NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOAN MULLIN, ADMINISTRATRIX OF 

THE ESTATE OF ROBERT MULLIN, 

deceased, and JOAN MULLIN, individually,

 Plaintiff,

 v.

ADMINISTRATOR KAREN BALICKI, et al.,

 Defendants.

 CIVIL ACTION NO. 11-247 (MLC)

 MEMORANDUM OPINION

COOPER, District Judge

Plaintiff Joan Mullin, individually and as administratrix of the estate of her son, 

Robert Mullin (“Mullin”), commenced this action against the following defendants in their 

“personal, individual and professional capacities” who represent the Department of 

Corrections of the State of New Jersey, South Woods State Prison, and Central Reception 

and Assignment Facility (“CRAF”): Administrator Karen Balicki; Director Robert Patterson; 

and Director Marie Dunlap-Pryce. (See dkt. 102.)1 Plaintiff further brought this action 

against the following defendants in their “personal, individual and professional capacities”: 

Jane Byrd, LPN (“Byrd”); Erin Marusky, RN (“Marusky”); Officer Dimler; and Beatrice 

Teel, RN. (See id.) Plaintiff also named the Kintock Group and Mercer County as 

defendants. (See id.)

 

1 The Court will cite to the documents filed on the Electronic Case Filing System (“ECF”) by referring 

to the docket entry numbers by the designation of “dkt.” Pincites reference ECF pagination.

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Byrd now moves for summary judgment on all claims asserted against her. (See dkt. 

234.) Plaintiff opposes the motion. (See dkt. 241.) The Court will determine the motion on 

the papers and without oral argument pursuant to Local Civil Rule 78.1(b). For the reasons 

stated below, the Court will grant Byrd’s motion.

BACKGROUND

I. Factual History

The Court assumes the parties’ familiarity with the facts underlying this action and 

will provide a brief overview of the facts pertaining to this motion.2 Plaintiff’s allegations 

arise out of Mullin’s suicide while incarcerated at CRAF. (See generally dkt. 45.)

A. CRAF Medical Screening Policy

Pursuant to CRAF’s medical screening policy, a newly admitted inmate is screened 

by the medical staff within four hours of arrival. (See dkt. 234 at 6; dkt. 241 at 11; see also

dkt. 241-24 at 2–8.) The medical screening is documented in CRAF’s electronic medical 

records. (See dkt. 234 at 6; dkt. 241 at 13.) If an inmate responds affirmatively to a mental 

health item during the screening, the inmate is flagged as “special needs” and the screening 

nurse must immediately refer the inmate to the Lead Psychologist or designee for further 

mental health evaluations. (See dkt. 234 at 6; dkt. 241 at 13.) This psychological follow-up

must occur within seventy-two hours of the medical screening. (See dkt. 234-5 at 27.) If the 

screening nurse makes a referral of an “emergent nature,” the inmate will be placed under 

“close or constant watch.” (See dkt. 234 at 6; dkt. 241 at 11.) An emergent referral requires

 

2 The Court incorporates by reference its November 1, 2013 Memorandum Opinion, which provides a 

detailed account of the facts and procedural history of this action. (See dkt. 153.)

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a psychological evaluation of the inmate within four hours of the medical screening. (See

dkt. 234-5 at 27–28.) The inmate will remain under “close or constant watch” until such an 

evaluation is made. (See id.) 

Byrd’s testimony indicates that she had knowledge of these policies. (See dkt. 234-5 

at 19–23; dkt. 241-14 at 3.) For those policies that Byrd could not recall, she testified that 

her practice was always to report to her supervisor. (See dkt. 241-15 at 8.) Byrd was trained 

on how to identify special needs inmates, and was aware of the electronic medical recording 

requirements regarding special needs inmates. (See dkt. 234-5 at 19; dkt. 241-14 at 5.) Byrd 

testified that before beginning each medical screening, she checked the inmate’s medical 

records for any mental health history. (See dkt. 241-14 at 8–10.) Byrd stated that she did not 

read an inmate’s entire electronic medical record, but rather searched for whether the inmate 

was designated as special needs at another facility, or otherwise had a mental health history 

indicator on the file. (See id.)

Byrd also testified that she was aware of the repercussions of designating an inmate as 

special needs, i.e., that it would trigger “specific actions regarding how one is to be handled 

in an administrative detention.” (See dkt. 241-14 at 14.) Byrd also knew that she was 

required to document when an inmate exhibited signs of self-harm or a desire to harm others, 

and to immediately report it to her supervisor. (See dkt. 234-5 at 20.) Byrd testified that she 

did not determine inmates’ housing assignments, and that this was the role of her supervisor. 

(See dkt. 241-14 at 4.) Byrd also testified that she did not have control over when the 

psychologist would see an inmate, besides referring an inmate to her supervisor when she felt

the inmate needed emergent care. (See dkt. 241-14 at 12.) 

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B. Mullin’s January 2009 Intake

In January 2009, Mullin was removed from a halfway house and taken into the 

custody of the New Jersey Department of Corrections after being found under the influence 

and in possession of cocaine and opiates. (See dkt. 234 at 5; dkt. 241 at 6–7.) Mullin was 

taken to CRAF on January 14, 2009. (See dkt. 234 at 4.) Mullin first met with a social 

worker and requested to be placed on special needs status for his anxiety. (See id. at 5–6.) 

The social worker listed him on the special needs roster and referred him to a psychiatrist for 

possible anxiety medication. (See id.; dkt. 241 at 9.) On January 16, 2009, Byrd conducted 

a four-hour medical screening of Mullin. (See dkt. 234 at 6; dkt. 241 at 10.) The mental 

health portion of the intake and Mullin’s responses are reproduced below: 

Question Answer

Are you currently or have you ever been on 

psychiatric medication?

No

Have you ever been hospitalized or treated 

for mental illness?

Yes, anxiety and depression – 2006

Are you thinking about killing yourself? No

Have you ever attempted suicide? Yes, 4 years ago

Has any member of your immediate family 

made a serious suicide attempt or 

committed suicide?

No

Did you hold a position of authority in the 

community?

No

Was your case a shocking crime or given 

media attention?

No

Do you feel hopeless about your future? Yes

Have you experienced a significant loss, 

such as the loss of a job you valued or the 

loss of a significant relationship, or death of 

someone close to you in the past 6 months?

No

(Dkt. 241-12 at 3.)

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During the screening, Byrd noted that Mullin did not refuse to answer questions, and 

did not cry, talk to himself, have noticeable scars on his wrist or neck, or appear agitated. 

(See id.) Following Byrd’s screening, Marusky cleared Mullin for placement in CRAF’s 

Temporary Close Custody Unit. (See dkt. 234 at 7.)3 On January 17, 2009, Mullin 

committed suicide in his cell. (See dkt. 153 at 6.) He was pronounced dead at 4:49 a.m. 

(See id.) 

II. Procedural History

Plaintiff filed the second amended complaint on September 21, 2012. (See dkt. 102.) 

Plaintiff alleged several federal constitutional claims pursuant to 42 U.S.C. § 1983 (“Section 

1983”), as well as analogous claims under the New Jersey Constitution pursuant to the New 

Jersey Civil Rights Act (“NJCRA”). (See id. at 9–14.) See also N.J.S.A. 10:6-2. Plaintiff

also set forth various claims arising under common law, such as negligent hiring, intentional 

and negligent infliction of emotional distress, abuse of process, and medical malpractice. 

(See dkt. 102 at 9–14.)

Mercer County was dismissed from the action by stipulation of the parties on March 

22, 2011. (See dkt. 15.) Plaintiff agreed to the dismissal of the claims against Marusky by 

order of the Court on May 2, 2013. (See dkt. 139.) All claims against Administrator Karen 

Balicki, Director Robert Patterson, Director Marie Dunlap-Pryce, Officer Dimler, and 

Beatrice Teel, RN were dismissed on November 1, 2013 by way of the Court’s order and 

 

3 The Temporary Close Custody Unit is designated for inmates who are removed from the general 

population for disciplinary or administrative reasons including rule infractions, alleged violations of 

prohibited acts, protective custody, or for special observation. (See dkt. 234 at 7.) Pursuant to CRAF 

policy, inmates in close custody are monitored by a custody officer every fifteen minutes. (See dkt. 

234-6 at 6.) 

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memorandum opinion (“11-1-13 Order & Opinion”). (See dkt. 153; dkt. 154.) The 11-1-13 

Order and Opinion also dismissed all common law claims against Byrd. (See id.) Kintock

Group was dismissed from the action by stipulation of the parties on November 13, 2015. 

(See dkt. 246.) Thus, Byrd is the only remaining defendant, and the only remaining viable 

claims are the alleged constitutional violation under the Eighth Amendment and the 

analogous provision of the New Jersey Constitution. 

DISCUSSION

I. Legal Standard

A. Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary judgment is proper “if the 

movant shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those “that 

could affect the outcome” of the proceeding, and “a dispute about a material fact is genuine if 

the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving 

party.” Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (internal citation and 

quotation omitted). This evidence may include “citing to particular parts of materials in the 

record” or a “showing that the materials cited do not establish the absence or presence of a 

genuine dispute, or that an adverse party cannot produce admissible evidence to support the 

fact.” Fed.R.Civ.P. 56(c)(1)(A)–(B). 

If the movant demonstrates an absence of genuinely disputed material facts, then the 

burden shifts to the non-movant to demonstrate the existence of a genuine issue for trial. See

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). 

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“Where the record taken as a whole could not lead a rational trier of fact to find for the non–

moving party, there is no genuine issue for trial.” Id. (internal quotation marks omitted). 

The non-movant must show the existence of issues for trial by referring to the record. See

Fed.R.Civ.P. 56(c)(1).

When determining whether a genuine dispute of material fact exists, the Court must 

view the evidence in the light most favorable to the non-movant and draw all reasonable 

inferences in that party’s favor. See Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. 

Potter, 476 F.3d 180, 184 (3d Cir. 2007). If the non-movant fails to demonstrate that at least 

one genuine factual dispute exists for trial, then the Court must determine whether the 

movant is entitled to judgment as a matter of law. See McCann v. Unum Provident, 921 

F.Supp.2d 353, 357 (D.N.J. 2013). “A movant is entitled to judgment as a matter of law if, at 

trial, no reasonable jury could find for the non-moving party.” Id.

B. Section 1983

A plaintiff may have a cause of action under Section 1983 for certain violations of 

constitutional rights. Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, 

or usage, of any State or Territory or the District of Columbia, subjects, or 

causes to be subjected, any citizen of the United States or other person within 

the jurisdiction thereof to the deprivation of any rights, privileges, or 

immunities secured by the Constitution and laws, shall be liable to the party 

injured. . . .

42 U.S.C. § 1983.

To state a claim for relief under Section 1983, a plaintiff must allege: (1) the violation 

of a right secured by the Constitution or laws of the United States; and (2) that the alleged 

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deprivation was committed or caused by a person acting under color of state law. See

Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011). “The traditional 

definition of acting under color of state law requires that the defendant in a § 1983 action 

have exercised power possessed by virtue of state law and made possible only because the 

wrongdoer is clothed with the authority of state law.” West v. Adkins, 487 U.S. 42, 49 

(1988) (internal quotation omitted). Further, “a public employee acts under color of state law 

while acting in his official capacity or while exercising his responsibilities pursuant to state 

law.” Id. at 50.

This Court discussed at length in its 11-1-13 Opinion the circumstances under which 

the United States Court of Appeals for the Third Circuit (“Third Circuit”) recognizes that a 

court may impose liability under Section 1983 for prison suicides. (See dkt. 153 at 23–33.) 

See also Colburn v. Upper Darby Twp., 946 F.2d 1017 (3d Cir. 1991) (hereinafter “Colburn 

II”); Colburn v. Upper Darby Twp., 838 F.2d 663 (3d Cir. 1988). A plaintiff bringing a 

Section 1983 claim based on a prison suicide must establish three elements: “(1) the detainee 

had a particular vulnerability to suicide, (2) the custodial officer or officers knew or should 

have known of that vulnerability, and (3) those officers acted with reckless indifference to 

the detainee’s particular vulnerability.” Colburn II, 946 F.2d at 1023 (internal quotation 

omitted). 

A particular vulnerability to suicide exists if the suicide was “a strong likelihood, 

rather than a mere possibility.” Colburn II, 946 F.2d at 1024. The Third Circuit defined a 

strong likelihood as follows: 

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The strong likelihood of suicide must be “so obvious that a lay person would 

easily recognize the necessity for preventative action; the risk of self-inflicted 

injury must be not only great, but also sufficiently apparent that a lay 

custodian’s failure to appreciate it evidences an absence of any concern for the

welfare of his or her charges.

Id. at 1025 (internal citation and quotation omitted).

“[I]t is clear that mere negligence on the part of prison officials is insufficient to 

establish a claim pursuant to § 1983.” Kulp v. Veruete, 267 Fed.Appx. 141, 143 (3d Cir. 

2008); see also Hinton v. United States, No. 14-854, 2015 WL 737584 (M.D. Pa. Feb. 20, 

2015) (granting summary judgment for prison officials because there was not “strong 

likelihood” that decedent might have committed suicide, as decedent had not demonstrated

suicidal ideation in six years). 

C. NJCRA

The NJCRA provides, in part:

Any person who has been deprived of any substantive due process or equal 

protection rights, privileges or immunities secured by the Constitution or laws 

of the United States, or any substantive rights, privileges or immunities 

secured by the Constitution or laws of this State . . . may bring a civil action 

for damages and for injunctive or other appropriate relief.

N.J.S.A. 10:6-2. 

The NJCRA is interpreted as analogous to Section 1983. See, e.g., Szemple v. Corr.

Med. Servs., 493 Fed.Appx. 238, 241 (3d Cir. 2012); Trafton v. City of Woodbury, 799 

F.Supp.2d 417, 443 (D.N.J. 2011); Rezem Family Assocs., LP v. Borough of Millstone, 423 

N.J.Super. 103, 115 (N.J. App. Div. 2011). Plaintiff bases the NJCRA claim on Article I, 

Paragraph 12 of the New Jersey Constitution, which provides, in relevant part: “Excessive 

bail shall not be required, excessive fines shall not be imposed, and cruel and unusual 

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punishment shall not be inflicted.” N.J. Const. Art. I, Para. 12. This provision of the New 

Jersey Constitution is interpreted as corresponding to the Eighth Amendment. See Edwards 

v. Power, No. 07-4121, 2014 WL 5092916, at *5 (D.N.J. Oct. 10, 2014); see also State v. 

Des Marets, 92 N.J. 62, 82 (1983). 

II. Analysis

A. Section 1983

Plaintiff is first required to show that Mullin had a “particular vulnerability to

suicide.” See Colburn II, 946 F.2d at 1024. “[T]he requirement of reckless or deliberate 

indifference implies that there must be a strong likelihood, rather than a mere possibility, that 

self-inflicted harm will occur.” Id. (internal quotations omitted). In support of this first 

factor, Plaintiff argues that there was a strong likelihood of suicide in the present case 

because Mullin was a special needs inmate, “had a history of suicide,” and answered “yes” to 

when asked if he felt hopeless during the medical screening. (See dkt. 241-1 at 11.) 

Byrd argues that Mullin was classified as special needs due to his anxiety. (See dkt. 

244 at 6.) She further argues that Mullin denied wanting to hurt himself, was not currently 

taking any psychiatric medications, and did not present himself with any emergent conditions 

or suicidal ideation that would require an immediate psychological referral. (See dkt. 234-1 

at 9.) 

The Court finds that Mullin’s previous suicide attempt reflects past suicidal ideation. 

See Estate of Cills v. Kaftan, 105 F.Supp.2d 391, 398 (D.N.J. 2000). But the Third Circuit 

instructs that a decedent’s particular vulnerability to suicide must be a “strong likelihood” for 

the purpose of Section 1983 liability to attach. Colburn II, 946 F.2d at 1024. Here, Mullin 

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indicated during his medical screening that he did not want to harm himself. (See dkt. 241-

12 at 3.) This answer was consistent with Mullin’s statement to a nurse and the social 

worker two days prior. (See dkt. 234-1 at 7.) Mullin had no other suicide attempts in the 

intervening years. (See id.) He was not “acting irate, talking to himself, crying, [or] 

belligerent” during the medical screening, and thus immediate psychological help was not

necessary under CRAF policy. (See dkt. 241-14 at 12.) 

Moreover, Mullin’s acknowledgement of feeling hopeless about his situation is not 

unusual given the circumstances: he had previously been serving his sentence in a halfway

house, and was sent to CRAF for a violation of probation when he was found in possession 

and under the influence of cocaine and opiates. (See dkt. 240 at 6.) Although Mullin’s past 

suicide attempt may illustrate a mere possibility of suicide, Plaintiff has not presented further 

evidence showing that this suicide attempt made Mullin’s suicide a “strong likelihood” as 

required under Colburn II. See Colburn II, 946 F.2d at 1024. The Court, when viewing this

evidence in favor of Plaintiff, does not find that there was a strong likelihood of suicide given 

the facts above.

Plaintiff must next show that the strong likelihood of suicide was so obvious that a 

layperson would easily recognize the necessity for preventative action. See id. at 1025. 

“Custodians have been found to ‘know’ of a particular vulnerability to suicide when they 

have had actual knowledge of an obviously serious suicide threat, a history of suicide 

attempts, or a psychiatric diagnosis identifying suicidal propensities.” Id. at n.1. Here, 

Plaintiff argues that Byrd knew or should have known of the strong likelihood of suicide 

because Mullin was designated as a special needs inmate “within hours prior to his 

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evaluation by Nurse Byrd.” (See dkt. 241-1 at 9.) At the same time, Plaintiff argues that 

Byrd was under a “duty to specifically put in the chart the classification of Mullin as a 

Special Needs inmate.” (See id. at 10.) Byrd argues that she could not know of a strong 

likelihood of suicide in this case because “Mullin did not demonstrate any suicidal ideation 

in the four-year period prior to his death.” (Dkt. 234-1 at 7.)

A fair reading of the record indicates that an inmate can be designated as special 

needs when he or she “meets criteria of axis I and/or axis II disorder per the most recent 

edition of the Diagnostic and Statistical Manual (DSM) which interferes with the inmate’s 

ability to meet the functional requirements of prison life without mental health treatment.” 

(See dkt. 241-24 at 3.) Thus, special needs status does not equate to suicide risk. Here, there 

was no obvious suicide threat, no history of repeated suicide attempts, or no psychiatric 

diagnosis identifying suicidal propensities. Colburn II, 946 F.2d at 1025 n.1. It is also 

inapposite that Byrd herself did not designate Mullin as special needs, as the social worker 

had already added Mullin to the special needs roster two days prior. (See dkt. 234 at 5–6; 

dkt. 241 at 9.) Moreover, pursuant to CRAF policy, Byrd indicated that Mullin required a

psychological follow-up because of his affirmative response to one of the mental health 

items during her screening.

4

 Even if the Court found that there was a strong likelihood of 

suicide in this case, the Court cannot conclude that a reasonable jury would find that Byrd 

 

4 Plaintiff also argued that Byrd was “specifically aware that the failure to properly designate the 

inmate and notify mental health could result in suicide.” (See dkt. 241-1 at 10.) This argument is 

conclusory. See Colburn II, 946 F.2d at 1027 (“Only an exercise in impermissible judicial hindsight 

could justify holding [these officers] responsible for [the subsequent] suicide.”). The record indicates 

that Mullin was already designated as a special needs inmate by the social worker, and that Byrd had 

requested a psychological follow-up for Mullin. (See dkt. 234 at 5–6; dkt. 241 at 9.)

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knew or should have known of this strong likelihood based upon Mullin’s designation as 

special needs. 

Lastly, Plaintiff must show that the prison officers “acted with reckless indifference to 

the detainee’s particular vulnerability.” See Colburn II, 946 F.2d at 1023 (internal quotations 

omitted). “[T]here can be no reckless or deliberate indifference to that risk unless there is 

something more culpable on the part of the officials than a negligent failure to recognize the 

high risk of suicide.” Id. at 1025. The record reflects that Byrd understood the CRAF 

policies on medical screenings and the mental health needs of inmates. See Background, 

Section I.A., supra. There is no evidence indicating that Byrd deviated from these policies, 

i.e., acted culpably, with respect to Mullin. Rather, the record indicates that Byrd followed 

protocol by properly indicating that Mullin required a psychological follow-up because of his 

special needs status and his affirmative response to one of the screening questions. This was 

the extent of Byrd’s interaction with Mullin; she played no role in his placement within 

CRAF. Thus, the Court finds that the alleged conduct of Byrd does not amount to reckless or 

deliberate indifference. 

The Court concludes that Plaintiff has not presented evidence from which a jury could 

reasonably conclude that: (1) Mullin had a particular vulnerability to suicide; (2) Byrd knew 

or should have known of the decedent’s particular vulnerability to suicide; and (3) Byrd

acted with reckless indifference to that vulnerability, such that Byrd is liable under Section

1983. 

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B. NJCRA

Claims asserted under the NJCRA are analyzed analogously to Section 1983 claims. 

See Discussion, Section I.C., supra. Moreover, Plaintiff has alleged violations of Article 1, 

Paragraph 12 of the New Jersey Constitution, which corresponds to the Eighth Amendment. 

See id. Because Plaintiff’s Eighth Amendment claim under Section 1983 fails, and Plaintiff 

has not presented another theory of liability under the NJCRA, the Court will grant Byrd’s 

motion for summary judgment as to the NJCRA claims asserted against her. 

CONCLUSION

The Court, for the reasons stated, will grant the pending motion for summary 

judgment and enter judgment in favor of Defendant Byrd. The Court will issue an 

appropriate order and judgment.

 s/ Mary L. Cooper .

MARY L. COOPER

United States District Judge

Dated: May 25, 2016

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