SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET 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-0020-17.

NOT FOR PUBLICATION WITHOUT THE 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.
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Law Offices of Stephen Steinberg, PC, attorneys for

appellants (Stephen Steinberg, of counsel and on the 

briefs; Jeff Edward Thakker, of counsel; Eltia I. 

Montano Galarza, on the briefs).

Kiernan Trebach, LLP, attorneys for respondent The 

Kintock Group of New Jersey (Mark A. Lockett, on the 

brief). 

 PER CURIAM 

Plaintiffs George Bresnihan, Fountain Hamlett, Sean Williams, 

Christopher Drakes, and Troy Barber appeal from a March 15, 2022 Law 

Division order dismissing 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 Bridgeton, they were unlawfully 

strip searched by officers assigned to the Special Investigations Division of the 

New Jersey Department of Corrections (DOC or NJDOC), and Kintock failed to 

intervene. Because there was no cognizable evidence in the record to support a 

reasonable inference Kintock was responsible for plaintiffs' alleged injuries, we 

affirm. 

1

 Plaintiff Derrick M. Murphy represented himself before the trial court after 

appellants' attorney moved to be relieved as counsel but did not file a brief in 

the trial court in response to Kintock's motion. Nor has Murphy filed a brief in 

this appeal. 
3 A-2628-21

We summarize the facts from the motion record in a light most favorable 

to plaintiffs as the non-moving parties under the seminal Brill standard. Brill v. 

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c). 

In essence, the incident occurred on November 18, 2014, when DOC officers 

conducted a "mass" strip search of Kintock's residents 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 organization[,] which contracts 

with federal and state law enforcement agencies to provide 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 Commissioner of Institutions 

and Agencies "as a place of confinement." See N.J.S.A. 30:4-91.1. 

The contract contained a provision entitled, "Indemnity/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 supplied under th[e] contract." 

In its request for proposal, the DOC advised, "[s]pecific facility searches . . . 
4 A-2628-21

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 first four counts, plaintiffs 

alleged violations of: the state and federal constitutions; 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 training; intentional and negligent 

infliction of emotional distress; and breach of custodial 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 strip 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 located in the center 

of the alley, affording staff the ability to observe the alley. "Male and female 

staff members . . . were on duty and working in the control room and observed 

the residents being strip searched." Contending the facility had "private rooms 
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. . . where private searches could have been conducted," plaintiffs claimed the 

"strip searches were performed in the open in an extremely 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 Bresnihan "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 show," 

i.e., Kenney "was in charge." 

After Kintock answered the complaint, the matter followed a tortured 

procedural path, the details of which are not relevant here. Suffice it to say, the 

case was referred to mediation and arbitration without staying the litigation; 

both parties filed discovery motions; and various attorneys were substituted for 

the parties. In early 2020, Judge James R. Swift denied plaintiffs' application 

for class certification and granted their unopposed motion to file an amended 

complaint. More than one year later, plaintiffs filed their amended complaint, 

which included forty-one counts and bore little resemblance to the proposed 
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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 the 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 almost 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 afforded "plaintiffs some 

independent right of action against Kintock for actions of the DOC." Rather, 

under the provision, "if somehow the DOC is held liable 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 plaintiffs were embarrassed and 

humiliated by the searches, the judge found there was 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 there 
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was no evidence of any "willful" or "wanton disregard of persons" 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 intervene during the DOC's strip searches. All 

other counts were dismissed. 

Shortly thereafter, Judge Swift issued a cogent written decision, granting 

Kintock's motion in its entirety. The judge reiterated that Kintock owed a duty 

of care to its residents and reasoned a significant public interest supported that 

finding because Kintock was "housing the residents as a place of confinement." 

Turning to the remaining elements of a negligence action, 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 demeaning 

strip search that took place in a public portion of

Kintock's facility while in the presence of many other 

residents. However, the strip search was not carried out 

by any Kintock employees, and was not done under the 

direction of anyone at Kintock. Kintock'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 itself was 

done entirely by NJDOC staff. As the perpetrators of 

the action in question, it is the NJDOC that could 
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possibly be found to be the proximate cause of 

[p]laintiff[s'] injuries, not the Kintock staff. There is 

no evidence to support the idea that Kintock['s] actions 

could be the proximate cause of [p]laintiff[s'] damages. 

The judge therefore held Kintock was not liable under a negligence theory. See 

e.g., Robinson v. Vivirito, 217 N.J. 199, 208 (2014) (reiterating "[t]he 

fundamental elements of a negligence claim are a duty of care owed by the 

defendant to the plaintiff, a breach of that duty by the defendant, injury to the 

plaintiff proximately caused by the breach, and damages"). 

Judge Swift also rejected plaintiffs' contentions that 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 that duty to 

plaintiffs. The judge acknowledged plaintiffs' argument that Kintock's legal 

authority to detain residents obligated the facility to follow "all relevant laws, 

regulations, and guidelines." However, the judge recognized the lack of 

authority "support[ing] the notion that employees of a halfway home have 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 right for NJDOC to perform 

searches completely at the discretion of NJDOC, without prior notice to 

Kintock." The judge distinguished the Third Circuit's decision in Smith v. 
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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 to intervene when a 

constitutional violation takes place in his [or] her presence if there exists a 

'realistic and reasonable opportunity to intervene.'" Noting "the credible 

evidence" in the record and affording plaintiffs the benefit of "all rational 

inferences," the judge determined "it [wa]s not realistic or reasonable that a 

civilian employee of Kintock would have authority to 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 that 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' constitutional rights, and the administrative 

regulations and Attorney General Guidelines governing strip searches conducted 

by the DOC. Plaintiffs also assert the judge failed to decide certain claims and 

erroneously decided others. 
10 A-2628-21

After de novo review, Conforti v. County of Ocean, 255 N.J. 142, 162 

(2023), we reject plaintiffs' unsupported claims. We affirm the order under 

review substantially for the well-founded reasons expressed by Judge Swift in 

his accompanying oral and written decisions. Having employed the same 

standard as the judge, we conclude there are no material factual disputes and 

defendant is entitled to judgment as a matter of law. 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 warrant 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 Kintock's employees acted

"under color of state law," or they assumed responsibility for the DOC's actions 

under the 2013 contract and, as such, they assumed the risk for the DOC's 

constitutional violations. Plaintiffs' claims are mistakenly premised on their 

misconception that they were beneficiaries under the contract, or the designation 

of the Kintock facility under N.J.S.A. 30:4-91.2 imputed liability to Kintock for 

the DOC's actions. Plaintiffs cite no authority to support their claims, and we 

have found no such precedent. 

It is beyond peradventure that "no constitutional deprivation occurs 

without State action." Santa Barbara v. Heart of Cedar Lane, 226 N.J. Super. 
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509, 511 (App. Div. 1988) (citing Callen v. Sherman's Inc., 92 N.J. 114, 123-24 

(1983)). Under both 42 U.S.C. § 1983, and the New Jersey Civil Rights Act 

(CRA), N.J.S.A. 10:6-1 to -2, a plaintiff must establish 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, "the person acting under 

the color of law," that has caused the alleged deprivation.'" AmeriCare 

Emergency Med. Serv., Inc. v. City of Orange Twp., 463 N.J. Super. 562, 574 

(App. Div. 2020) (quoting Rezem, 423 N.J. Super. at 114). "Next the 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 violations of an individual's 

substantive rights only lie against persons acting under "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 County 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 accomplished through their 

cooperation with a state actor. For example, "a challenged activity may be state 
12 A-2628-21

action . . . when a private actor operates as a 'willful 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. Edmondson Oil Co., 457 U.S. 

922, 941 (1982)). However, a private action "is not converted into one under 

color of state law merely by some tenuous connection to the state action." 

Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). 

In the present matter, 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 Kintock participated in the DOCconducted strip searches, other than Kintock "aided in directing some of the 

residents to the area of the facility where the strip search took place." Further, 

the DOC contractually reserved full authority to conduct all searches at the 

facility without notice to Kintock. Thus, there is no evidence in the record to 

suggest the strip searches were conducted as a "joint activity" between the DOC 

and Kintock. 

Affirmed.