Case 1:17-cv RBK-JS Document 1 Filed 09/08/17 Page 1 of 14 PageID: 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

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1 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 1 of 14 PageID 1 Katherine D. Hartman, Esquire ( ) ATTORNEYS HARTMAN, CHARTERED 68 East Main Street Moorestown, NJ Ph (856) Fax (856) kdhesq@attorneyshartman.com Attorneys for Benjamin J. Davis, Plaintiff Our File No UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY BENJAMIN J. DAVIS, v. Plaintiff, COUNTY OF CAPE MAY, CAPE MAY COUNTY SHERIFF S OFFICE, COUNTY OF CAPE MAY CORRECTIONAL FACILITY, DONALD J. LOMBARDO, in his individual capacity and in his official capacity as Warden of the County of Cape May Correctional Facility; C/O Mellina, both in his individual and official capacities as a Corrections Officer; C/O Quinlan, both in his individual and official capacities as a Corrections Officer; C/O Crawley, both in his individual and official capacities as a Corrections Officer; C/O Reeb, both in his individual and official capacities as a Corrections Officer; C/O Cattel, both in his individual and official capacities as a Corrections Officer; C/O Frame, both in his individual and official capacities as a Corrections Officer; and JOHN DOES 1-10, jointly, severally, and in the alternative, Defendants. Civil Action No. COMPLAINT AND JURY DEMAND

2 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 2 of 14 PageID 2 Plaintiff, Benjamin J. Davis, by way of Complaint against the Defendants in this matter, hereby avers NATURE OF THE ACTION 1. Plaintiff Benjamin J. Davis ( Davis ) brings this action because Corrections Officers at Cape May County Correctional Facility ( CMCF ) engaged in both negligent and intentional misconduct in violation of Davis s rights under the Eighth Amendment of the United States Constitution, causing him severe physical injuries. Davis alleges that the CMCF, by custom, practice and/or policy and failure to enact or enforce existing policies, through Corrections Officers working through the Cape May County Sheriff s Office, were responsible for these incidents. 2. Davis seeks monetary damages for the willful, wanton, and intentional actions of the Defendants described herein; a declaration that Defendants conduct is unconstitutional; and an injunction precluding the Defendants from continuing to violate the rights of the individuals placed in their custody or detention. PARTIES 3. Davis is an adult individual whose current address is 1765 Garwood Drive, Cherry Hill, New Jersey, and was at all times relevant hereto incarcerated in the CMCF. 4. Upon information and belief, Defendant Cape May County is a county government organized and existing under the laws of New Jersey. At all times relevant hereto, the County, acting through Defendant Cape May County Sheriff s Office, was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the CMCF. 2

3 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 3 of 14 PageID 3 5. At all times relevant hereto, Defendant Donald J. Lombardo was the Warden and an employee of the Cape May County Sheriff s Office, and as such is a policy making Defendant implicating the municipality as an official actor. 6. At all times relevant hereto, Defendant Mellina was an employee of the CMCF, and was responsible for providing humane conditions of confinement and taking reasonable measures to guarantee the safety of inmates. 7. At all times relevant hereto, Defendant Quinlan was an employee of the CMCF, and was responsible for providing humane conditions of confinement and taking reasonable measures to guarantee the safety of inmates. 8. At all times relevant hereto, Defendant Crawley was an employee of the CMCF, and was responsible for providing humane conditions of confinement and taking reasonable measures to guarantee the safety of inmates. 9. At all times relevant hereto, Defendant Reeb was an employee of the CMCF, and was responsible for providing humane conditions of confinement and taking reasonable measures to guarantee the safety of inmates. 10. At all times relevant hereto, Defendant Cattel was an employee of the CMCF, and was responsible for providing humane conditions of confinement and taking reasonable measures to guarantee the safety of inmates. 11. At all times relevant hereto, Defendant Frame was an employee of the CMCF, and was responsible for providing humane conditions of confinement and taking reasonable measures to guarantee the safety of inmates. 3

4 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 4 of 14 PageID 4 JURISDICTION AND VENUE 12. This Court has jurisdiction over this action under the provisions of 28 U.S.C and 1343 because it was filed to obtain compensatory damages, punitive damages and injunctive relief for the deprivation, under color of state law, of the rights of citizens of the United States secured by the United States Constitution and by federal law pursuant to 28 U.S.C This Court also has jurisdiction over this action under the provisions of 28 U.S.C. 2201, as it was filed to obtain declaratory relief relative to the Constitutionality of the policies of a local government. Supplemental jurisdiction exists over Plaintiff s pendent state law claim pursuant to 28 U.S.C. 1367(a) inasmuch as Plaintiff s state law claim is so related to the federal claims within such original jurisdiction that it forms part of the same case or controversy as do the federal claims. 13. The practices alleged in this Complaint were committed in the District of New Jersey, wherein, upon reasonable belief, all parties reside, govern and operate. Therefore, venue in this Court is invoked under 28 U.S.C and 1343(1), (3), and (4), because this Complaint was filed to obtain compensatory damages, punitive damages, and injunctive relief for the deprivation, under color of state law, of the rights of a citizen of the United States secured by the United States Constitution and by federal law. FACTUAL ALLEGATIONS 14. On December 2, 2016, Davis pleaded guilty to one count each of unlawful taking of a means of conveyance, contrary to N.J.S.A. 2C20-10B; and operating a motor vehicle during a license suspension, contrary to N.J.S.A. 2C40-26B; for which he received a sentence of 180 days in the CMCF and a concurrent eighteen (18) month probationary sentence. 4

5 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 5 of 14 PageID On or about the morning of January 10, 2017, while in the custody of CMCF, Davis began experiencing severe abdominal aches. 16. Davis reported this severe abdominal pain to C/O Mellina at or around 10 a.m. In response, Mellina stated that Davis should drop a request slip to the nurse. 17. Knowing that the nurse is generally available only twice per day once at 9 a.m. and once at 9 p.m. and because he was in severe pain, Davis stated that he needed immediate medical attention. However, C/O Mellina refused to take any further action. 18. At or around 430 p.m., Davis, who was exhibiting obvious signs of severe pain such as strained speech, an inability to stand upright, difficulty breathing, and sweating again asked C/O Mellina for immediate medical attention, suggesting that he was possibly suffering from a kidney stone. C/O Mellina, however, claimed the nurse was busy and that she ll get to him when she can. 19. Based upon information and belief, C/O Mellina took no action to contact the nurse or otherwise address the developing medical emergency. 20. Approximately two and a half hours later, after the next shift change, no nurse had arrived. Another inmate in Davis s dorm brought Davis s condition to the attention of the officer now on duty and, around 7 p.m., Davis was escorted to the nurse. 21. The nurse, after a brief examination, diagnosed Davis with appendicitis and requested that Davis be transported to the hospital. 22. Davis was then transported to a holding cell, where he waited for approximately one to two hours lying on a bench, curled into a fetal position and struggling to breathe. 23. During this time, C/O Quinlan, the corrections officer assigned to the front desk, at points mocking Davis and asking him if he was sure you don t just have to shit. 5

6 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 6 of 14 PageID Eventually, at or around 10 p.m., Davis was shackled, handcuffed, and transported Cape Regional Emergency Room ( Cape Regional ), accompanied by C/O Reeb and C/O Crawley. 25. At approximately 1030 p.m., medical professionals at Cape Regional administered an x-ray and a CAT scan, and determined that an emergency appendectomy was necessary. 26. While Davis was being prepped for surgery, Davis remained shackled and handcuffed to the hospital bed. Over the objections of the surgeon, Dr. Russo, and the nurse, neither C/O Reeb nor C/O Crawley would remove the shackles and handcuffs, citing policy as the only reason for their refusal. 27. Dr. Russo and the nurse also insisted that the officers wait outside the surgery theater during the operation, but C/O Reeb insisted that he was required to remain in the surgery theater during the operation, again stating that it was just policy. 28. Based upon information and belief, the surgeon and nurse objected to the shackles, handcuffs, and the corrections officer s presence in the surgery theater because those factors greatly increased the risk of infection. Nevertheless, Davis was shackled and handcuffed to the operating table, and C/O Reeb remained in the surgery theater throughout the entire procedure. 29. Dr. Paras Udani, an infection specialist, was called in after the surgery to monitor Davis for infection. Based upon information and belief, Dr. Udani s services were needed due to the unsanitary conditions in which the surgery was performed. 30. After the surgery, Davis was transferred to a hospital bed, where he was again shackled and handcuffed. 31. After some time had passed, Dr. Russo insisted on removing the shackles and handcuffs and allowing Davis to move around, if only to walk from one end of the recovery room 6

7 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 7 of 14 PageID 7 to the other. Dr. Russo stated that Davis needed to stand up and move around in order to recover properly from the surgery. 32. Specifically, Dr. Russo noted that Davis s organs were shutting down, his intestinal track was becoming kinked, and he was not recovering as he should because he was not permitted to stand and move around. 33. However, the corrections officer assigned to Davis at the time, who is believed to have been C/O Cattel, refused to allow Davis to be unshackled or to move around, noting again that policy, citing official policy as the reason for his refusal. 34. Davis remained shackled and handcuffed to the hospital bed, and was not permitted to move, even to use the bathroom. 35. As Davis s condition continued to deteriorate, he had to be catheterized, and was unable to eat or to defecate, causing increasing pain and discomfort. 36. Approximately four to five days after the initial surgery, Davis s nurse reiterated the need for Davis to stand and move about in order to recover. The officers continued to refuse this request, and a verbal argument between the nurse and the officer ensued. 37. In the end, Davis remained handcuffed and shackled to the bed, and was not permitted to move around. 38. Ultimately, Dr. Russo informed Davis that he would need a second surgery because, due to lack of movement, his condition was deteriorating and a kink had formed in his intestinal track. 39. After the second surgery, Doctor Russo informed Davis and the corrections officers present that this second surgery was necessary because he was not permitted to move during the recovery period from his initial surgery. 7

8 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 8 of 14 PageID Dr. Russo insisted to C/O Cattel and C/O Frame that an exception would have to be made for Davis to be allowed to move around after the second surgery. C/O Frame again refused to unshackle Davis or allow him to move around, stating that it was policy. However, C/O Frame stated that he could call his Sergeant. 41. Based upon information and belief, Dr. Russo called the Sergeant on duty and received permission to allow Davis to move around, provided Davis remained shackled and handcuffed. 42. Eventually, Davis regained the ability to urinate and defecate on his own, but was still not permitted to use the bathroom. 43. Davis was hospitalized in total for twelve (12) days. On or about January 25, 2017, Davis was cleared to be transported back to CMCF. 44. As a result of the surgeries, Davis had lost approximately thirty (30) pounds and was in continuous and severe pain. Davis returned to his unit pale, shrunken, and unable to stand upright or walk properly. 45. Prior to being transported back to CMCF, Dr. Russo stated that he wanted to see Davis in a week for follow up care. However, despite Davis s constant pain and obvious signs of poor health, he was placed back into his unit and received no follow-up care until two and a half to three weeks after being returned to the unit. 46. During his stay at Cape Regional, Davis requested that he be allowed to contact his mother to let her know what was happening to him; however, Davis was informed that he was not permitted to let anyone know where he was because of policy. 47. It was almost three weeks after the second operation before Davis was permitted to speak with his mother. 8

9 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 9 of 14 PageID At all relevant times hereto, the corrections officers responsible for ensuring adequate medical attention be provided to inmates of CMCF were employees of the Cape May County Sheriff s Office and Cape May County, and were acting under the color of state law. 49. At all relevant times hereto, all named and unnamed corrections officers involved in the handling of Davis s medical emergency described above were either aware of and recklessly indifferent to the policies, rules, and regulations relating to the detention and protection of Davis or following policies, rules and regulations that are inadequate to prevent the type of harm prohibited under the Eighth Amendment to the United States Constitution. 50. Additionally, Cape May County and policy-making Defendants failed to train and have appropriate policies designed to protect and ensure proper medical attention is provided to detainees. 51. Davis s severe injuries were the direct and proximate result of the recklessness and deliberate indifference of all Defendants named herein, as well as the County s failure, policies, and procedures. Such recklessness and deliberate indifference consisted of a. Failing to provide timely medical attention to Davis after he was observed to be in severe pain and vomiting green bile, and after he requested such medical attention; b. Refusing to follow the requirements to ensure a sterile surgery theater set forth by the attending physicians; c. Refusing to follow the requirements to ensure proper recovery set forth by the attending physicians; d. Refusing to communicate or allow Davis to communicate his medical condition to his mother; and e. Failing to provide proper follow up medical attention to Davis after the surgery. 52. As a result of the reckless, indifferent, intentional, outrageous, and wrongful conduct of the Defendants set forth herein, Davis suffered permanent injuries and damages, including, but not limited to 9

10 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 10 of 14 PageID 10 a. Severe and unnecessarily prolonged abdominal pain; b. An unnecessary and invasive second abdominal surgery; c. An unnecessarily prolonged, painful and debilitating recovery; d. Embarrassment and humiliation; and e. Depression and other permanent psychological injury. 53. As a direct and proximate result of all Defendants conduct, which caused Davis s injuries, Davis is entitled to recover for his pain and suffering and for damages pursuant to federal and New Jersey law. herein. COUNT I Violation of Federal Civil Rights Act (42 U.S.C. 1983) 54. Plaintiff repeats and realleges the preceding paragraphs as though fully set forth 55. The conduct of Defendants as set forth above, acting under color of state law, was recklessly and deliberately indifferent to Plaintiff s safety, bodily integrity, well-being, privacy and liberty; was committed in conscious disregard of the substantial and/or unjustifiable risk of harm to Plaintiff; and was so egregious as to shock the conscience. 56. The conduct of Defendants as set forth above violated Plaintiff s constitutional rights to be free from cruel and unusual punishment, as guaranteed by the United States Constitution, and as remediable pursuant to 42 U.S.C Defendants, in acting to deprive Plaintiff of his rights, were acting within the scope of their employment, misused their official powers and acted from a willful and malicious intent to deprive Plaintiff of his civil rights and cause him severe injuries thereby. 10

11 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 11 of 14 PageID As a direct and proximate result of the violations of Plaintiff s civil rights, he was caused to suffer grievous physical injuries as set forth above and herein, medical and legal expenses, medical anguish and emotional distress, and other costs of pursuing the claims herein. WHEREFORE, Plaintiff Benjamin Davis states a cause of action under 42 U.S.C COUNT II Violation of New Jersey Civil Rights Act (N.J.S.A ) Deprivation of Substantive Due Process Rights, Immunities, or Privileges under the New Jersey Constitution herein. 59. Plaintiff repeats and realleges the preceding paragraphs as though fully set forth 60. The New Jersey Civil Rights Act provides, in relevant part, as follows Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief. N.J.S.A (c) 61. The conduct of Defendants as set forth above, acting under color of state law, was recklessly and deliberately indifferent to Plaintiff s safety, bodily integrity, well-being, privacy and liberty; was committed in conscious disregard of the substantial and/or unjustifiable risk of harm to Plaintiff; and was so egregious as to shock the conscience. 62. The conduct of Defendants as set forth above violated Plaintiff s constitutional rights to be free from cruel and unusual punishment, as guaranteed by the United States Constitution, and as remediable pursuant to 42 U.S.C

12 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 12 of 14 PageID Defendants conduct, in failing to provide adequate medical attention Plaintiff, also violated Plaintiff s rights under New Jersey statutory and common law, giving rise to a claim under N.J.S.A As a direct and proximate result of the violations of Plaintiff s civil rights, he was caused to suffer grievous physical injuries as set forth above and herein, medical and legal expenses, medical anguish and emotional distress, and other costs of pursuing the claims herein. WHEREFORE, Plaintiff Benjamin Davis states a cause of action under the New Jersey Civil Rights Act, N.J.S.A herein. DAMAGES 65. Plaintiff repeats and realleges the preceding paragraphs as though fully set forth 66. As a direct and proximate result of the violations of the above-described conduct of Defendants, Plaintiff has in the past and will continue to suffer damages, including a. Severe emotional distress and mental anxiety; b. Severe physical suffering; c. Medical expenses; d. Loss of enjoyment of life; and. e. Depression WHEREFORE, Plaintiff seeks judgment against Defendants jointly and severally as follows a. That the Court and jury enter a declaratory judgment and find that Defendants conduct is violative of Plaintiff s statutory and constitutional rights; 12

13 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 13 of 14 PageID 13 b. That the Court and jury enter a declaratory judgment and find that Defendants conduct was so egregious, willful, intentional, outrageous, abusive, and was accompanied by a wanton and willful disregard for the foreseeable harm caused by this conduct as to necessitate punitive damages. c. That the Court order injunctive relief designed to remedy Cape May County s systemic civil rights violations; d. That the Court and jury award Plaintiff such compensatory damages allowable at law; e. That the Court award such attorney s fees, costs and expenses, pre- and post-judgment interest and delay damages as are allowable at law; f. Other and further relief as the Court deems appropriate. DEMAND FOR JURY TRIAL Plaintiff hereby demands a trial by jury as to all issues. ATTORNEYS HARTMAN, CHARTERED Dated September 7, 2017 By_/S/ Katherine D. Hartman (8357)_ KATHERINE D. HARTMAN 13

14 Case 117-cv RBK-JS Document 1 Filed 09/08/17 Page 14 of 14 PageID 14 DESIGNATION OF TRIAL COUNSEL Katherine D. Hartman, Esquire, of Attorneys Hartman, Chartered is hereby designated as trial counsel in the within matter. ATTORNEYS HARTMAN, CHARTERED Dated September 7, 2017 By_/S/ Katherine D. Hartman (8357)_ KATHERINE D. HARTMAN 14