@2/18/2612 12:32 973: 483: P
Case 3:11-cv-00247-MLC-LHG -Document 74-3 Filed 04/02/12 Page 37 of 66 Pagel: 908

PROOF OF SERVICE

On I, the undersigned, being over the age of 18, served the within
Subpoena by delivering a copy thereof to the person named therein, via certified mail return
receipt requested at and by tendering to such person the attendance

fee of $ and mileage of $ as allowed by law.

I certify that the foregoing statements made by me are true. 1 am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

Dated:

Address for Service:


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 46 of 66 PagelD: 917
Page 5

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

occurred between Lutes and Costello's son, a special officer in the Seaside Heights Police Department, that he was
thinking of removing Lutes from the Central ERT because of his “drinking and taking pills”. However, Lutes was
never referred for counseling, nor was any internal affairs investigation ever initiated. Plaintiffs’ Stmt. of Material
Facts at Ff 234, 235.

*5 There is some evidence in the record that Dover Township Police Department was also aware of Lutes’ alco-
hol problem. Dover Township police officer Louis Sulsenti testified that sometime prior to April of 2001, Lutes’
brother asked him to speak with Lutes about his drinking. Plaintiffs’ Stmt. of Material Facts at §§ 250-256. Sulsenti
subsequently engaged Lutes in small talk at a Dover Township bar and after observing Lutes’ conduct formed an
opinion that Lutes indeed had a drinking problem. /¢. Thereafter, Officer Sulsenti attempted to file what is known as
a hazard report about Lutes. /d. at | 257. A hazard report is designed to warn police officers about a person or a loc-
ation that might pose a danger to an officer's safety. Sulsenti was informed by Dover Township Lieutenant Gerding
several days later that the hazard report would not be filed. /d. at § 259. According to Sulsenti, Gerding informed
him that the commander of the Dover Township ESU team, Jeff Kettig, had ordered that the hazard report not be
filed. /d., Ketting recalled that the only concern raised by Sulsenti was limited to an allegation that Lutes was in-
volved in some sort of altercation with a waitress in a restaurant. Id. at § 263. Ketting denied that Gerding had re-
layed to him any concern about Lutes' consumption of alcohol. fd. Gerding testified that he also informed Captain
Chaney of the Seaside Heights Police Department of Sulsenti's concern over Lutes' drinking habits. Jd. at {| 266, No
other action was taken and Lutes' participation in the Central ERT remained unchanged.

From April 27, 2000 through March 28, 2002, Lutes voluntarily sought psychiatric treatment with Mohamed H.
Yosry, M.D., a board certified psychiatrist. Dover Twp. Stmt. of Material Facts at 4 24. Lutes attended sixteen (16)
sessions with Dr. Yosry during which Yosry prescribed the following medications: Fluvoxamine, Clonazapam,
Trazodone, Sonata, Celexa, Neurontin, Serzone, Zoloft, Remeron, Paxil and Buspar. /d. The Seaside Heights Police
Department did not have any policies, procedures, orders, or regulations that addressed the issue of an officer's ob-
ligation to report treatment by a mental health professional, and Lutes never notified Seaside Heights of his psychi-
atric treatement. Plaintiffs! Stmt. of Material Facts at § 141. Yosry testified during discovery that he was aware of
Mansuy's death, that Lutes had accused Galliano of the sexual assault of his daughter and that he was experiencing
financial difficulties, but that he at no time believed Lutes to be a danger to himself or others. Dover Twp. Stmt. of
Material Facts at § 35; Yosry Dep. T19:14-20:4.

Aside from the testimony of Gail Galliano at her husband's trial in 2001, there is some testimony in the record
that Lutes had verbalized his intention to kill Dominick Galliano. Lutes' sister testified that sometime between
March and December of 2001, Lutes invited his sister to go out to a bar with him because he felt the need to kill
Dominick Galliano if he remained in the house. Plaintiffs' Stmt. of Material Facts at § 248. Additionally, on April 5,
2002, Lutes, apparently in need of money, sent an e-mail to local businessman Tom Bergstrom requesting to borrow
$10,000. In his e-mail, Lutes wrote the following “BUY [sic] THE WAY MY NEIGHBOR WAS THE SCUM BAG
THAT ATTEMPTED THE SEXUAL ASSAULT AND YOU CAN REALIZE HOW HARD IT IS TO LIVE NEXT
TO HIM WITHOUT KILLING HIM EVEN AFTER HE WAS FOUND NOT GUILTY.” Plaintiffs’ Stmt. of Mater-
ial Facts at | 392; Ex. C at OCPO0310 to OCPO0311. Ruth Ann Rogan, Lutes' then fiancé, also testified that Lutes
frequently commented that he hated Dominick Galliano and was “going to blow that mother * * * brains out.”
Plaintiffs' Stmt. of Material Facts at § 368; Ex. Il, Rogan at 40-17 to 41-15. There is no indication in the record that
the Defendants were aware of any of the foregoing statements by Lutes.

*6 The only indication in the record that Defendants Seaside Heights and Costelio were indeed aware of Lutes’
stated intention to kill the victims stems from the testimony of Seaside Heights police officer, Joseph Minialga. Ac-
cording to Minialga's testimony, two weeks prior to the shootings, Lutes stated in Minialga’s presence that he inten-
ded to kill Dominick Galliano and Gary Williams, Plaintiffs’ Stmt. of Material Facts at 4] 370. According to Mini-
alga, he immediately reported Lutes’ statements to Captain James Chaney, the second in command. Thereafter

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 14 of 66 PagelD: 885

Service of process was insufficient.

TWELFTH SEPARATE DEFENSE

This Defendant incorporates herein all defenses by the original Defendant(s) and any co-
Defendant presently or hereafter filed.

THIRTEENTH SEPARATE DEFENSE

Nurse Byrd is employed at all time relevant by The University of Medicine and
Dentistry of New Jersey, a charitable corporation and is entitled to the immunities provided by
| the laws of the State of New Jersey.

FOURTEENTH SEPARATE DEFENSE

The New Jersey Tort Claims Act (N.J.S.A. 59:1-1, ef seg.), including but not limited to
the following: N.J.S.A, 59:2-3 and 5:3-2; N.L.S.A. 59:2-4, 59:3-3 and 59:3-5;_N.LS.A. 59:2-5

and 59:3-6, N.LS.A. 59:2-6 and 57:3-7; N.ILS.A, 59:5-1; N.LS.A. 59:5-3; NuLS.A. 59:5-4;

N.LS.A. 59:6-3; N.J.S.A. 59:6-4 and N.LS.A. 59:10-1 ef seg. bars recovery for this action.

FIFTEENTH SEPARATE DEFENSE

This claim is barred by reason of the failure to comply with the notice provisions of the

Tort Claims Act, more specifically N.L.S.A, 59:8-1 through 8-11.

2SIXTEENTH SEPARATE DEFENSE

At all times relevant hereto, Answering Defendant has acted in good faith and without
| fraud or malice.

SEVENTEENTH SEPARATE DEFENSE

Answering Defendant has not deprived Plaintiff of any right, privilege or immunity
secured to them by the United States Constitution or any Act of Congress.

5
i
i
i
1

EIGHTEENTH DEFENSE



Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 56 of 66 PagelD: 927
Page 15

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

Lutes’ “deteriorating mental condition”.

EN17. While the Court makes no evidentiary ruling on the instant motions, the Court notes that Plaintiffs’
contention that Minialga's testimony regarding Chaney's statement to Costello is not hearsay is incorrect.
Plaintiffs’ reliance on Fed.R.Evid. 801(d)(2)(A) is misplaced. It is irrelevant that Costello is a party oppon-
ent and that Chaney was acting as his agent here where the statement at issue is Chaney's statement that he
informed Costello of the threat. Moreover, the Court does not agree that the cited exceptions to the hearsay
rule, Fed. R.Evid, 803(1), 803(3), 803(8), 804(3) or 807, would be applicable.

As to Dover Township, Plaintiffs point to the numerous incidents that occurred there that could support a find-
ing that the Galliano family was in a discrete class of persons who were subject to potential harm by Lutes. The
Court agrees. While the evidence may be somewhat more tenuous than knowledge of Lutes' threats two weeks prior
to the killings, the number and character of the incidents occurring in Dover Township in the years preceding the
killings leads the Court to the conclusion that the evidence can support a finding in favor of Plaintiffs as to the third
element of the state-created danger test. Indeed, Dover officers were clearly aware of the criminal allegations made
by Lutes' daughter against Dominick Galliano and the projections on Lutes’ home that “every dad has his day.”
Moreover, there were the repeated incidents of criminal mischief reported to Dover Township in which the Galliano
and Williams families informed Dover officers that they suspected Lutes.

d, Creating the Opportunity for Harm

“[U]nder the fourth element of a state-created danger claim, ‘[IJiability ... is predicated upon the states’ affirmat-
ive acts which work to the plaintiffs’ detriments in terms of exposure to danger.’ “ Bright v. Westmoreland County,
443 F.3d 276, 282 (3d Cir.2006\(quoting D.R. by L.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, 1374
(3d Cir.1992)). “While we have acknowledged that the line between action and inaction may not always be clear,
D.R., 972 F.2d at 1374, we have never found a state-created danger claim to be meritorious without an allegation
and subsequent showing that state authority was affirmatively exercised.” /d.

*17 As this circuit has recently noted

Failures to act cannot form the basis of a valid § 1983 claim. See e.g., Bright, 443 F.3d at 283-84 (failure to hold
revocation hearing for an individual in violation of his parole prior to his killing an eight-year old girl); [ Morse v.
Lower Merion School District, 132 F.3d 902, 907-08] (failure to prevent mentally disturbed individual from enter-
ing school and attacking teacher); Searles, 990 F.2d at 794 (failure to maintain railcars in a safe condition); D.R.
by L.R.. 972 F.2d at 1376 (failure of school officials to investigate and stop instances of sexual abuse of students);
Brown ». Grabowski, 922 F.2d 1097 (3 Cir.1990)(failure to file criminal charges against individual who re-
peatedly threatened and assaulted former girlfriend, despite reports to the police by the victim and her family.)

{ Kaucher, supra, 455 F.3d at 433 n. 11.} “It is the misuse of state authority, rather than a failure to use it, that
can violate the Due Process Clause.” Bright, supra, 443 F.3d at 282. “But a specific and deliberate exercise of state
authority, while necessary to satisfy the fourth element of the test, is not sufficient. There must be a direct causal re-
lationship between the affirmative act of the state and plaintiffs harm. Only then will the affirmative act render the
plaintiff ‘more vulnerable to danger than had the state not acted at all.” “ Kaucher, supra, 455 P.3d at 432 (quoting
Bright, supra, 443 F.3d at 281). “The fourth element is satisfied where the state's action was the ‘but for cause’ of
the danger faced by the plaintiff.” /d.

Plaintiffs assert that the Defendants knowingly and consciously engaged in affirmative acts to permit Lutes to
have and continue to possess the MP-S, Specifically, Plaintiffs allege:

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 54 of 66 PagelD: 325

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

EN14, Chief Costello denies that Chief Mastronardy informed him of the incident prior to the April 2002
shootings, however, any dispute in this regard creates an issue of material fact which precludes the grant of
summary judgment.

With regard to Dover Township, the Plaintiffs argue that the evidence of foresecability is equally compelling.
Plaintiffs point to the deposition testimony of Dover Township Officer Sulsenti that he attempted to file the hazard
report identifying Lutes as a danger to officers due to his alcohol abuse and access to high-powered weapons, but
was instructed by his superiors that the report would not be filed. Additionally, Plaintiffs point to the fact that (1)
Dover officers in charge of the Central ERT took no adverse action despite Lutes’ absences from mandatory training
sessions; (2) Dover officers were aware of allegations by the Williams and Gallianos through their criminal mischief
complaints that Lutes was targeting them for retribution; (3) Chief Mastronardy was aware that Lutes was listed as a
suspect in a criminal mischief matter in Dover Township 5; (4) Dover officers were aware of the criminal allega-
tions made by Lutes’ daughter against Dominick Galliano; and (5) Dover officers were aware of the projections on
Lutes' house proclaiming that “every dad has his day”. In connection with the incidents involving the hazard report
and the removal of Lutes' name from a criminal mischief report, Plaintiffs further argue that Dover Township af-
firmatively squelched attempts to warn others that Lutes was a danger. The Court finds that while the issue of fore-
seeability of harm to the Gallianos may be a close one with respect to Dover Township, Plaintiffs have presented
sufficient evidence to require submission of the issue to the jury. Indeed, it is the fact-finder's duty to weigh this
evidence. Hill v. City of Scranton, 411 F.3d 118, 125 Gd Cir.2005).

EN15. As previously noted, there is clearly a disputed issue of material fact regarding whether Mastronardy
ever communicated to Chief Costello that Lutes had been named as a suspect in a report involving criminal
mischief.

Plaintiffs' claims regarding Ocean County are less than compelling. Plaintiffs assert that Ocean County created
a duty to supervise Lutes when it created the Central ERT. By appointing Dover Township as the “nucleus of the
county's central regional tactical team”, Plaintiffs argue that Dover Township was its agent in connection with all
matters related to the operation of the Central ERT and is therefore chargeable with all knowledge about Lutes at-
tributable to Dover Township. Plaintiffs’ Br. at 46. Moreover, Plaintiffs argue that the County received attendance
reports in connection with mandatory training sessions and that knowledge of Lutes' faltering attendance is therefore
attributable to Ocean County as well. Plaintiffs also point to Ocean County's knowledge of the harassing comments
made by Lutes toward employees of Community Medical Center following the death of his fiancé in February 2001.
Finally, Plaintiffs cite to the fact that the “County's agents” (presumably the prosecutor and the sheriff's officers)
were aware of Gail Galliano’s testimony at the 2001 trial of her husband that Lutes had threatened Dominick, Only
this last fact connects the decedents with Lutes. Viewing the facts and inferences in the light most favorable to
Plaintiffs, this Court disagrees that a reasonable jury could find that the harm likely to befall the Gallianos was fore-
seeable if Ocean County failed to take evaluative action in connection with the scant evidence alleged us

FN16. Because this Court finds that Plaintiffs have failed to establish the first clement of the state created
danger test with respect to the allegations against Ocean County, and because the Court finds, infra, that
Ocean County is entitled to summary judgment on the grounds that Ocean County may not be held liable
for the conduct of the Prosecutor's Office or the Sheriff's Office in connection with claims involving the
failure to supervise and discipline Lutes, the Court declines to determine whether Plaintiffs have estab-
lished the remaining three elements of the state-created danger test as to Ocean County.

b. Action that Shocks the Conscience
*15 With regard to the second factor, the Third Circuit has recently attempted to clarify the standard of culpab-
ility in substantive due process cases in Sanford y. Stiles, 456 F.3d 298, 309 3d Cir.2006) where it held that “in any

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works,


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 60 of 66 Pa eID: 931
age

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

Township based on the facts alleged. The Court is careful to note, however, that any finding of municipal liability
based on failure to train or supervise by these Defendants must be premised on the failure to properly supervise and
train its supervisory personnel rather than the failure to train Lutes as this Court's finding that Lutes was not acting
under color of state law precludes Plaintiffs from premising their municipal liability claim on the failure to train or
supervise him. See Hansell, supra, 152 F.Supp.2d at 610, n. 12 (citing Halwani v, Galli, No. Civ. A. 99-1450, 2000
WL, 968219 at *4(E.D.Pa. Jul. 13, 2000).

*21 In finding that Plaintiffs have alleged sufficient evidence to sustain a municipal liablity claim against Sea-
side Heights based upon the failure to supervise and train, the Court recognizes that Lutes was not a member of the
Dover Township Police Department, and therefore, Dover Township had no direct supervisory control over Lutes in
his capacity as a Seaside Heights Police Officer. However the Court finds that Plaintiffs have alleged sufficient evid-
ence to nevertheless sustain a claim against Dover Township on this basis given Lutes’ involvement with the Central
ERT. It is undisputed that Chief Mastronardy of the Dover Police Department was the designated Chairman of the
Leadership Panel for the Central ERT and that the Leadership Panel maintained responsibility for the organization
and management of the Central ERT. Moreover, it is undisputed that the Dover ESU was the only team that met the
standard to be recognized as a regional team in the Central Region and that Lutes trained solely with the Dover ESU.
Dover Township's contact with Lutes, particularly through Chief Mastronardy's role as Chairman of the Central
ERT, may therefore be viewed as supervisory in nature creating an obligation on the part of Dover Township to im-
plement sufficient policies for the supervision and training of its supervisory employees to fully investigate and de-
tect members of the Central ERT suffering from alcohol abuse, violent tendencies or deteriorating mental condi-
tions,

The Court finds, however, that Plaintiffs have failed to state a municipal liability claim against Defendant
Ocean County for the same reasons that Plaintiffs have failed to state a claim against the County under the state-cre-
ated danger doctrine. The Court simply does not find any agency relationship that would support a finding that
knowledge to Seaside Heights could be imputed to Ocean County. Moreover, the Central ERT training was conduc-
ted by Dover Township, not Ocean County. The scant evidence alleged against Ocean County simply does not sup-
port a finding of unconstitutional custom and policy or failure to supervise and train on the part of Ocean County.

B, PLAINTIFFS' CLAIMS AGAINST OCEAN COUNTY

Plaintiffs bring this action against Ocean County on two bases: (i) Lutes' involvement with the Ocean County
regional tactical team, which they claim is under the supervisory control of the Ocean County Prosecutor's Office;
and (ii) the presence of Sheriff's Officers in the courtroom during the Galliano criminal trial during which Gail Gal-
liano testified that Dominick told her that Lutes made a threat on his life. Ocean County argues that it is entitled to
summary judgment on all counts.

In 1995, the Ocean County prosecutor introduced the Central ERT, Dover Twp. Statement of Material Facts § 4.
The goal of the Central ERT was to create standards for training, personnel, equipment and interagency cooperation
throughout the County Emergency Services Units thereby reducing costs, and increasing their professionalism, effi-
ciency and effectiveness, Id.

*22 Beginning in 1996, all local emergency services units, including the Dover Township ESU, operated under
the Regional Concept Guidelines (also known as the Ocean County Critical Incident Management Plan (SCIMP”).
Jd. at § 5. The CIMP divided Ocean County into three regions: North, Central and South. Ocean County Stmt. of
Material Facts § 38. Dover Township and Seaside Heights both fell within the Central Region. /d. at § 39. Pursuant
to the CIMP, organization and management of the Central ERT was “the responsibility of and under the general con-
trol of a 3 member panel of Chiefs of Police, appointed by the Ocean County Prosecutor, with a designated chair.”
Id, at J 40 (quoting Ex. A, 4). Chief Michael Mastronardy of the Dover Police Department was designated as the

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 64 of 66 PagelD: 935
Page 23

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

ants and Chief Costello, based upon negligent hiring, training, retention and supervision. Plaintiffs raise additional
State law claims against the municipal Defendants in Counts Six and Seven alleging wrongful death, and assault and
battery and New Jersey State constitutional claims in Counts Eight and Nine. Because the Court finds that Defend-
ants are entitled to immunity under the New Jersey Tort Claims Act, N.J.S.A. 1-1 et seq., Defendants motions for
summary judgment as to Plaintiffs’ state law claims are granted.

Based on the conduct alleged which gives rise to Plaintiffs’ state law claims, Dover Township asserts immunity
under the New Jersey Tort Claims Act on several grounds. Dover Township first asserts immunity under N.J.S.A.
59:5-5 in connection with the conduct of its officers in investigating incidents of criminal mischief involving Lutes
and when called to the scene of Lutes’ automobile accident, arguing that N.J. S.A. 59:5-5 precludes liability based
on the failure to arrest Lutes. Additionally, Dover Township asserts immunity under N.J.S.A. 59:2-3, 3-2(a) and 3-5
arguing that it may not be held liable for the discretionary acts of its officers in failing: (i) to issue a summons to
Lutes; (ii) to conduct further investigation; (iii) to arrest Lutes; or (iv) to facilitate Lutes' suspension from the Sea-
side Heights Police Department or the Central ERT. According to Dover Township, the immunity afforded to the of-
ficers under N.J.S.A. 59:3-2(a) and 3-5, precludes liability as to the Township pursuant to N.J.S.A. 59:2-2(b), which
provides that a public entity is not liable for injury resulting from an act or omission of a public employee where the
public employee is not liable. Dover Township also asserts immunity under N.J.S.A. 59:3-3 based upon the discre-
tionary acts of its officers carried out in good faith. Dover Township asserts the absence of any willful misconduct
on the part of its officers that would preclude application of N.J.S.A. 5 to its officers’ discretionary actions. Fi-
nally, Dover Township asserts immunity under N. A. 59:6-4, 6-5 and 6-6 based upon allegations that it failed to
make adequate examination of Lutes' inebriety:

FN21. The immunities conferred by N.J.S.A. 59:6-! ef seg. in connection with “mental illness” include al-
coholism and intoxication.

Seaside Heights similarly asserts immunity pursuant to N.J.S.A. 59:3-2 and additionally under N.J.S.A. 59:2-3,
arguing that the alleged administrative inaction on its part called for the exercise of personal deliberations and judg-
ment thereby conferring immunity. Additionally, Seaside Heights asserts immunity for its discretionary actions car-
tied out in good faith, N.J.S.A. 59:3-3, and in connection with the failure to diagnose Lutes with a mental illness,
N.LS.A. 59:6-5, or the failure to confine Lutes in connection with his mental illness, N.J.S.A. 59:6-6.

The State law claims against Costello are limited to negligent hiring, training and retention of Lutes. Costello
argues that the state law claims against him are barred by the notice provisions of the New Jersey Tort Claims Act,
NLS.A. § 59:8-8. Additionally, Costello cites to A. 59:3-3, asserting immunity based upon his good faith exe-
cution and enforcement of the law, and N.J.S.A. 59:3-5, asserting that he may not be held liable for his adoption of,
or failure to adopt, any law or by his failure to enforce any law. Costello reasons that N.J.S.A. $9:3-3 and 3-5 apply
to claims that he failed to do enough to investigate allegations concerning Lutes' emotional problems, as well as his
prior alleged instances of intoxication and erratic behavior. Costello also cites to N.J.S.A. 59:5-4 claiming entitle-
ment to immunity based upon his alleged failure to protect against the criminal propensity of a third person.

*27 Plaintiffs counter that no claims are made that any Defendant is liable for injury caused by the failure to
make an arrest or to retain an arrested person, nor that any Defendant is liable for failing to adopt a law or enforce
any particular law. Thus, Plaintiffs assert, reliance on N.J.S.A. 59:5-5 and 3-5 is misplaced. Next, Plaintiffs argue
that N.J.S.A. 59:3-2(a) does not afford immunity to these Defendants because it is limited to discretionary govern-
mental action, which Plaintiffs define to include high level policy decisions involving discretionary acts, rather than
ministerial action. Plaintiffs argue that the acts and omissions of the Defendants in this action are simply not the type
of high level policy decisions for which immunity exists. Plaintiffs also dispute the application of the good faith im-
munity afforded by N.J.S.A. 59:3-3 based on their assertion that neither Costello nor any of the municipal officials

© 2012 Thomson Reuters. No Claim to Orig. US Goy. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 52 of 66 PagelD: 923
Page 11

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

{Cen.D. 111.2001) in support of their contention that factual issues relating to whether Lutes was acting under color of
law preclude summary judgment is also unavailing. In McCloughlan, the court considered whether an off-duty of-
ficer who assaulted a motorist in the parking lot of a tavern was acting under color of law, where the officer did not
identify himself as a police officer, did not display a badge, did not display a service revolver, did not display hand-
cuffs, was not in uniform, and did not inform plaintiff that he was under arrest. The McCloughan court concluded
that factual issues remained which precluded summary judgment. Unlike the instant case, however, there was indeed
evidence in McCloughlan upon which state action could be found. Factual issues remained in McCloughlan by vir-
tue of the fact that the off-duty officer was assisting a fellow off-duty officer who had indeed identified himself as
an officer during the course of the altercation. Thus, as in Tarpley, McCloughlan focuses on the involvement of an-
other officer who identified himself as an officer. Here, Lutes acted alone and there is no evidence upon which a
jury could find that Lutes acted in anything other than a personal capacity in exacting the murders. Thus summary
judgment on the issue is appropriate.

Moreover, the facts of this case closely mirror those in Hansell v. City of Ailantic City, 152 F.Supp.2d 589, 609
(D.N.1.2001), afd, 46 Fed. Appx. 665 (3d Cir.2002) where an off-duty police officer went to the home of his ex-
wife, wearing his police-issued bullet proof vest and armed with his police-issued revolver, discharged his revolver
to gain entry into the home and proceeded to hold his children and his ex-wife's husband hostage. After noting that
plaintiffs could not maintain that the off-duty police officer was acting in the capacity of a state actor while engaged
in the incident, despite the use of his state-issued bullet proof vest and service revolver, the Hansell Court remarked,
that “[t]he Third Circuit has emphasized that ‘if a person's actions ‘were not committed in the performance of any
actual or pretended duty,’ the actions were not committed under color of law.’ “ Hanseli, supra, 152 F.Supp.2d at
602 n. 6 (quoting Mark v.. Borough of Hatboro, $1 F.3d 1137, 1151 (3d Cir.), cert. denied, 516 U.S. 858, 116 $.Ct.
165, 133 L.Ed.2d 107 (1995). This Court finds that like the off-duty police officer in Hansell, the undisputed facts
establish that Lutes' conduct was not taken in the performance of any perceived duty, but was purely private in
nature,

While Plaintiffs assert that summary judgment must be denied “{bJecause there is a strong argument that Lutes
acted under color of the law”, Plaintiffs’ Br. at 27, Plaintiffs are unable to point to any disputed issues of material
fact that would preclude summary judgment. The Court simply does not find that the evidence presented by
Plaintiffs raises any issues of fact that would warrant submission to a jury.

2. State-Created Danger

*13 Even in the absence of a finding that Lutes was acting under color of law, the Plaintiffs contend that liabil-
ity may still be imposed on the municipal Defendants " because they have stated a Fourteenth Amendment Due
Process claim under the “state-created danger” doctrine M2 “Generally, the Due Process Clause does not impose an
affirmative obligation on the state to protect its citizens.” Kaucher vy. County of Bucks, 455 F.3d 418. 431 Gd
Cir.2006). However, the “state-created danger” theory of liability is a recognized exception to the general rule. “Un-
der the state created danger doctrine, a state actor violates the Due Process Clause when he creates a danger to an in-
dividual or renders the individual more vulnerable to danger than he would have been in the absence of state inter-
vention.” Soberal v. City of Jersey City, No, 04-cv2788, 2006 WL 2085397 at * 7 (D.N.J. July 25, 2006)(citing
Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir.2006).

FN12, Plaintiffs bring claims against Costello in both his individual and official capacities. Section C of
this opinion addresses the § 1983 individual capacity claims against Costello. The § 1983 official capacity
claims against Costello are, effectively, identical to the § 1983 claims against Seaside Heights, which are
addressed herein. See 4.M. ex rel. JM.K. v. Luzerne County Juvenile Det, Cir. 372 F.3d 572 S81(3d
Cir.2004)(“A suit against a governmental official in his or her official capacity is treated as a suit against
the governmental entity itself.”),

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works,


cadtetes$9t7/o0247-MLC-LHG Document 74-3 Filed 04/02/12 Page 24 of 66, Pad sb S895

March 10, 2011

Do you wear glasses or contact lenses? No
Do you have a prosthesis, splint, crutches, cast or brace that you need while you are here? No
Do you wear full or partial dentures? No

Social History
Tobacco use: current
Year started: 1994

cigarettes: 1 pack(s) per day
Alcohol use: current

Average drink(s) per day: 1
Last time used: 2yrs ago
How much used: 2 beers
Drug Use: Yes
What route for drugs: injection
When was last time used 2007
What type of drug was used heroin
Comments: pt denies any probimes
Currently taking medication? No
Comments: none noted

ALLERGIES:
FISH

TB Screening

Administer PPD
Administered: Yes

History of TB symptoms

Frequent Cough? No

Fever? No

Night Sweats? No

Fatigue? No

Hemoptysis? No

Recent Weight Loss? No
Recent Appetite Change? No

Immunization Status

Tetanus Immunization Administered
Administered: No

Have you had chicken pox? Yes

Have you ever had a chicken pox vaccine? Yes

Vision
Right: 70


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 42 of 66 PagelD: 913
" age

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

c
Only the Westlaw citation is currently available NOT FOR PUBLICATION

United States District Court,
D. New Jersey.

Emmaria GALLIANO, as Administratrix of the Estate of Dominick Galliano; Emmaria Galliano, as Administrat-
rix of the Estate of Christopher Galliano; and Maureen Sindt, as Administratrix of the Estate of Gail Galliano,
Plaintiffs,

v.

BOROUGH OF SEASIDE HEIGHTS; James Costello, individually and in his capacity as Police Chief of the Sea-
side Heights Police Department; Township of Dover; County of Ocean; Norman A. Doyle, Jr., Esq., Defendant.

Civil Action No. 03-1463 (FLW).
March 30, 2007.

Darren M. Gelber, Wilentz, Goldman & Spitzer, PC, Woodbridge, NJ, for Plaintiffs

Jean L. Cipriani, Gilmore & Monahan, PA, Guy P. Ryan, Secare, Delanoy, Martino & Ryan, PC, Toms River, NJ,
A. Michael Barker, Barker, Douglass & Scott, PC, Linwood, NJ, George F, Murphy, Jr., Dasti, Murphy, Meguckin,
Ulaky, Cherkos & Connors, PC, Forked River, NJ, Diana C. Manning, Bressler, Amery, & Ross, Florham Park, NJ,
for Defendant.

OPINION
WOLFSON, District Judge.

*] Presently before the Court are motions by Defendants, Borough of Seaside Heights, James Costello, Dover
Township, and Ocean County TM seeking Summary Judgment pursuant to Fed.R.Civ.P. 56, on the Complaint of
Plaintiffs Emmaria Galliano, as Administratrix of the Estate of Dominick and Christopher Galliano and Maureen
Sindt, as Adminstratrix of the Estate of Gail Galliano. ® The Plaintiffs have filed a single opposition brief in re-
sponse to the Defendants’ motions. Defendant Norman A. Doyle, Jr., Esq. also seeks summary judgment pursuant to
Fed.R.Civ.P. 56 in connection with the legal malpractice claims filed by the Plaintiffs on behalf of the Estate of
Christopher Galliano and Plaintiffs have cross-moved. The Court has jurisdiction pursuant to 28 U.S.C. 1331, 1343,
and 1367. For the reasons that follow, and for good cause shown, the motions for summary judgment filed on behalf
of Defendants Seaside Heights, James Costello, and Dover Township are granted in part and denied in part and the
motion for summary judgment filed on behalf of Ocean County is granted. The motion filed in connection with the
legal malpractice claims against Norman A. Doyle, Jr., Esq. is granted and Plaintiffs' cross-motion is denied.

ENL. The individual Defendants are collectively referred to, when appropriate, as “Defendants.”

FN2. Plaintiff Emmaria Galliano, the sister of the late Dominick Gallino and paternal aunt of the late Chris-
topher Galliano, brings this suit in her capacity as the Administratrix of their respective Estates. Plaintiff
Maureen Sindt, the first cousin of the late Gail Galliano, brings this suit in her capacity as the Administrat-
rix of Gail Galliano's Estate. Plaintiff Emmaria Galliano and Plaintiff Maureen Sindt are collectively re-
ferred to herein as “Plaintiffs”.

I. BACKGROUND

This action arises out of the tragic murders of Dominick, Gail and Christopher Galliano by off-duty Seaside
Heights police officer Edward Lutes, Lutes, a seventeen year veteran of the Seaside Heights Police Department,
lived across the street from the Galliano home, in Dover Township, See Amended Complaint at {ff 3, 33, 34. In the

© 2012 Thomson Reuters. No Claim to Orig, US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 5 of 66 PagelD: 876

27. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the remaining allegations contained in paragraph twenty-seven.

28. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph twenty-eight.

29. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations contained in allegations contained in paragraph twenty-nine.

30. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph thirty.

31. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph thirty-one.

32. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph thirty-two.
33. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph thirty-three.

34. This Defendant admits the nursing intake records “yes” answers to question
about hospitalization of psychiatric illness and “yes 4yrs ago” to the question as to whether ever

consider or attempt suicide. This Defendant lacks sufficient knowledge or information to form

|
| a belief as to the truth of the allegations contained in paragraph thirty-four

35. | Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations contained in paragraph thirty-five.
36. This Defendant lacks sufficient knowledge or information to form a belief as to

| the truth of the allegations contained in paragraph thirty-six.



ozs ies 2012

42Zige Yf5. Bs

PAGE

Li/slo

Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 35 of 66 PagelD: 906

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOAN MULLIN, ADMINISTRATRIX OF
THE ESTATE OF ROBERT MULLIN,
deceased and JOAN MULLIN, individually,
Plaintiffs,
=vs-

ADMINISTRATOR KAREN BALICKY, in
her personal, individual and professional
capacities representing the State of New
Jersey, the Department of Corrections of the
State of New Jersey, South Woods State
Prison, and Central Reception & Assignment
Facility (C.R.A.F.), DIRECTOR ROBERT
PATTERSON, in his personal, individual and
professional capacities, representing the State
of New Jerscy, the Department of Corrections
of the State of New Jersey, South Woods State
Prison, aud Central Reception & Assignment
Facility (C.R.A.F.) DIRECTOR MARIE
DUNLAP-PRYCE, in her personal, individual
and professioual capacities, representing the
State of New Jersey, the Department of
Corrections of the State of New Jerscy, South
Woods State Prison, and Central Reception &
Assignment Facility (C.R.A.F.), JANE BYRD,
L.P.N., in her personal, individual and
professional capacities, ERIN MARUSKY,
RN., in her personal, individual and
professional capacities, OFFICER DIMLER,
in his personal, individual and professional
capacities BEATRICE TEEL, RN,, in her
personal, individual and professional
capacities, TRENTON PSYCHIATRIC
HOSPITAL, KINTOCK GROUP, MERCER
COUNTY, JOHN DOES 3-10 (as yet -
unidentified and unknown governmental,
county, or state officials, supervisors, agents or
employees) in their personal, individual and
professional capacities, ABC ENTITIES 1-10
(as yet unidentified and unknown
governmental entities, agencies, units or
subdivisions,

Defendants.

)

CIVIL ACTION

Civ. No. 3:11-cy-00247-MLC -LHG

SUBPOENA DUCES TECUM


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 21 of 66 PagelD: 892

FARKAS & DONOHUE, LLC

25A Hanover Road — Suite 320

Florham Park, New Jersey 07932

(973) 443-9400

(973) 443-4330 Fax

Attorneys for Defendant Jane Byrd, LPN
Our File No.: UMDNJ-113

By: Nancy Crosta Landale, Esq.
nlandale@FarkasandDonohue.com

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

JOAN MULLIN, Administratrix of the : Hon. Mary L. Cooper, USDJ
ESTATE OF ROBERT MULLIN, :
Deceased, and JOAN MULLIN, : Civil Action No.: 11-0247(MLC-LHG)
Individually, :
Plaintiffs, : CERTIFICATION OF

v. : JANE BYRD, LPN
STATE OF NEW JERSEY, et al.

Defendants.

Jane Byrd, LPN, of full age, in lieu of oath or affidavit, hereby certifies and says:

1, I make this Certification in support of a cross motion to dismiss and in opposition
on my behalf to plaintiffs’ motion for leave to file late Notice of Claim, ] am personally familiar
with the facts set forth herein.

2. I have been an employee of the University of Medicine and Dentistry of New Jer-
sey (UMDNJ) since October 2008, My employment with UMDNJ continues to the present day.

3. In January 2009, as an employee of UMDNJ, I was working as an Licensed Prac-
tical Nurse (LPN) at the Central Reception and Assignment Facility (CRAF) in Trenton, New
Jersey.

4, I interacted with Mr. Robert Mullin only on one occasion, when I performed an

intake interview of him on January 16, 2009 at CRAF. I have been provided with a copy of the





Case YSF880:b0247-MLC-LHG Document 74-3 Filed 04/02/12 Page 23 of 66

Pagesp: 894

Document

March 10, 2014

Inmate consented to the following:
Intake
Dental

Signed by Chwen-Mei Chen,DMD on 01/16/2009 at 5:48 PM

01/16/2009 - Office Visit: Nursing Intake
Provider: Jane Byrd, LPN
Location of Care: Clinical Locations of Care

Vital Signs
Ht: 73 in. Wt: 162 Ibs. inches

Body Mass Index in-ib

Height (in): 73

Weight (ib): 162

T: 98.8 deg F. T site: oral R: 14 BP: 128/81

Radial Pulse rate: 82 Rhythm: regular Blood Pressure: 128/81 mm Hg

Peak Flow
Orientation Level
Oriented to time? Yes

Oriented to place? Yes
Oriented to person Yes

Nursing Intake

Do you have a medical problem such as bleeding or injuries that requires immediate medical

attention? No

Do you have any dental problems requiring immediate attention? No
Have you fainted or had a head injury within the last six months? No
Have you seen a doctor in the past six months? Yes

Have you ever been hospitalized or treated for a psychiatric iliness? Yes
anxiety and depression

Have you ever considered or attempted suicide? Yes

4yrs ago

Do you want to hurt yourself or someone else? No

Have you experienced a significant loss within the last 6 months? (Loss of Job, relationship, or

death of a family member) No


02/18/2012 12:32 973: 303? PAGE 12/16
Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 36 of 66 PagelD: 907

THE STATE OF NEW JERSEY TO: State of New Jersey Tort and Contract Unit, Claims
Service Section
Bureau of Risk Management
25 West Market Street, 1" Floor
Trenton, NJ 08625

YOU ARE HEREBY COMMANDED to attend and give testimony at the office of
SHELLEY L. STANGLER, P.C., 155 Morris Avenue, 2TM Floor, Springfield, New Jersey on

February 23, 2012 at 10:00 a.m. in the above entitled action and that you have and bring with

you and produce at the same time and place the following:

Complete certified copies of any and all records, files, correspondence, reports,

Charts, notes, log entries, computer entries, emails relating to decedent Robert Mullin,

DOB: 12/22/1979, Social Security No: 153-82-1567.

FAILURE to appear according to the command of this Subpoena will subject you to a
penalty, damages in a Civil Suit and punishment for contempt of Court.

In lieu of a personal appearance, you may forward the requested documents prior to

February 23, 2012.

ty
yen WellcaonT. Wale
SHELLEY L. STANGLER, ESQ. WILLIAM T, WALSH, CLERK OF COURT

DATED: February 9, 2012

ce: Susan M. Scott, Esq.
Kevin A, Terhune, DAG
John J. Welch, Esq.
David C, Donohue, Esq.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 18 of 66 PagelD: 889

JURY DEMAND

This Defendant hereby demands a trial by jury on all issues.



Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 62 of 66 PagelD: 933
Page 21]

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

[W]hen [county] prosecutors perform their law enforcement function, they are discharging a State responsibility
that the Legislature has delegated to the county prosecutors, N.J.S.A. 2A:158-4, subject to the Attorney General's
right to supersede. The legislative delegation, in combination with the Attomey General's supervisory authority
and power to superseded, demonstrates that at its essence the county prosecutors’ law enforcement function is
clearly a State function ... the county prosecutor's law enforcement function is unsupervised by county govern-
ment or any other agency of local government, but remains at all times subject to the supervision and supersession
power of the Attorney General ... a county cannot be held vicariously liable for the actions of prosecutorial de-
fendants related to the investigation and enforcement of the criminal laws of the State.

Thus, it follows that when county prosecutors and their subordinates act in their law enforcement/investigatory ca-
pacity, they act as “agents” and “officers” of the State.

Wright v. New Jersey, 169 N.J. 422, 462 (2001) (citations omitted), The Court finds that the Ocean County Pro-
secutor's Office created the regional tactical teams, and the CIMP that governed, as part of its prosecutorial function
and specifically left the day-to-day administrative issues to the regional teams. Thus, the Court finds that summary
judgment in favor of Ocean County is appropriate as there is no basis upon which the County may be held liable for
Lutes’ conduct.

*24 The Court similarly finds summary judgment is appropriate as to Plaintiffs’ claims against Ocean County
based upon the actions of the Sheriff's Office. As Ocean County points out, the only allegation of wrongdoing on the
part of the Ocean County Sheriff's Department concerns the presence of Sheriff's Officers during the criminal trial of
Dominick Galliano wherein Gail Galliano testified as to Lutes' alleged threats against her husband. Neither of the
two Sherif's Officers assigned to the courtroom during the Galliano trial had any recollection of hearing Gail Galli-
ano's testimony regarding the threats. Dover Twp. Stmt. of Material Facts Ex. P, 15, 17; Ex. Q, 13.

FN20. Although there is some indication in the record through the testimony and report of Plaintiffs’ expert,
Dr. James O'Keefe, that one of the Sheriff's officers indicated that “she was there when Ed Lutes threatened
to shoot Dominick [Galliano]”, review of that Sheriff's officer's actual testimony reveals that she had no re-
collection of any testimony given during the trial regarding the alleged threat, nor does she provide testi-
mony regarding any other threat made by Lutes. It appears that Plaintiffs’ expert was mistaken in his testi-
mony and Plaintiffs do not dispute Ocean County's assertions in this regard in connection with the instant
motion.

Although there is no New Jersey case law on point, both Ocean County and Plaintiffs agree that McMillian v.
Monroe County, Ala. 520 U.S. 781 (1997) is instructive on the issue of whether and under what circumstances
Ocean County may be held liable for the conduct of the Sheriff's Department. The parties therefore agree that Ocean
County can only be held liable for the actions and/or inactions of the Prosecutor's Office and Sheriff's Office when
malfeasance is alleged to have occurred in connection with the day-to-day housekeeping functions of either entity.

Here, Plaintifis' claims against the Sheriffs Office appear to rest on their allegation that the Sheriff's Office
“failed in [its] obligation{ ] to supervise and discipline Lutes as an internal, administrative, and disciplinary issue.”
Plaintiffs Br. at p. 75. Given this Court's finding that the Ocean County Prosecutor's Office's creation of the regional
tactical teams, implicates its prosecutorial function, there can be no finding that the Sheriff's officers had any duty to
report testimony regarding Lutes' conduct. Moreover, the Court notes that Plaintiffs provide no support for their con-
tention that Sheriff's Officers, charged with the protection of county judges, courtroom personnel, staff, attorneys,
litigants, witnesses and the public in the courtroom, are also charged with listening and reporting responsibilities in
connection with the substantive testimony given by witnesses during trial.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 10 of 66 PagelD: 881

99. This Defendant denies the allegations contained in paragraph ninety-nine.

100. This Defendant denies the allegations contained in paragraph one hundred.

101. This Defendant denies the allegations contained in paragraph one hundred one.

102. This Defendant denies the allegations contained in paragraph one hundred two.

103. This Defendant denies the allegations contained in paragraph one hundred three

104. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph one hundred four.

105. This Defendant denies the allegations contained in paragraph one hundred five

106. This Defendant denies allegations contained in paragraph one hundred six.

107. This Defendant denies the allegations contained in paragraph one hundred seven.

108. This Defendant denies the allegations contained in paragraph one hundred eight.

109. This Defendant denies the allegations contained in paragraph one hundred nine.

110. WHEREFORE this Defendant demands judgment against the Plaintiff for
dismissal of the Complaint with prejudice, costs, fees and such other and further relief as the
Court deems just.

111. This Defendant repeats and reiterates her responses to each and every allegation
contained in paragraphs one through one hundred ten as if set forth at length herein.

112. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph one hundred twelve.
| 113. This Defendant denies the allegations contained in paragraph one hundred
thirteen.

114. This Defendant lacks sufficient knowledge or information to form a belief as to

the truth of the allegations contained in paragraph one hundred fourteen.



reece wa746

Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 33 of 66 PagelD: 904

THE STATE OF NEW JERSEY TO: — South Woods State Prison
215 South Burlington Rd.
Bridgeton, New Jersey 08302
YOU ARE HEREBY COMMANDED to attend and give testimony at the office of
SHELLEY L. STANGLER, P.C., 155 Morris Avenue, 2" Floor, Springfield, New Jersey on
February 23, 2012 at 10:00 a.m. in the above entitled action and that you have and bring with
you and produce at the same time and place the following:

Complete certified copies of any and all records, files, correspondence, reports,

Charts, notes, log entries, computer entries, emails relating to decedent Robert Mullin,

DOB: 12/22/1979, Social Security No: 153-82-1567.

FAILURE to appear according to the command of this Subpoena will subject you to a
penalty, damages in a Civil Suit and punishment for contempt of Court.

In lieu of a personal appearance, you may forward the requested documents prior to

February 23, 2012.
SL Willison T. Walol.
SHEBLEY L. STANGLER, ESQ. WILLIAM T. WALSH, CLERK OF COURT

DATED: February 9, 2012

ec: Susan M. Scott, Esq.
Kevin A. Terhune, DAG
John J. Welch, Esq.
David C. Donohue, Esq.


O2/ib/2ol2 L2ise I/335/Fd03!) PAGE bb/1b
Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 30 of 66 PagelD: 901

THE STATE OF NEW JERSEY TO: Trenton Psychiatric Hospital
101 Sullivan Way

Ewing, NJ 08618
Attn: Risk Management
YOU ARE HEREBY COMMANDED to attend and give testimony at the office of
SHELLEY L. STANGLER, P.C., 155 Morris Avenue, 2" Ploor, Springfield, New Jersey on
February 23, 2012 at 10:00 a.m. in the above entitled action and that you have and bring with
you and produce at the same time and place the following:

Complete certified copies of any and all records, files, correspondence, reports,

Charts, notes, log entries, computer entrics, emails relating to decedent Robert Mullin,

DOB: 12/22/1979, Social Security No: 153-82-1567.

FAILURE to appear according to the command of this Subpoena will subject you to a
penalty, damages in a Civil Suit and punishment for contempt of Court.

"In Hew of a personal appearance, you may forward the requested documents prior to

February 23, 2012.

Yt Will:aan T Wadd
SHELEY L. STANGLER, ESQ. WILLIAM T. WALSH, CLERK OF COURT

DATED: February 9, 2012

cc: Susan M. Scott, Esq.
Kevin A. Terhune, DAG
John J. Welch, Esq.
David C. Donohue, Esq.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 7 of 66 PagelD: 878

51. This Defendant denies the allegations contained in paragraph fifty-one of the
First Count.

52. This Defendant denies the allegations contained in paragraph fifty-two.

53. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph fifty-three.

54. This Defendant admits that at all time relevant she was working within the scope
of her employment as a nurse with UMDNJ.

55. This Defendant denies the allegations contained in paragraph fifty-five.

56. This Defendant denies the allegations contained in paragraph fifty-six.

57. This Defendant denies the allegations contained in paragraph fifty-seven.

58. This Defendant denies the allegations contained in paragraph fifty-eight.

59, This Defendant denies the allegations contained in paragraph fifty-nine.

60. This Defendant denies the allegations contained in paragraph sixty.

61. This Defendant denies the allegations contained in paragraph sixty-one.

62. | This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph sixty-two.

63. This Defendant denies the allegations contained in paragraph sixty-three.

64. This Defendant denies the allegations contained in paragraph sixty-four.

6S. This Defendant denies the allegations contained in paragraph sixty-five.

66. This Defendant denies the allegations contained in paragraph sixty-six.

67. This Defendant denies the allegations contained in paragraph sixty-seven.

70. This Defendant denies the allegations contained in paragraph sixty-eight of the

Third Count.



Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 6 of 66 PagelD: 877

37. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph thirty-seven.

38. This Defendant denies the allegations contained in paragraph thirty-eight.

39. This Defendant denies the allegations contained in paragraph thirty-eight
40. This Defendant denies the allegations contained in paragraph forty.

41, This Defendant admits decedent had a psychiatric history including suicide
attempt. Defendant denies the remaining allegations contained in paragraph forty-one of the
First Count.

42. This Defendant denies the allegations contained in paragraph forty-two.

43. This Defendant admits she was working in her capacity as a nurse employed by
UMDNJ. Defendant denies the remaining allegations contained in paragraph forty-three.

44. This Defendant denies the allegations contained in paragraph forty-four.

45. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph forty-five.

46. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph forty-six.

47. No allegations are made against this Defendant.

48. This Defendant repeats and reiterates her responses to each and every allegation
contained in the paragraphs one through forty-eight.

49. This Defendant admits that at all time relevant she was working within the scope
of her employment as a nurse with UMDNJ.

50. This Defendant denies the allegations contained in paragraph fifty of the First

Count.



Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 19 of 66 PagelD: 890

NOTICE OF ALLOCATION

Pursuant to R. 4:7-5 (c), Plaintiffs are hereby advised that if any party settles the within!
matter this Defendant shall seek an allocation of a percentage of negligence by the finder of fact!
against such settling co-Defendant and/or a credit in favor of this Defendant consistent with
such allocation.

DESIGNATION OF TRIAL COUNSEL

David C. Donohue, Esq., is hereby designated as trial counsel, pursuant to Rule 4:25-4,
on the medical malpractice claim against Defendant. 3Susan M. Scott, Deputy Attorney
General, is hereby designated as trial counsel, for Defendant on the constitutional claims.

CERTIFICATION

Thereby certify that on December 14, 2011 the Answer to the Complaint on behalf of the|
‘Defendant Jane Byrd, LPN was forwarded to the Clerk of the United States District Court,

District of New Jersey via electronic filing and thereby copied to all parties.

FARKAS & DONOHUE, LLC

25 A Hanover Road, Suite 320

Florham Park, New Jersey 07932

(973) 443-9400

(973) 443-4330 Fax

Attorneys for Defendant Jane Byrd, LPN
a

/ Lif AL
By: / om
o€-David C. Donohue, Esq.

ee

‘Dated: December 14, 2011



Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 9 of 66 PagelD: 880

82. This Defendant admits that she was under a duty to act reasonably and in
accordance with accepted standards of nursing care.

83. This Defendant admits that she was under a duty to act reasonably and in
accordance with accepted standards of nursing care.

84. This Defendant denies the allegations contained in paragraph eighty-four.

85. This Defendant denies the allegations contained in paragraph eighty-five.

86. This Defendant denies the allegations contained in paragraph eighty-six.

87. This Defendant denies the allegations contained in paragraph eighty-seven.

88. This Defendant lacks sufficient knowledge or information to form a belief as to
| the truth of the allegations contained in paragraph eighty-eight .

89. This Defendant denies the allegations contained in paragraph eighty-nine.

90. This Defendant denies the allegations contained in paragraph ninety.

91. This Defendant denies the allegations contained in paragraph ninety-one.

92. This Defendant denies the allegations contained in paragraph ninety-two.

93. This Defendant denies the allegations contained in paragraph ninety-three

94. WHEREFORE, this Defendant demands judgment against the Plaintiff for
dismissal of the Complaint with prejudice, costs, fees and such other and further relief as the
Court deems just.

95. This Defendant repeats and reiterates her responses to each and every allegation
contained in paragraphs one through ninety-four as if set forth at length herein.

96. This Defendant denies the allegations contained in paragraph ninety-six.

97. This denies the allegations contained in paragraph ninety-seven.

98. This Defendant denies the allegations contained in paragraph ninety-eight.



Cas@deased-b0247-MLC-LHG Document 74-3 Filed 04/02/12 Page 25 of 66 PagetB: 896
,NJ Chart Document

March 10, 2011

Left: 70

Gross Hearing

Hearing Impaired: No

Amplification: No

Are you covered by medical insurance or a benefit program? No

Have you previously been in any New Jersey State correctional facility? Yes
jones farm

In case of emergency, please notify:

Name of Emergency contact: nicole williams
Relationship: girlfriend

Address: 2049 barnsboro rd apt w3 blackwood nj 08012
Phone: 856-625-5778

Orders to be Processed and/or Transcribed

Labs, Consults, Tests&Procedures, Clearances, Restrictions, Referrals, etc.
Referral- Nursing to Mental Health [INRF099]

Inmate Signature

Signed by Jane Byrd, LPN on 01/16/2009 at 4:06 PM

01/16/2009 - Office Visit: Nursing 4 Hour Intake Screen
Provider: Jane Byrd, LPN
Location of Care: Clinical Locations of Care

Nursing 4 Hour Intake Screen

4 Hour Nursing Initial Intake Screen

Is this screen being completed within four hours of arrival at DOC Intake? Yes

Do you have a medical problem such as bleeding or injuries that require immediate medical
attention No

Do you have any dental problems requiring immediate attention? No

Are you currently or have you ever been on psychiatric medication? No
Have you ever been hospitalized or treated for mental illness? Yes
Comment anxiety and depression 2006

Are you thinking about killing yourself? No

Have you ever attempted suicide? Yes




Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 48 of 66 PagelD: 919
Page 7

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitu-
tion and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper pro-
ceeding for redress.

In Counts I, II, I and TV of Plaintiffs’ Amended Complaint, Plaintiffs bring claims under 42 U.S.C. § 1983
against the Borough of Seaside Heights, Seaside Heights Police Chief, James Costello, Dover Township and Ocean
County alleging deprivation of the Gallianos' rights under the Fourth, Fifth and Fourteenth Amendments. Defend-
ants seek summary judgment as to the Plaintiffs' § 1983 claims on the grounds that there was no state action or un-
derlying constitutional violation by Defendants that can form the basis for Plaintiffs’ claims.

EN8. Although Plaintiffs allege a deprivation of rights under the Fifth Amendment in their Complaint,
Plaintiffs concede that the instant action does not involve any federal action and, therefore, concur with De-
fendants that there is no viable claim under the due process clause of the Fifth Amendment. (Plaintiffs' Br.
at p, 38, n. 6).

1. Color of State Law

Aithough Plaintiffs do not bring an action against Lutes directly, they allege that Lutes, “at all times relevant to
this action, acted under color of State law,” Compl. § 2 (Facts Common to All Counts). Defendants therefore move
for summary judgment, at least in part, on the grounds that liability under § 1983 cannot be found because Edward
Lutes was not acting under color of state law when he shot and killed Dominick Galliano, Gail Galliano, and Chris-
topher Galliano on April 9, 2002.

“The misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law is action pursued under color of law within the meaning of 42 U.S.C.A. § 1983.”
Basista v. Weir, supra, 340 F.2d at 80 (citing United States v. Classic, 313 U.S, 299, 326 (1941); Screws v. United
States, 325 U.S. 91, 107-113 (1944)). The question of what is fairly attributable to the State “is a matter of normat-
ive judgment, and the criteria lack rigid simplicity.” Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n,

531 US. 288, 295 (2001).

Plaintiffs claim that Lutes' off-duty status during the shootings at issue here does not compel the conclusion that
he was not a state actor, Specifically, Plaintiffs argue that Lutes’ “use of a state supplied machine gun in which he
was specifically trained by the state, to remedy a perceived failure in the state's criminal justice system, are tangible
manifestations of his official authority.” (Plaintiffs' Br. at p. 13). Plaintiffs' claim hinges on the fact that in exacting
the shootings, Lutes used “an instrument of his official authority-the MP-5.” Additionally, Plaintiffs cite to the fact
that Lutes continued his rampage by traveling to Chief Costello's house, shooting him, and then asking Lieutenant
Tate to tell the other Seaside Heights police officers that he did it for them." Plaintiffs claim that the foregoing is
further evidence that Lutes' actions were motivated by and directly related to his police authority.

EN9. The Court finds the fact that Lutes shot Costello and his comments in connection therewith irrelevant
to the issue of whether he was acting under color of state law at the time that he killed the Gallianos.

*8 Thus, according to Plaintiffs, Lutes was carrying out his “perceived duties” when he exacted the killings. In
support of that position, Plaintiffs cite numerous statements by Lutes that the “criminal justice system did not work”,
“the justice system failed us”, “cops don't go to jail”, “it's gonna be ‘suicide by cop’ “, and “I'm gonna be killed by a
cop, one of my own”, which were left by Lutes on his home answering machine at some point during his murderous
rampage. (Plaintiffs' Br. at 14). Plaintiffs further cite the rules and regulations of the Seaside Heights Police Depart-
ment and testimony of Chief Costello that Lutes was cloaked with police authority twenty-four hours a day, seven
days a week, and was expected to have his police identification and weapon with him, even when not working a

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works,


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 12 of 66 PagelD: 883

126. This Defendant admits she conducted a “nursing intake” on 1/16/09.

127. This Defendant admits she held herself out as a licensed practical nurse.
Defendant denies the remaining allegations.

128. This Defendant denies the allegations of paragraph one twenty eight.

129, This Defendant denies the allegations of paragraph one twenty nine.

130. This Defendant denies the allegations of paragraph one thirty.

131. This Defendant denies the allegations of paragraph one thirty one.

132. This Defendant denies the allegations of paragraph one thirty two.

133. This Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations contained in paragraph one thirty-three.

134. This Defendant denies the allegations of paragraph one thirty four.

135, This Defendant denies the allegations of paragraph one thirty five.

136. This Defendant denies the allegations of paragraph one thirty six.

137. This Defendant denies the allegations of paragraph one thirty seven.

138. This Defendant denies the allegations of paragraph one thirty eight.

140. WHEREFORE this Defendant demands judgment against the Plaintiff for
dismissal of the Complaint with prejudice, costs, fees and such other and further relief as the
Court deems just.

I FIRST SEPARATE DEFENSE

This Defendant violated no duty to Plaintiff or any other party.

SECOND SEPARATE DEFENSE

Any injuries or damages Plaintiff may have sustained were due to the actions or

inactions of third persons over whom this Defendant had no control.



Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 11 of 66 PagelD: 882

115. This Defendant denies the allegations contained in paragraph one hundred

fifteen.

116. This Defendant denies the allegations contained in paragraph one hundred
sixteen.

117. This Defendant denies the allegations contained in paragraph one hundred
seventeen.

118. This Defendant denies the allegations contained in paragraph one hundred
eighteen.

119. This Defendant denies the allegations contained in paragraph one hundred
nineteen.

120. WHEREFORE this Defendant demands judgment against the Plaintiff for
dismissal of the Complaint with prejudice, costs, fees and such other and further relief as the
Court deems just.

121. This Defendant repeats and reiterates her responses to each and every allegation
contained in paragraphs one through one hundred twenty as if set forth at length herein.

122. This defendant admits that she conducted a “Nursing Intake” on plaintiff's
decedent on 1/16/09.

123. This defendant admits that she conducted a “Nursing Intake” on plaintiff's decedent
on 1/16/09. Defendant denies the remaining allegations.

124. This Defendant admits she held herself out as a licensed practical nurse. Defendant
denies the remaining allegations.

125. This defendant admits that she has a duty to comply with the applicable nursing

|
standards in her evaluation of plaintiff's decedent. Defendant denies the remaining allegations.



Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 61 of 66 PagelD: 932
Page 20

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as; 2007 WL 979850 (D.N.J.))

Chairman of the Leadership Panel for the Central Region. Plaintiffs' Stmt. of Material Facts at § 82.

Lutes was originally a member of the Seaside Heights ESU, however, due to budgetary constraints and ineffect-
ive training facilities, it ultimately disbanded after which Lutes remained a voluntary, part-time member of the Cent-
ral ERT. Dover Twp. Stmt. of Material Facts at ¢ 8. As of January 1999, the Standard Operating Protocol] for the
Central Region recognized the Dover Township ESU as the only team that met the standard to be recognized as a re-
gional team. Ocean County Stmt. of Material Facts at § 53. Although Lutes could train with any other municipality
to receive his ERT certification, he trained with Dover Township ESU. Dover Twp. Statement of Material Facts at {
9.

As a result of his membership on the Central ERT, Lutes requested, and the Borough of Seaside Heights Police
Department approved, the purchase of a firearm known as an MP-S submachine gun. Plaintiffs’ Stmt. of Material
Facts at 94. Lutes received specialized training and instruction in the use of the MP-5. /d. at ¥ 100.

Defendant Ocean County seeks summary judgment on the grounds that the County of Ocean and the Ocean
County Prosecutor's Office are two separate and distinct entities. Defendant Ocean County argues that Plaintiffs’
attempt to impose liability on Ocean County for the alleged failures and/or inactions of the Ocean County Prosec-
utor's Office in connection with Lutes' membership in the Central ERT assumes incorrectly that Ocean County is li-
able for the actions of the Prosecutor's Office. Ocean County contends that Plaintiffs’ position in this regard fails to
recognize the hybrid status of New Jersey constitutional offices such as the Office of the County Prosecutor. Ocean
County argues that Lutes' membership in the Central ERT does not qualify him as an employee of Ocean County or
an individual over which the County maintained day-to-day control.

FN19. The Ocean County Prosecutor's Office has never been named a defendant in this action.

It is undisputed that in New Jersey county prosecutors have a hybrid status. Coleman v. Kaye, 87 F.3d 1491
1499 (3d Cir.1996). The Third Circuit established that, “when county prosecutors execute their sworn duties to en-
force the law ... they act as agents of the State. On the other hand, when county prosecutors are called upon to per-
form administrative tasks unrelated to their strictly prosecutorial functions ... the county prosecutor in effect acts on
behalf of the county that is the situs of his or her office.” /d.

*23 Because the Ocean County Prosecutor's Office issued the CIMP administratively organizing county law en-
forcement resources to create three regional tactical teams, and because the CIMP placed a number of responsibilit-
ies for supervision of the regional tactical team on the Prosecutor's Office, Plaintiffs argue that a jury could reason-
ably conclude that the regional tactical teams were county entities, and that Ocean County, through the Ocean
County Prosecutor's Office, bears ultimate responsibility for the administrative oversight of the regional tactical
team. In light of Lutes’ failure to keep current in the training requirements established in the CIMP, and because
agents of the Prosecutor's Office were aware of Lutes’ alleged threat to Dominick Galliano, through Gail Galliano's
trial testimony, and Lutes' harassing conduct toward Community Medical Center employees, Plaintiffs contend that
a jury could reasonably conclude that the County was deliberately indifferent to the constitutional rights of the de-
cedents for all of the reasons set forth in connection with the claims against the other Defendants.

Ocean County counters that liability against the County simply cannot lie for the actions of an individual that
was not employed by the County, in any capacity, but rather was a full-time employee of a separate entity. Ocean
County argues that the Prosecutor's Office had absolutely no day-to-day control over the Central ERT and thus this
case cannot be likened to those in which vicarious liability on the part of the County is imposed based upon the Pro-
secutor’s Office administrative duties. The Court agrees. Indeed, the New Jersey Supreme Court has established that:

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 44 of 66 PagelD: 91s
Page

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

terial Facts at | 46. Costello sustained three gunshot wounds, but survived. /d. Subsequently, Lutes parked is car in
the driveway of a home in Barnegat where he fatally shot himself in his car.

FNS, An action against the municipal Defendants and Chief Costello was similarly filed in connection with
the deaths of Gary and Tina Williams, Docket No. 03-CV-1533, however, the parties to that case reached
settlement and the case is now closed,

On the day of the shootings, Lutes had reported to work as usual. His supervisor, Lieutenant Tate, testified that
he appeared happy that day and that Lutes had discussed with him that things were going well with his current
fiancé, Ruth Ann Rogan, and that Lutes was looking forward to a new cell phone that was being sent to him in the
mail. Dover Twp. Statement of Material Facts at | 44. Tate testified that when he learned of what had transpired on
the evening of April 9, 2002, he was shocked given Lutes’ demeanor on the day of the shootings.

It is undisputed that from the time of his appointment to the Seaside Heights police force in 1986 up until his
suicide in 2002, Lutes was considered to be an exemplary police officer. Seaside Heights Stmt. of Material Facts at ¢
3. He received consistently excellent evaluations, repeatedly recommending him for promotion. /d, In 1991 and
1993, Lutes was named Patrolman of the Year. /d. Lutes was six times the recipient of Merit Awards from the PBA
following his appointment as a regular police officer, was a certified Firearms Instructor and, in addition to other
training, received substantial weapons training. /d, Plaintiffs contend, however, that in the months immediately pre-
ceding the shootings, Lutes used a significant amount of sick time and compensatory time, which excessive absent-
ecism was brought to the attention of Chief Costello by Lutes’ immediate supervisor, Lieutenant Tate, who reported
complaints to Costello by other officers. Plaintiffs’ Stmt. of Material Facts at J 346, 347.

*3 Lutes was also a voluntary, part-time member of the Ocean County Central Region Emergency Response
Team (the “Central ERT”), which was one of three regional response teams in Ocean County. Dover Twp. Stmt. of
Material Facts at { 8; Ocean County Stmt. of Material Facts at § 38. The Central ERT operated under the organiza-
tion and management of a three-member panel of Chiefs of Police, appointed by the Ocean County Prosecutor.
Ocean County Stmt. of Material Facts at § 40. Although the Central ERT was designed to be comprised of local
emergency services units within Central Ocean County, as of January 1999, the Dover Township Emergency Ser-
vices Unit (the “Dover ESU”) was the only team within the Central Region that met the standard to be recognized as
a regional team. Ocean County Stmt, of Material Facts at J 53. Lutes often trained with the Dover Township ESU
because the Seaside Heights ESU had disbanded due to budgetary constraints and ineffective training facilities. The
Borough of Seaside Heights Police Department approved the purchase of the MP-5 submachine gun for Lutes in
connection with his membership in the Central ERT. Plaintiffs’ Stmt. of Material Facts at { 94. Lutes received spe-
cialized training and instruction in the use of the MP-S. /d. at § 100, Defendants dispute which municipality had dir-
ect supervisory responsibility for Lutes in connection with his participation in the Central ERT. However, it is con-
ceded that Lutes’ absences from ERT training during the months of May and June of 2001 could have resulted in his
suspension from the Central ERT. Preliminary Case Review and Consultant Report submitted on behalf of Dover
Twp. at p. 8, § 5.0.3.

In the three years immediately prior to the murders, Lutes’ personal life was not quite as uneventful as his pro-
fessional life. In July of 1999, he became engaged to Cindy Mansuy who then moved into the home Lutes shared
with his daughter, whom he retained primary custody of following a 1991 divorce from her mother. Dover Twp.
Statement of Material Facts 19. During that time, Lutes also experienced financial difficulties, filing for personal
bankruptcy in October 1999. /d.

Lutes and Mansuy appear to have had a somewhat tumultuous relationship. Dover Twp, Statement of Material
Facts { 20. In November 8, 2000, Lutes reported to the Dover Township Police Department that Mansuy was intox-

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


62/10/2012

perer4 Bis 90g,

PAGE 63/1b

Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 32 of 66 PagelD: 903

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOAN MULLIN, ADMINISTRATRIX OF
THE ESTATE OF ROBERT MULLIN,
deceased and JOAN MULLIN, individually,
Plaintiffs,
-vs-

ADMINISTRATOR KAREN BALICKI, in
her personal, individual and professional
capacities representing the State of New
Jersey, the Department of Corrections of the
State of New Jerscy, South Woods State
Prison, and Central Reception & Assignment
Facility (C.R.A.F.), DIRECTOR ROBERT
PATTERSON, in his personal, individual and
professional capacities, representing the State
of New Jersey, the Department of Corrections
of the State of New Jersey, South Woods State
Prison, and Central Reception & Assignment
Facility (C.R.A.F.) DIRECTOR MARIE
DUNLAP-PRYCE, in her personal, individual
and professional capacities, representing the
State of New Jersey, the Department of
Corrections of the State of New Jersey, South
Woods State Prison, and Central Reception &
Assigument Facility (C.R.A.F.), JANE BYRD,
L.P.N., in her personal, individual and
professional capacities, ERIN MARUSKY,
R.N,, in her personal, individual and
professional capacities, OFFICER DIMLER,
in his personal, individual and professional
capacities BEATRICE TEEL, RN,, in her
personal, individual and professional
capacities, TRENTON PSYCHIATRIC
HOSPITAL, KINTOCK GROUP, MERCER
COUNTY, JOHN DOES 3-10 (as yet
unidentified and unknown governmental,
county, or state officials, supervisors, agents or
employees) in their personal, individual and
professional capacities, ABC ENTITIES 3-10
(as yet unidentified and unknown
governmental entities, agencies, units or
subdivisions,

Defendants.

CIVIL ACTION

Civ, No. 3:11-cv-00247-MLC -LHG

SUBPOENA DUCES TECUM


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 49 of 66 Pagajp. 920

Not Reported in F.Supp.24, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

scheduled shift. (Plaintiffs' Br. at 16). They also claim that Lutes “clothed himself with the indicia of his authority
by wearing a necklace and a ring bearing the [replica] insignia of a badge, even while off-duty, and by having a fire-
arm with him virtually all of the time.” /d. Plaintiffs argue that Lutes was “on a police mission when he carried out
the executions” citing the fact that his sedan was loaded with police weapons, ammunition and equipment, including
an Ocean County Regional Swat Team t-shirt, and Seaside Heights police identification and badge and the fact that
he was carrying a pair of handcuffs in the front pocket of his shorts. /a.

The flaw in Plaintiffs’ argument is that contrary to their suggestion (Plaintiffs' Br. at 15), Lutes did not “use his
authority to punish and bring to justice an offender who had escaped punishment.” Rather, a review of the transcript
of the two messages left by Lutes on his home answering machine during the course of the killings reveals the truly
personal nature of his conduct:

It's an emergency hufsic]. Well guess what, I finally got pushed over the edge. Had to to what I had to do, And
you know what, I'm continuing on and I'm doing it more. You don't know where I'm at, but I'm doing it more.
There's gonna be a lot of dead * * * bodies all over the * * * place. Everybody had it coming to em, no they're
gonna * * * get it. Good-bye. You know what Ruth Ann. | always loved you. Tell my daughter I'm very sorry, but
I did this to protect her. Cause something had to be done. I snapped. | couldn't do it anymore. But it had to be
done. I couldn't deal with my daughter being violated and this * * * scumbag, criminal justice system did not work
in the way it's supposed to work and my daughter got the bad end of the stick, Do you know what, I did this for
my daughter. So [S.], I love you honey. I did it for you baby. Please don't ever think bad of daddy. Daddy done it
for you. Daddy took away these bad * * * people for you. I love you baby. Please grow up to be a good girl.
You're not gonna see daddy again cause daddy can't go to jail. Cops don't go to jail. You're not gonna see daddy
again, so please grow up to be a good girl. And listen to your mommy and please. Please be with Ruth Ann and,
you know, do what she tells you. And try to do the best you can baby. I love you so much but I had to do this
honey. | had to do it. I'm gonna miss you so much. Daddy will see you up, up in heaven and you'll know why I did
it for you. I love you, bye baby. [Plaintiffs' Stmt. of Material Facts § 408; Ex. C at OCPO158}].

4ee

*9 Yeah it's an emergency. You can answer the phone right now. (inaudible), (inaudible) go out and killed
already, but you know what, it's not gonna stop yet. Until I'm not done. It's gonna be “suicide by cop”. I'm gonna
be killed by a * * * cop, one of my own, you believe it. I'm gonna be killed by a cop, one of my own. But you
know what, all this boils down to what happened to [S.] 1 * * * snapped, you made me snap, you took my * * * fi-
nal snapping point, and you made me snap. And guess what, I snapped on the right people and I killed the right
people, Everybody that needed to be dead (inaudible) is dead right now. And guess what, I don't give two * * *,
Okay so at least you could do is pick up the phone. Teil [S.] my love, [S.] baby, my love daddy done it for you.
You know, daddy would never let anybody hurt you. Somebody hurt you, guess what, daddy had to pay back. He
had to pay back in a bad way. He had to pay back in a way that you'll probably never see me again. But he had to
pay back. He had to pay it back. Cause it couldn't go untouched. It couldn't go untouched. It had to be done baby.
Tt had to be done baby girl. You know that as well as 1 do. People can't just touch you and get away with it
They're all gonna know or they're not gonna know because they're dead. But you know what, you live a nice life
with your mom and Ruth Ann, please. You're not gonna see daddy again. But | want you to grow up to be a big
girl. I want you to grow up to be (inaudible) little girl and I want you to stay with Ruth Ann and mommy. You
know, they'll teach you the right thing. Daddy had to do this honey, | can't let anybody hurt you. There were
people hurt you and the justice system failed us, it failed us. And | finally just had enough and I had to do what |
had to do. And there gotta be paybacks. You know that daddy pays back everything. And there gotta be paybacks,
You know that daddy pays back everything. {Plaintiffs' Stmt. of Material Facts { 408; Ex. C at OCPOI587].

© 2012 Thomson Reuters, No Claim to Orig. US Gov. Works.


weraur2ure 12:94 Iissrswas. PAGE 67.
/16

Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 31 of 66 PagelD: 902

PROOF OF SERVICE

On I, the undersigned, being over the age of 18, served the within

Subpoena by delivering a copy thereof to the person named therein, via certified mai} return
receipt requested at and by tendering to such person the attendance

fec of $ and mileage of $ as allowed by law.

I certify that the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me are willfully false, I am subject to punishment.

Dated:

Address for Service:


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 8 of 66 PagelD: 879

69. | This Defendant denies the allegations contained in paragraph sixty-nine of the
Third Count.

70. WHEREFORE, this Defendant demands judgment against the Plaintiff for
dismissal of the Complaint with prejudice, costs, fees and such other and further relief as the
Court deems just.

71. This Defendant repeats and reiterates her responses to each and every allegation
contained in paragraphs one through seventy as if set forth at length herein.

72. This Defendant denies the allegations contained in paragraph seventy-two.

73. This Defendant denies the allegations contained in paragraph seventy-three.

74, This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph seventy-four.

75. This Defendant denies the allegations contained in paragraph seventy-five.
| 76. This Defendant denies the allegations contained in paragraph seventy-six.

77. This Defendant denies the allegations contained in paragraph seventy-seven.

78. This denies the allegations contained in paragraph seventy-eight

79. This Defendant denies the allegations contained in paragraph seventy-nine of the
Fourth Count.

80. WHEREFORE, this Defendant demands judgment against the Plaintiff for
dismissal of the Complaint with prejudice, costs, fees and such other and further relief as the
Court deems just.

81. This Defendant repeats and reiterates her responses to each and every allegation

contained in paragraphs one through eighty as if set forth at length herein.



99/28/2812 12:23 Farkaswvonorive, Coe

ase 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 22 of 66 PagelD: 893

record of my intake interview with Mr, Mullin (a true copy of which {s attached hereto), and it
accurately reflects my interaction with Mr, Mullin on January 16, 2009.

5. Before being named in this suit, to the best of my knowledge, I never received
any request on Mr, Mullin's behalf for information as to my employment status or my interaction

with Mr, Mullin.
6, I certify that the foregoing statements made by me are true. I am aware that if any

of the foregoing statements made by me are willfully false, 1 am subject to punishment.

Dated: March 29, 2012

100/190 °d B00Se poor N
OL1d3939Y WHINFD
S9ZEZEZB0S bE-St 2102/82/e0


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 59 of 66 PagelD: 930
Page 18

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

alleged collective failure to enforce its existing policies or to enact necessary policies, and its practice of engaging in
unconstitutional customs, the ultimate harm to the Gallianos could have been averted

For example, Plaintiffs allege that both Seaside Heights and Dover Township were fully aware of Lutes’ alcohol
abuse, yet took no evaluative action. According to the record, in the years immediately preceding the shootings, sev-
eral reports were made to members of the Seaside Heights Police Department by friends and family members that
Lutes had a problem with alcohol. In fact, Lutes’ excessive drinking played a role in the removal of his guns by a fel-
low officer following his fiancé's funeral, however, no written report in connection with the surrender of weapons
was filed. Additionally, there is Lieutenant Tate's testimony that Costello had remarked to him on one occasion that
he was thinking of removing Lutes from membership in the Central ERT due to his drinking. Yet, as Plaintiffs point
out, there is no evidence that Seaside Heights ever referred Lutes for counseling or initiated an internal affairs in-
vestigation.

*20 Further, Plaintiffs point to the 2001 accident in which Lutes was issued a summons in Dover Township for
careless driving, but never administered a blood alcohol test by the Dover officers responding to the scene, despite
reports to those officers that Lutes appeared to be intoxicated. There are also the reports of Lutes' statements in con-
nection with that accident to a friend that he had been intoxicated but had no fear of being charged because he was a
police officer and that he related to his superior, Lieutenant Tate, that he had been drinking prior to the accident. Ad-
ditionally, there is 2001 incident in which Dover Township Officer Sulsenti was advised by his superiors that the
hazard report he had attempted to file regarding Lutes' drinking problem, would not be filed.

In addition to the proffered evidence of a cover-up regarding Lutes’ drinking problem, Plaintiffs point to evid-
ence that both Dover Township and Seaside Heights officials were aware of his unstable behavior toward the Galli-
ano family in the years immediately preceding the shootings. Specifically, Plaintiffs point to awareness by Dover
Township Officers of the prominent projections Lutes displayed on his home proclaiming the warning that “every
dad has his day” and the Dover officers' purported failure to properly document numerous reports by the Williams
and Galliano families that Lutes was engaging in a campaign of retaliation against them. Moreover, there is evidence
that can support a finding that both Chief Costello and Chief Mastronardy were aware of Lutes' involvement in at
least one incident of criminal mischie: Additionally, Plaintiffs point to Minialga's testimony that he informed
Chaney of Lutes’ threat regarding Dominick Galliano two weeks prior to the shootings.

EN18. Chief Costello denies that Chief Mastronardy informed him of the incident prior to the April 2002
shootings, however, Chief Costello's denial clearly creates a disputed issue of material fact.

In addition to the above referenced incidents of alleged misconduct or personal problems, which Plaintiffs claim
should have alerted Defendants to the need for intervention, Plaintiffs present evidence of excessive absenteeism, in-
cidents of domestic violence requiring confiscation of Lutes' weapons, personal tragedy and financial difficulties,
which they claim required some form of evaluative action by Defendants. Moreover, Plaintiffs point to the utter fail-
ure by Seaside Heights to have any policy in place regarding the safeguarding of the MP-5 machine gun purchased
for Lutes use in connection with his membership in the Central ERT.

As the Court has previously noted, the evidence alleged is sufficient to support a finding of liability against De-
fendants Seaside Heights and Dover Township on a state-created danger theory of liability. Viewing the evidence in
the light most favorable to Plaintiffs, the Court finds that the same evidence that supports liability under the state-
created doctrine can support a finding of municipal liability based upon custom and policy.

To the extent Plaintiffs allege municipal liability on a failure to supervise and train theory, the Court's conclu-
sion is the same. A reasonable jury could find deliberate indifference on the part of both Seaside Heights and Dover

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 66 of 66 PagglD:,937

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979856 (D.N.J.))

ted no later than ninety days after the accrual of the cause of action. N.J.S.A. § 59:8-8, Defendant Doyle, against
whom Plaintiffs’ have asserted a malpractice action, and Plaintiffs assert that the claim was timely filed as to De-
fendant Costello. Citing Henderson v. Herman, 373 N.J.Super. 625 (App.Div.2004), they contend that it is sufficient
that the Notice of Tort Claim served on Seaside Heights identified Costello on the list of witnesses. This Court dis-
agrees. The facts at issue here are distinguishable from those in Henderson. The Appellate Court's determination that
the Plaintiffs had substantially complied with the notice provision in Henderson was based on the fact that the
Plaintiffs had indeed identified the defendant dispatchers in the notice, though not by name. Here, Costello was
simply identified as a witness, and there is no indication that the action was being brought against him.

Because only Plaintiffs’ federal claims under § 1983 remain, Plaintiffs’ claims for punitive damages fail as well
as to the municipal Defendants and Costello, in his official capacity. See City of Newport v. Fact Concerts, Inc.
453 U.S. 247, 27) (1981)(“a municipality is immune from punitive damages under 42 U.S .C. § 1983”). However,
to the extent that Plaintiffs claim that their punitive damages claims remain as to Costello in his individual capacity,
the Court finds that because issues of fact remain as to Costello's liability in his individual capacity, summary judg-
ment will not be granted as to the punitive damages claim.

FN23. Plaintiffs concede that punitive damages are not recoverable against a municipality for claims
brought under 42 U.S.C. § 1983,

D, DEFENDANT NORMAN A. DOYLE, JR., ESQ.'S MOTION FOR SUMMARY JUDGMENT

*29 Plaintiffs’ initial counsel, Defendant Norman A. Doyle, Jr, Esq. moves for summary judgment as to
Plaintiffs’ malpractice claims on the grounds that liability may not attach to his failure to file a Notice of Tort Claim,
pursuant to N.J.S.A. 59:8-8, in connection with the claims brought on behalf of the Estate of Christopher Galliano.
Plaintiffs cross-move for summary judgment as to Defendant Doyle's liability for failure to timely file the Notice of
Tort Claim on behalf of the Estate of Christopher Galliano and impliedly in connection with Doyle's failure to file a
Notice of Tort Claim as to Defendant Costello. Because the Court grants summary judgment as to Plaintiffs’ state
law claims on immunity grounds, Doyle's motion and Plaintiffs' cross-motion concerning issues related to Doyle's
alleged malpractice in failing to file a timely the Notices of Tort Claim in connection with Plaintiffs' state law claims
are moot. Accordingly, Doyle's motion is granted and Plaintiffs’ cross-motion is denied.

TV, CONCLUSION

For the reasons discussed herein, the court DENIES the motions for summary judgment filed on behalf of Sea-
side Heights, Chief Costello, and Dover Township as to Plaintiffs' claims under 42 U.S.C. § 1983 and GRANTS the
motions as to Plaintiffs' state law claims. The Court GRANTS Defendant Ocean County's motion for summary judg-
ment. The Court further GRANTS Defendant Doyle's motion for summary judgment in connection with the legal
malpractice action against him and DENIES Plaintiffs’ cross-motion. An appropriate order will follow.

D.N.J.,2007.
Galliano v. Borough of Seaside Heights
Not Reported in F.Supp.24, 2007 WL 979850 (D.N.J.)

END OF DOCUMENT

© 2012 Thomson Reuters, No Claim to Orig. US Gov. Works.


versus 2oae 26,04 are wus raAGk
Dario

Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 39 of 66 PagelD: 910

THE STATE OF NEW JERSEY TO: Central Reception and Assignment Facility
101 Sullivan Way
Ewing, NJ 08618
YOU ARE HEREBY COMMANDED to attend and give testimony at the office of
SHELLEY L. STANGLER, P.C., 155 Morris Avenue, 2TM Floor, Springfield, New Jersey on
February 23, 2012 at 10:00 a.m, in the above entitled action and that you have and bring with
you and produce at the same time and place the following:

Complete certified copies of any and all records, files, correspondence, reports,

Charts, notes, log entries, computer entries, emails relating to deccdent Robert Mullin,

DOB: 12/22/1979, Social Security No: 153-82-1567.

FAILURE to appear according to the command of this Subpoena will subject you to a
penalty, damages in a Civil Suit and punishment for contempt of Court.

In lieu of a personal appearance, you may forward the requested documents prior to

February 23, 2012.

et ai Wllcaen T Wala

SHE@LEY L. STANGLER, ESO. WILLIAM T. WALSH, CLERK OF COURT

DATED: February 9, 2012

cc: Susan M. Scott, Esq.
Kevin A. Terhune, DAG
John J. Welch, Esq.
David C. Donohue, Esq.


bru ture

Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 40 of 66 PagelD: 911

PROOF OF SERVICE

On I, the undersigned, being over the age of 18, served the within

Subpoena by delivering a copy thereof to the person named therein, via certificd mail return
receipt requested at and by tendering to such person the attendance

fee of $ and mileage of $ as allowed by law.

L certify that the foregoing statements made by me are true. Iam aware that if any of the
foregoing statements made by me are willfully false, ] am subject to punishment.

Dated:

Address for Service:


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 55 of 66 PagelD: 926
Page 14

Not Reported in F.Supp.2d, 2007 WL. 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

state-created danger case, the actor's behavior must always shock the conscience.” The Court went on to hold that
“[t]he level of culpability required to shock the conscience increases as the time state actors have to deliberate de-
creases, In a ‘hyperpressurized environment,’ an intent to cause harm is usually required, On the other hand, in cases
where deliberation is possible and officials have the time to make ‘unhurried judgments,’ deliberate indifference is
sufficient.” /d . Our circuit has recognized that there are situations where a “split-second” decision may not be re-
quired, but something more than “unhurried judgment” is necessary. /d. Under those circumstances, the Third Cir-
cuit has concluded that the defendants must be found to have “disregardfed] a great risk of serious harm.” /d. at 310.
Although the parties here disagree as to which standard applies, this Court will accept for the purposes of the instant
motion, that deliberate indifference on the part of Defendants is sufficient to establish the conscience-shocking level
of culpability required to establish culpability. As Plaintiffs note, the Defendants here clearly had the luxury of an
unhurried, non-emergency process of thoughtful deliberation in connection with Lutes' conduct over a number of
months,

‘The Court finds that the same evidence that supports a finding as to the first element of the state-created danger
doctrine, regarding the foreseeability of harm in the absence of evaluative action, supports a finding as to deliberate
indifference on the part of Seaside Heights, Chief Costello and Dover Township. This Court recognizes that mere
negligence is not enough to shock the conscience, see County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)
(finding negligently inflicted harm categorically beneath threshold of constitutional due process), but finds that, on
this motion for summary judgment, the evidence may rise to the level of deliberate indifference based upon the nu-
merous incidents alleged that should have alerted Defendants Seaside Heights, Costello and Dover Township of the
need to take evaluative action in connection with Lutes' continued possession of state-issued weapons, particularly
the MP-S5 submachine gun to which he was given unfettered access.

¢. The Decedents Were Foreseeable Victims

The third factor of the state-created danger theory requires there to be “some relationship between the state and
the plaintiff.” Morse vy. Lower Merion School District, 132 F.3d 902, 912. “The plaintiff must be ‘a member of a dis-
crete class of persons subjected to the potential harm brought about by the state's actions,’ as opposed to a member
of the public in general.” Walter v. Pike County, 465 F.Supp.2d 409, 421-22 (M.D.Pa.2006)(quoting Morse, supra,
132 F.3d at 912). The Court finds that Plaintiffs have established sufficient evidence upon which a jury could find
the requisite “special relationship.” In DeShaney, supra, 489 U.S. at 200, the Supreme Court explained the requisite
relationship as follows:

*16 When the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him
unable to care for himself, and at the same time fails to provide for his basic human needs-e.g. food, clothing,
shelter, medical care, and reasonable safety-it transgresses the substantive limits on state action set by the Eighth
Amendment and the Due Process Clause.

Plaintiffs have presented sufficient evidence to support a finding that Seaside Heights, Chief Costello and Dover
Township were aware of the potential danger Lutes posed to the Gallianos. With regard to Seaside Heights and
Chief Costello, the Court finds Minialga’s deposition testimony alone sufficient to satisfy the third element of the
state-created danger test. If the jury finds Minialga's testimony that he told Chaney two weeks prior to the shootings
that Lutes said he was going to kill Dominick Galliano credible, knowledge of the unique danger posed to the Galli-
anos is clearly imputable to Seaside Heights and Costello. While it is true that Costello's denial of ever having been
informed of the purported threats and the unavailability of Chaney and Brogan raise hearsay and double hearsay is-
sues, particularly as to the knowledge that can be imputed to Costello 84 this Court need not address those eviden-
tiary issues in the context of the instant motions. The Court finds Minialga's testimony that he informed Chaney suf-
ficient to impute knowledge to both Seaside Heights and Costello without reliance on hearsay, particularly in light
of the statements of Mary Jo Pisciotta, former Seaside Heights Deputy Court Administrator, that while in Chaney's
office shortly before the shootings she witnessed a discussion between Chaney and Brogan wherein they discussed

© 2012 Thomson Reuters. No Claim to Orig, US Gov. Works.


Vere eves serve Jhoorzuuos PAGE 84/16

~ Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 28 of-66 PagelD: 899
ime

The Lan Office Of umpus-t3
SHELLEY L. STANGLER, P.C.

A PROFESSIONAL CORPORATION
155 Morris AVENUE
SPRINGFIELD, NJ O76 |

New Yor Orrice

SHELLEY L. STANGLER:
ik ha | Que Country Reao

¥,
MEMBER NJ. &NLY, Bar TEL: 973.379.2500 c epee, ae ista
Arle PLAGE,

Lisa M. CunaY Fax: 873.978.0031 TEL: 646.205.0659
——— E-Mail: SHELLEY@STANGLERLAW.COM
Mem@eER NJ, & PA Bar WWW. STANGLERLAW, COM
JUDITH L. ROSENTHAL-NILES
OF Counses

NUL
MEMGER Nd. BAR February 9, 2012

Guaranteed Subpoena Service, Inc.
2009 Morris Avenue, :

P.O. Box 2248

Union, NJ 07083

Re: MULLIN v. THE STATE OF NEW JERSEY ct al
Case No: 3:11-cv-00247-MLC -LHG

Dear Sir/Madam:

Enclosed please find an original and one copy of a Subpoena Duces Tecum for
service upon the defendants:

Trenton Psychiatric Hospital

South Woods state prison

State of New Jersey

C.R.A.F — Centra} Reception and Assignment Facility

Please effectuate service.

Kindly provide affidavit of service, A self-addressed stamped envelope is
enclosed for your convenience.

Thank you.
Very truly yours,
y
SHELLEY L. STANGLER, ESQ,
SLS/mf

Encl.”

cc: Susan M. Scott, Esq.
Kevin A. Terhune, DAG
John J. Welch, Esq.
David C. Donohue, Esq.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 58 of 66 PagelD: 929

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.l.))

Although a local government may not be sued under § 1983 for an injury inflicted solely by its employees or
agents on the theory of respondeat superior, an action may be maintained where the execution of a government's
policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent of-
ficial policy, inflicts the injury. Monell _y. Dept. of Social Services, 436 U.S. 658. 698 (1978); Montgomery v.
DeSimone 159 F.3d 120, 126-27 (3d Cir.1998). The Plaintiff must show that the official policy or custom was the
cause of the constitutional violation. /d,, see also, Hansell, supra, 152 ¥ Supp.2d at 609 (holding that to sustain mu-
nicipal liability claim under § 1983 based upon unconstitutional policy or custom, plaintiff must demonstrate that
“municipal policymakers, acting with deliberate indifference or reckless indifference, established or maintained a
policy or well-settled custom which caused a municipal employee to violate plaintiffs' constitutional tights.”). “Mu-
nicipal liability will only lie where municipal action actually caused an injury.” Grazier v. City of Philadelphia, 328
F.3d 120, 124 (3d Cir.2003). The policy or custom must be “the ‘moving force’ behind the constitutional tort.”
Hansell, supra, 152 F,Supp.2d at 609.

“A government policy or custom can be established in two ways. Policy is made when a ‘decisionmaker pos-
sess[ing] final authority to establish municipal policy with respect to the action’ issues an official proclamation,
policy, or edict. A course of conduct is considered to be a ‘custom’ when, though not authorized by law, ‘such prac-
tices of state officials [are] so permanent and well-settled’ as to virtually constitute law.” Beck v. Ciny of Pittshurgh
89 F.3d 966, 971 (3d Cir.1996), cert. denied, S19 U.S. JI51, 117 S.Ct. 1086, 137 L.Ed.2d 219 (1997) (citations
omitted). Significantly, “[o]nly those municipal officers and employees who have final policymaking authority can
by their action subject their employers to § 1983 liability.” Burke v. Mahanoy City, 40 F.Supp.2d 274, 284 (E.D.Pa,
1999), aff'd 213 F.3d 628 (3d Cir.2000), citing Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80, 106 S.Ct. 1292
89 L.Ed.2d 452 (1986).

*19 “A municipality's failure to properly train its employees and officers can constitute a ‘policy’ or ‘custom?
that is actionable under section 1983 ‘only where the failure to train amounts to deliberate indifference to the rights
of persons with whom the police come into contact.’ “ Godley v. Newark Police Department, No. 05-806, 2007 WL
269815 at *5 (D.N.J. Jan, 26, 2007\(quoting Canton v. Harris, 489 U.S. 378, 388 (1989)). “{T]here must be a delib-
erate or conscious choice by the municipality to not train its employees before it may be held liable under section
1983.” Id. It is not enough to allege that different training would have been more effective. Grazier, supra, 328 F.3d
at 125. “The ‘failure to train may amount to deliberate indifference where the need for more or different training is
obvious, and inadequacy very likely to result in violation of constitutional rights.” Hansell, supra, 152 F.Supp.2d at
610. In order to prevail on a claim of failure of supervision and training, “plaintiffs must show both “‘contemporan-
eous knowledge’ of the allegedly offending incident, or ‘knowledge of a prior pattern of similar incidents and cir-
cumstances under which a supervisor's inaction could be found to have communicated a message of approval.’ “ Id.
at 609, (quoting Montgomery v. DeSimone, 159 F.3d 120, 127 (3d Cir.1998).

When evaluating a municipal liability case, the “proper analysis requires [the Court] to separate two different is-
sues ... (1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so, whether the city is re-
sponsible for that violation.” Collins y. City of Harker Heights, 803 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261

1992). It is clear that in order to establish municipal liability under either a custom and practice or failure to train
and supervise theory, the policy and custom or deliberate indifference must actually inflict the constitutional injury.

See Monell, supra, 436 U.S, at 698.

Examining the facts, as this Court must, in the light most favorable to Plaintiffs, the Court finds that the same
evidence that supports Plaintiffs’ claims under the state-created danger doctrine supports Plaintiffs municipal liabil-
ity claims based upon alleged unconstitutional policies and customs and failure to supervise and train. First, with re-
spect to Plaintiffs’ unconstitutional policy and custom claim, the Court finds that in the absence of the Defendants’

© 2012 Thomson Reuters. No Claim to Orig, US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 4 of 66 PagelD: 875

| 16. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph sixteen.

17. This Defendant denies the allegations contained in paragraph seventeen.

18. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph eighteen.

19. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph nineteen.

20. This Defendant admits the allegations contained in paragraph twenty.

21. This Defendant lacks sufficient knowledge or information to form a belief as to

}
i

the truth of the allegations contained in paragraph twenty-one.

22. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph twenty-two.

23. This Defendant admits that she conducted and evaluation. Defendant lacks
sufficient knowledge or information to form a belief as to the truth of the remaining allegations
contained in paragraph twenty-three.

24. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph twenty-four.

25. This Defendant admits that the history she obtained included reference to
psychiatric hospitalizations and a suicide attempt. Defendant lacks sufficient knowledge or
information to form a belief as to the truth of the remaining allegations contained in paragraph
twenty-five.

26. Defendant lacks sufficient knowledge or information to form a belief as to the

truth of the remaining allegations contained in paragraph twenty-six.



Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 47 of 66 PagelD: 918
age

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

Chaney and a counselor named George Brogan allegedly discussed the issue with Chief Costello. Plaintiffs’ Stmt, of
Material Facts at § 374. Chaney allegedly sent Lutes to see Brogan. Costello denies that he was ever informed of
Lutes’ alleged statements or that Lutes was sent to Brogan for evaluation. Both Chaney and Brogan are deceased and
are therefore unable to corroborate Minialga's testimony. The only corroboration of Minialga’s testimony comes
from former Seaside Heights Deputy Court Administrator, Mary Jo Pisciotta, that while in Chaney's office shortly
before the’ shootings she witnessed a discussion between Chaney and Brogan that Costello was advised of Lutes’
“deteriorating mental condition.” Plaintiffs’ Stmt. of Material Facts at 4 375; Ex. B at GALO1318.

On April 1, 2003, Plaintiffs instituted this action against the Borough of Seaside Heights, James Costello, indi-
vidually and in his capacity as Seaside Heights Police Chief, Dover Township, Ocean County and Norman A.
Doyle, Esq. alleging violations of 42 U.S.C. § 1983 (Counts | through [V) and state law claims (Counts V through
IX) against the municipal Defendants and Costello, and malpractice (Count X) against their initial attorney, Doyle.
Plaintiffs later amended the Complaint on April 15, 2004, to include state law claims sounding in negligence and
medical malpractice (Count X1) against Lutes' treating physicians Mohamed H. Yosry, M.D. and Debbie L. Miller,
M.D. The claims against Yosry and Miller are not the subject of the instant motions.

Il, LEGAL STANDARD

Summary judgment is appropriate where the Court is satisfied that “there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. (S6)(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986). A dispute is “genuine” if “the evidence is such that a reasonable jury could return
a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material
only if it might affect the outcome of the suit under the applicable rule of law. Jd. Disputes over irrelevant or unne-
cessary facts will not preclude a grant of summary judgment. /d. The burden of establishing that no “genuine issue”
exists is on the party moving for summary judgment. Celotex, 477 U.S. at 330. Once the moving party satisfies this
initial burden, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.”
Fed. R.Civ.P. 56(¢). To do so, the non-moving party must “do more than simply show that there is some metaphys-
ical doubt as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

TH, DISCUSSION
A. PLAINTIFFS’ CLAIMS UNDER 42 U.S.C. § 1983

*7 42 U.S.C. § 1983 provides a private cause of action against any person who, acting under color of state law,
deprives another of rights, privileges, or immunities secured by the Constitution or laws of the United States. The
statute, in and of itself, is not a source of substantive rights but provides “a method for vindicating federal rights
elsewhere conferred.” *** Graham v. Connor, 490 U.S, 386, 393-94 (1989). The two requisite elements for recovery
under 42 U.S.C. § 1983 are: “(1) the conduct complained of must have been done by some person acting under color
of law; and (2) such conduct must have subjected the complainant to the deprivation of rights, privileges or im-
munities secured to him by the Constitution and laws of the United States.” Batista v. Weir, 340 F.2d 74, 79 Gd
Cir.1965), Groman y. Township of Manalapan, 47 F.3d 628, 633 (3d Cir.1995). Thus, in order for a § 1983 claim to
survive a motion for summary judgment, the Court must find a genuine issue of material fact as to one of the requis-
ite elements. Coletta v, Board of Freeholders, No. 06-cv-585, 2007 WL 128893 at * 3 (D.N.J. Jan. 12, 2007); Grant
v. Cathel, No. 05-cv-3956, 2006 WL, 3327886 at * 3 (D.N.J. Nov. 15, 2006).

EN7. 42 U.S.C. § 1983 provides, in pertinent part;

Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or
Territory, ... subjects, or causes to be subjected, any citizen of the United States or other person within

© 2012 Thomson Reuters. No Claim to Orig. US Goy. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 45 of 66 PagelD: 916
Page 4

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

icated and was verbally abusing him and his daughter. /d, Dover Township Patroiman Christopher Licata responded
to the call and advised Lutes of his domestic violence rights. Lutes applied for and received a temporary restraining
order. /d. Patrolman Licata removed Lutes' weapons from the home, and took the weapons to the Borough of Sea-
side heights Police Department. /d. Lutes' weapons were returned to him the next time he reported to work. On
November 26, 2000, Lutes again called the Dover Township police to report that Mansuy was harassing him. /d.
Dover Township Police Patrolman Laffan responded to the call. /d. Mansuy was again served with a temporary re-
straining order. /d. Both domestic violence complaints were ultimately dismissed. Plaintiffs’ Stmt. of Material Facts
at {§ 167, 170.

EN6. Despite established procedure in the Dover Township Police Department that required, under the cir-
cumstances of Lutes’ surrender of his weapons, that a property report be filed, no report was filed and there
were no written records maintained by either Seaside Heights or Dover Township regarding the surrender
of Lutes’ weapons.

*4 On January 18, 2001, approximately two weeks after Dominick Galliano's acquittal, Lutes was issued a sum-
mons by Dover Township Police for careless driving after driving his vehicle too fast for conditions, causing his car
to slide on ice, cross the curb dividing the roadway, and strike other vehicles. Plaintiffs’ Stmt. of Material Facts at q
197. According to the driver of one of the vehicles hit by Lutes, Lutes smelled of alcohol and appeared intoxicated.
Id. at 198; Ex. B at GALO1167-68. The driver reported his observations regarding Lutes' alleged intoxication to the
Dover Township officers who had reported to the scene of the accident, but no blood alcohol test or breath test were
administered. Lutes allegedly later confided to a friend that he was indeed intoxicated at the time of the accident but
had no fear of being charged because “I'm a cop, we take care of each other.” Plaintiffs’ Smt. of Material Facts at 4
205; Ex. B at GAL01133. Lutes' supervisor, Lieutenant Tate, also testified that Lutes informed him that he had con-
sumed “a couple of beers” prior to the accident. /d. at 206; Ex. NN at 66-25 to 68-7.

Shortly thereafter, on February 28, 2001, Mansuy was killed in a motor vehicle accident. Dover Twp. Stmt. of
Material Facts at | 32. Lutes was observed consuming alcohol during Mansuy's wake and was reportedly intoxic-
ated. Plaintiffs’ Stmt. of Material Facts at § 218; Ex. Q. At 21-19 to 22-2. During the wake, Lutes was allegedly in-
volved in a heated argument with one of Mansuy's co-workers who made a derogatory comment to him about his re-
lationship with Mansuy. Plaintiffs’ Stmt. of Material Facts at ¢ 220, Members of the Seaside Heights Police Depart-
ment, reportedly observed Lutes’ behavior at the wake, which included Lutes’ use of racial slurs in response to Man-
suy's coworker's comments to him. Within days of the funeral, Lutes telephoned Community Medical Center, where
Mansuy had been employed, to retrieve her belongings. Lutes allegedly made harassing comments to some of the
hospital personnel. Thereafter the head of security at the hospital contacted both the Seaside Heights Police Depart-
ment and the Ocean County Prosecutor's Office to complain about Lutes' behavior. Lieutenant Robert Urie of the
Ocean County Prosecutor's office came to Seaside Heights Police Department to speak to Chief Costello regarding
the report of Lutes’ threatening conduct. Costello and Urie spoke to Lutes directly, instructing Lutes not to bother
Community Medical Center personnel again. Seaside Heights Stmt. of Material Facts at § 16.

In the days following Mansuy's funeral, Seaside Heights police officer Shuldis removed Lutes’ weapons from
his home. It is not entirely clear from the record, but it appears that the removal occurred immediately following
Mansuy's wake, at least in part due to his excessive consumption of alcohol. Plaintiffs’ Stmt. of Material Facts at WF
227, 228. Costello and other Seaside Heights officials, including internal affairs officer Szalkowski, were aware that
Lutes' guns were taken, however, there were no written records maintained with regard to the removal, nor did Cos-
tello request that any written records be prepared. Plaintiffs’ Stmt. of Material Facts at § 23 1. The Seaside Heights
Police Department was apparently aware of other instances of Lutes' substance abuse, reports having been made on
several occasions by friends and family members of Lutes to various members of the Seaside Heights Police Depart-
ment that Lutes had an alcohol abuse problem. Plaintiffs’ Stmt. of Mat. Facts at § 239, 240. Additionally, Lt. Tate
testified that Costello had remarked to him shortly after Mansuy's death, in connection with an altercation that had

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 15 of 66 PagelD: 886

Answering Defendant has not deprived Plaintiff of any right, privilege or immunity
secured to them by the Constitution and laws of the State of New Jersey.

NINTEENTH SEPARATE DEFENSE

Answering Defendant is immune from suit based upon the doctrine of sovereign
immunity.

| TWENTIETH SEP{[ARATE DEFENSE

At all relevant times the Answering Defendant was an employee of the State of New
Jersey and at all relevant times was performing acts within the scope of her official duties in
good faith without fraud or malice, and is immune from any liability sought to be imposed upon
her based upon the doctrine of qualified immunity.

TWENTY-FIRST SEPARATE DEFENSE

The theory of respondeat superior cannot be utilized in 42 U.S.C. § 1983 actions.

TWENTY-SECOND SEPARATE DEFENSE

This suit is barred by the Eleventh Amendment.

TWENTY-THIRD SEPARATE DEFENSE

The Plaintiff has failed to exhaust administrative remedies, pursuant to the Prison
Litigation Reform Act, 42 U.S.C. § 1997e.

TWENTY-FOURTH SEPARATE DEFENSE

Answering Defendant is not a person capable of being sued within the meaning of 42
U.S.C. § 1983.

| TWENTY-FIFTH SEPARATE DEFENSE

Answering Defendant is immune from civil liability for any damages the Plaintiff may
seek pursuant to N.JLS.A. 30:4-16.

| TWENTY-SIXTH SEPARATE DEFENSE

Answering Defendant is entitled to all affirmative defenses available pursuant to the
Prison Litigation Reform Act, 42 U.S.C. § 1983, and 42 U.S.C. § 1997e.



Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 57 of 66 PagelD: 928
Page 16

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

They all engaged in acts to deliberately ignore and actively conceal substantial evidence that Lutes was unfit to
continue to possess it. Seaside Heights and Costello permitted Lutes to have unrestricted and unsupervised access
to the MP-S, All defendants were aware of and deliberately ignored or concealed evidence of Lutes’ abuse of alco-
hol and increasingly unstable behavior, and permitted Lutes to continue as a member of the police force and the
tactical team without intervention or restriction. Ali defendants affirmatively trained Lutes to possess the very pro-
ficiencies and tools necessary to carry out the shootings

ae

[These defendants armed Lutes with the tools and the knohow, all the while knowing he was dangerous and hid-
ing that fact from detection by others. The record contains substantial evidence that, collectively, these defendants
suppressed and covered-up evidence about Lutes' unfitness to possess the MP-5 thereby signaling to Lutes their
protection and affirmatively creating the opportunity for the shootings. [Plaintiffs' Br. at 60-61.)

Defendants counter that Plaintiffs have failed to allege any affirmative action against them. According to De-
fendants, the true nature of Plaintiffs' claims against them is the failure to take action to prevent the harm that ulti-
mately befell the Gallianos. Citing the recent decision of the Third Circuit in Bright, supra, 443 F.3d 276, and a sub-
sequent decision interpreting Bright, Jiminez y. All American Rathskeller, Inc., 2006 WL 1548874, p.9,n. 11, De-
fendants argue that Plaintiffs are foreclosed from relying on a “look the other way” theory of recovery under the
fourth clement of the state-created danger doctrine. This Court agrees that this factor does not weigh strongly in fa-
vor of the plaintiffs and a “look the other way” policy is indeed insufficient to satisfy the affirmative act requirement
under the fourth prong of the state-created danger doctrine. However, the Court finds that Plaintiffs’ allegations go
beyond a “look the other way” policy and grating all inferences to Plaintiffs on this motion, there is affirmative con-
duct by Defendants in the nature of active concealment and in the nature of granting unrestricted access to a subma-
chine gun and other weapons to an officer and regional tactical team member, with knowledge that the officer was
experiencing personal problems such as alcohol abuse and involvement in criminal mischief directed toward the ulti-
mate victims. Additionally, affirmative conduct can be found in Dover Township Patrolman Licata's removal of
Lutes’ weapons following the incidents of domestic violence and in Seaside Heights Officer Shuldis' removal of
Lutes’ weapons following his fiancé's funeral, neither of which resulted in any documentation or evaluative action
before the weapons were returned to Lutes, It is the duty of the fact-finder to weigh this evidence. Hill v. City of
Scranton, supra, 41} F.3d 118, 125 3d Cir.2005)

3. Municipal Liability

*18 Plaintiffs contend that municipal liability may still be imposed under Monell v. Dep't of Social Services,
436 U.S. 658 (1978) even in the absence of a finding that Lutes was acting under color of state law. Citing
Stoneking v. Bradford Area School Dist, 882 F.2d 720, 724-725 (3d Cir.1989), Plaintiffs argue that the Third Cir-
cuit has adopted the view that municipal liability may exist based upon actions taken by individuals not acting under
color of law. Plaintiffs argue that their claims are not based upon “constitutional entitlement to adequate police ser-
vices, or protection from the private acts of third parties” as Defendants suggest. Plaintiffs’ Br. at p. 35. Rather,
Plaintiffs contend that there is sufficient credible evidence based upon the facts adduced during discovery, including
the opinions of Plaintiffs’ expert, Dr. James O'Keefe, that the Defendants failed to enact and enforce policies, prac-
tices and customs to identify police officers and members of the regional tactical team suffering from unusual levels
of stress and those that abuse alcohol and to ensure proper safeguarding of special weapons such as the MP-5 sub-
machine gun issued to Lutes in connection with his position on the Central ERT. In sum, Plaintiffs’ municipal liabil-
ity claims appear rest on allegations that Defendants Seaside Heights, Chief Costello, Dover Township and Ocean
County individually and collectively violated the Gallianos' constitutional rights through their unconstitutional cus-
toms, policies and practices and (ii) inadequate training and supervision, both of which Plaintiffs allege made Lutes'
acts possible.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 63 of 66 PagelD: 934
Page 22

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

C. CLAIMS AGAINST CHIEF JAMES COSTELLO IN HIS INDIVIDUAL CAPACITY

With regard to the claims against Costello in his individual capacity, Costello contends that he is entitled to
judgment as a matter of law on all claims, and that he is entitled to qualified immunity from Plaintiffs’ § 1983 claims
as a matter of law. The Court recognizes that claims against officials in their individual capacities are distinct from
those against a municipality or state official in his or her official capacity, however, the Court finds that the same
evidence of alleged acquiescense and deliberate indifference on the part of Costello proffered by Plaintiffs in sup-
port of the municipal liability and state-created danger claims is sufficient to support the claims against Costello in
his individual capacity. Moreover, the Court finds that Plaintiffs have raised disputed issues of material fact in con-
nection with Costello's conduct, which preclude the grant of summary judgment on qualified immunity grounds.

*25 Qualified immunity shields government officials performing discretionary functions 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. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982); Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir.1997); Orsatti v. New Jersey State Police, 7) F.3d 480, 483
(3d Cir.1995). The qualified immunity inquiry is a two step process. “First, [the Court] must determine whether the
defendants violated ‘clearly established’ rights, This entails a finding of a constitutional or statutory violation as well
as a finding that the violated right was clearly established at the time of the violation. Second, [the court]
determine[s] whether a reasonable officer would have believed that his or her conduct deprived the plaintiff of his or
her constitutional rights,” Harvey v. Plains Township Police Department, 421 F.3d 185, 192 (3d Cir.2005) (internal
citations omitted). “(T]he burden of pleading a qualified immunity defense rests with the defendant, not the
plaintiff.” Thomas v. Independence Twp., 463 F.3d 285, 293 (3d Cir.2006).

Costello asserts that defining the clearly established constitutional right at issue with the appropriate level of
specificity requires the Court in evaluating the availability of qualified immunity to determine “whether a reasonable
police chief in Chief Costello's position would have concluded that it constituted deliberate indifference to fail to
conclude that officer Lutes was homicidal based on secondhand allegations that he had a drinking problem or was ir-
ate, or generally was suspected of criminal mischief, without any proof.” Costello's Br. at 34. The Court rejects Cos-
tello's attempt to define the constitutional right so narrowly, as the rights at issue clearly involve “the right to be free
from a state-created danger, the right to be free from a state-sponsored deprivation of life, liberty or property without
the due process of law, the obligations of police supervisors to supervise and discipline police officers and the re-
quirement to provide more than [deliberate indifference] to the likelihood that police officers under their supervision
may violate the rights of others or cause them harm.” Plaintiffs’ Br, at 89-90. The foregoing substantive due process
rights alleged by Plaintiffs were clearly established at the time the conduct giving rise to Plaintiffs’ claims took
place. Moreover, the evidence of Costello's involvement in Plaintiffs' claims arising under the state-created danger
doctrine and the municipal liability theory is adequate to support a finding that Costello violated the Gallianos' right
to substantive due process under Fourteenth Amendment.

Thus, the primary issue with regard to the applicability of qualified immunity concerns the objective reason-
ableness of Costello's actions and acquiescence. As the Court has previously concluded, however, there are material
issues of fact in dispute which relate directly to Costello. Specifically, there are factual issues concerning Costello's
knowledge of Lutes’ involvement in criminal mischief given Chief Mastronardy's testimony that he informed Cos-
tello of such matters as well as factual issues relating to whether knowledge of Lutes’ threats two weeks prior to the
shootings may be imputed to Costello in light of Minialga’s testimony that he informed Chaney, the second in com-
mand. Thus, the Court finds summary judgment on qualified immunity grounds to Chief Costello inappropriate. See
Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir.2004)(“The jury ... determines disputed historical
facts material to the qualified immunity question.”).

D, PLAINTIFFS' STATE LAW CLAIMS
*26 In Count Five of Plaintiffs’ Amended Complaint, Plaintiffs allege negligence against all municipal Defend-

© 2012 Thomson Reuters, No Claim to Orig. US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 17 of 66 PagelD: 888

CROSSCLAIM FOR CONTRIBUTION AND INDEMNIFICATION

While denying any responsibility or liability to the Plaintiff, this Defendant cross claims
against all other non-State defendants, presently or hereafter named, for contribution and/or
indemnification pursuant to the New Jersey Joint Tortfeasor Contribution Law, N.J.S.A.
2A:52A; 52A-1, et. seq.; the New Jersey Comparative Negligence Law (N.J.S.A. 2A:15-5.1, et
seq and R. 4:705(b), for any sums which may be recovered by Plaintiff against these non-State
Defendants on the basis that such liability is the responsibility of the non-State defendants
herein.

WHEREFORE, this Defendant demands judgment for contribution and/or
indemnification against all non-State defendants presently or hereafter named in the within
action.

ANSWER TO CROSSCLAIMS

This Defendant denies all allegations set forth in any cross claim filed by any Defendant
or third party defendant presently or hereafter named in the within action.

AFFIDAVIT OF MERIT AND
DEMAND FOR EXPERT REPORTS

Please take notice that pursuant to N.J.S.A. 2 A: 53:A- 27 and Rule 4:10 — 2(d) (1), this
‘Defendant hereby demands that within sixty (60) days following the date of this Answer,
Plaintiffs furnish an Affidavit of Merit and written report of an expert stating the substance of!
the facts and opinion to which said expert to testify with regard to plaintiffs’ allegations
directed toward this Defendant, otherwise this Defendant will seek relief as may be appropriate,

including dismissal.



Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 3 of 66 PagelD: 874

6. This Defendant admits that she is a nurse employed by UMDNJ and assigned to
CRAF providing nursing care to inmates and conducting inmate evaluations. Defendant lacks
sufficient knowledge or information to form a belief as to the truth of the remaining allegations
contained in paragraph six.

7. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph seven.

8. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph eight.

9. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph nine.

10. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph ten.

11. This Defendant admits plaintiff's decedent was incarcerated at the time of his
death. Defendant lacks sufficient knowledge or information to form a belief as to the truth of
the allegations contained in paragraph eleven.

12. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph twelve.

13. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph thirteen.

14. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph fourteen.

15. This Defendant admits the Plaintiff's decedent was incarcerated and denies the

remaining allegations contained in paragraph fifteen.



ULiLwieule 44,96 Do au rar
1asio

Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 38 of 66 PagelD: 909

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOAN MULLIN, ADMINISTRATRIX OF
THE ESTATE OF ROBERT MULLIN,
deceased and JOAN MULLIN, individually,

Plaintiffs, )
avs-
ADMINISTRATOR KAREN BALICK], in CIVIL ACTION
her personal, individual and professional
iti ting the State of N
Saati oar tng ee cacrestions 6 Civ. No. 3:14-ev-00247-MLC -LHG

Jersey, the Department of Corrections of the
State of New Jersey, South Woods State
Prison, and Central Reception & Assignment SUBPOENA DUCES TECUM
Facility (C-.R.A.F.), DIRECTOR ROBERT
PATTERSON, in his personal, individual and
professional capacities, representing the State
of New Jerscy, the Department of Corrections
of the State of New Jersey, South Woods State
Prison, and Central Reception & Assignment
Facility (C.R.A.F.) DIRECTOR MARIE
DUNLAP-PRYCE, in her personal, individual
and professional capacities, representing the
State of New Jersey, the Department of
Corrections of the State of New Jersey, South
Woods State Prison, and Central Reception &
Assignment Facility (C.R.A.F.), JANE BYRD,
L.P.N., in her personal, individual and
professional capacities, ERIN MARUSKY,
RN., in her personal, individual and
professional capacities, OFFICER DIMLER,
in his personal, individual and professional]
capacities BEATRICE TEEL, R.N., in her
personal, individual and professional
capacities, TRENTON PSYCHIATRIC
HOSPITAL, KINTOCK GROUP, MERCER
COUNTY, JOHN DOES 3-10 (as yet
unidentified and unknown governmental,
county, or state officials, supervisors, agents or
employees) in their personal, individual aud
professional capacities, ABC ENTITIES 1-10
(as yet unidentified and unknown
governmental entities, agencies, units or
subdivisions,

Defendants.



CasB $@9:b0247-MLC-LHG Document 74-3 Filed 04/02/12 Page 26 af 6 AgeD:1897
ah SPSceg

ment
March 10, 2011

Has any member of your immediate family made a serious suicide attempt or committed suicide?
No

Comment 4yrs ago

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

Js the inmate refusing to answer questions? No

Is the inmate crying? No

Is the inmate talking to him or herself? No

Does the inmate have noticeable scars on wrists or neck? No
Does the inmate appear agitated? No

Inmate consented to the following:
Intake

Signed by Jane Byrd, LPN on 01/16/2009 at 4:00 PM

01/16/2009 - Lab Report: CBC With Differential/Platelet, Panel 083824, Glucose, Plasma
Provider: Johnny Wu,MD
Location of Care: NJ Department of Corrections

Patient: ROBERT MULLIN
Note: All result statuses are Final unless otherwise noted.

Tests: (1) CBC With Differential/Platelet (005009)

WBC [H] 10.8 x10E3/uL 4.0-10.5
RBC 4.79 xl0E6/uL 4.10-5.60
Hemoglobin 16.1 g/dL 12.5-17.0
Hematocrit 46.3 % 36,0-50.0
MCV 97 £L 80-98
MCH 33.5 pg 27,.0-34.0
MCHC 34.7 g/d 32.0-36.0
RDW 13.5 % 11.7-15.0
Platelets 236 x10E3/uL 140-415
Neutrophils {H] 82 % 40-74
Lymphs {L] 13 % 14-46
Monocytes 5% 4-13

Eos 0% 0-7
Basos 0% 0-3

Neutrophils (Absolute)
[H} 8.9 x10E3/uL 1.8-7.8


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 2 of 66 PagelD: 873

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOAN MULLIN, Administratrix of the : Civil Action 3:11-CV-0247-MLC-LHG
ESTATE OF ROBERT MULLIN,
Deceased, and JOAN MULLIN,
Individually, :
Plaintiffs, : CIVIL ACTION ANSWER TO
v. : 2" AMENDED COMPLAINT &
JURY TRIAL DEMAND

STATE OF NEW JERSEY, et als

Defendants.

Defendant Jayne Byrd, LPN, through her attorneys, Farkas & Donohue, LLC, (on the
medical malpractice claim), and Paula T. Dow, 1Attorney General of New Jersey, (on the

constitutional claims), by way of Answer to the Second Amended Complaint avers and says:

PARTIES
1. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph one.
2. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph two.
3. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph three.
4. This Defendant lacks sufficient knowledge or information to form a belief as to
the truth of the allegations contained in paragraph four.
5. This Defendant lacks sufficient knowledge or information to form a belief as to

|
| the truth of the allegations contained in paragraph five.



Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 50 of 66 PagelD: 921
agi

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

The Court finds that Lutes’ statements compel a finding that his actions were indeed motivated by revenge that
was purely personal in nature,f%2

FEN10. The Court is not suggesting here that the mere fact that Lutes' conduct was motivated by personal re-
venge compels a finding that he was not acting under color of state law. See Barna, supra, 42 F.3d at 816
(“If an individual is possessed of state authority and purports to act under that authority, his action is state
action, It is irrelevant that he might have taken the same action had he acted in a purely private capacity.”)
Rather, this Court finds that where the conduct was strictly personal in nature and the only evidence of pur-
ported state authority is the use of a police issued weapon, there is simply insufficient evidence to find state
action,

Plaintiffs assert that despite Lutes' lack of actual authority, he nevertheless acted under color of law based on his
conduct in relying on that purported authority to carry out the wrongful conduct. See eg. Barna v. City of Perth
Amboy, 42 F.3d 809, 816 (3d Cir, 1994)(“[O]ne who is without actual authority, but who purports to act according to
official power, may also act under color of state law.”); United States v. Giordano, 442 F.3d 30, 43 (2d Cir,2006)
(“{ljt is well-established that an official may act under color of law even when he or she encounters the victim out-
side the conduct of official business and acts for reasons unconnected to his or her office, so long as he or she em-
ploys the authority of the state in the commission” of the alleged civil rights violation).

Under the Plaintiffs' theory, then, virtually every off-duty police officer who engages in wrongful conduct using
his or her police weapon would have acted under color of state law, a result which is contrary to the law in this cir-
cuit, While the use of a state-issued weapon or device in the course of wrongful conduct “may” be evidence that the
off-duty officer acts under color of law, that alone is not sufficient to cloak the off-duty officer with authority where
the use of the weapon occurs in the context of a “clearly personal family dispute.” Barna, supra, 42 F.3d at 809.
818. Although Plaintiffs assert that Lutes was using his official authority to bring a suspected criminal offender to
justice, the evidence compels a contrary conclusion. Indeed, Lutes expressly stated that the “criminal justice system
didn't work.”

*10 The out-of-Circuit authority Plaintiffs rely on to support their contention that Lutes acted under color of
state law is unpersuasive. In Revene y. Charles County Comm'rs, 882 F.2d 870 (4th Cir.1989), for example, the
court simply concluded in the context of a motion to dismiss that a deputy sheriff's off-duty status, lack of uniform,
and use of his private vehicle when he shot and killed a motorist was not dispositive on the issue of whether the
sheriff was acting under color of law. The Revene Court found dismissal improper based on the facts alleged at “the
bare-bones pleading stage.” Jd. Here, where discovery is complete and the only evidence Plaintiffs can point to in
support of their contention that Lutes was acting under color of state law is: (1) his use of a state-issued weapon, (2)
the regulatory requirement that he have his weapon and identification with him twenty-four hours a day [without
evidence that identification was displayed or observed to the victims]; (3) that he wore a necklace and ring bearing a
replica insignia of his badge and a Seaside Heights Police Department wristwatch [without evidence that they were
observed]; (4) that his private vehicle had other police weapons, ammunition, and equipment {not displayed or ob-
served]; and (5) that he was carrying handcuffs in his front pocket [not displayed or used], the holding in Revene has
no applicability.

In Stengel v. Belcher, $22 F.2d 438 (6th Cir. 1975), also cited by Plaintiffs, the Sixth Circuit held that the evid-
ence supported a finding that an officer was acting under color of law where the off-duty, out-of-uniform officer in-
serted himself into an altercation in a bar and proceeded to use his police-issued mace and pistol to injure the
plaintiff. The Stengel court noted that the evidence permitted an inference that the officer had intervened in the dis-
pute pursuant to a duty imposed by police department regulations 8" and further had been found by his employer to
have acted within the line of duty. /d. at 441, The facts in Stengel that supported the jury's finding that the officer ac-

© 2012 Thomson Reuters, No Claim to Orig. US Gov. Works.


Westar ZeiZ Lei se yrs das
PAGE 18/16

Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 34 of 66 PagelD: 905

PROOF OF SERVICE

On, I, the undersigned, being over the age of 18, served the within
Subpoena by delivering a copy thereof to the person pamed therein, via certified mail retum
receipt requested at and by tendering to such person the attendance
fee of $ and mileage of $ as allowed by law.

I certify that the foregoing statements made by me are truc. ] am aware that if any of the
foregoing statements made by me are willfully false, I am subject to punishment.

Dated:

Address for Service:


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 43 of 66 Pagal. 914

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

spring and summer of 1999, the Gailianos cared for Lutes’ eight-year old daughter in their Toms River home during
the hours that Lutes was on duty. /d. at § 33. On March 28, 2000, Lutes' daughter informed him that Dominick Galli-
ano had exposed himself to her during the time that she was in the Galliano's care. /d. at ¢ 38. Dominick Galliano
was thereafter arrested on March 29, 2000, and charged with various offenses relating to Lutes’ daughter's allega-
tions. /d. at { 42. Dominick Galliano was indicted on the charges in August 2000, and stood trial before a jury begin-
ning on January 2, 2001. /d. at {§ 45, 46. On January 4, 2001, after approximately 45 minutes of deliberation, the
jury determined that Dominick Galliano was not guilty of the offenses charged, Id. at $53.

Prior to Dominick Galliano's trial and following his acquittal, Plaintiffs allege that Lutes threatened and har-
assed the Gallianos on numerous occasions. Specifically, they point to Gail Galliano’s testimony during the January
2001 trial that, in March 2000, Lutes had threatened to shoot Dominick Galliano. /d. at ] 52. Additionally, they al-
lege that on Halloween of 2001, Lutes urged neighborhood children to throw eggs at the Galliano home, and at the
home of Gary Williams, who had testified as a character witness for Dominick during the January, 2001 trial. /d. at
‘4 48, 73. Other alleged incidents of harassment include Lutes’ conduct in displaying signs on his lawn or home con-
taining the words “Every dad has his day” and shouting those words from his yard on numerous occasions so that
others could hear (Plaintiffs' Stmt. of Material Facts at §{f 361-364) and his posting of flyers in the neighborhood ac-
cusing Dominick Galliano of being a pedophile. /d. at | 366.

*2 Additionally, Plaintiffs point to a number of complaints filed with the Dover Township Police Department
during 2001 and 2002, in which both the Galliano and the Williams families alleged that Lutes was responsible for
incidents of criminal mischief including the slashing of tires on their vehicles (/d. at #¥] 316, 323, 337), the throwing
of paint on a vehicle (/d. at {¥ 324), the throwing of stones into the Williams' pool (/d. at § 4319), and the throwing
of dog feces into the Williams' yard (/d. at {§ 320). With regard to most of the incidents alleged, Plaintiffs point out
that no reports were filed by the Dover Township Police. In connection with one of the incidents-the second reported
tire slashing by the Williams family-Plaintiffs note that although the investigating officer listed Lutes as a suspect in
his report, a Dover Township supervisor later altered the report to remove Lutes' name replacing it with “UNK”,
representing “unknown”. /d. at § 325.TM! Additionally, Plaintiffs allege that none of the criminal mischief reports in
which Lutes was a suspect were ever referred to the Ocean County Prosecutor's Office, despite a requirement to do
so where reports involve allegations of criminal activity by a police officer.TM /d. at | 325.

EN3. Lutes’ name did, however, remain in the narrative portion of the report as the person whom Tina Wil-
liams thought was responsible for the incident. Dover Twp. Statement of Material Facts at § 38.

EN4. Dover Police Chief Mastronardy testified that he became aware of a criminal mischief report contain-
ing Lutes' name as he was reviewing reports that came across his desk. Plaintiffs’ Stmt. of Material Facts at
354. He further testified that he later discussed the report with Seaside Heights Police Chief Costello. 7d.
at { 355. Costello denies that any conversation regarding alleged incidents of criminal mischief ever took
place between himself and Mastronardy prior to the April 2002 shootings. According to Costello, the first
time he learned of Lutes' alleged involvement in criminal mischief in Dover Township was when Mas-
tronardy visited Costello in the hospital following the shootings and indicated to him that he had previously
informed him of the criminal mischief report. /d. at $359.

The tragic events giving rise to the instant action took place on April 9, 2002, when, shortly after 9:00 p.m.,
Lutes left his home armed with his police-issued MP-5 submachine gun, entered the Galliano home and fatally shot
Dominick Galliano, Gail Galliano, and their son Christopher. Ja. at {| 397, 398. Thereafter, Lutes entered the home
of the Williams family where he shot and killed Gary and Tina Williams with the MP-5.2TM5 Jd at { 403. Lutes then
drove to the Barnegat, New Jersey home of then Seaside Heights Police Chief James Costello. When Costello exited
his home and noticed a gun in Lutes' hand, he ran toward a wooded area behind his house. Dover Twp. Stmt. of Ma-

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


Wer Aur eure

Lai 3e Biss (sos!

PAGE 45/16

“Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 29 of 66 PagelD: 900

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOAN MULLIN, ADMINISTRATRIX OF
THE ESTATE OF ROBERT MULLIN,
deceased and JOAN MULLIN, individually,
Plaintiffs,
-Vs-

ADMINISTRATOR KAREN BALICKI, in
her personal, individual and professional
capacities representing the State of New
Jersey, the Department of Corrections of the
State of New Jersey, South Woods State
Prison, and Central Reception & Assignment
Facility (C.R.A.F.), DIRECTOR ROBERT
PATTERSON, in his personal, individual and
professional capacities, representing the State
of New Jersey, the Department of Corrections
of the State of New Jersey, South Woods State
Prison, and Central Reception & Assignment
Facility (C.R.A.F.) DIRECTOR MARIE
DUNLAP-PRYCE, in her personal, individual
and professional capacities, representing the
State of New Jersey, the Department of
Corrections of the State of New Jersey, South
Woods State Prison, and Central Reception &
Assignment Facility (C.R.A.F.), JANE BYRD,
LP.N., in her personal, individual and
professional capacities, ERIN MARUSKY,
RN., in her personal, individual and
professional capacities, OFFICER DIMLER,
in his personal, individual and professional
capacities BEATRICE TEEL, R.N,, in her
personal, individual and professional
capacities, TRENTON PSYCHIATRIC
HOSPITAL, KINTOCK GROUP, MERCER
COUNTY, JOHN DOES 3-10 (as yet
uuidentified and unknown governmental,
county, or state officials, supervisors, agents or
employees) in their personal, individual and
professional capacities, ABC ENTITIES 1-10
(as yet unidentified and unknown
governmental entities, agencies, units or
subdivisions,

Defendants,

CIVIL ACTION

Civ. No. 3:1J-cv-00247-MLC -LHG

SUBPOENA DUCES TECUM


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 13 of 66 PagelD: 884

THIRD SEPARATE DEFENSE

i Plaintiff's claims are barred by the Doctrine of Comparative Negligence.

FOURTH SEPARATE DEFENSE

Plaintiff's claims are barred by the Doctrine of Avoidable Consequences.

FIFTH SEPARATE DEFENSE

The injuries and damages alleged by Plaintiff were not proximately caused by this
Defendant.

SIXTH SEPARATE DEFENSE

The injuries and damages alleged by Plaintiff were the result of Plaintiff's decadent's pre-
existing condition.

SEVENTH SEPARATE DEFENSE

This Defendant is entitled to a credit for any expense paid by insurance or other third
parties pursuant to N.LS.A. 2A:15-97.

EIGHTH SEPARATE DEFENSE

No agency relationship existed between this Defendant and any other party to this
proceeding and therefore this Defendant has no vicarious liability by reason of the act or
omission of any other party.

NINTH SEPARATE DEFENSE

The Complaint fails to state a cause of action upon which relief can be granted.

TENTH SEPARATE DEFENSE

Plaintiff's claims are barred by the applicable Statute of Limitations.

ELEVENTH SEPARATE DEFENSE



Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 65 of 66 Pagel: 936

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

are entitled to qualified immunity, presumably because disputed issues of fact remain regarding the objective reas-
onableness of their actions. Finally, Plaintiffs reject Defendants reliance on the immunity afforded by N.J.S. A, 59:6-
4, 6-5, and 6-6 arguing that the claims in the instant case have no relation to any failure to render a medical dia-
gnosis or medical treatment that would implicate those provisions.

“The New Jersey Supreme Court has emphasized that ‘[t]he guiding principle of the Tort Claims Act is that
‘immunity from tort liability is the general rule and liability is the exception...’ “ Soberal v. City of Jersey City,
2006 WL 2085397 (D.N.J.2006)(quoting Coyne v. State Dept. of Transp., supra, 182 N.J, at 1163). It is well-settled
that public entities are afforded immunity for discretionary activities, Pursuant to N.J.S.A. $9:2-3, “(a) a public en-
tity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity; (b) a public
entity is not liable for legislative or judicial action or inaction or administrative action or inaction of a legislative or
Judicial nature.” The statutory counterpart for public employees is N.J.S.A. 59:3-2, which provides, in pertinent part,
“(a) a public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him;
(b) a public employee is not liable for legislative or judicial action or inaction, or administrative action or inaction of.
a legislative or judicial nature.”

The question, then, is, whether the conduct of the Defendants which gives rise to Plaintiffs’ state law claims is
encompassed by N_.J.S.A. 59:3-2 and N.J.S.A. 59:2-3. Determining whether governmental action is discretionary
for the purposes of the Tort Claims Act, generally depends upon whether the decision is a high level policy decision.
Costa y. Josey, 83 N.J. 49 (1980). However, “[sJubsection (b) of N.LS.A. 59:2-3 ‘deals with the operational level of
decisionmaking and does not implicate high level policymaking decisions.” TM Bilbili v. Klein, No. 02-cv-2953,
2005 WL 1397016 at _* 11 (D.NJ. June 14, 2005\(quoting Denis _v. City of Newark, 307 Super, 304

App.Div.1998). “The sorts of discretionary acts which are covered by subsection (b) are those which ‘callf ] for the
exercise of personal deliberations and judgment, which in turn entail[ ] examining facts, reaching reasoned conclu-
sions, and acting on them in a way not specifically directed.’ “ Jd. (quoting, Berel Co. v. Sencit F/G McKinley
Assoes., 710 F.Supp. 530, 541 (D.N.J.1989).

EN22. Interpretations of N.J.S.A._59:3-2 are applicable to N.J.S.A. 5:2-3, and vice versa. See Longo vy.
Santoro, 195 N.J, Super 507 (App.Div.), certif: denied, 99 N.J. 210 (1984).

*28 The conduct alleged against the individual Seaside Heights and Dover Township Officers, as well as the
conduct of Chief Mastronardy and Chief Costello, in connection with Plaintiffs’ state law claims involves their re-
spective obligations regarding their investigative, reporting, evaluative, and supervisory duties. Plaintiffs do not
point to any particular policies which required the officers or Chief Mastronardy and Chief Costello to perform in a
prescribed manner under a given set of facts, which would implicate ministerial, rather than discretionary activities,
Accordingly, this Court finds that they enjoy immunity under N.J.S.A, 59:2-3(b), See Bilbili v. Klein, supra, 2005
WL 1397016 at * 11 (finding officials immune from liability arising from disciplinary action taken by defendant of
ficials), Because the municipal employees would be immune from liability under the Act, the municipalities are im-
mune as well. See N.J.S.A. 59:2-2(b)(“A public entity is not liable for an injury resulting from an act or omission of
a public employee where the public employee is not liable.”). Accordingly, the Court grants Defendants’ motion for
summary judgment as to Plaintiffs' state law claims.

Additionally, the Court notes that the State law claims against Costello in his individual capacity are barred
based upon initial counsel's failure to file a timely Notice of Tort Claims as to Costello. The New Jersey Tort Claims
Act (“NJTCA”) sets forth a procedural framework for making claims against public entities and public employees.
N.JS.A. § 59:8-1 ef seg. The NITCA establishes precise time limitations within which a claim may be brought
against public entities and employees. N.IS.A. § 59:8-8. The filing of a notice of claim is a prerequisite to maintain-
ing a suit against a public entity. N.J.S.A. § 59:8-3. By its terms, the statute requires that a notice of claim be presen-

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 51 of 66 PagelD: 922
Page 10

Not Reported in F.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

ted under color of law are simply not present in this case. While Plaintiffs may assert that Lutes too was cloaked
with police authority twenty-four hours a day, the facts of this case are distinct from those in Stengel. Unlike the of-
ficer in Stengle who inserted himself into the situation where department regulations required that he take action or
be subject to discipline, here Lutes created the incident himself.

FNI11. The regulation that supported the inference required officers to take action “in any type of police or
criminal activity 24 hours a day”. Stengel, supra, 522 F.2d at 441.

Nor is Plaintiffs’ reliance on Bennett v. Pippin 74 F.3d 578 (Sth Cir.1996) persuasive. In Bennett, a Sheriff
raped an assault suspect after returning to her home following his initial investigation, /d. In affirming the district
court's finding that the Sheriff was acting under color of law, the Fifth Circuit concluded that the Sheriff's actions
“were an abuse of power held uniquely because of a state position ... and the explicit invocation of governmental au-
thority constituted a ‘real nexus’ between the duties of Sheriff and the rape.” /d. at $89. There is simply no nexus
here between Lutes’ conduct and his duties as a police officer or member of the Central ERT that can support a find-
ing that he was acting under color of law.

*11 Additionally, in United States v. Tarpley, 945 F.2d 806 (Sth Cir.1991), the court considered whether a
deputy sheriff was acting under color of law during an assault on his wife's former lover. /d. Despite the deputy’s
claims that he was acting as a jealous husband, the court found that he had acted under color of law, in part, because
he claimed during the assault to have special authority for his actions by virtue of his official status. Jd. The court
based that determination on a number of factors including the deputy's statements that he could kill the victim be-
cause he was an officer of the law, and more importantly, the fact that the deputy called another police officer to the
scene and identified him as such and then proceeded with that officer to run the victim out of town. Jd.

The facts in this case can hardly be said to rise to the level of those in Tarpley. Other than the use of an official
weapon and the fact that Lutes was wearing a replica badge insignia on a necklace and ring at the time of the shoot-
ings, there are no other factors indicating that he cloaked himself with authority. The fact that he had police issued
weapons in the car and handcuffs in his pocket is of no moment because there is no indication that he referenced
them in exacting the killings. Nor are the statements made by Lutes to the effect that the justice system failed him or
that cops don't go to jail persuasive on this issue. While Plaintiffs may contend that these statements evidence the
fact that Lutes remained mindful of his official authority and the ramifications that might await him if captured
while carrying out his “perceived duties”, the Court disagrees. Lutes' statements more compellingly demonstrate that
Lutes knew he was acting outside the scope of his authority in carrying out the murders. Furthermore, Lutes did not
enlist the aid of any other officers as did the deputy in Tarpley.

The Plaintiffs’ reliance on the fourth circuit decision in Rossignol v. Voorhaar, 316 F.3d 516, 520 (4th Cir.),
cert, denied, 540 U.S. 822 (2003) is equally unavailing. In that case, the court found that off-duty sheriff's deputies
who participated in mass purchases of a newspaper, which had been critical of the sheriff, deputies and candidates
for local office, on the night before the election, acted under color of law. /d. The court concluded that there was a
sufficient nexus between the purpose of the mass purchase and the deputies’ official roles because they purchased
the newspapers to retaliate against those who challenged the performance of official duties and to prevent future cri-
ticism, /d. The court noted that the deputies' official identities assisted them in executing the purchase, as store
clerks recognized them as deputies, some carried state-issued firearms, and one clerk testified that he was intimid-
ated into selling them the papers. /d. The court concluded that their status as sheriff's deputies enabled the actors to
execute their scheme in a manner that private citizens never could have. /d. This case is simply lacking the “suffi-
ciently close nexus” with the State that was present in the Rossignol case.

*12 Finally, Plaintiffs’ reliance on McCloughlan_v. City of Springfield, 172_F.Supp.2d_1009, 1015

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 53 of 66 PagelD: 924
Page 12

Not Reported in P.Supp.2d, 2007 WL 979850 (D.N.J.)
(Cite as: 2007 WL 979850 (D.N.J.))

FN13. Plaintiffs appear to concede that in the absence of a finding that Lutes was acting under color of law,
their claims against the municipal Defendants and Costello based upon a violation of the Gallianos' rights
under the Fourth Amendment will fail. Plaintiffs’ Br. at 12.

The “state-created danger” theory has its genesis in the Supreme Court's decision in DeShaney v. Winnebago
County Dep't of Soc. Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Under the state-created danger
doctrine, a state “may assume responsibility for the safety of an individual for whom it affirmatively creates or en-
hances a risk of danger.” Kaucher v. County of Bucks, supra, 455 F.3d at 431. To state a meritorious substantive due
process claim under the doctrine, the Third Circuit has determined that the following essential elements must be
met:

(1) the harm ultimately caused was foreseeable and fairly direct;
(2) a state actor acted with a degree of culpability that shocks the conscience;

(3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the
defendant's acts, or a member of a discrete class of persons subjected to the potential harm brought about by the
state's actions, as opposed to a member of the public in general; and

(4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered
the citizen more vulnerable to danger than had the state not acted at all. [/d.]

Defendants claim that Plaintiffs have failed to satisfy the foregoing elements. For the following reasons, the
Court finds there are genuine issues of material fact, which preclude the grant of summary judgment on Plaintiffs’ §
1983 claims based upon the state created danger theory of liability.

a. Foreseeable Harm

The first element under the state-created danger doctrine requires a plaintiff to establish that the “harm ulti-
mately caused was foreseeable and fairly direct.” /d. at 431. Plaintiffs contend that it is well-recognized that acts of
misconduct by police officers, both on and off-duty, are foreseeable and that practices such as proper supervision,
training and discipline can and do serve to diminish the likelihood and frequency of officer misconduct. Plaintiffs’
Br, at p. 42. Pointing to the facts known to each of the Defendants, Plaintiffs argue that there are indeed sufficient
facts upon which this Court should find the issue of foreseeability is one for the jury.

*14 With regard to Seaside Heights, Plaintiffs contend that Minialga’s deposition testimony, that he conveyed to
Captain Chaney, the department's second in command, Lutes' report that he was going to kill Dominick Galliano,
standing alone provides sufficient evidence to support a finding of foreseeability as to Seaside Heights. When that
testimony is considered in tandem with the other evidence of which Seaside Heights was aware, including Chief
Mastronardy's call to Chief Costello advising him of Lutes' involvement in a criminal mischief matter in Dover
Township TM4, reports of Lutes' drinking problems to various members of the Seaside Heights Police Department,
including a police supervisor, and Lutes absenteeism in the months preceding the shootings, Plaintiffs argue that a
jury may properly find that Lutes’ actions against the Gallianos were foreseeable as to both Seaside Heights and
Costello. This Court agrees that based upon the facts and inferences that must be decided in Plaintiffs’ favor on this
motion, a jury could find the harm to the Galliano family foreseeable in light of the failure to take proper evaluative
action with respect to Lutes’ fitness to possess the MP-5 and other state-issued firearms.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.


Case 3:11-cv-00247-MLC-LHG Document 74-3 Filed 04/02/12 Page 16 of 66 PagelD: 887

DEMAND FOR STATEMENT OF DAMAGES

Pursuant to Rule 4:5-2, this Defendant demands that within five (5) days of service
herein, Plaintiff serve upon the undersigned a written statement of the amount of damages

claimed in each count of the Complaint.