UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

___________________________________

:

AARON SHEPPARD, :

:

Plaintiff, : Civ. No. 11-2398 (NLH)

:

v. : OPINION

:

GLOUCESTER COUNTY SHERIFF, et al., :

:

Defendants. :

___________________________________:

APPEARANCES:

Jeffrey A. Carr, Esq.

301 Carnegie Center

Suite 400

Princeton, NJ 08543

Counsel for Plaintiff

Randy Miller

Paola F. Kaczynski, Esq.

1500 Market St.

Suite 2920

Philadelphia, PA 19102

Counsel for Defendant

HILLMAN, District Judge

This matter comes before the Court by way of a motion (ECF 

No. 87) by Defendants seeking partial summary judgment pursuant 

to Federal Rule of Civil Procedure 56. The Court has considered 

the parties’ submissions and decides this matter pursuant to 

Federal Rule of Civil Procedure 78.

For the reasons that follow, Defendants’ motion for summary 

judgment will be GRANTED in part and DENIED in part. 

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I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff filed his initial civil rights complaint pursuant 

to 42 U.S.C. § 1983 in New Jersey state court. He later filed 

an Amended Complaint, also in state court. On or about April 

27, 2011, the matter was removed to this Court pursuant to 28 

U.S.C. §§ 1331, 1441(a)-(b), 1446(b). (ECF No. 1). This Court 

screened the Amended Complaint pursuant to 28 U.S.C. § 1915A(b) 

and found that sua sponte dismissal was not warranted at that 

time. (ECF No. 2). In an Order dated May 3, 2011, Plaintiff’s 

claims against the Sheriff of Gloucester County and the Medical 

Staff of the Gloucester County Jail were dismissed without 

prejudice; however, Plaintiff’s claims were permitted to proceed 

against Corrections Officer Jeffrey Zavis and various John Doe 

Defendants. (Id.). Thereafter, Defendants filed a Motion to 

Dismiss the Amended Complaint (ECF No. 3), which the Court 

granted in part and denied in part on June 19, 2012 (ECF No. 6). 

Per the Court’s Order, Plaintiff was granted leave to amend his 

complaint and, on July 23, 2012, Plaintiff submitted a Second 

Amended Complaint (ECF No. 7). 

On November 13, 2014, the Court granted Plaintiff’s Motion 

to Amend his Complaint (ECF No. 50), and on January 5, 2015, 

Plaintiff filed a Third Amended Complaint (ECF No. 57) which 

substituted named defendants for the John Doe Defendants. 

Plaintiff’s Third Amended Complaint names as defendants: (1) 

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Officer Jeffrey Zavis, Officers John Doe (A-Z); (3) John and/or 

Jane Doe (1-2); (4) County of Gloucester; (5) Officer Brad 

Schmidheiser; (6) Sgt. William Glaze; and (7) Sgt. Michael 

Hickman.1 In brief, Plaintiff alleges in his Third Amended 

Complaint that he was assaulted by correctional officers in the 

shower room of the Gloucester County Jail. He brings federal 

and state law claims against the individual officers and against 

the County of Gloucester.

Defendants filed an Answer to the Third Amended Complaint 

on March 17, 2015. (ECF No. 17). On March 31, 2015, Plaintiff 

was granted in forma pauperis status (ECF No. 67) and pro bono 

counsel was appointed on April 14, 2015 (ECF No. 69). The 

parties engaged in discovery and, on February 26, 2016, 

Defendants filed a motion for partial summary judgment, which is 

presently before the Court. (ECF No. 87).

In their motion, Defendants seek dismissal of all claims —

federal and state — against the County of Gloucester; and 

dismissal of Plaintiff’s state law claims for negligence and

gross negligence against the individual Defendants. Plaintiff 

filed a brief in opposition (ECF No. 94) and the matter is now 

fully briefed.

 1 On April 9, 2015, the parties stipulated as to the dismissal of 

Defendant Carmel Morina. (ECF No. 68). 

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A. Summary Judgment Record

The following is a recitation of the record on summary 

judgment, and is compiled from the Statement of Material Facts 

submitted by the parties pursuant to Local Civil Rule 56.1. See

(Defendants’ Statement of Material Facts Not In Dispute, ECF No. 

88) (“Defs.’ SOMF”); (Plaintiff’s Responses to Defendants’ 

Statement of Material Facts, ECF No. 94-1) (“Pl.’s Resp. SOMF”);

(Plaintiff’s Supplemental Statement of Material Facts, ECF No. 

94-2) (“Pl.’s Supp. SOMF”). Additionally, the Court has 

considered the Report of Findings and Conclusions submitted by 

Plaintiff’s expert, Martin F. Horn (Opp’n, Ex. C 12, ECF No. 94-

6) (“Horn Report”), as well as various other documents, reports 

and transcripts contained in the record.

Plaintiff, an inmate at East Jersey State Prison, was 

temporarily transferred to the Gloucester County Jail (the 

“Jail”) to attend a matter involving post-conviction relief that 

was pending in Gloucester County. At the Jail, Plaintiff was 

provided with bedding and other items pending his return to East 

Jersey State Prison. On July 21, 2009, at approximately 2:14 

p.m., Officer Jeffrey Zavis went to Housing Unit Pod 3-E (the 

“Pod”) to take Plaintiff for “out-processing” in preparation for 

his return back to East Jersey State Prison. Plaintiff began 

collecting his belongings, but gave his county-issued pillow to 

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another inmate. The parties present different accounts of what 

happened next. 

According to Defendants, Officer Zavis instructed Plaintiff 

to retrieve his pillow. (Defs.’ Ex. A “Zavis Operations Report”, 

ECF No. 88-1). Defendants assert that Plaintiff then became 

verbally abusive and assumed a physically threatening posture. 

As a result, Officer Zavis restrained Plaintiff and Sgt. Glaze 

and Officer Schmidheiser came to his assistance. (Id.). Because 

it was Jail policy to strip search an inmate after he had been 

involved in an altercation with a corrections officer, Plaintiff 

was escorted to a lower level to be strip searched. (Defs.’ SOMF 

¶ 6, ECF No. 88). Defendants contend that no force was used in 

the strip search room. (Opp’n, Ex. I 80:5-8, Dep. Tr. Of Brad 

Schmidheiser, Sept. 22, 2015, ECF No. 94-12) (“Schmidheiser 

Tr.”). While Plaintiff was in the strip search room, the 

Defendant officers noticed that Plaintiff had a cut over his eye 

and Plaintiff was subsequently transported to the medical 

department, and then to an outside hospital for treatment. 

(Defs.’ SOMF ¶ 7-8, ECF No. 88).

Plaintiff’s version of the events is as follows. After 

giving away his pillow, Plaintiff realized himself that he would 

need it for out-processing and, thus, needed to retrieve it. 

(Pl.’s Supp. SOMF, ¶ 7). Plaintiff denies becoming belligerent, 

verbally abusive, or aggressive toward Officer Zavis. (Id. at ¶ 

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9, 11-12). Despite the fact that he did not provoke the 

officer, Plaintiff states that Officer Zavis shoved him against 

a wall, threw him on the floor, and handcuffed him. (Id. at ¶ 

14). At that point, Sgt. Glaze and Officer Schmidheiser came to 

Officer Zavis’s assistance and held Plaintiff’s head against the 

floor while he was being handcuffed. (Id. at ¶ 15). Defendants 

maintained holds on Plaintiff while they transported him to a 

lower level in the elevator. Plaintiff states that he did not 

resist and was compliant. (Id. at ¶ 19). Plaintiff was brought 

into the shower room for his strip search, a room without video 

cameras. (Opp’n, Ex. D 49:2-3, Dep. Tr. Of Jeffrey Zavis, Sept. 

22, 2015, ECF No. 94-7) (“Zavis Tr.”). Plaintiff contends that, 

during the strip search, he was thrown into a wall, held against 

a bench, and beaten on his back and ribs. (Pl.’s Supp. SOMF, ¶ 

20). Plaintiff states that he lost consciousness and woke up 

bleeding on the floor. (Id. at ¶ 21). After the strip search, 

Plaintiff was taken to the medical area where his wound was 

treated. He was then transported to an outside hospital where 

he received a CAT scan, a CT scan, x-rays, and he received 10 

stitches/staples for a 2.5 centimeter laceration over his eye. 

(Opp’n, Ex. K 2-5, Pl.’s Medical Records, ECF No. 94-14). 

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II. STANDARDS OF REVIEW

A. Summary Judgment

At summary judgment, the moving party bears the initial 

burden of demonstrating that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a 

matter of law. FED. R. CIV. P. 56(a); accord Celotex Corp. v. 

Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L.Ed.2d 265 

(1986). Once a properly supported motion for summary judgment 

is made, the burden shifts to the non-moving party, who must set 

forth specific facts showing that there is a genuine issue for 

trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 

S. Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing a motion for 

summary judgment, the court is required to examine the evidence 

in light most favorable to the non-moving party, and resolve all 

reasonable inferences in that party’s favor. Hunt v. Cromartie,

526 U.S. 541, 552, 119 S. Ct. 1545, 143 L.Ed.2d 731 (1999); 

Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).

A factual dispute is material when it “might affect the 

outcome of the suit under the governing law,” and genuine when 

“the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.” Anderson, 477 U.S. at 248. 

The non-moving party “‘need not match, item for item, each piece 

of evidence proffered by the movant,’” but must simply present 

more than a “mere scintilla” of evidence on which a jury could 

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reasonably find for the non-moving party. Boyle v. Cnty. of 

Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) 

(quoting Anderson, 477 U.S. at 252). “Where the record taken as 

a whole could not lead a rational trier of fact to find for the 

nonmoving party,” no genuine issue for trial exists and summary 

judgment shall be granted. Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 

(1986) (citation omitted).

This Court exercises subject matter jurisdiction over 

Plaintiff’s federal claims pursuant to 28 U.S.C. § 1331, and 

exercises supplemental jurisdiction over Plaintiff’s state law 

claims pursuant to 28 U.S.C. § 1367. 

B. 42 U.S.C. § 1983

A plaintiff may have a cause of action under 42 U.S.C. § 

1983 for certain violations of his constitutional rights. 

Section 1983 provides, in pertinent part:

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any State 

... subjects, or causes to be subjected, any citizen 

of the United States or other person within the 

jurisdiction thereof to the deprivation of any rights, 

privileges, or immunities secured by the Constitution 

and laws, shall be liable to the party injured in an 

action at law, suit in equity, or other proper 

proceeding for redress[.]” 

42 U.S.C. § 1983.

“To state a claim under 42 U.S.C. § 1983, a plaintiff must 

allege a person acting under color of state law engaged in 

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conduct that violated a right protected by the Constitution or 

laws of the United States.” Morrow v. Balaski, 719 F.3d 160, 

165–66 (3d Cir. 2013) (citing Nicini v. Morra, 212 F.3d 798, 806 

(3d Cir. 2000)). The Court's “‘first step in evaluating a 

section 1983 claim is to ‘identify the exact contours of the 

underlying right said to have been violated’ and to [then] 

determine ‘whether the plaintiff has alleged a deprivation of a 

constitutional right at all.’” Morrow, 719 F.3d at 166 (quoting

Nicini, 212 F.3d at 806); see also West v. Atkins, 487 U.S. 42, 

48 (1988). 

C. Monell Claims

In Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 

658, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court 

established that municipalities and other government entities 

were “persons” subject to liability under 42 U.S.C. § 1983 for 

constitutional rights violations, but that they were not liable 

under the doctrine of respondeat superior for the misconduct of 

its employees. Monell, 436 U.S. at 690–692, 98 S. Ct. 2018; see 

also City of Oklahoma City v. Tuttle, 471 U.S. 808, 810, 105 S.

Ct. 2427, 85 L.Ed.2d 791 (1985). To prevail on a Monell claim, 

a plaintiff must first establish that the municipality had a 

policy or custom that deprived him of his constitutional rights. 

McTernan v. City of York, 564 F.3d 636, 657 (3d Cir. 2009) 

(quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.

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1996)). In other words, the plaintiff must show that the 

municipality, through one of its policymakers, affirmatively 

proclaimed the policy, or acquiesced in the widespread custom, 

that caused the violation. Watson v. Abington Twp., 478 F.3d 

144, 155–156 (3d Cir. 2007). 

A plaintiff may show the existence of a policy when a 

decision-maker with final authority issues an official 

proclamation, policy, or edict. Bielevicz v. Dubinon, 915 F.2d 

845, 850 (3d Cir. 1990). Custom may be established by showing 

that a given course of conduct, “although not specifically 

endorsed or authorized by law, is so well-settled and permanent 

as virtually to constitute law.” Id.; see also Watson, 478 F.3d 

at 155–56; Natale v. Camden Cnty. Corr. Fac., 318 F.3d 575, 584 

(3d Cir. 2003) (defining “custom” as “‘an act that has not been 

formally approved by an appropriate decisionmaker,’ but that is 

‘so widespread as to have the force of law.’” (quoting Board of 

County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 

S. Ct. 1382, 137 L.Ed.2d 626 (1997))).

Once a § 1983 plaintiff identifies a municipal policy or 

custom, he must “demonstrate that, through its deliberate 

conduct, the municipality was the ‘moving force’ behind the 

injury alleged.” Brown, 520 U.S. at 404, 117 S. Ct. 1382; see 

also Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir.

1984) (holding that proof of the existence of an unlawful policy 

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or custom is not enough to maintain a § 1983 action; instead a

plaintiff must additionally prove that the policy or custom was 

the proximate cause of the injuries suffered); Watson, 478 F.3d 

at 156 (same). If the policy or custom does not facially 

violate federal law, causation can be established only by 

“demonstrat[ing] that the municipal action was taken with 

‘deliberate indifference’ as to its known or obvious 

consequences. A showing of simple or even heightened negligence 

will not suffice.” Id. at 407, 117 S. Ct. 1382 (citations 

omitted); Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir.

2000). 

For a § 1983 claim of failure to train or supervise 

municipal employees, the plaintiff must show that the failure to 

provide training or supervision amounted to “‘deliberate 

indifference’ to the rights of persons with whom the employee 

will come into contact.” Thomas v. Cumberland Cnty., 749 F.3d 

217, 222 (3d Cir. 2014). Deliberate indifference may be 

demonstrated by showing a pattern of violations which puts the 

municipal employee on notice that a new program is necessary; or 

a single incident violation where the need for training was 

patently obvious. Id. at 223.

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III. DISCUSSION

A. Claims against County of Gloucester

Defendants first assert that all claims against the County 

of Gloucester (the “County”) must be dismissed because Plaintiff 

has not adequately pled a cause of action under Monell. 

Specifically, Defendants point to paragraph 49 of the Third 

Amended Complaint, wherein Plaintiff states that, “the abuse to 

which Plaintiff was subjected was contrary to the customs2, 

policies, and practices, as well as published rules of the 

County.” (Third Am. Compl. 12, ECF No. 57) (emphasis added). 

Because Plaintiff alleges in the Third Amended Complaint that 

the abuse he suffered was contrary to the policies and practices 

of the County, Defendants conclude that Plaintiff has not 

alleged that the municipality had a policy that deprived him of 

 2 Plaintiff alleges in the Third Amended Complaint that the abuse 

he suffered was contrary to the customs, policies and practices 

of the County. (Third Am. Compl. ¶ 49, ECF No. 57). As noted 

above, a properly pleaded claim under Monell requires just the 

opposite — that the injury suffered is the result of a policy or 

custom. Nevertheless, the Court notes that Plaintiff’s Third 

Amended Complaint was filed pro se. Pro se pleadings should be 

construed liberally in favor of the plaintiff. See Haines v. 

Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 

F.2d 39, 42 (3d Cir. 1992). Therefore, although the precise 

wording of Plaintiff’s allegations can be construed as selfdefeating, the Court does not adopt this construction, nor do 

Defendants argue for such an interpretation. It is apparent 

from Plaintiff’s Third Amended Complaint that Plaintiff means to 

assert that personnel at the Jail engaged in certain 

unconstitutional practices or customs, and that officials at the 

Jail tolerated and acquiesced this conduct. See, e.g., (Third 

Am. Compl. ¶ 50-53, ECF No. 57).

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his constitutional rights as required to assert a claim under 

Monell. See McTernan, 564 F.3d at 657. Defendants next argue 

that Plaintiff has not presented evidence sufficient to show 

that his rights were violated by any custom or practice of the 

County. Defendants rely on the Jail’s “Use of Force policy and 

the training curriculum followed by its officers” in support of 

its contention that “there is no casual connection between any 

alleged custom or practice and any injury suffered by 

Plaintiff.” (Mot. Summ. J. 8, ECF No. 89). 

In opposition to Defendants’ motion, Plaintiff asserts that 

there exists “ample evidence demonstrating that the officers 

acted pursuant to a county policy, or alternatively, an 

unwritten custom, in their treatment of” Plaintiff. (Opp’n 11, 

ECF No. 94). Plaintiff then explains that there is a “two-path 

track to municipal liability under § 1983, depending on whether 

the allegation is based on municipal policy or custom.” (Id. at 

12) (quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d 

Cir. 1996)). In sum, Plaintiff argues that Defendants violated 

Plaintiff’s rights by both acting pursuant to the Jail’s policy 

regarding the use of force, see (id. at 13-14), and also by 

acting in accordance with the Jail’s custom and practice, see

(id. at 15-16). 

1. Use of Force Policy

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As discussed above, to set forth a policy-based claim under 

Monell, a plaintiff must identify a policy that deprived him of 

his constitutional rights. McTernan, 564 F.3d at 657. The 

policy at issue in this case is the Jail’s Use of Force Policy.

GLOUCESTER COUNTY CORRECTIONAL FACILITY POLICY AND PROCEDURES MANUAL, § 4, 

No. 457; (Opp’n, Ex. L, ECF No. 94-15) (“Policy”). Plaintiff 

challenges the section of the policy titled Authorization and 

Limitations of Use of Force — which provides guidance as to 

when, and how much, force may be used under the circumstances. 

(Policy at 7) (“Use of Force Policy”).

However, Plaintiff does not assert that the Use of Force 

Policy, itself, is unconstitutional or otherwise deprived him of 

his rights, as required for a policy-based Monell claim. 

Rather, as Defendants point out, Plaintiff’s argument is that 

his rights were violated when certain officers took actions that 

were contrary to the Use of Force Policy. In fact, the report 

submitted by Plaintiff’s own expert concludes that the use of 

force used on Plaintiff was “contrary to the use of force policy 

and other applicable standards at [the Jail] . . . .” (Horn 

Report 12, ECF No. 94-6).

The Court notes that Plaintiff’s argument in opposition to 

Defendants’ motion regarding the Use of Force Policy is 

misplaced. Specifically, Plaintiff argues that summary judgment 

is inappropriate because “questions [exist] as to whether the 

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officers’ actions conformed to the standards set forth in the 

jail’s Use of Force Policy.” (Opp’n 13, ECF No. 94). Plaintiff 

then goes on to discuss the amount of physical force used by the 

officers and the disputed facts of the case. Plaintiff 

concludes that “resolution of these disputed facts is the only 

means through which it can be determined whether the officers 

found it appropriate, under the Use of Force Policy, to employ 

the force that ultimately resulted in Mr. Sheppard’s injury.” 

(Id. at 14). However, the question of whether the officers used 

an appropriate amount of force under the Use of Force Policy is 

a question of the individual officer’s liability, not the 

County’s liability. 

Plaintiff has not set forth allegations in his Third 

Amended Complaint, raised arguments in his opposition, or 

presented evidence in the record sufficient to raise a question 

of material fact about whether the Jail’s Use of Force Policy, 

itself, caused his injury.3 For example, Plaintiff has not 

 3 Plaintiff states that “[t]he officers may have believed that 

they needed to use physical force . . . or that physical force 

was necessary [under the Use of Force Policy;]” and Plaintiff 

seems to argue that if the officers believed that the force used 

was necessary, then they acted in accordance with the Policy.

(Opp’n 14, ECF No. 94). However, the officers’ subjective 

belief about the amount of force required under the Use of Force 

Policy goes only to the officers’ liability, not the County’s.

See, e.g., (citing Monell) Rodriguez v. Panarello, 119 F. Supp. 

3d 331, 343 (E.D. Pa. 2015) (“Municipalities cannot be liable 

for the unconstitutional actions of their employees, but only 

for their own unconstitutional policies or customs.”). 

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presented evidence to suggest that the Use of Force Policy 

provided inadequate guidance to officers about when to use 

force4, or called for an unconstitutionally disproportionate 

amount of force5. Instead, Plaintiff’s critique of the Use of 

Force Policy is limited to his expert’s opinion that the policy

is geared more “toward the use of force by police officers on 

the street and is not adapted to address uses of force in a jail 

setting.” (Horn Report 10, ECF No. 94-6). However, even 

accepting this critique as accurate, there is no evidence in the 

record to suggest that this rises to the level of a 

constitutional violation. Because there is no evidence from 

which a reasonable jury could conclude that the County is liable 

for Plaintiff’s injury based on the Use of Force Policy, 

Defendants are entitled to summary judgment as a matter of law 

as to Plaintiff’s Monell claim based on the Use of Force Policy.

 

4 See, e.g., Berry v. City of Philadelphia, No. 14-2608, 2016 WL 

2939502, at *6 (E.D. Pa. May 20, 2016) (denying motion for 

summary judgment where plaintiff alleged that certain municipal 

directives provided inadequate guidance to officers regarding

when it is appropriate to discharge a firearm). 

5 See, e.g., Williams v. Guard Bryant Fields, 535 F. App'x 205, 

211-12 (3d Cir. 2013) (quoting Groman v. Twp. of Manalapan, 47 

F.3d 628, 637 (3d Cir. 1995) (“[A] single incident of 

unconstitutional activity is not sufficient to impose liability 

under Monell, unless proof of the incident includes proof that 

it was caused by an existing, unconstitutional municipal policy, 

which policy can be attributed to a municipal policymaker.”).

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2. Jail Custom

As discussed above, in order to establish a custom-based 

claim under Monell, a plaintiff must show that a prison official 

acquiesced in the widespread custom that caused a constitutional

violation. Watson, 478 F.3d at 155–156. Where the custom

“concerns a failure to train or supervise municipal employees, 

liability under section 1983 requires a showing that the failure 

amounts to ‘deliberate indifference’ to the rights of persons 

with whom those employees will come into contact.” Carter v. 

City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999) (quoting 

City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 

103 L.Ed.2d 412 (1989)). 

In his Third Amended Complaint, Plaintiff argues that the 

Jail had a custom of failing to train the correctional officers 

in the appropriate use of force and of failing to properly 

supervise the officers. See (Third Am. Compl. ¶ 50-53, ECF No. 

57). In their motion, Defendants contend that summary judgment 

is appropriate because no evidence exists which suggests that 

Plaintiff’s rights were violated pursuant to a custom or 

practice of the County. (Mot. Summ. J. 7, ECF No. 89). However, 

Defendants’ argument with respect to this issue is limited to 

the following sentences:

There is no evidence either that could support 

Plaintiff’s claim that the County knew of any 

“vicious” propensities on the part of any of the names 

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[sic] officers and did nothing to correct such 

conduct. To the contrary, the County has offered 

evidence of its Use of Force policy and the training 

curriculum followed by its officers.

(Mot. Summ. J. 7-8, ECF No. 89). 

Plaintiff’s arguments, in contrast, are premised upon a 

“jail-wide indifference to inmates’ constitutional rights” see

(Opp’n 15, ECF No. 94), demonstrated — in part — by Jail 

officials’ inaction following use of force incidents. Thus, 

Defendants do not explicitly address Plaintiff’s failure to 

train and failure to supervise arguments in their motion. 

Plaintiff relies on the Horn Report in support of his 

failure to train or supervise arguments. The crux of the Horn 

Report is that Jail officials have demonstrated deliberate 

indifference through their inadequate supervisory review of use 

of force incidents. The Horn Report bases this conclusion on 

specific factors such as: (1) inadequate Use of Force Report 

forms6, which do “not provide sufficient detail or information to 

permit management staff to make knowing and intelligent 

 6 The Court does not construe the Third Amended Complaint as 

raising a challenge to the Jail’s policy of reporting use of 

force incidents. Although the Horn Report points out 

deficiencies in the Jail’s Use of Force Report forms, neither 

the Third Amended Complaint, nor Plaintiff’s brief in opposition 

to the instant motion alleges that the Jail’s policy of 

reporting, itself, was the cause of Plaintiff’s injuries. 

Rather, the inadequate reporting of use of force incidents is 

framed as a symptom of prison officials’ deliberate 

indifference. See (Horn Report 10, ECF No. 94-6); (Opp’n 9, ECF 

No. 94); (Pl.’s SOMF ¶ 33, ECF No. 94-2). 

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determinations about the appropriateness of uses of force;” (2) 

the absence of a policy requiring routine review of video 

records of use of force incidents; and (3) the failure of 

supervisors to make recommendations on training or to conduct 

further investigation of use of force incidents. (Horn Report 

10-11, ECF No. 94-6); (Opp’n 9, ECF No. 94). The Horn Report 

concludes that Jail officials’ “indifference to the use of force 

by correction officers . . . led to and w[as] a proximate cause 

of the serious injury sustained by [Plaintiff].” (Id. at 9). 

Thus, the Horn Report makes specific findings with respect 

to Jail officials’ failure to supervise officers. Additionally,

evidence in the record suggests that physical altercations in 

the strip search room are not uncommon and at least two of the 

Defendant officers in this case testified that they have been 

involved in other incidents. (Zavis Tr. 53:10-21, ECF No. 94-7); 

(Schmidheiser Tr. 48:20-22, ECF No. 94-12); see also Thomas, 749 

F.3d at 223 (holding that deliberate indifference may be 

demonstrated by showing a pattern of violations which puts the 

municipal employee on notice that a new program is necessary). 

Defendants have not addressed Plaintiff’s claims of 

deliberate indifference through Jail officials’ inadequate 

supervisory review, nor have they disputed the findings of the 

Horn Report. Thus, they have not met their initial burden of 

demonstrating that there is no genuine dispute as to any 

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material fact, see FED. R. CIV. P. 56(a); Celotex, 477 U.S. at

323, and summary judgment as to Plaintiff’s failure to supervise 

claim is not appropriate at this time. See, e.g., Ewing v. 

Cumberland Cty., No. 09-5432, 2015 WL 1384374, at *29 (D.N.J. 

Mar. 25, 2015) (denying summary judgment as to plaintiff’s 

failure to supervise and failure to investigate claims because 

facts existed from which a jury could conclude that there was a 

culture of ignoring and failing to investigate misconduct); 

Beck, 89 F.3d at 974–76 (reversing grant of summary judgment on 

municipal liability claim where evidence showed that 

investigatory procedures into police misconduct were inadequate; 

there was no formalized tracking of complaints for individual 

officers; and there were civilian complaints of officer 

violence).

Notably, however, neither the Horn Report nor Plaintiff’s 

brief in opposition to the motion specifically addresses

Plaintiff’s failure to train claim. Rather, the discussion 

regarding Jail officials’ deliberate indifference is limited to 

the context of supervisory review of use of force incidents. See

(Opp’n 9, ECF No. 94). The Court notes that Plaintiff summarily 

concludes, relying on the Horn Report, that the excessive force 

used by the officers “was the result of inadequate training . . 

. .” (Id. at 10). However, the Horn Report makes no findings as 

to the adequacy of the Jail’s training regarding use of force. 

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Rather, as discussed above, the Horn Report concludes that the 

amount of force used was inappropriate, and that Jail officials’ 

deliberate indifference to use of force incidents was the 

proximate cause of Plaintiff’s injuries. 

Plaintiff has provided no information regarding the type of 

training provided with respect to the use of force, or the 

substance or frequency of said training. He has not identified 

any deficiencies in the training, nor has he described precisely 

how the deficient training contributed to a violation of his 

constitutional rights. Because the record is devoid of facts

regarding the adequacy of training, the Court will grant summary 

judgment and dismiss Plaintiff’s failure to train claim. See, 

e.g., Noble v. City of Camden, 112 F. Supp. 3d 208, 225 (D.N.J. 

2015) (granting summary judgment where plaintiff failed to 

present evidence that there was a lack of training). 

B. State Law Claims for Negligence and Gross Negligence

In their motion, Defendants arguments for dismissal of 

Plaintiff’s state law claims for negligence and gross negligence 

appears to be two-fold. First, Defendants argue that 

Plaintiff’s state law claims of negligence or gross negligence 

must be dismissed against all Defendants because Plaintiff has 

not properly explained the basis of his claims. (Mot. Summ. J. 

8, ECF No. 89). In his opposition, Plaintiff contends that the 

acts or omissions which form the basis of his claims are simply 

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the disputed facts of the case; i.e. the events which caused 

Plaintiff’s injury. (Opp’n 17, ECF No. 94). The Court agrees 

that the factual underpinnings of Plaintiff’s state law 

negligence and gross negligence claims are contained in 

Plaintiff’s recitation of the facts of the case, are supported 

in the record, and have been adequately presented. Accordingly, 

Defendants are not entitled to summary judgment on this basis.

Next, Defendant cites the New Jersey Tort Claims Act 

(“NJTCA”) which provides that a “public employee is not liable 

if he acts in good faith in the execution or enforcement of any 

law.” N.J. STAT. ANN. § 59:3–3. Presumably, Defendants mean to 

argue that the Defendant Officers are entitled to immunity under 

the NJTCA; however, Defendants do not present any argument in 

support of this proposition. 

This Court notes that in ascertaining whether good faith 

immunity exists, the New Jersey Supreme Court opined that “[a] 

public employee either must demonstrate ‘objective 

reasonableness’ or that he behaved with ‘subjective good 

faith.’” Alston v. City of Camden, 168 N.J. 170, 773 A.2d 693, 

703 (2001). The New Jersey Supreme Court further clarified that 

“[t]he same standard of objective reasonableness that applies in 

Section 1983 actions also governs questions of good faith 

arising under the Tort Claims Act.” Wildoner v. Borough of 

Ramsey, 162 N.J. 375, 387, 744 A.2d 1146, 1153 (2000). 

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As Plaintiff points out in his opposition, Defendants do 

not offer any explanation as to how Plaintiff acquired his 

injury, whereas Plaintiff has provided factual allegations and 

testimony as to his version of the events. Thus, a genuine 

issue of material fact exists as to what really transpired, and 

as to the objective reasonableness of Defendants’ actions. 

Because questions of material fact exist as to this critical 

event and Defendants’ actions, summary judgment is improper.

See, e.g., Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 445

(D.N.J. 2011) (collecting cases) (finding grant of immunity 

under NJTCA unavailable where material facts existed regarding 

the reasonableness of defendant’s actions); see also, e.g.,

Giles v. Kearney, 571 F.3d 318, 327 (3d Cir. 2009) (finding 

summary judgment inappropriate on a prisoner’s claim of 

excessive force where there was a genuine dispute of fact as to 

the necessity for the force, and a reasonable trier of fact 

could have concluded, based on the prisoner’s testimony, that 

the force used was excessive).

C. State Law Claims of Assault and Battery, and Abuse of 

Process 

As set forth above, the NJTCA imposes liability for a 

public entity “for injury proximately caused by an act or 

omission of a public employee within the scope of his employment 

in the same manner and to the same extent as a private 

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individual under like circumstances.” N.J. STAT. ANN. § 59:2–2(a). 

Section 59:2–2a of the NJTCA expressly adopts the general 

concept of vicarious liability for public entities. Hoag v. 

Brown, 397 N.J. Super. 34, 935 A.2d 1218, 1230 (N.J. Super. Ct.

App. Div. 2007); Tice v. Cramer, 133 N.J. 347, 627 A.2d 1090, 

1094 (1993). The NJTCA also provides that a public entity is 

“not liable for the acts or omissions of a public employee 

constituting a crime, actual fraud, actual malice, or willful 

misconduct.” N.J. STAT. ANN. 59:2–10. Thus, there can be no 

vicarious liability by a public entity for intentional torts 

committed by its employees.

As Defendants point out, Plaintiff’s state law claims for 

abuse of process, and for assault and battery are based on 

“alleged intentional, willful and/or malicious conduct of the 

Defendant officers.” (Mot. Summ. J. 9, ECF No. 89). Thus, the

County cannot be liable for this intentional conduct under the 

NJTCA. See N.J. STAT. ANN. 59:2–10. Further, Defendants note 

that, to the extent Plaintiff is seeking punitive damages, these 

types of damages are not recoverable against the County. See

N.J. STAT. ANN. § 59:9-2 (“No punitive or exemplary damages shall 

be awarded against a public entity.”). The Court agrees, and 

Plaintiff does not dispute these arguments. Accordingly, 

summary judgment will be granted in this respect and Plaintiff’s 

state law claims for abuse of process, and for assault and 

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battery against the County will be dismissed with prejudice. See 

e.g., Merman v. City of Camden, 824 F. Supp. 2d 581 (D.N.J. 

2010) (claims premised on intentional conduct were precluded by 

NJTCA). 

The Court notes that in this section of their motion, 

Defendants request that all state law claims against the County 

be dismissed. However, the NJTCA does not immunize the County

from liability for its employees’ negligent or grossly negligent 

conduct. See Graham v. Huevel, 2011 WL 1256607, at *10 (D.N.J. 

Mar. 28, 2011) (noting that a “claim for negligent supervision 

is an independent claim for direct liability, rather than one 

for vicarious liability under a theory of respondeat

superior.”); Hoag, 935 A.2d at 1230 (same). Plaintiff’s theory

— that the County is liable for its employees’ failure to 

properly supervise Jail officers with regard to use of force

incidents — states a claim for negligent supervision that is not 

barred by the NJTCA. See, e.g., Ewing, 2015 WL 1384374, at *30. 

Defendants do not challenge this claim in their motion; 

therefore, it will proceed. 

IV. CONCLUSION

For the foregoing reasons, Defendants motion for partial 

summary judgment will be granted in part and denied in part. 

Specifically, summary judgment is granted in favor of Defendants 

with respect to Plaintiff’s Monell claims against the County 

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based on the Use of Force Policy, and Plaintiff’s Monell claims 

against the County based on a failure to train. These claims 

are dismissed without prejudice. Summary judgment is also 

granted in favor of Defendants with respect to Plaintiff’s state 

law claims against the County for abuse of process, and assault 

and battery; and these claims are dismissed with prejudice. 

Defendant’s motion for summary judgment is denied with respect 

to Plaintiff’s Monell claim against the County based on failure 

to supervise, and is denied with respect to Plaintiff’s state 

law claims for negligence and gross negligence against all 

Defendants. 

An appropriate Order follows. 

__s/ Noel L. Hillman______

NOEL L. HILLMAN

United States District Judge

Dated: July 19, 2016

At Camden, New Jersey

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