George Bresnihan v. the Kintock Group of New Jersey ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2628-21
GEORGE BRESNIHAN,
FOUNTAIN HAMLETT,
SEAN WILLIAMS,
CHRISTOPHER DRAKES,
TROY BARBER,
Plaintiffs-Appellants,
and
DERRICK M. MURPHY,
Plaintiff-Respondent,
v.
THE KINTOCK GROUP OF
NEW JERSEY,
Defendant-Respondent.
Submitted October 24, 2023 – Decided February 28, 2024
Before Judges Rose and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Docket No. L-0020-17.
Law Offices of Stephen Steinberg, PC, attorneys for
appellants (Stephen Steinberg, of counsel and on the
briefs; Jeff Edward Thakker, of counsel; Eltia I.
Montano Galarza, on the briefs).
Kiernan Trebach, LLP, attorneys for respondent The
Kintock Group of New Jersey (Mark A. Lockett, on the
brief).
PER CURIAM
Plaintiffs George Bresnihan, Fountain Hamlett, Sean Williams,
Christopher Drakes, and Troy Barber appeal from a March 15, 2022 Law
Division order dismissing their complaint on the summary judgment motion of
defendant, The Kintock Group of New Jersey.1 Plaintiffs argue that while
residents of Kintock's halfway house facility in Bridgeton, they were unlawfully
strip searched by officers assigned to the Special Investigations Division of the
New Jersey Department of Corrections (DOC or NJDOC), and Kintock failed to
intervene. Because there was no cognizable evidence in the record to support a
reasonable inference Kintock was responsible for plaintiffs' alleged injuries, we
affirm.
1
Plaintiff Derrick M. Murphy represented himself before the trial court after
appellants' attorney moved to be relieved as counsel but did not file a brief in
the trial court in response to Kintock's motion. Nor has Murphy filed a brief in
this appeal.
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We summarize the facts from the motion record in a light most favorable
to plaintiffs as the non-moving parties under the seminal Brill standard. Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).
In essence, the incident occurred on November 18, 2014, when DOC officers
conducted a "mass" strip search of Kintock's residents during an approximately
three-and-one-half-hour timeframe. Kintock's employees did not partake in the
searches. Plaintiffs did not sue the DOC.
Kintock holds itself out as "a non-profit organization[,] which contracts
with federal and state law enforcement agencies to provide cost effective
alternatives to incarceration and re-entry services for individuals transitioning
from the criminal justice system to the community." See N.J.S.A. 30:4-91.2. In
2013, Kintock and the DOC executed a contract for the operation of a halfway
house in Bridgeton, which was designated by the Commissioner of Institutions
and Agencies "as a place of confinement." See N.J.S.A. 30:4-91.1.
The contract contained a provision entitled, "Indemnity/Liability to Third
Parties," requiring Kintock to indemnify and defend the State against "all claims
demand, suits, actions, recoveries, judgments, and costs and expenses" for an
injury arising from "the work and/or materials supplied under th[e] contract."
In its request for proposal, the DOC advised, "[s]pecific facility searches . . .
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may be conducted whenever" the DOC deems the search "necessary and
appropriate," without notice to the contractor.
More than two years after the incident, in December 2016, plaintiffs filed
an eight-count complaint against Kintock. In the first four counts, plaintiffs
alleged violations of: the state and federal constitutions; the strip search statute,
N.J.S.A. 2A:161A-1 to -10, and the Attorney General Guidelines issued
thereunder; the NJDOC regulation governing strip searches; and Kintock's
sexual assault policy which prohibited cross-gender strip searches. Plaintiffs'
remaining claims alleged negligent hiring and training; intentional and negligent
infliction of emotional distress; and breach of custodial duty. Plaintiffs sought
compensatory and punitive damages, and counsel fees. They also raised
allegations of a potential class action.
In their complaint, plaintiffs asserted they were strip searched by NJDOC
officers in an area known as "the alley," which is "a corridor" that "runs the
length of the facility." The alley was within view of "several surveillance
cameras." A "control room" with clear glass windows was located in the center
of the alley, affording staff the ability to observe the alley. "Male and female
staff members . . . were on duty and working in the control room and observed
the residents being strip searched." Contending the facility had "private rooms
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. . . where private searches could have been conducted," plaintiffs claimed the
"strip searches were performed in the open in an extremely non-private
location."
When deposed, Bresnihan asserted Kintock's director, Michael Kenney,
"was like supervising . . . getting [the residents] where [they] needed to go and
getting [them] ready for the strip." Kenney told Bresnihan "if [he] didn't shut
up they would take [him] out of line and put [him] in a holding cell." Bresnihan
said "about fifteen people" were around when Kenney made the statement, but
Bresnihan could not name any of them. Without elaborating, Bresnihan further
stated Kenney was "ex-DOC so they knew him, so they let him run the show,"
i.e., Kenney "was in charge."
After Kintock answered the complaint, the matter followed a tortured
procedural path, the details of which are not relevant here. Suffice it to say, the
case was referred to mediation and arbitration without staying the litigation;
both parties filed discovery motions; and various attorneys were substituted for
the parties. In early 2020, Judge James R. Swift denied plaintiffs' application
for class certification and granted their unopposed motion to file an amended
complaint. More than one year later, plaintiffs filed their amended complaint,
which included forty-one counts and bore little resemblance to the proposed
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amended complaint attached to their earlier motion. The judge dismissed the
amended complaint for that reason on Kintock's motion to dismiss the
complaint, but denied its application to dismiss the original complaint claims on
statute of limitation grounds as waived for reasons that are not pertinent to this
appeal.
Ultimately, the parties cross-moved for summary judgment. Immediately
following oral argument, Judge Swift dismissed almost all of plaintiffs' claims.
In particular, the judge was not persuaded that the indemnity provision set forth
in the 2013 contract between Kintock and the DOC afforded "plaintiffs some
independent right of action against Kintock for actions of the DOC." Rather,
under the provision, "if somehow the DOC is held liable for some incident, then
Kintock . . . must identify them."
Nor was the judge convinced plaintiffs demonstrated a prima facie claim
of negligent or intentional infliction of emotional distress as DOC officers
conducted the strip searches. Even assuming plaintiffs were embarrassed and
humiliated by the searches, the judge found there was no evidence the DOC
officers had any "direct involvement in the way the strip search was conducted."
Similarly, the judge dismissed plaintiffs' punitive damages claim, finding there
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was no evidence of any "willful" or "wanton disregard of persons" by any
Kintock employees.
Although he found Kintock owed plaintiffs a duty of care vis-à-vis their
constitutional rights, the judge reserved decision only as to whether Kintock
violated that duty by failing to intervene during the DOC's strip searches. All
other counts were dismissed.
Shortly thereafter, Judge Swift issued a cogent written decision, granting
Kintock's motion in its entirety. The judge reiterated that Kintock owed a duty
of care to its residents and reasoned a significant public interest supported that
finding because Kintock was "housing the residents as a place of confinement."
Turning to the remaining elements of a negligence action, the judge was
not convinced plaintiffs established Kintock's conduct was the proximate cause
of their alleged injuries. The judge elaborated:
In this case, the proximate cause of . . .
[p]laintiffs' injury was the humiliating and demeaning
strip search that took place in a public portion of
Kintock's facility while in the presence of many other
residents. However, the strip search was not carried out
by any Kintock employees, and was not done under the
direction of anyone at Kintock. Kintock's only
connection with the strip search was they aided in
directing some of the residents to the area of the facility
where the strip search took place. The search itself was
done entirely by NJDOC staff. As the perpetrators of
the action in question, it is the NJDOC that could
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possibly be found to be the proximate cause of
[p]laintiff[s'] injuries, not the Kintock staff. There is
no evidence to support the idea that Kintock['s] actions
could be the proximate cause of [p]laintiff[s'] damages.
The judge therefore held Kintock was not liable under a negligence theory. See
e.g., Robinson v. Vivirito, 217 N.J. 199, 208 (2014) (reiterating "[t]he
fundamental elements of a negligence claim are a duty of care owed by the
defendant to the plaintiff, a breach of that duty by the defendant, injury to the
plaintiff proximately caused by the breach, and damages").
Judge Swift also rejected plaintiffs' contentions that Kintock had a duty to
intervene by either directing DOC staff to cease the strip searches or conduct
them "in a less intrusive manner" and that Kintock breached that duty to
plaintiffs. The judge acknowledged plaintiffs' argument that Kintock's legal
authority to detain residents obligated the facility to follow "all relevant laws,
regulations, and guidelines." However, the judge recognized the lack of
authority "support[ing] the notion that employees of a halfway home have a duty
to intervene when NJDOC is performing a function at their facility."
Referencing the 2013 agreement between the DOC and Kintock, the judge
noted the contract "specifically reserve[d] the right for NJDOC to perform
searches completely at the discretion of NJDOC, without prior notice to
Kintock." The judge distinguished the Third Circuit's decision in Smith v.
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Mensiger, 293 F.3d 641, 651 (3d Cir. 2002), which addressed the liability of the
law enforcement officers "for failing or refusing to intervene when a
constitutional violation takes place in his [or] her presence if there exists a
'realistic and reasonable opportunity to intervene.'" Noting "the credible
evidence" in the record and affording plaintiffs the benefit of "all rational
inferences," the judge determined "it [wa]s not realistic or reasonable t hat a
civilian employee of Kintock would have authority to stop or redirect armed
NJDOC officers who ha[d] the contractual authority to conduct such a search."
On appeal, plaintiffs agree with Judge Swift's decision that Kintock owed
plaintiffs a duty of care under the common law but argue whether Kintock
breached that duty was a question for the trier of fact. Plaintiffs maintain they
were third-party beneficiaries under the indemnity provision of the 2013
contract between the DOC and Kintock. In various overlapping arguments,
plaintiffs further claim Kintock's employees acted under color of state law and,
as such, they violated plaintiffs' constitutional rights, and the administrative
regulations and Attorney General Guidelines governing strip searches conducted
by the DOC. Plaintiffs also assert the judge failed to decide certain claims and
erroneously decided others.
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After de novo review, Conforti v. County of Ocean, 255 N.J. 142, 162
(2023), we reject plaintiffs' unsupported claims. We affirm the order under
review substantially for the well-founded reasons expressed by Judge Swift in
his accompanying oral and written decisions. Having employed the same
standard as the judge, we conclude there are no material factual disputes and
defendant is entitled to judgment as a matter of law. See Samolyk v. Berthe,
251 N.J. 73, 78 (2022); Brill, 142 N.J. at 540; R. 4:46-2(c). Plaintiffs'
contentions therefore lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We add only the following brief remarks.
The gravamen of plaintiffs' argument is that Kintock's employees acted
"under color of state law," or they assumed responsibility for the DOC's actions
under the 2013 contract and, as such, they assumed the risk for the DOC's
constitutional violations. Plaintiffs' claims are mistakenly premised on their
misconception that they were beneficiaries under the contract, or the designation
of the Kintock facility under N.J.S.A. 30:4-91.2 imputed liability to Kintock for
the DOC's actions. Plaintiffs cite no authority to support their claims, and we
have found no such precedent.
It is beyond peradventure that "no constitutional deprivation occurs
without State action." Santa Barbara v. Heart of Cedar Lane, 226 N.J. Super.
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509, 511 (App. Div. 1988) (citing Callen v. Sherman's Inc., 92 N.J. 114, 123-24
(1983)). Under both 42 U.S.C. § 1983, and the New Jersey Civil Rights Act
(CRA), N.J.S.A. 10:6-1 to -2, a plaintiff must establish two steps. See Rezem
Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 115 (App.
Div. 2011). "The first step 'is to identify the state actor, "the person acting under
the color of law," that has caused the alleged deprivation.'" AmeriCare
Emergency Med. Serv., Inc. v. City of Orange Twp., 463 N.J. Super. 562, 574
(App. Div. 2020) (quoting Rezem, 423 N.J. Super. at 114). "Next the party must
'identify a right, privilege or immunity secured to the claimant' by the
constitutions of the state and federal governments or by state and federal laws. "
Ibid. Pursuant to the CRA, private actions for violations of an individual's
substantive rights only lie against persons acting under "color of law," N.J.S.A.
10:6-2(c), meaning the exercise of power "possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state
law." Polk County v. Dodson, 454 U.S. 312, 317-18 (1981) (quoting United
States v. Classic, 313 U.S. 299, 326 (1941)).
Under some circumstances, a private party can be civilly liable for damage
caused by violations of constitutional rights accomplished through their
cooperation with a state actor. For example, "a challenged activity may be state
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action . . . when a private actor operates as a 'willful participant in joint activity
with the State or its agents.'" Brentwood Acad. v. Tenn. Secondary Sch. Ath.
Ass'n, 531 U.S. 288, 296 (2001) (quoting Lugar v. Edmondson Oil Co., 457 U.S.
922, 941 (1982)). However, a private action "is not converted into one under
color of state law merely by some tenuous connection to the state action."
Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).
In the present matter, the parties do not dispute that the strip searches were
conducted exclusively by DOC officers. Thus, as the motion judge found, there
was no evidence in the record to suggest that Kintock participated in the DOC-
conducted strip searches, other than Kintock "aided in directing some of the
residents to the area of the facility where the strip search took place." Further,
the DOC contractually reserved full authority to conduct all searches at the
facility without notice to Kintock. Thus, there is no evidence in the record to
suggest the strip searches were conducted as a "joint activity" between the DOC
and Kintock.
Affirmed.
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