SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOC KET NO. A-2628- 21 GEORGE BRESNIHAN, FOUNTAIN HAMLETT, SEAN WILLIAMS, CHRISTOPHER DRAKES, TROY BARBER , Plaintiffs-Appellants, and DERRICK M. MURPHY, Plaintiff-Respondent,

v. THE KINTOCK GROUP OF NEW JERSEY, Defendant-Respondent.

Submitted October 24, 2023

– Decided February 28, 2024 Before Judges Rose and Perez Friscia. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L- 0020

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2628

- 21 Law Offices of Stephen Steinberg, PC, attorneys for appellants (Stephen Steinberg, of counsel and on th e briefs ; Jeff Edward Thakker, of counsel; Eltia I. Montano Galarza, on the briefs ). Kiernan Trebach, LL P , attorneys for respondent The Kintock Group of New Jersey (Mark A. Lockett, on th e brief).
PER CURIAM Plaintiffs George Bresnihan, Fountain Hamlett, Sean Williams, Christopher Drakes, and Troy Barber appeal from a M arch 15, 2022 Law Division order dismiss ing their complaint on the summary judgment motion of defendant, The Kintock Group of New Jersey. 1 Plaintiffs argue that while residents of Kintock's halfway house facility in Br idgeton, they were unlawfully strip searched by officers assigned to the Special Investigations Di vision of the New Jersey Department of Corrections ( DOC or NJDOC), and Kintock failed to intervene. Because there was no cognizable evidenc e in the record to support a reasonable inference Kintock was res ponsible for plaintiff s' alleged injuries, we affirm.

1 Plaintiff Derrick M. Murphy represented himself before the trial court after appellants' attorney moved to be relieved as couns el but did not file a brief in the trial court in response to Kintock's motion. N or has Murphy filed a brief in this appeal

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We summarize the facts from the motion record in a light most favorable to plaintiffs as the non-moving parties under the semina l Brill standard. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1 995); see also R. 4:46 -2(c). In essence, the incident occurred on November 18, 2 014, when DOC officers conducted a "mass" strip search of Kintock's reside nts during an approximately three-and- one -half-hour timeframe. Kintock's employees did not partake in the searches. Plaintiffs did not sue the DOC

. Kintock holds itself out as "a non-profit organizat ion[,] which contracts with federal and state law enforcement agencies to provi de cost effective alternatives to incarceration and re-entry services for individuals transitioning from the criminal justice system to the community." See N.J.S.A. 30:4-91.2. In 2013, Kintock and the DOC executed a contract for the operation of a halfway house in Bridgeton, which was designated by the Com missioner of Institutions and Agencies "as a place of confinement." See N.J. S.A. 30:4-91. 1. The contract contained a provision entitled, "Indem nity/Liability to Third Parties," requiring Kintock to indemnify and defend the State against "all claims demand, suits, actions, recoveries, judgments, and costs and expenses" for an injury arising from "the work and/or materials supp lied under th[e] contract." In its request for proposal, the DOC advised, "[s]pecific facility searches . . .4 A- 2628

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may be conducted whenever" the DOC deems the search "necessary and appropriate," without notice to the contractor. More than two years after the incident , in December 2016, plaintiffs filed an eight-count complaint against Kintock. In the f irst four counts, plaintiffs alleged violations of: the state and federal const itu tion s; the strip search statute, N.J.S.A. 2A:161A-1 to - 10 , and the Attorney General Guidelines issued thereunder; the NJDOC regulation governing strip searches; and Kintock's sexual assault policy which prohibited cross-gender strip searches. Plaintiffs' remaining claims alleged negligent hiring and train ing; intentional and negligent infliction of emotional distress; and breach of cus todial duty. Plaintiffs sought compensatory and punitive damages, and counsel fees

. They also raised allegations of a potential class action.
In their complaint, plaintiffs asserted they were str ip searched by NJDOC officers in an area known as "the alley," which is "a corridor" that "runs the length of the facility." The alley was within view of "several surveillance

cameras. " A "control room" with clear glass windows was loca ted in the center of the alley, affording staff the ability to observ e the alley. "Male and female staff members . . . were on duty and working in the control room and observed the residents being strip searched." Contending th e facility had "private rooms5 A- 2628

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. . . where private searches could have been conduc ted," plaintiffs claimed the "strip searches were performed in the open in an ex tremely non-private location." When deposed, Bresnihan asserted Kintock's director , Michael Kenney, "was like supervising . . . getting [the residents] where [they] needed to go and getting [them] ready for the strip." Kenney told B resnihan "if [he] didn 't shut up they would take [him] out of line and put [him] in a holding cell." Bresnihan said "about fifteen people" were around when Kenney made the statement, but Bresnihan could not name any of them. Without elaborating, Bresnihan further stated Kenney was "ex- DOC so they knew him, so they let him run the sh ow ," i.e., Kenney "was in charge." After Kintock answered the complaint, the matter f ollow ed a tortured procedural path , the details of which are not relevant here. Suffice it t o say, the case was referred to mediation and arbitration without staying the litigatio n; both parties filed discovery motions; and various a ttorneys were substituted for the parties. In early 2020, Judge James R. Swift d enied plaintiff s' application for class certification and granted their unopposed motion to file an amended complaint. More than one year later, plaintiffs filed their am ended complaint, which included forty-one counts and bore little res emblance to the proposed6 A- 2628

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amended complaint attached to their earlier motion. The judge dismissed the amended complaint for that reason on Kintock's motion to dismiss the complaint, but denied its application to dismiss th e original complaint claims on statute of limitation grounds as waived for reasons that are not pertinent to this appeal. Ultimately, the parties cross-moved for summary judgment . Immediately following oral argument, Judge Swift dismissed almo st all of plaintiffs' claims. In particular, the judge was not persuaded that the indemnity provision set forth in the 2013 contract between Kintock and the DOC afford ed "plaintiffs some independent right of action against Kintock for act ions of the DOC." Rather, under the provision, "if somehow the DOC is held li able for some incident, then Kintock . . . must identify them." Nor was the judge convinced plaintiffs demonstrated a prima facie claim of negligent or intentional infliction of emotional distress as DOC officers conducted the strip searches. Even assuming plaint iffs were embarrassed and humiliated by the searches, the judge found there w as no evidence the DOC officers had any "direct involvement in the way the strip search was conducted." Similarly, the judge dismissed plaintiffs' punitive damages claim, finding there7 A- 2628

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was no evidence of any "willful" or "wanton disregard of p ersons" by any Kintock employees. Although he found Kintock owed plaintiffs a duty of care vis -à-vis their constitutional rights, the judge reserved decision only as to whether Kintock violated that duty by failing to interven e during the DOC 's strip searches. All other counts were dismissed. Shortly thereafter, Judge Swift issued a cogent wri tten decision, granting Kintock's motion in its entirety. The judge reiter ated that Kintock ow ed a duty of care to its residents and reason ed a significant public interest support ed that finding because Kintock was "housing the residents as a place of confinement." Turning to the remaining elements of a negligence a ction, the judge was

not convinced plaintiffs established Kintock's conduct was the proximate cause of their alleged injuries. The judge elaborated:

In this case, the proximate cause of . . . [p]laintiffs' injury was the humiliating and demean ing strip search that took place in a public portion of Kintock's facility while in the presence of many ot her residents. However, the strip search was not carri ed out by any Kintock employees, and was not done under the direction of anyone at Kintock. Kintoc k's only connection with the strip search was they aided in directing some of the residents to the area of the facility where the strip search took place. The search itse lf was done entirely by NJDOC staff. As the perpetrators of the action in question, it is the NJDOC that could8 A- 2628

- 21 possibly be found to be the proximate c ause of [p]laintiff [s '] injuries, not the Kintock staff. There is no evidence to support the idea that Kintock['s] ac tions could be the proximate cause of [p]laintiff[s'] dama ges. The judge therefore held Kintock was not liable under a negli gence theory. See
e.g. , Robinson v. Vivirito, 217 N.J. 199, 208 (2014) (rei terating "[t]he fundamental elements of a negligence claim are a du ty of care owed by the defendant to the plaintiff, a breach of that duty b y the defendant, injury to the plaintiff proximately caused by the breach, and dam ages"). Judge Swift also rejected plaintiffs' contentions t hat Kintock had a duty to intervene by either directing DOC staff to cease the strip searches or conduct them "in a less intrusive manner" and that Kintock breached th at duty to plaintiffs. The judge acknowledged plaintiffs' arg ument that Kintock's legal authority to detain residents obligated the facilit y to follow "all relevant laws, regulations, and guidelines." However, the judge r ecognized the lack of authority "support[ing] the notion that employees o f a halfway home ha ve a duty to intervene when NJDOC is performing a function at their facility. " Referencing the 2013 agreement between the DOC and Kintock, the judge noted the contract "specifically reserve[d] the rig ht for NJDOC to perform searches completely at the discretion of NJDOC , without prior notice to Kintock." Th e judge d istinguished the Third Circuit's decision in Smith v.9 A- 2628

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Mensiger , 293 F.3d 641, 651 (3d Cir. 2002) , which addressed the liability of the law enforcement officers "for failing or refusing t o intervene when a constitutional violation takes place in his [or] he r presence if there exists a 'realistic and reasonable opportunity to intervene. '" Noting "the credible evidence" in the record and affording plaintiffs th e benefit of "all rational inferences," the judge determined "it [wa]s not rea listic or reasonable that a civilian employee of Kintock would have authority t o stop or redirect armed NJDOC officers who ha[d] the contractual authority to conduct such a search." On appeal, plaintiffs agree with Judge Swift's decision th at Kintock owed plaintiffs a duty of care under the common law but argue whether Kintock breached that duty was a question for the trier of fact. Plaintiffs maintain they were third-party beneficiaries under the indemnity provision of the 2013 contract between the DOC and Kintock

. In various overlapping arguments, plaintiffs further claim Kintock's employees acted under color of state law and, as such, they violated plaintiffs' cons titutional rights , and the administrative regulations and Attorney General Guidelines governi ng strip searches conducted by the DOC . Plaintiffs also assert the judge failed to decid e certain claims and erroneously decided others.10 A- 2628

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After de novo review, Conforti v. County of Oc ean , 255 N.J. 142, 162 (2023), we reject plaintiff s' unsupported claims. We affirm the order under review substantially for the well-founded reasons e xpressed by Judge Swift in
h is accompanying oral and written decisions. Having e mployed the same standard as the judge, we conclude there are no mat erial factual disputes and defendant is entitled to judgment as a matter of la w. See Samolyk v. Berthe , 251 N.J. 73, 78 (2022); Brill, 142 N.J. at 540; R. 4:46 -2(c). Plaintiffs' contentions therefore lack sufficient merit to warr ant discussion in a written opinion

. R. 2:11 -3(e)(1)(E)

. We add only the following brief remarks. The gravamen of plaintiffs' argument is that Kintoc k's employees act ed "under color of state law, " or they assum ed responsibility for the DOC's actions under the 2013 contract and, as such, they assumed the risk for the DOC's constitutional violations. Plaintiff s' claims are mistakenly premised on their misconception that they were beneficiaries under th e contract, or the designation of the Kintock facility under N.J.S.A. 30:4-91.2 im puted liability to Kintock for the DOC's actions. Plaintiffs cite no authority to support their claims , and we have found no such precedent.
I t is beyond peradventure that "no constitutional depr ivation occurs without State action." Santa Barbara v. Heart of Cedar Lane, 226 N.J. Sup er.11 A- 2628

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509, 511 (App. Div. 1988) (citing Callen v. Sherman's In c. , 92 N.J. 114, 123- 24 (1983)). Under both 42 U.S.C. § 1983, and the New Jersey Civ il Rights Act (CRA), N.J.S.A. 10:6-1 to -2, a plaintiff must esta blish two steps. See Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J . Super. 103, 115 (App. Div. 2011). "The first step 'is to identify the state actor, "t he person acting under the color of law," that has caused the alleged depr ivation.'" AmeriCare Emergency Med. Serv., Inc. v. City of Orange Tw p. , 463 N.J. Super. 562, 574 (App. Div. 20 20 ) (quoting Rezem, 423 N.J. Super. at 114). "Next t he party must 'identify a right, privilege or immunity secured to the claimant' by the constitutions of the state and federal governments or by state and federal laws." Ibid. Pursuant to the CRA, private actions for vio lations of an individual's

su bstantive rights only lie against persons acting un der "color of law," N.J.S.A. 10:6 -2(c), meaning the exercise of power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Polk C ou nty v. Dodson, 454 U.S. 312, 317- 18 (1981) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). Under some circumstances, a private party can be civilly liable for damage caused by violations of constitutional rights accom plished through their

co operation with a state actor. For example, "a challe nged activity may be state12 A- 2628

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action . . . when a private actor operates as a 'wi llful participant in joint activity with the State or its agents.'" Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 296 (2001) (quoting Lugar v. E dmondson Oil Co., 457 U.S. 922, 941 (1982)). However, a private action "is no t converted into one under color of state law merely by some tenuous connectio n to the state action." Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d C ir. 1995 ). In the present matt er , the parties do not dispute that the strip searches were conducted exclusively by DOC officers. Thus, as the motion judge found, there was no evidence in the record to suggest that Kinto ck participated in the DOCconducted strip searches, other than Kintock "aided in directing some of the residents to the area of the facility where the str ip search took place." Further , the DOC contractually reserved full authority to co nduct all searches at the facility without notice to Kintock. Thus, there is no evidence in the rec ord to suggest the strip searches were conducted as a "join t activity" between the DOC and Kintock. Affirmed.