NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3730-16T2
T.A., T.C., B.C.,
M.E., J.S., and R.S.,1
Plaintiffs-Appellants,
v.
ERICK MELGAR, JANETTE BENNETT,
EDNA MAHAN CORRECTIONAL FACILITY
FOR WOMEN, and NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Defendants,
and
WILLIAM HAUCK, JAMES MARAFIOTI,2
SCOTT LAMOREAUX,3 and WILLIAM BROWN,
Defendants-Respondents.
______________________________________
Submitted May 21, 2018 – Decided July 19, 2018
Before Judges Ostrer, Rose and Firko.
On appeal from Superior Court of New Jersey,
Law Division, Hunterdon County, Docket No.
1
We use initials to protect the plaintiffs' privacy interests.
2
Improperly pled as Chief Mariordi.
3
Improperly pled as Scott Lamaroux.
L-0466-12.
Walsh Pizzi O'Reilly Falanga, L.L.P.,
attorneys for appellants (Marc D. Haefner, of
counsel and on the briefs; Katelyn O'Reilly,
on the briefs).
Gurbir S. Grewal, Attorney General, attorney
for respondents (Melissa H. Raksa, Assistant
Attorney General, of counsel; Tasha M. Bradt,
Deputy Attorney General, on the brief).
PER CURIAM
This appeal has its genesis in sexual and physical abuse
allegations made by various inmates incarcerated in the North Hall
of Edna Mahan Correctional Facility for Women ("EMCFW") against
their "cage officer," Erick Melgar. Plaintiffs T.A., T.C., B.C.,
M.E., J.S., and R.S. are six of those inmates. Following an
investigation by the Department of Corrections' ("DOC") Special
Investigations Division ("SID"), departmental charges against
Melgar were substantiated, and he ultimately was terminated from
employment.4
Plaintiffs appeal from an August 12, 2016 order granting
partial summary judgment that dismissed with prejudice their civil
4
Having settled plaintiffs' civil claims against him, Melgar is
not a party to this appeal. Plaintiffs also named as defendants
the DOC, EMCFW, and prison personnel. Those defendants either
settled their claims with plaintiffs, or were dismissed from the
litigation for reasons that are not pertinent to this appeal.
2 A-3730-16T2
rights claims against Melgar's supervisors, William Hauck, James
Marafioti, Scott Lamoreaux, and William Brown (collectively,
"supervisory defendants"). Plaintiffs also appeal from a March
13, 2017 order, granting defendants' motion for reconsideration
of a January 30, 2013 order5 entered by another judge, thereby
dismissing the tort claims pertaining to T.C., B.C., and R.S.6 for
failure to timely file a notice of claim pursuant to the New Jersey
Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to 12-3. For the reasons
that follow, we reverse the August 12 order granting summary
judgment, and affirm the March 13 order dismissing the tort claims.
I.
A.
Initially, we consider the August 12 order dismissing
plaintiffs' civil rights claims. In doing so, we discern the
pertinent facts from the summary judgment record, extending to
plaintiffs all favorable inferences. R. 4:46; Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 406 (2014); Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 536 (1995).
5
The January 30 order is not contained in the record on appeal,
but is referenced in the March 13 order. The motion was filed on
behalf of all of the State defendants.
6
The tort claims pertaining to T.A., M.E., and J.S. were dismissed
as part of the January 30, 2013 order and, as such, were not part
of defendants' motion for reconsideration.
3 A-3730-16T2
Pertinent to this appeal are the nature and timing of
plaintiffs' reports to the supervisory defendants about Melgar's
misconduct. In particular, plaintiffs claim the supervisory
defendants were deliberately indifferent to their reports, and
that their inaction violated their rights pursuant to the New
Jersey Civil Rights Act, ("NJCRA"), N.J.S.A. 10:6-1 to -2, and the
Federal Civil Rights Act ("FCRA"), 42 U.S.C.A. § 1983. Plaintiffs,
thus, challenge the trial court's determination that the
supervisory defendants are protected from liability by the
qualified immunity doctrine pursuant to Pearson v. Callahan, 555
U.S. 223, 231 (2009) (stating the doctrine of qualified immunity,
protects government officials "from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.") (Citation omitted). Because that
determination depends on the substance of plaintiffs' reports and
when they were made, we set forth the facts in the following
chronology.
According to her deposition testimony, T.A. claimed she first
reported Melgar's inappropriate behavior to Lamoreaux in 2007
because she trusted him, having known the sergeant7 since the 1990s
7
Lamoreaux was identified as a lieutenant in the present action.
4 A-3730-16T2
when he began working at EMCFW. Lamoreaux referred T.A. to Brown,
the shift sergeant. T.A. told Brown that Melgar swatted inmates
with rolled up cardboard or paper and wrestled inmates in their
cells. Brown told T.A. that Melgar was a "young guy" and needed
time to "settle in."
Following a "destructive" search of her cell on February 28,
2008, T.A. wrote a letter to Hauck, the administrator of EMCFW.
In that correspondence, T.A. suggested officers retaliated against
her for complaining about Melgar's behavior "over the past few
months." Her letter contains specific references to Melgar's
conduct, including "hitting the various female inmates with rolled
up newspaper, 'playing,' or as some would call it, aggravated
assault." The letter also details why T.A. did not file a formal
complaint against Melgar:
Because like every other female prisoner, I
live in fear of retaliation, I never did write
any of that up committing it to paper, but I
did speak to a couple [of sergeants] and
Captain about it figuring discretion would be
used and I wouldn't have to suffer
unnecessarily . . . I have also been told
repeatedly that since we have no cameras
inside the units of this particular prison it
would be my word against his, [and] the
'playing' would be impossible to prove.
The February 28 letter is unsigned by T.A. Hauck certified
that he never received the letter. Nor was it stamped "received"
or initialed by him, thereby "depart[ing] from procedure." Had
5 A-3730-16T2
he received such a letter, he "would have taken immediate action
to have [the allegations] investigated."
The next month, officers searched and "destroyed" the prison
library where T.A., as librarian, was solely responsible for the
week-long cleanup, including re-alphabetizing the books that had
been "thrown on the floor." T.A. testified she met with Lamoreaux
and Marafioti, the chief, shortly after that search, and told them
she believed the search of the library, and the previous search
of her cell, were retaliation for her complaints about Melgar.
In response to Marafioti's inquiry regarding the reason for
retaliation, T.A. testified, "I complained about the ruler game.
He said, ['T]he ruler game, what's the ruler game[?'] Like he
didn't know any of this. So that means the complaint I made to
Sergeant Brown, he never must have told Chief [Marafioti]." T.A.
claimed other ranking officers were present at that meeting when
she characterized "the hitting with the ruler and the wrestling .
. . [as] sexual in nature[;] . . . this wasn't just a man playing
around."
According to Lamoreaux's deposition testimony, he recalled
T.A. and Marafioti speaking after the library incident, but he
could not hear the conversation. Marafioti testified he had no
recollection of ever having spoken with T.A. or any other inmates
about Melgar.
6 A-3730-16T2
In April 2009, inmate R.L. filed an internal complaint against
Melgar. Hauck referred her allegations to SID, which then
instituted a formal investigation.8 R.L. alleged Melgar sexually
assaulted her in December 2008. Specifically, "Melgar entered her
cell . . . put his hand inside her bra and touched her breast."
After a struggle, Melgar attempted to place his hands inside R.L.'s
pants. Melgar denied the allegations and because there were no
eyewitnesses to the incident, SID concluded there was "no evidence
to support the allegations made by [R.L.]."
In June 2010, plaintiff R.S. disclosed to prison
psychologist, Nicole DeVita, that while R.S. was in her cell,
Melgar attempted to "hug up on her." Further, Melgar "picked up
a stick of salami that was in her room and started playing with
it." R.S. claimed Melgar "plays hard with the other women,
throwing water and everything, but they like it." Dr. DeVita
reported R.S.'s allegations to Hauck, who referred the matter to
SID.
The following month, SID received written reports from
nineteen North Hall inmates, including plaintiffs R.S., T.A.,
B.C., and T.C., attesting to Melgar's good character. In
8
Plaintiffs did not receive SID's investigative report regarding
R.L.'s complaint during the course of discovery. Instead, the
supervisory defendants provided the report with Hauck's reply
certification in support of their summary judgment motion.
7 A-3730-16T2
particular, they described Melgar as "professional, respectful[,]
and that he [ran] a good unit." Despite those positive
assessments, SID continued its investigation.
SID's interviews of R.S. and T.A. revealed both inmates were
pressured into writing positive reports, fearing retaliation from
Melgar. R.S. and T.A. separately disclosed Melgar's abuse in
greater detail, including that he grabbed R.S.'s breasts, smacked
her buttocks, and threw ice on inmates while they showered. SID
interviewed more than fifteen other North Hall inmates, who largely
corroborated the allegations of abuse reported by R.S. and T.A.
Some of the inmates also alleged Melgar engaged in sexual
intercourse with them. Melgar was transferred to another facility
in July 2010, suspended without pay in August 2010, and terminated
thereafter.
B.
When a party appeals from an order granting summary judgment,
our review is de novo and we apply the same standard as the trial
court pursuant to Rule 4:46-2. Liberty Surplus Ins. Corp. v.
Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). First, we
determine whether the moving party demonstrated there were no
genuine disputes as to material facts, and then we decide whether
the motion judge's application of the law was correct. Atl. Mut.
Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31
8 A-3730-16T2
(App. Div. 2006). In doing so, we view the evidence in the light
most favorable to the non-moving party. Brill, 142 N.J. at 540.
A party may defeat a motion for summary judgment by demonstrating
the evidential materials relied upon by the moving party,
considered in light of the applicable burden of proof, raise
sufficient credibility issues "to permit a rational factfinder to
resolve the alleged disputed issue in favor of the non-moving
party." Id. at 523. We review the legal conclusions of the trial
court de novo, without any special deference. Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
To prevail on a claim brought pursuant to 42 U.S.C.A. § 1983,
a plaintiff must first identify "'the person acting under color
of law[]' that has caused the alleged deprivation[,]" and then
"'identify a "right, privilege or immunity" secured to the claimant
by the Constitution or other federal laws of the United States.'"
Rezem Family Assocs. L.P. v. Borough of Millstone, 423 N.J. Super.
103, 114 (App. Div. 2011) (quoting Rivkin v. Dover Twp. Rent
Leveling Bd., 143 N.J. 352, 363 (1996)). "We see no reason to
apply different elements to a cause of action brought under the
[NJCRA, N.J.S.A. 10:6-2]," as "[t]he New Jersey statute was modeled
after § 1983." Id. at 115; Gormley v. Wood-El, 218 N.J. 72, 98
(2014); See also Tumpson v. Farina, 218 N.J. 450, 474 (2014) (The
9 A-3730-16T2
NJCRA "is modeled off of the analogous [FCRA]," and thus cases
applying "Section 1983 may provide guidance in construing our Civil
Rights Act.").
The qualified immunity doctrine "balances two important
interests – the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform
their duties reasonably." Pearson, 555 U.S. at 231. The burden
rests on a defendant to establish he is entitled to such immunity.
See Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d
Cir. 1989).
To determine whether an official is entitled to qualified
immunity, courts apply a two-prong test. Pearson, 555 U.S. at 232
(citation omitted); Ramos v. Flowers, 429 N.J. Super. 13, 27-28
(App. Div. 2012). The first "prong asks whether '[t]aken in the
light most favorable to the party asserting the injury, . . . the
facts alleged show the officer's conduct violated a constitutional
right[.]'" Ramos, 429 N.J. Super. at 28 (alterations in original)
(citation omitted). The inquiry under the second prong is "whether
the right was 'clearly established' at the time of defendant's
alleged misconduct." Ibid. (quoting Pearson, 555 U.S. at 232).
"For a right to be clearly established, '[t]he contours of the
right must be sufficiently clear that a reasonable official would
10 A-3730-16T2
understand that what he is doing violates that right.'" Gormley,
218 N.J. at 113 (alteration in original) (citation omitted).
Where, as here, plaintiffs claim an Eighth Amendment
violation for a supervisor's inaction relevant to prong one, they
must demonstrate "'(1) the deprivation alleged [is] objectively,
sufficiently serious;' and (2) the 'prison official [had] a
sufficiently culpable state of mind.'" Beers-Capitol v. Whetzel,
256 F.3d 120, 125 (3d Cir. 2001) (quoting Farmer v. Brennan, 511
U.S. 825, 834 (1994)). "In prison conditions cases, 'that state
of mind is one of "deliberate indifference" to inmate health or
safety.'" Ibid. (quoting Farmer, 511 U.S. at 834). Deliberate
indifference is a subjective standard requiring that the prison
official "must actually have known or been aware of the excessive
risk to inmate safety." Ibid. Thus, "a defendant cannot have
qualified immunity if she was deliberately indifferent; a
reasonable [prison official] could not believe that her actions
comported with clearly established law while also believing that
there is an excessive risk to the plaintiffs and failing to
adequately respond to that risk." Id. at 142 n.15.
"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 factfinder may conclude that a prison official
11 A-3730-16T2
knew of a substantial risk from the very fact that the risk was
obvious." Farmer, 511 U.S. at 842 (emphasis added) (citations
omitted). "For example, if . . . the circumstances suggest that
the [official] being sued had been exposed to information
concerning the risk and thus 'must have known' about it, then such
evidence could be sufficient to permit a trier of fact to find
that the [official] had actual knowledge of the risk." Id. at
842-43 (emphasis added).
Here, the trial court invaded the province of the factfinder,
improperly weighing the evidence in favor of the non-moving
supervisory defendants. Specifically, the trial court concluded
plaintiffs' reports describing Melgar's conduct prior to R.S.'s
June 2010 sexual contact disclosure, were not "constitutional
violation[s]" that "set off any warning signs of serious misconduct
or serious risk to the health and safety of the inmates. . . .
[C]ertainly [T.A.] was [not] characterizing these types of things
as something that was a serious threat to the health and safety
of the inmates." The trial court's analysis is unsupported by the
record and contravenes the summary judgment standard.
In particular, the trial court erroneously discredited
evidence in the record that could support a factfinder's conclusion
that the supervisory defendants were aware Melgar posed a
12 A-3730-16T2
substantial risk to the North Hall inmates prior to R.S.'s June
2010 disclosure. See Farmer, 511 U.S. at 842. For example, the
trial court concluded T.A.'s aggravated assault reference in her
February 28, 2008 letter was "taken out of context" because most
of the letter concerns "complain[ts] about the destruction of her
room." However, the letter clearly describes Melgar as "hitting
the various female inmates with rolled up newspaper." While the
trial court recognized "uninvited inappropriate touching of
somebody, whether it be with a ruler or cardboard or wresting,
would constitute a simple assault so that would certainly qualify
as criminal [conduct]," the court did not consider these acts as
constitutional violations that would pose a "serious risk to the
health and safety of the inmates." We disagree.
It is well-settled that "the Eighth Amendment places
restraints on prison officials, who may not, for example, use
excessive physical force against prisoners . . . and must 'take
reasonable measures to guarantee the safety of the inmates.'")
Farmer, 511 U.S. at 832 (citation omitted); see also N.J. Const.
art. I, ¶ 12. In light of these legal principles, a factfinder
could conclude that wrestling with prisoners and striking them
with an object, especially where, as here, the guard and inmates
are members of the opposite sex, could trigger Eighth Amendment
13 A-3730-16T2
protections. As such, summary judgment was inappropriate on that
basis.
Moreover, plaintiffs have proffered evidence that four
separate reports were made prior to June 2010, suggesting the
supervisory defendants "had been exposed to information concerning
the risk" to plaintiffs, and "such evidence could be sufficient
to permit a trier of fact to find that the [supervisory defendants]
had actual knowledge of the risk." Farmer, 511 U.S. at 842.
Because Hauck denied he received T.A.'s letter; Marafioti and
Lamoreaux denied T.A. reported Melgar's misconduct to them; and
Brown downplayed Melgar's conduct in his response to T.A.,
plaintiffs' sworn statements and deposition testimony to the
contrary create genuinely disputed issues of material fact. See,
e.g., Shanley & Fischer, P.C. v. Sisselman, 215 N.J. Super. 200,
211-12 (App. Div. 1987) (stating the trial court should not decide
summary judgment motions based on dueling affidavits inasmuch as
there are material facts at issue, including but not limited to
the subjective elements of intent and credibility determinations,
which must be decided by the trier of fact).
In sum, genuine disputes as to material facts exist with
respect to the timing and nature of plaintiffs' reports to the
supervisory defendants regarding Melgar's misconduct. Many of
these disputed facts require credibility determinations by a fact-
14 A-3730-16T2
finder. Brill, 142 N.J. at 523. If, as plaintiffs assert, they
reported misconduct that violates the Eighth Amendment to the
supervisory defendants prior to June 2010, then the doctrine of
qualified immunity would not extend to those defendants.
Accordingly, we reverse the order granting summary judgment to the
supervisory defendants.
II.
A.
We next consider the appeal of plaintiffs T.C., B.C., and
R.S. from the trial court's order dismissing their tort claims for
lack of proper notice. In setting forth the facts and procedural
history from the record pertaining to that motion, plaintiffs are
not entitled to the same benefit of favorable inferences as their
civil rights claims. Cf. R. 4:46.
In May 2011, T.C., B.C., R.S., and another inmate9 attempted
to file a class action lawsuit, asserting various claims including,
violations of the TCA. Those plaintiffs also sought permission
to file a late notice of tort claim pursuant to N.J.S.A. 59:8-8.
Because the complaint was not signed by an attorney, it was deemed
deficient pursuant to Rule 1:21-1. Accordingly, the Hunterdon
County Clerk stamped the submission "received" but not "filed."
9
The fourth plaintiff, F.D., is not a party to this appeal.
15 A-3730-16T2
B.C. claims she resubmitted the complaint in June 2011.
Apparently, the clerk's office did not receive the refiled
complaint and requested resubmission. In September 2011, B.C.
again attempted to file the complaint, but did not receive
confirmation from the clerk's office that it was filed. In July
2012, plaintiffs filed a motion seeking leave to file their TCA
notice of claim as within time. Three months later, they filed
their first amended complaint.
In November 2012, the first motion judge denied plaintiffs'
motion as to T.A., M.E., and J.S., dismissing their tort claims.
Following a hearing, the judge granted plaintiffs' motion as to
the claims filed by T.C., B.C., and R.S. As such, the judge
determined "there [was] some kind of service at the very end of
May 2011" as to those plaintiffs.
In March 2013, a second amended complaint was filed, by
counsel, on behalf of the present plaintiffs. Defendants filed a
motion for reconsideration of the first motion judge's order,
which was granted by the second motion judge. This appeal
followed.
On appeal, plaintiffs contend their motion to deem their
notice of tort claim timely was filed within one year of accrual
of their claim. They argue the first motion judge correctly
determined their May 2011 complaint and motion should be deemed,
16 A-3730-16T2
"filed" in addition to "received," thereby satisfying the one-year
deadline. We disagree.
B.
A trial court's order on a motion for reconsideration will
not be set aside unless shown to be a mistaken exercise of
discretion. Granata v. Broderick, 446 N.J. Super. 449, 468 (App.
Div. 2016) (citing Fusco v. Bd. of Educ., 349 N.J. Super. 455, 462
(App. Div. 2002)). Reconsideration should only be granted in
those cases in which the court had based its decision "upon a
palpably incorrect or irrational basis," or did not "consider, or
failed to appreciate the significance of probative, competent
evidence." Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super.
392, 401 (Ch. Div. 1990)).
The TCA requires a notice of claim against a public entity
to be filed within ninety days after the accrual of a cause of
action. N.J.S.A. 59:8-8. Generally, a claimant does not timely
file a notice of claim, the claim is "forever barred." N.J.S.A.
59:8-8; see also J.P. v. Smith, 444 N.J. Super. 507, 529 (App.
Div. 2016) (finding failure to timely file a notice of tort claim
"constitutes an absolute bar to recovery").
A notice of claim may be filed beyond the ninety-day time
period if leave is obtained from the Superior Court "within one
year after the accrual of [the] claim provided that the public
17 A-3730-16T2
entity . . . has not been substantially prejudiced thereby."
N.J.S.A. 59:8-9. The motion must be "supported by affidavits
based upon personal knowledge of the affiant showing sufficient
reasons constituting extraordinary circumstances for [the] failure
to file [a timely] notice of claim." N.J.S.A. 59:8-9; D.D. v.
Univ. of Med. and Dentistry of N.J., 213 N.J. 130, 147 (2013).
"After the one-year limitation has passed, 'the court is without
authority to relieve a plaintiff from his [or her] failure to have
filed a notice of claim, and a consequent action at law must
fail.'" Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529,
532-33 (App. Div. 1989) (quoting Speer v. Armstrong, 168 N.J.
Super. 251, 255-56 (App. Div. 1979)).
Here, it is undisputed that plaintiffs' cause of action
accrued no later than June 24, 2010, i.e., Melgar's last day at
EMCFW prior to his transfer to another facility. Although
plaintiffs attempted to file their complaint and notice of claim
within time, their submission was procedurally defective and
properly rejected by the clerk's office. Thus, plaintiffs'
submission was received, but it was not filed. Instead, the notice
of claim was not filed until July 23, 2012, more than two years
after the accrual of plaintiffs' claim.
Relying on Fuller v. Rutgers, State University, 154 N.J.
Super. 420, 423 (App. Div. 1977), the second motion judge, aptly
18 A-3730-16T2
determined, if the motion to file a late notice of claim is not
"timely filed within one-year, the trial court . . . does [not]
have jurisdiction [to exercise discretion]." Accordingly,
plaintiffs failed to satisfy the strict mandates of N.J.S.A.
59:8-9.
Having fully considered plaintiffs' claims in light of the
applicable law, we are satisfied the trial judge did not abuse his
discretion in granting defendants' motion for reconsideration. As
such, the tort claims filed by T.C., B.C., and R.S. were properly
dismissed.
Affirmed in part; reversed and remanded in part. We do not
retain jurisdiction.
19 A-3730-16T2
T.A. VS. ERICK MELGAR (L-0466-12, HUNTERDON COUNTY AND STATEWIDE)
Combined Opinion