ABRAHAM SMITH v. ESSEX COUNTY CORRECTIONS DEPARTMENT, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0661-05T10661-05T1

ABRAHAM SMITH,

Plaintiff-Appellant,

v.

ESSEX COUNTY CORRECTIONS

DEPARTMENT, OFFICER BARRY,

OFFICER REID,

Defendants-Respondents,

and

CITY OF NEWARK,

Defendant.

______________________________

 

Submitted March 28, 2006 - Decided April 11, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Essex County, L-5927-03.

Zemel & Zemel, attorneys for appellant

(Eric A. Gang, on the brief).

Harry J. Del Plato, Acting County Counsel, attorney for respondents (Ferdinando M. Pugliese, of counsel and on the brief).

PER CURIAM

Plaintiff Abraham Smith appeals from a trial court order granting summary judgment dismissing his complaint against defendants Duval Barry, William Reid and the Essex County Corrections Department (County). We affirm.

These are the most pertinent facts. In 2001, plaintiff was incarcerated in the Essex County Jail after he was arrested and unable to post bail. While he was in the Jail, two corrections officers beat him and broke his jaw. Plaintiff did not know the officers' names, although he contends that another inmate told him that their names were Duval Barry and William Reid. Nonetheless, plaintiff did not cooperate with the Jail's internal investigation of the incident and refused to name his attackers.

Almost two years later, in July 2003, plaintiff filed a complaint against the County and Officers Barry and Reid. He asserted claims against all three defendants under 42 U.S.C. 1983 and asserted a claim against the officers under the Tort Claims Act. Plaintiff was deposed twice. During the first deposition he described the attack and admitted he had no personal knowledge as to the identity of the two officers who beat him. But he did provide a physical description of the officers. He also admitted that he did not cooperate with the Jail's internal investigation. At his second deposition, plaintiff was shown an array of photographs of corrections officers, including photos of Barry and Reid. He identified two other officers as his attackers. Further, Barry and Reid submitted certifications attesting that they were not the same height or weight as the men defendant described. Although plaintiff's counsel objected to the quality of the photo array at the deposition, plaintiff did not seek to depose either officer. Nor did he request that they be produced in person so that he could try to identify them.

Defendants moved for summary judgment, contending that plaintiff could not identify Barry and Reid as the officers who attacked him, and he had no evidence that the County had a policy of ignoring inmate complaints or that the County displayed deliberate indifference to brutality by guards against inmates. See Schneider v. Simonini, 163 N.J. 336, 373 (2000).

Judge DeSoto granted the motion in an oral opinion placed on the record on September 13, 2005. He concluded that plaintiff had produced no legally competent evidence that the two officers were the ones who attacked him. He also concluded that plaintiff could not prove that the County

either affirmatively engaged in condoning or encouraging these types of action nor did they turn a blind eye to the allegations. They did investigate. They sent an Internal Affairs Investigator. Plaintiff chose not to cooperate. You can't have it both ways. He can't not cooperate with the investigation and then turn [around] and say . . . that the County refused to investigate it.

On this appeal, plaintiff raises the following issues:

POINT I: THE TRIAL COURT ERRED IN NOT CONCLUDING THAT THERE WAS A GENUINE MATERIAL ISSUE OF FACT AS TO WHETHER OFFICERS DUVAL BARRY AND WILLIAM REID COMMITTED THE ATTACK ON THE PLAINTIFF.

POINT II: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE ESSEX COUNTY DEPARTMENT OF CORRECTIONS BECAUSE A MUNICIPAL ENTITY CAN BE HELD LIABLE UNDER 42 SC SECTION 1983 AND UNDER A THEORY OF NEGLIGENT SUPERVISION.

Having reviewed the record we conclude that these contentions are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated in Judge DeSoto's oral opinion.

 
Affirmed.

It appears from the record that the correct spelling of the defendant's name is Devaul Berry.

Plaintiff conceded that he could not pursue a claim against the County based upon respondeat superior. Such a claim would be barred by the Tort claims Act, N.J.S.A. 59:2-10, which provides that a public employer is not liable for an employee's willful misconduct. McDonough v. Jorda, 214 N.J. Super. 338, 350 (App. Div. 1986) certif. denied, 110 N.J. 302 (1988).

(continued)

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A-0661-05T1

April 11, 2006