earlier
holding that the procedures required by the Due Process Clause in
the context of parole release hearings are minimal. 131 S.Ct.
859, 862 (2011)(per curiam)(citing Greenholtz v. Inmates of Neb.
Penal and Correctional Complex
, 442 U.S. 1, 16 (1979)). Where a
prisoner is allowed an opportunity to be heard and provided a
statement of the reasons why parole is denied, the Constitutional
standard is satisfied. Id.
However, in light of the unique facts of this case, the
Court finds that Defendants are not entitled to judgment as a
matter of law on Count Twelve. O'Neill is a juvenile allegedly
subjected to unjustified, lengthy periods of emotionally and
physically cruel conditions of isolation. The undeveloped record
before the Court does not present any factual details about what
happened at O'Neill's parole release hearing. In light of
O'Neill's status as a juvenile and the undeveloped factual
record, the Court cannot make a determination regarding this
25 Two recent cases from the Supreme Court rely on the
distinct psychological and neurological attributes of juvenilesin support of different treatment under the Constitution. SeeGraham v. Florida
, 130 S.Ct. 2011 (2010)(holding that lifewithout parole sentences for non-homicide offenses violates theEighth Amendment); Roper v. Simmons
, 543 U.S. 551 (2005)(holdingthat execution of juveniles violates the Eighth and Fourteenth
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 23 of 37 PageID: 986
Accordingly, Defendants have not met their burden and their
Motions with respect to Counts Three, Eleven and Twelve will be
In Counts One and Seven of the Amended Complaint, Plaintiffs
allege substantive due process violations under the Fourteenth
Amendment for the conditions of their confinement, lack of
medical care and a failure to protect from harm.
Defendants argue that these federal constitutional
challenges are properly analyzed under the Eighth Amendment
because Troy and O'Neill had already been adjudicated delinquent
and were not pre-trial detainees.26 Plaintiffs contend that
because punishment is not the primary goal for juveniles confined
following delinquency adjudications, their constitutional claims
should be evaluated under the Fourteenth Amendment, which applies
to constitutional challenges by individuals confined for
treatment purposes and those in pre-trial detention.27 (Pls' Br.
26 Defendants argue in the alternative that if this Court
determines that the Fourteenth Amendment applies they areentitled to qualified immunity. (JJC Defs' Br. at 29 n.6.) TheCourt need not address this argument because it finds that theEighth Amendment is the proper standard under which to evaluatePlaintiffs' claims. See
27 While New Jersey's early mission with respect to
juveniles was predominately one of rehabilitation, "punishmenthas now joined rehabilitation as a component of the State's coremission with respect to juvenile offenders." State v. Presha
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 24 of 37 PageID: 987
in Opp. at 17.) The Court will first consider the appropriate
constitutional standard before turning to the merits of
In considering constitutional challenges to conditions of
confinement, courts distinguish between pre-trial detainees and
convicted inmates. Because "[a] person lawfully committed to
pretrial detention has not been adjudged guilty of any crime,"
that person "may not be punished prior to an adjudication of
guilt in accordance with due process of law." Bell v. Wolfish
441 U.S. 520, 535-36 (1979). Thus, pre-trial detainees are
protected from punishment under the Fourteenth Amendment's Due
Process Clause.28 Id.
On the other hand, convicted inmates are
protected only from punishment that is cruel and unusual under
the Eighth Amendment. Id.
at 536 n.16; see also Hubbard v.
, 399 F.3d 150, 167 n.23 (3d Cir. 2005).
In the context of constitutional claims by juveniles who
163 N.J. 304, 314 (2000). See also
N.J.S.A. 2A:4A-21(b)(The Codeof Juvenile Justice shall seek "to remove from childrencommitting delinquent acts certain statutory consequences ofcriminal behavior, and to substitute therefor an adequate programor supervision, care and rehabilitation, and a range of sanctionsdesigned to promote accountability and protect the public.").
28 While a pre-trial detainee's rights with respect to
medical care flow from the Fourteenth Amendment rather than theEighth Amendment, the standard under both is the same: deliberateindifference to a person's serious medical needs. A.M. v.
Luzerne County Juvenile Det. Ctr.
, 372 F.3d 572, 584 (3d Cir.
2004); Groman v. Township of Manalapan
, 47 F.3d 628, 637 (3d Cir.
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 25 of 37 PageID: 988
have been adjudicated delinquent, the Third Circuit held that
allegations concerning conditions of confinement and a failure to
protect from harm "fit squarely within the Eighth Amendment's
prohibition on cruel and unusual punishment." Betts v. New
Castle Youth Development Center
, 621 F.3d 249, 261 (3d Cir.
2010). In Betts
, the Third Circuit applied the more-specific
provision rule to foreclose the juvenile's constitutional claims
under the Fourteenth Amendment where he also brought claims
challenging the same conduct under the Eighth Amendment. Id.
Plaintiffs rely on A.M. v. Luzerne Cnty. Juvenile Det. Ctr.,
372 F.3d 572 (3d Cir. 2004), for the proposition that
constitutional claims by juveniles should be analyzed under the
Fourteenth Amendment rather than the Eighth Amendment. This is
not a correct reading of the case. In analyzing the juvenile's
constitutional claims, the Third Circuit relied on the accepted
distinction between detainees and convicted prisoners. Id.
584. Because the events forming the basis of the juvenile's
constitutional claims occurred prior to his disposition hearing,
the court deemed him a detainee and not a convicted prisoner.
at 576, 584. Thus, the court noted that "A.M.'s claims are
appropriately analyzed under the Fourteenth Amendment since he
was a detainee and not a convicted prisoner." Id.
In this case, Plaintiffs were not detainees, but adjudicated
delinquent juveniles who had been committed to the custody of the
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 26 of 37 PageID: 989
JJC when the actions giving rise to their constitutional claims
occurred. Therefore, their constitutional claims concerning
their conditions of confinement, failure to protect from harm and
lack of medical care should be analyzed under the Eighth
Plaintiffs' Eighth Amendment conditions of confinement,
failure to protect from harm and inadequate medical care claims
all require proof that prison officials acted with deliberate
indifference. See Farmer v. Brennan
, 511 U.S. 825, 828
(1994)(failure to protect claim requires proof that the
defendants were "deliberately indifferen[t] to a substantial risk
of serious harm"); Rhodes v. Chapman
, 452 U.S. 337, 346-48
(1981)(conditions of confinement claim under Eighth Amendment
requires proof that living conditions are cruel or deprive
prisoner of the necessities of life and that such conditions are
the result of the prison officials' deliberate indifference);
A.M. v. Luzerne County Juvenile Det. Ctr.
, 372 F.3d 572, 584 (3d
Cir. 2004)(inadequate medical care claim requires proof of
deliberate indifference to a serious medical need). In the
29 While it is true, as Plaintiffs point out in their
Opposition Brief, that older cases from other circuits haveapplied the Fourteenth Amendment to juvenile conditions ofconfinement cases even where the juvenile had been adjudicateddelinquent, see e.g., A.J. by L.B. v. Kierst
, 56 F.3d 849, 854(8th Cir. 1995); Gary H. v. Hegstrom
, 831 F.2d 1430, 1431-32 (9thCir. 1987), the Third Circuit in 2010 has provided the standardthis Court is bound to apply. See Betts
, 621 F.3d at 261.
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 27 of 37 PageID: 990
Eighth Amendment context, the deliberate indifference element is
a subjective test requiring actual knowledge on the part of
prison officials. See Kaucher v. County of Bucks
, 455 F.3d 418,
427 (3d Cir. 2006)(citing Farmer v. Brennan
, 511 U.S. 825, 836
The Mental Health Providers rely on Troy's Mental Health
Progress Notes and Electronic Medical Records to demonstrate that
they acted "in a manner irreconcilable with the term ‘deliberate
indifference.'" (Mental Health Providers' Br. at 16-17.)
However, mere notations on a patient's medical charts do not
offer this Court a sufficient basis from which to assess the
intention and actual knowledge of the Mental Health Providers.
Given the undeveloped record before the Court and the fact-
sensitive nature of the deliberate indifference analysis, the
Court cannot make a determination at this time regarding the
intent or subjective knowledge of the JJC Defendants or the
Mental Health Providers, as required for Plaintiffs' conditions
of confinement, failure to protect and lack of medical care
Moreover, JJC Defendants' argument with respect to Troy's
lack of medical care claim that they cannot be deliberately
indifferent because Troy was under observation by the Mental
Health Providers is unavailing. Although a prison official's
mere failure to respond directly to the medical complaints of a
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 28 of 37 PageID: 991
prisoner who is already being treated by the prison doctor is
insufficient to establish deliberate indifference, see Durmer v.
, 991 F.2d 64, 69 (1993), this is not consistent with
Troy's claims. The Complaint specifically alleges that JJC
Defendants prevented Troy from receiving necessary medical
Am. Compl. ¶¶ 91, 96, 100, 105, 113.) Thus,
there is a genuine issue of material fact regarding whether Troy
was prevented from receiving treatment from the Mental Health
Providers, and JJC Defendants have not met their burden of
demonstrating entitlement to judgment as a matter of law.
Accordingly, Defendants' Motions with respect to Counts One
and Seven will be denied.30
In Counts Four and Nine, Plaintiffs allege violations of
procedural due process pursuant to 42 U.S.C. § 1983 in the use of
pre-hearing room restriction for O'Neill and temporary close
custody and special observation status for Troy.
The Fourteenth Amendment prohibits state deprivations of
life, liberty or property without due process of law. In
30 JJC Defendants also argue that Plaintiffs' conditions of
confinement claim must fail because the physical conditions ofthe isolation room met industry standards, the room temperaturewas maintained on a 24-hour basis, and the finger foods werenutritionally adequate. (JJC Defs' Br. at 32-33.) However,Plaintiffs' conditions of confinement claim is broader than thisargument suggests, and JJC Defendants have not met their burdenwith respect to Plaintiffs' plausible and well-pled conditions ofconfinement claim.
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 29 of 37 PageID: 992
considering a procedural due process claim, courts must first
"determine whether the nature of the interest is one within the
contemplation of the ‘liberty or property' language of the
Fourteenth Amendment." Evans v. Secretary PA Dep't of Correc.
-- F.3d ---, 2011 WL 1833237, at *9 (3d Cir. 2011)(quoting Newman
, 617 F.3d 775, 782 (3d Cir. 2010)).
Procedural protections must be afforded even to prisoners
before they are deprived of rights they retain while
(citing Wolff v. McDonnell
, 418 U.S. 539, 558
(1974)). A convicted prisoner has a liberty interest where a
restraint imposes an "atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life."
Sandin v. Conner
, 515 U.S. 472, 484 (1995). "[T]he baseline for
determining what is ‘atypical and significant'--‘the ordinary
incidents of prison life'--is ascertained by what a sentenced
inmate may reasonably expect to encounter as a result of his or
her conviction in accordance with due process of law." Griffin
, 122 F.3d 703, 706 (3d Cir. 1997).
If the court "determine[s] that the interest asserted is
protected by the Due Process Clause, the question then becomes
what process is due to protect it." Evans
, 2011 WL 1833237, at
*9 (quoting Newman
, 617 F.3d at 783)(internal quotation marks and
citation omitted). This requires analysis of three factors:
"First, the private interest that will be affected by the
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 30 of 37 PageID: 993
official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards;
and finally, the Government's interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail."
Matthews v. Eldridge
, 424 U.S. 319, 335 (1976).
Defendants' argument with respect to Troy's procedural due
process claims is twofold. First, they rely on Meachum v. Fano
427 U.S. 215 (1976), to argue that Troy had no right to
procedural due process for a transfer to a more restrictive
placement. (JJC Defs' Br. at 20.) Second, they argue that
process was available to Troy because he could request a change
in status by completing a form and returning it to his social
With respect to Defendants' first argument, they have not
met their burden of demonstrating entitlement to judgment as a
matter of law. While Meachum
held that the Due Process Clause
does not protect a prisoner from being transferred to an
institution with substantially more burdensome conditions, 427
U.S. at 225, transfers for mental health purposes are treated
In Vitek v. Jones
, the United States Supreme Court held that
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 31 of 37 PageID: 994
appropriate procedural safeguards are required before an inmate
could be transferred from prison to a state mental hospital. 445
U.S. 480, 493 (1980). In reaching this decision, the Court noted
the major changes to conditions of confinement that would result
from such a transfer, which include greater limitations on
freedom of action and the stigmatizing consequences of a mental
illness diagnosis. Id.
at 492. The Court concluded that
additional due process protections are necessary "[b]ecause
prisoners facing involuntary transfer to a mental hospital are
threatened with immediate deprivation of liberty interests they
are currently enjoying and because of the inherent risk of a
mistaken transfer." Id.
While Troy was not transferred to a mental hospital, the
conditions of his confinement were substantially altered due to
medical professionals' determination of his mental health.31 As
, while isolated under special observation statuses
for 178 to 188 out of the 225 days he spent in JJC custody, Troy
was allegedly denied access to necessities that were readily
available to the general JJC population, including education,
physical recreation, access to peers, proper nutrition, court-
31 Special observation status was imposed by medical
professionals based on Troy's "mood, attitude, behavior,participation in activities, hygiene, sleeping patterns, eatinghabits, previous suicide attempts and whatever other informationdeemed relevant to the particular situation." (JJC Defs' Br. at18)(citing N.J.A.C. 13:95-16.4.)
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 32 of 37 PageID: 995
ordered counseling sessions, and all personal possessions,
including pens and paper, clothing, and bedding. The Court
cannot say at this early stage in the litigation that the
situation in this case is not analogous to Vitek
prisoner had a liberty interest requiring additional procedural
With respect to Defendants' second argument--that process
was available to Troy because he could request a change in status
by completing a form and returning it to his social worker--the
Court is not persuaded that this satisfies the Constitutional
standard. See supra
Accordingly, Defendants' Motions with respect to Troy's
procedural due process claims will be denied.
Defendants argue first that O'Neill has no right to
procedural due process regarding a transfer to a more restrictive
placement. Defendants also argue that "the disciplinary hearing
process, which includes a right to receive written notice of the
charges, a hearing, the right to present evidence and confront
and cross-examine witnesses, and the avenue for appeal, satisfies
the requirements of procedural due process under any measure of
what would be due an institutionalized person." (JJC Defs' Br.
Plaintiffs contend that "Defendants repeatedly placed
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 33 of 37 PageID: 996
O'Neill in a much more restrictive form of custody without an
initial appearance before a neutral decision-maker. He was not
able to speak in his own defense until the disciplinary hearing,
which usually occurred after 3-5 days of living in a punitive
isolation cell." (Pls' Opp. at 44-45.) According to Plaintiffs,
because O'Neill was placed in isolation for days prior to any
hearing, he was not afforded the opportunity to be heard "at a
meaningful time and in a meaningful manner." Armstrong v. Manzo
380 U.S. 545, 552 (1965).
"Discipline by prison officials in response to a wide range
of misconduct falls within the expected perimeters of the
sentence imposed by a court of law." Sandin v. Conner
, 515 U.S.
472, 485 (1995). However, discipline which represents a
"dramatic departure from the basic conditions" of a sentence may
trigger due process protection. Id.
, the Court found
that a prisoner's "discipline in segregated confinement did not
present the type of atypical, significant deprivation in which a
State might conceivably create a liberty interest." Id.
In reaching this holding, the Court emphasized that the
conditions of disciplinary segregated confinement mirrored
conditions imposed upon inmates in administrative segregation and
protective custody as well as for inmates in the general prison
population who also experienced significant periods of lock-down
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Given the undeveloped record in this case and O'Neill's
status as a juvenile, the Court cannot fully consider at this
stage of the litigation how Sandin
would apply here. As to the
process through which O'Neill could challenge his sanctions, the
Court does not find the record sufficiently developed to properly
consider whether it satisfies the dictates of due process based
on the relevant factors as set forth in Matthews v. Eldridge
424 U.S. 319 (1976). Accordingly, Defendants' Motion with
respect to O'Neill's procedural due process claims will be
Defendants argue that the negligence claims in Counts Six
and Thirteen should be dismissed because Plaintiffs have failed
to abide by the notice requirements set forth in the New Jersey
Tort Claims Act, N.J.S.A. 59:8-8. The JJC Defendants point out
that the Complaint was filed in this action on June 7, 2010 and
notices of claim were not filed until December 29, 2010. (JJC
Defs' Br. at 40.) Therefore, the JJC Defendants argue, because
Plaintiffs failed to file their notice of claims before they
filed suit, their negligence claims are barred and should be
The New Jersey Tort Claims Act provides:
A claim relating to a cause of action for . . injuryor damage to person . . shall be presented asprovided in this chapter not later than the ninetiethday after accrual of the cause of action. After the
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 35 of 37 PageID: 998
expiration of six months from the date notice of claimis received, the claimant may file suit in anappropriate court of law. The claimant shall be foreverbarred from recovering against a public entity orpublic employee if:
a. He failed to file his claim with the public entitywithin 90 days of accrual of his claim except asotherwise provided in section 59:8-9; or
b. Two years have elapsed since the accrual of theclaim; or
c. The claimant or his authorized representativeentered into a settlement agreement with respect to theclaim.
Nothing in this section shall prohibit an infant orincompetent person from commencing an action under thisact within the time limitations contained herein, afterhis coming to or being of full age or sane mind.
Plaintiff Troy filed a Complaint in June, 2010. On December
29, 2010, a notice of claims was filed.32 Thus, Troy's claims
were technically premature, insofar as N.J.S.A. 59:8-8 provides
that suit may be filed "six months from the date notice of claim
32 Troy was born on March 21, 1993 and reached the age of
majority in March, 2011. (See
Lemane Cert. Ex. B.) Therefore,Troy filed suit and his notice of claim prior to reaching the ageof majority when the time limitations for commencing an actionwould have begun to run. Troy's early filing of his Complaintand his notice of claim do not pose a problem under the Act,which "provides that an infant is not precluded from commencingan action by the section . .[b]ut. . extends the right of aninfant to bring his claim throughout the period of his minority." Barbaria v. Twp. of Sayreville
, 191 N.J. Super. 395, 402 (App.
Div. 1983) (citing Vedutis v. Tesi
, 135 N.J. Super. 337, 340-41(Law Div. 1975)).
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 36 of 37 PageID: 999
is received," and Troy filed his timely notice of claim after
first commencing suit.
However, as New Jersey courts have previously recognized,
dismissal without prejudice is an "inappropriate" disposition
where sufficient time has passed since the filing of the
complaint and there has been no showing that the public entity
has been "frustrated in undertaking an investigation of the
claim." Reale v. Twp. of Wayne
, 132 N.J. Super. 100, 111 (Law
Div. 1975); see also Guerrero v. Newark
, 216 N.J. Super. 66, 74-
75 (App. Div. 1987). From the time this action was commenced in
June 2010, Defendants have had sufficient opportunity to
"investigate the claim" and possibly "work toward a settlement,"
which are the goals promoted by the six month waiting period.
, 132 N.J. at 111. Thus, the Court will not dismiss Troy's
O'Neill was born on October 4, 1992 and reached the age of
majority in October, 2010. (See
Lemane Cert. Ex. E.) On
December 2, 2010, an Amended Complaint adding Plaintiff O'Neill
was filed. Since the notice of claims was filed in December,
2010, it was timely filed within 90 days of O'Neill reaching the
age of majority. For the reasons stated above, O'Neill's
negligence claims will not be dismissed merely because he filed
suit prior to filing a timely notice of tort claim.
Case 1:10-cv-02902-JEI -AMD Document 50 Filed 08/25/11 Page 37 of 37 PageID: 1000
Defendants argue that they are entitled to dismissal of
Plaintiffs' punitive damages claims because the "record here is
devoid of any facts or evidence indicating that the defendants
acted with an ‘evil motive' or ‘callous indifference.'" (JJC
Defs' Br. at 41.)
A plaintiff may recover punitive damages in a civil rights
action under 42 U.S.C. § 1983 if the defendants' actions were
done with "malice or reckless indifference to the federally
protected rights of an aggrieved individual." Kolstad v.
American Dental Ass'n
, 527 U.S. 526, 530 (1999). Thus, whether
punitive damages are warranted is a fact-specific inquiry
requiring examination of Defendants' intent and knowledge. Given
the early stage of this litigation and the undeveloped record
before the Court, a ruling on Plaintiffs' punitive damages claim
is premature. Therefore, the Court will deny without prejudice
Defendants' motions with respect to Plaintiffs' punitive damages
For the reasons stated above, JJC Defendants and Mental
Health Providers Motions for Summary Judgment will be denied. An
appropriate Order accompanies this Opinion.
Dated: August 25, 2011
s/Joseph E. Irenas JOSEPH E. IRENAS, S.U.S.D.J.
N° 10 Abril 2013 Publicación de contenido científico editada por GT Laboratorio S.R.L. Necochea 3274 Rosario Método enzimático UV para la determinación cuantitativa de lactato en suero, plasma o líquido LACTATO Liquid Plus cefalorraquídeo. El nuevo método enzimático UV GT Lab para la determinación de lactato permite la cuantificación rápida y precisa, empleando un reactivo de tra-bajo único de sencilla preparación. Dicha preparación se hace por disolución de un polvo en el buffer provis-to listo para usar. El reactivo de trabajo es estable 24 horas a temperatura ambiente o 15 días refrigerado. Se resume seguidamente el documento "Lactato: utilidad clínica y reco-mendaciones para su medición", de la Sociedad Española de Química Clí-nica preparado por P. Guevara Ramírez, R. Díaz García, A. Galán Ortega, E. Guillén Campuzano, S. Malumbres, J.L. Marín Soria, M. Muñoz Pérez, X. Navarro Segarra, P. Oliver Sáez, E. Oujo, N. del Río Barcenilla y A. Buño Soto en 2010.
JOURNAL OF EXPERIMENTAL ZOOLOGY 293:99–105 (2002) Identification of a1-Adrenergic Receptorsand Their Involvement in PhosphoinositideHydrolysis in the Frog Heart ANTIGONE LAZOU,1* CATHERINE GAITANAKI,2 SPIROS VAXEVANELLIS,1 AND ANASTASIA PEHTELIDOU11Laboratory of Animal Physiology, Department of Zoology, School of Biology,Aristotle University of Thessaloniki, Thessaloniki 54006, Greece