FREDA L. WOLFSON, District Judge.
This matter has been opened to the Court by Defendants Gary M. Lanigan, Stephen D'Ilio, New Jersey Department of Corrections ("NJDOC"), and New Jersey State Prison ("NJSP") (collectively the "Moving Defendants") on their second motion to dismiss Plaintiff's Complaint.
On March 23, 2015, Plaintiff was housed alone in a cell on 7B Wing, an administrative segregation unit of NJSP. (1-1, Complaint at ¶¶ 10-12.) The Complaint alleges that the only persons with access to Plaintiff's cell were NJSP corrections officers and personnel. (Id. at ¶ 12.) The Complaint further alleges that in the early morning hours of March 23, 2015, five corrections officers, identified in the Complaint as "John Does 1-5", entered Plaintiff's cell while he was sleeping and "savagely and recklessly attacked" him, causing serious injuries to his head. (Id. at ¶¶ 15-19.) After the attack, John Does 1-5 also allegedly left Plaintiff bleeding and unconscious on the floor of his cell for several hours. (Id. at ¶¶ 20-21.) Plaintiff has also sued "John Does 6-10," who are described in the Complaint as "supervisory staff with direct supervising authority over John Does 1-5 at NJSP . . . on the night and morning of March 22 to March 23, 2015, who on information and belief failed to provide adequate training and supervision to John Does 1-5." (Id. at ¶ 9.)
The "Parties" section of the Complaint includes the following general allegations regarding Moving Defendants Lanigan and D'Ilio:
(Id. at ¶¶ 6-7.) The "Background Information" section of the Complaint, which describes the alleged assault on Plaintiff, alleges that "Defendants Gary M. Lanigan, NJDOC, Stephen D'Ilio, and John Does [6-10], had a duty to train officers and to protect [Plaintiff] from the malicious, wanton and reckless behavior of John Does 1-5."
Plaintiff, who is represented by counsel, initially filed his two-count Complaint in Mercer County Superior Court on October 10, 2015. The matter was removed by Defendants NJDOC and Gary Lanigan on November 4, 2015. (ECF No. 1, Notice of Removal.) Defendants Lanigan, NJDOC, and NJSP filed a motion to dismiss the Complaint on November 24, 2015. (ECF No. 4.) Defendant D'Ilio subsequently moved to dismiss the Complaint on January 19, 2016. (ECF No. 11.) On June 17, 2016, the Court granted the Moving Defendants' motions to dismiss the § 1983 claims against them. (ECF Nos. 14-15.) The Court dismissed with prejudice (1) the § 1983 claims as to Defendants NJDOC and NJSP and (2) the official capacity § 1983 claims for damages against Defendant Lanigan and D'Ilio. The Court dismissed without prejudice the personal capacity § 1983 claims against Defendants Lanigan and D'Ilio. (ECF No. 14, Op. at 6-11.) The Court, however, denied without prejudice the motion to dismiss with respect to the remaining NJTCA claims against all Moving Defendants, finding that they did not meet their burden to show that Plaintiff failed to state a claim for relief. (ECF No. 14, Op. at 11-12.) The Court also noted that the only federal claims remaining in this removal case were alleged against unidentified John Doe Defendants. As such, the Court provided Plaintiff with a 90-day period in which to identify the John Doe Defendants. (Id. at 13 n. 9.)
On June 20, 2016, State Defendants wrote to the Court seeking permission to file a second motion to dismiss to address the remaining NJTCA claims. (ECF No. 16.) In a June 21, 2016, letter to the Court, Plaintiff's counsel stated that Plaintiff needed to engage in discovery with Defendants Lanigan and D'Ilio in order to identify the John Doe Defendants, and that these Defendants should not be dismissed from the suit until the 90-period of discovery was over. (ECF No. 17.) The Court issued an Order that (1) permitted the Moving Defendants to file a second motion to dismiss and (2) also permitted Plaintiff to engage in discovery with the Moving Defendants in order to identify the John Doe Defendants within the 90-period set out by the Court in its prior Order.
On July 1, 2016, the State filed its second motion to dismiss directed at the NJTCA claims. (ECF No. 20.) Plaintiff, who is proceeding through counsel, did not file opposition to the motion. Although the 90-day period for discovery has now expired, Plaintiff has not filed an Amended Complaint to identify the John Doe Defendants or to allege § 1983 claims against Defendants Lanigan and D'Ilio in their personal capacities.
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a claim "for failure to state a claim upon which relief can be granted." Fed. R .Civ. P. 12(b)(6). On a motion to dismiss for failure to state a claim, the moving party "bears the burden of showing that no claim has been presented." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)); United Van Lines, LLC v. Lohr Printing, Inc., No. CIV. 11-4761, 2012 WL 1072248, at *2 (D.N.J. Mar. 29, 2012).
When reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), courts first separate the factual and legal elements of the claims, and accept all of the well-pleaded facts as true. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). All reasonable inferences must be made in the plaintiff's favor. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). In order to survive a motion to dismiss, the plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This standard requires the plaintiff to show "more than a sheer possibility that a defendant has acted unlawfully," but does not create what amounts to a "probability requirement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Third Circuit has required a three-step analysis to meet the plausibility standard mandated by Twombly and Iqbal. First, the court should "outline the elements a plaintiff must plead to a state a claim for relief." Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Next, the court should "peel away" legal conclusions that are not entitled to the assumption of truth. Id.; see also Iqbal, 556 U.S. 678-79 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). Finally, the court should assume the veracity of all well-pled factual allegations, and then "determine whether they plausibly give rise to an entitlement to relief." Bistrian, 696 F.3d at 365 (quoting Iqbal, 556 U.S. at 679). A claim is facially plausible when there is sufficient factual content to draw a "reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. The third step of the analysis is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.
In their motion to dismiss, the Moving Defendants argue that the NJTCA claims against them must be dismissed because there is no vicarious liability for intentional torts under the NJTCA, and that the Complaint fails to plead sufficient facts to state a claim for negligent supervision and/or training under the NJTCA.
Under some circumstances, a public entity — such as the NJDOC and NJSP — may be held liable for the torts of its employees under a theory of respondeat superior. As explained by the New Jersey Appellate Division in Hoag v. Brown, "[a] public entity `is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances.'" 397 N.J.Super. 34, 53-54 (App. Div. 2007) (citing N.J.S.A. 59:2-2a); see also Carter v. Reynolds, 345 N.J.Super. 67, 783 A.2d 724, 726 (App. Div.2001 ("[A]n employer is vicariously liable for the torts of an employee only if the employee was acting within the scope of his or her employment at the time the tort was committed."), aff'd, 175 N.J. 402, 815 A.2d 460 (2003). "Conduct is generally considered to be within the scope of employment if, `it is of the kind [that the servant] is employed to perform; it occurs substantially within the authorized time and space limits; [and] it is actuated, at least in part, by a purpose to serve the master." Di Cosala v. Kay, 91 N.J. 159, 450 A.2d 508, 513 (N.J.1982) (quoting Restatement (Second) of Agency § 228 (1957)); see also Gattas v. City of Jersey City, No. CIV.A. 07-4242(JAG), 2010 WL 892187, at *12 (D.N.J. Mar. 5, 2010) (finding that defendant police officer was acting within his role as an on-duty police officer when he handcuffed plaintiff and that officer's arrest of plaintiff was actuated at least in part to serve the master). N.J.S.A. § 59:2-2a "is the primary source of public entity liability, in that `[i]t establishes the principle of vicarious liability for all public entities for `injury proximately caused by an act or omission of a public employee within the scope of his employment' and thereby relies upon the established principles of law such as the doctrine of respondeat superior." Gattas v. City of Jersey City, No. CIV.A. 07-4242(JAG), 2010 WL 892187, at *5 (D.N.J. Mar. 5, 2010) (citing Wright v. State, 169 N.J. 422, 778 A.2d 443, 451 (N.J.2001) (quoting Comment to N.J. Stat. Ann § 59:2-2).
The NJTCA also provides that "[a] public entity is not liable for the acts or omissions of a public employee constituting a crime, actual fraud, actual malice, or willful misconduct." Hoag, 397 N.J. Super at 53-54 (citing N.J.S.A. 59:2-10). As such, there is "no vicarious liability by a public entity for intentional torts committed by its employees; that is, with respect to such intentional torts, the theory of respondeat superior does not apply." Id. (citing McDonough v. Jorda, 214 N.J.Super. 338, 350 (App. Div. 1986), certif. denied, 110 N.J. 302, 540 A.2d 1282 (1988), cert. denied sub nom., Jorda v. City of New Brunswick, 489 U.S. 1065 (1989).
Here, John Does 1-5 allegedly entered Plaintiff's cell while he was sleeping and "savagely and recklessly attacked" him with their hands, feet, batons, and other objects. (Compl. at ¶ 16.) After they assaulted him, John Does 1-5 allegedly left Plaintiff bleeding on the floor his cell for several hours without medical care. (Id. at ¶ 20.) Although Plaintiff's Complaint states in a conclusory fashion that the attack was "reckless," the facts provided in the Complaint suggest that the beating by John Does 1-5 was an unprovoked, intentional assault. The decision to leave him bleeding on the floor of his cell also appears to be intentional misconduct. The Complaint provides no facts from which the Court could find that the assault and failure to provide medical care to Plaintiff was undertaken in the course of employment, i.e., that the conduct is of the type John Does 1-5 are employed to perform and that the conduct was actuated in least in part by a purpose to serve the master. Because the conduct of John Does 1-5, as described in the Complaint, can only be construed as willful misconduct and/or criminal conduct, see N.J.S.A. 59:2-10, NJDOC and NJSP (and by extension, Defendants Lanigan and D'Ilio) may not be held liable for that conduct under a theory respondeat superior. As such, to the extent Plaintiff seeks to hold the Moving Defendants liable for the misconduct of John Does 1-5 under a theory of respondeat superior, such NJTCA claims are dismissed without prejudice.
The NJTCA, however, also permits claims of negligent hiring or negligent supervision, which covers acts committed outside the scope of employment.
The test for negligent hiring has been explained in Adams v. City of Camden, 461 F.Supp.2d 263, 269 (D.N.J. 2006) as follows:
Similarly, under New Jersey law, liability may also be imposed on an employer who fails to perform its duty to train and supervise its employees. See Vasquez v. Gloucester Cty., No. CIV.A. 13-4146 JEI, 2015 WL 3904550, at *5 (D.N.J. Jun. 25, 2015) (citing Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 346 (1994)); see also Ewing v. Cumberland Cty., No. CIV. 09-5432 JBS/AMD, 2015 WL 1384374, at *30 (D.N.J. Mar. 25, 2015) ("Plaintiff's theory, that [Cumberland County] is liable for its employees' failure to properly supervise subordinates on the day Plaintiff was beaten, states a claim of negligent supervision that is not barred by the NJTCA. Plaintiff additionally states a claim of negligent failure to train"). In order to establish a prima facie claim for negligent training, plaintiff must show that (1) the defendant owed a duty of care to the plaintiff, (2) defendant breached that duty of care, (3) defendant's breach was the proximate cause of plaintiff's injury, and (4) defendant's breach caused actual damages to plaintiff. Stroby v. Egg Harbor Twp., 754 F.Supp.2d 716, 721 (D.N.J. 2010) (citing Weinberg v. Dinger, 106 N.J. 469, 484 (1987)). "A plaintiff bears the burden of establishing [each of] those elements by some competent proof." Townsend v. Pierre, 221 N.J. 36, 51 (2015) (internal quotation marks and citations omitted).
Here, the Complaint does not contain any facts to suggest that any of the Moving Defendants had reason to know that any of John Does 1-5 were particularly unfit, incompetent, or dangerous, or that the Moving Defendants could have foreseen that the John Does 1-5 possessed qualities that created a risk of harm to Plaintiff or to inmates generally. See Di Cosala, 91 N.J. at 174. Furthermore, the Complaint does not provide sufficient facts to suggest that the Moving Defendants breached their duty of care to Plaintiff by providing inadequate supervision of and/or training to John Does 1-5, or that the deficient supervision and/or training was a proximate cause of Plaintiff's injuries. Rather, the Complaint alleges in a conclusory manner that Defendants Lanigan, D'Ilio, and John Does 6-10 are responsible for the training and supervision of John Does 1-5, and failed to adequately train and supervise them, which resulted in injuries to Plaintiff. (See Compl. at ¶¶ 22, 29, 35.) There are no facts regarding the alleged deficiencies in the supervision and/or training and fails to link any alleged deficiencies in supervision and/or training to the assault and/or failure to provide medical care. Although a Plaintiff need not set forth "detailed factual allegations" to survive a motion to dismiss, see Twombly, 550 U.S. at 555; see also in re Paulsboro Derailment Cases, No. 13-784 RBK/KMW, 2013 WL 5530047, at *2 (D.N.J. Oct. 4, 2013) (explaining same), he must "plead sufficient factual matter" to state a plausible claim for relief. Iqbal, 556 U.S. at 677. Here, the Complaint contains insufficient factual matter to suggest that Moving Defendants Lanigan or D'Ilio (or John Does 6-10) failed to supervise and/or train John Does 1-5, and that the failure to supervise and/or train caused Plaintiff's injuries. Because the failure to supervise and/or train claims are insufficiently pleaded against Defendants Lanigan, D'Ilio, and John Does 6-10, the NJDOC and NJSP may not be held liable for the alleged failures to supervise and/or train.
For the reasons stated in this Opinion, the Court will grant the Moving Defendants' motion to dismiss the NJTCA claims against them. The dismissal is without prejudice. An appropriate Order follows.
