Lead Opinion
Lоrraine Gormley was assigned to provide legal representation to an involuntarily committed patient at a state-run psychiatric hospital. To prepare for an upcoming commitment hearing, at the direction of hospital officials, Gormley met with her client in the hospital’s unsupervised day room, a place where psychotic patients milled about and where violence frequently erupted. During the meeting, Gormley’s mentally disturbed client suddenly and brutally attacked her, inflicting serious bodily injuries.
Gormley filed a civil action against the chief executive officer of the hospital and officials at the Department of Human Services under both the Federal Civil Rights Act, 42 U.S.C.A. § 1983, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c), and under the state common law. She alleged that these officials violated her constitutional right to be free from state-created danger, a right protected by the substantive-due-process guarantee of the United States Constitution.
The trial court denied summary judgment to the defendant state officials on both Gormley’s federal and state civil-rights claims but dismissed her common-law claim. The Appellate Division determined that Gormley presented sufficient evidence to establish a violation of her federal constitutional rights. It held, however, that those rights were not clearly established at the time of the assault on Gormley and therefore dismissed the claims against the officials on the ground of qualified immunity.
We now reverse. We hold that, in this case, the lawyer assigned to represent a client civilly committed in a state psychiatric hospital had a substantive-due-process right, guaranteed by the Fourteenth Amendment of the United States Constitution, to be free from state-created dangers. Wе also hold that the right was
I.
A.
In September 2005, Lorraine Gormley was an attorney employed by the Department of the Public Advocate, Division of Mental Health Advocacy.
Two years later, Gormley filed a two-count complaint, naming as defendants various officials employed by the Department of Human Services: LaTanya Wood-El, Chief Executive Officer of Ancora; Jennifer Velez, the current Human Services Commissioner; William Waldman, its former Commissioner; Kevin Martone, Assistant Commissioner in the Division of Mental Health Services; Alan Kaufman, former Director of the Division
B.
At the conclusion of discovery, defendants moved for summary judgment on all claims. The trial court dismissed the common-law
Gormley appeals from the Appellate Division’s dismissal of her civil-rights claims on the basis of qualified immunity. Defendants appeal from the Appellate Division’s holding that they violated Gormley’s right to substantive due process. In both appeals, we must determine whether defendants were entitled to summary judgment.
A court should grant summary judgment only when the record reveals “no genuine issue as to any material fact” and “the moving party is entitled to a judgment or order as a matter of law.” R. 4:46-2(c). In deciding whether summary judgment was either properly granted or denied, “we apply the same standard governing the trial court — we view the evidence in the light most favorable to the non-moving party.” Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584,
With these principles of law in mind, we turn first to the summary-judgment record.
II.
A.
In September 2005, Ancora was comprised of five secure patient buildings, including the Cedar Building. That building predominantly housed involuntarily committed patients suffering mental illnesses who were classified as a danger to themselves, others, or property. Cf. N.J.S.A. 30:4-27.2(m) (defining “in need of involuntary commitment”). The Cedar Building was divided into four locked wards. Each ward had a roughly thirty-foot by thirty-foot day room that included a television, tables, and chairs.
According to one source, “bedlam” reigned in these day rooms. At times, an entire ward of thirty-five to forty patients would be in attendance in a day room where professionals, such as attorneys or psychiatrists, might be present. No security guards were posted to provide protection in the day rooms or anywhere at Ancora other than the entranceway to the hospital. The day rooms were the scene of frequent fights and violence. Often, attorneys and psychiatrists were the victims of assaults by patients.
Although Ancora had a policy that provided for family members to meet with patients in quiet, private rooms, supervised by a staff
Ted Novak, an attorney in the Office of the Public Advocate and Gormley’s supervisor, testified that he had been assaulted three times by patients at Ancora before the attack on Gormley. He noted that similar facilities had security guards but none were present at Ancora. He explained that when interviewing a client in the day room there would be “a lot of noise from psychotic patients who [were] going off’ and “screaming.” He would constantly look over his shoulder to make certain he was safe.
Three staff psyсhiatrists gave deposition testimony that patients assaulted them on various occasions at Ancora, with some of those assaults occurring in the day rooms of the Cedar Building. One of those psychiatrists had to undergo nasal surgery after a patient assault. The same psychiatrist described an incident in which a resident ran across a day room to attack her while she interviewed a patient. The psychiatrist’s patient — not a staff member at Ancora — intervened to prevent the assault. Then the psychiatrist had to intercede to stop her patient from pummeling her assailant. Ancora’s CEO, LaTanya Wood-El, knew about this incident yet, when deposed, could not remember if she took any steps to prevent a recurrence. Two staff psychiatrists testified that, unlike Ancora, other psychiatric hospitals where they had worked provided security guards and private rooms for patient interviews.
From October 2003 through December 2005, Ancora recorded 3846 assaults committed by patients on its grounds, including 810 assaults committed against staff members and visitors. Of those 810 assaults, injuries were suffered in 200 eases. Gormley filed an expert report from Robert Sadoff, a psychiatrist with forty-five years of experience examining patients committed to state hospitals. Dr. Sadoff stated that he knew “of no other hospital or facility with similar numbers of assaults” or lack of protective safeguards for professionals conducting interviews or examinations. In his more than four decades of practice in psychiatric hospitals, he conducted patient interviews in a private room with a
Gormley’s other expert, Mark Rappaport, a Quality Care Facility Review Specialist employed by the State of New York, came to the same basic conclusion in a report he submitted: “[T]he day room is [a] ... potentially dangerous place for often confidential, sensitive, and personal interviews between patients and visitors (including attorneys) to take place.”
B.
On September 22,2005, Gormley arrived at Ancora to meet with clients whom she had been appointed to represent at commitment hearings that week. One of those clients was B.R., a 21-year-old woman involuntarily committed sixteen days earlier. B.R. was suffering from a “psychotic disorder due to medical condition with hallucinations.” B.R. was confined to a ward in the Cedar Building and assigned Continuous Visual Observation (CVO) status. CVO status is conferred on “patients who demonstrate a safety risk to self, others, and property.” In accordance with Ancora’s protocols, B.R.’s CVO status required an assigned staff member to keep her under “continual visual observation” at all times.
Gormley entered the ward’s day room and sat at a small table awaiting her client. As a precaution, she placed her back against the wall so that no one could attack her from behind. Ancora offered no option of a separate interview room, did not post security guards, did not use an electronic camera to monitor the day room, and did not provide Gormley with access to an emergency call device. In the day room, patients — many in psychotic states, a majority posing a danger to themselves and others — were freely milling about.
Gormley “was dazed and in pain and was unable to walk or drive anywhere.” One of her colleagues from the Division of Mental Health Advocacy transported her to the infirmary on the grounds of Ancora, and from there she went to the emergency room at Virtua Hospital. In all, Gormley was out of work three to four months due to her injuries. In addition to the physical head injury, she suffered memory loss, cognitive and visual impairment, sleep disturbances, extreme fatigue, and post-traumatic stress disorder. In 2009, she was on a four-day work schedule and receiving “treatment from a neurologist, psychologist, cognitive therapist, and neuro-therapist.”
When deposed, CEO Wood-El was asked whether, after the assault on Gormley, she instituted “any changes with respect to how attorney/patient visits were handled.” She responded; “No. I wouldn’t be required to.”
A.
Defendants moved for summary judgment on all of Gormley’s claims. The trial court dismissed Gormley’s state common-law claim, finding that the Workers’ Compensation Act provided the exclusive remedy for that claim.
B.
The Appellate Division granted leave to appeal and concluded that the trial court erred in failing to dismiss the federal civil-rights claims on qualified-immunity grounds. Although the Appellate Division “[rjeversed and remanded for the entry of an order granting summary judgment dismissing plaintiffs Section 1983 claims,” Gormley, supra, 422 N.J.Super. at 444,
On the Section 1983 claim, the Appellate Division first determined that the facts, viewed in the light most favorable to
(1) the harm ultimately caused was foreseeable and fairly direct;
(2) the state actor acted in willful disregard for the safety of the plaintiff;
(3) there existed some relationship between the state and the plaintiff; [and]
(4) the state actors used their authority to create an opportunity that otherwise
would not have existed for the third party’s crime to occur.
[Kneipp, supra, 95 F.3d at 1208 (line breaks added) (quoting Mark v. Borough of Hatboro,51 F.3d 1137 , 1152 (3d Cir.), cert. denied, 516 U.S. 858, 116 S.Ct 165, 133 L.Ed.2d 107 (1995)), quoted in Gormley, supra, 422 N.J.Super. at 437,29 A.3d 336 .]
The panel focused on the fourth factor, which “is predicated upon the states’ affirmative acts which work” to render a citizen more vulnerable to danger. Gormley, supra, 422 N.J.Super. at 437-38,
However, the panel also held that Gormley’s substantive-due-process right to be free from state-created dangers was not clearly established at the time B.R. attacked her “and continuéis] to remain unclear, not having been addressed by the [United States] Supreme Court or [the New Jersey Supreme] Court.” Id. at 444, 127 S.Ct. 1483. Accordingly, the panel granted defendants qualified immunity on the basis that “defendants did not engage in any affirmative acts to create the dangerous condition,” even if they were deliberately indifferent to “the foreseeable risk of harm” to Gormley. Id. at 443, 127 S.Ct. 1483.
C.
Gormley moved for reconsideration, arguing that her right to injunctive relief was not extinguished by the grant of qualified immunity to the individual named defendants. The Appellate Division denied that motion without comment.
Gormley then moved for leave to appeal the Appellate Division’s dismissal of her claims based on qualified immunity, and defendants moved for leave to appeal the Appellate Division’s upholding of the civil-rights claims under the state-created-danger theory. We granted the motions filed by Gormley, 210 N.J. 25,
IV.
A.
Defendants assert that the “Fourteenth Amendment does not impose a duty on State officials to protect fellow State employees
Defendants also argue that a constitutional violation cannot arise from defendants’ failure to provide Gormley a safe workplace, citing Collins v. City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061,
In contrast, Gormley argues that the Appellate Division properly found that she had presented sufficient evidence to establish a violation of her substantive-due-process rights. She highlights that she was a court-appointed attorney rendering constitutionally required representation to an involuntarily committed patient at Ancora — “a locked facility” — in a ward controlled by defendants and that she was not “injured in the free world by some private actor” over whom defendants had no control. In Gormley’s view, to establish state-created-danger liability in the circumstances of
Gormley, moreover, rejects the notion that she had an employee-employer relationship with defendants who “operated Ancora and created the dangerous visiting environment for outside professionals.” Last, she maintains that because defendants restrained her ability to act for herself inside the facility, they had a “special relationship” to her — an affirmative duty to take steps necessary to ensure her safety.
B.
Gormley argues that the right to be free from state-created danger, enforceable through Section 1983, was clearly established
Finally, Gormley submits that qualified immunity conferred on individual defendants does not deprive her of the right to injunctive relief to remedy an ongoing constitutional violation. Gormley continues to represent involuntarily committed clients, except at Ancora on doctor’s orders. Gormley contends she had no obligation to raise her claim for injunctive relief before the Appellate Division because she succeeded on that issue before the trial court. She asks for this Court to reinstate that claim erroneously dismissed by the panel.
On the other hand, defendants ask us to affirm the panel’s dismissal of the constitutional claims based on qualified immunity. They contend that case law did not place them on notice that the Due Process Clause imposed a duty “to provide [Gormley] with a safe working environment” in a psychiatric hospital. They insist that they could not have known that their conduct was unlawful.
Additionally, they submit that the Appellate Division correctly denied Gormley injunctive relief. Defendants state that Gormley had the obligation to argue that injunctive relief would survive a finding of qualified immunity and that her failure to do so constitutes waiver of the issue before the Appellate Division. They also contend that the issue of injunctive relief is moot because Gormley’s doctor has restricted her from counseling clients at Ancora.
V.
Viewing the evidence and evidential inferences in the light most favorable to the non-moving party — Gormley—we must decide (1)
A.
Gormley asserts a cause of action under a provision of the Federal Civil Rights Act of 1871, c. 22, § 1, 17 Stat 13, 13 (codified as amended at 42 U.S.C.A. § 1983). That statute provides that any official who, under color of state law, deprives a person 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.A. § 1983. Section 1983 is a means of vindicating rights guaranteed in the United States Constitution and federal statutes. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3,
In addition to her federal civil-rights claim, Gormley asserts a claim under the analogous New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. Section 1983 applies only to deprivations of federal rights, whereas N.J.S.A. 10:6-1 to -2 applies not only to federal rights but also to substantive rights guaranteed by New Jersey’s Constitution and laws. The New Jersey Civil Rights Act provides, in relevant part, that:
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 10:6-2(c) (emphasis added).]
Through both Section 1983 and the New Jersey Civil Rights Act, Gormley seeks to vindicate her right to liberty protected by the Fourteenth Amendment. The Fourteenth Amendment analysis under both statutes is the same. That Amendment provides, among other things, that “no State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The Due Process Clause guarantees more than fair process”; it “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 719-20, 117 S.Ct. 2258, 2267,
Substantive due process protects many now-familiar fundamental rights, such as the right to marital privacy, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678,
The substantive-due-process right that Gormley asserts here is the right to be free from state-created danger, mentioned in DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 201, 109 S.Ct. 998, 1006,
On these facts, the United States Supreme Court held that the “liberty” protected by the Fourteenth Amendment’s Due Process Clause did not guarantee Joshua protection from violence from a private person, such as his father. Id. at 201, 109 S.Ct. at 1006,
The Court in DeShaney distinguished other cases in which the State actually took custody of an individual, noting that when the State holds a person against Ms will, “the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” Id. at 199-200, 109 S.Ct. at 1005,
According to the Court, “[i]n the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty ” — that triggers a duty to protect under the Constitution. Id. at 200, 109 S.Ct. at 1006,
The United States Court of Appeals for the Third Circuit has developed a standard for the application of the state-created danger doctrine that is faithful to the language of DeShaney and to the high bar set for proving a substantive-due-process claim. In a Section 1983 state-created-danger cause of action, a plaintiff must present evidence to satisfy the following four-prong test:
(1) “the harm ultimately caused was foreseeable and fairly direct”;
(2) a state actor acted with a degrеe 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.
[Bright, supra, 443 F.3d at 281 (citations and footnotes omitted) (elaborating on earlier test in Kneipp, supra,95 F.3d at 1208 ).]
Factors one and three under the Bright test overlap to some degree. Under factor one, the ultimate harm to the plaintiff must
Under factor three, for foreseeability purposes, the plaintiff must be more than an undifferentiated member of the general public. Rather, the plaintiff must be a specifically foreseeable victim or part of a discrete class of foreseeable victims. Compare Kennedy, supra,
Factor two requires that the conduct of the state actor must “shock the conscience.” Although intentionally causing an unjustifiable injury or harm will satisfy this standard, negligently doing so will not. County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 1718, 140 L.Ed.2d 1043, 1059 (1998). In many
On the other hand, when a police officer confronts unforeseen circumstances that demand instant judgment, such as the decision whether to engage in a high-speed car chase, then a claim of indifference will not likely be shocking given the lack of opportunity fоr considered deliberation. Ibid. That is, “more culpability is required to shock the conscience to the extent that state actors are required to act promptly and under pressure.” Schieber v. City of Philadelphia,
Factor four requires that a state official affirmatively use his authority either to create the danger or to render a person “substantially more vulnerable to injury” than he otherwise would have been absent state action. Id. at 416. For liability to attach there must be “affirmative state action” and not just a failure to protect a person from violence by another. Bright, supra, 443 F.3d at 284. Accordingly, liability may attach when an official exercises his authority and creates a dangerous situation for a citizen or makes the citizen more vulnerable to danger than had he not intervened. Estate of Smith v. Marasco,
A state actor will not escape liability by characterizing his conduct as “inaction” when he has exposed a person to a danger he created through the exercise of his authority. As Judge Posner aptly stated, “If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.” Bowers v. DeVito,
B.
The State draws our attention to Collins, supra, 503 U.S. 115, 112 S.Ct. 1061,
In Collins, the Supreme Court held that the “liberty” protected in the substantive component of the Fourteenth Amendment’s Due Process Clause does not require a municipality “to provide its employees with certain minimal levels of safety.” Id. at 127, 112 S.Ct. at 1069,
Significantly, the Court noted that the worker’s widow did not “allege that his supervisor instructed him to go into the sewer when the supervisor knew or should have known that there was a significant risk that he would be injured” but instead generally
In deciding Collins, the Court stressed that “[t]he employment relationship ... is not of controlling significance,” and that neither the worker’s status as a government employee nor the Court of Appeals’s suggestion that deliberate indifference did not equate to “ ‘abuse of governmental power’ ” was a sufficient reason for the dismissal of the Section 1983 claim. Id. at 119-20, 112 S.Ct. at 1065-66, 117 L.Ed.2d at 269-70. Ultimately, the Supreme Court concluded that the worker’s widow did not allege or establish an arbitrary deprivation of liberty. Id. at 129-30, 112 S.Ct. at 1071, 117 L.Ed.2d at 276.
Collins clearly dеmonstrates that Gormley’s status as a state employee is not dispositive of her right to pursue a Section 1983 claim.
A review of a case comparable to the present one will help inform our analysis of the state-created-danger doctrine. In L.W. v. Grubbs, the United States Court of Appeals for the Ninth Circuit reinstated a Section 1983 cause of action by a prison nurse who claimed that her defendant prison supervisors, after leading her to believe that she would not be left alone with violent sexual offenders, then placed her “in unguarded proximity with an inmate whose record they knew included attacks upon women.”
VI.
A.
We now apply the Bright state-created-danger test to the summary-judgment record before us. First, we conclude that Gormley was a member of a discrete class of victims subject to the
What is striking is not that the brutal assault on Gormley in the ever-noisy and tumultuous day room was an extraordinary event but that it was rather quite ordinary. Assaults in the day room were not unexpected but fairly foreseeable. Gormley was a member of a discrete class of foreseeable victims — professionals required to meet in the volatile day room with patients.
We also conclude, viewing the evidence in the light most favorable to Gormley, that defendants, particularly Wood-El, affirmatively used their authority to create the danger that made Gormley more vulnerable to the assault. Gormley was not acting in the “free world” but rather in a locked institutional environment over which defendants exercised total control, including control over where Gormley met with her client, B.R. Cf. DeShaney, supra, 489 U.S. at 201, 109 S.Ct. at 1006, 103 L.Ed.2d at 262. B.R. had a constitutional right to assigned counsel, S.L., supra, 94 N.J. at 142,
Defendants not only controlled and restrained Gormley’s physical movements, but they also possessed knowledge of the special dangers that B.R. might pose to the unsuspecting attorney, who was meeting her client for the first time. The institution assigned B.R. Continuous Visual Observation status because of the particular safety risk the patient posed to herself and others. A staff member, who presumably knew of B.R.’s CVO status, brought her to the day room — brought her in contact with Gormley. But no one told Gormley of the hеightened-risk assessment. When Gormley sat catty-corner to B.R. because the din in the day room made a confidential, lawyer-client conversation impossible — that was the environment defendants had created, an environment conducive to the many assaults that frequently occurred in the day
Last, under Bright’s shock-the-conscience standard, Gormley has presented sufficient evidence to go forward on her claim that defendants acted with deliberate indifference to the foreseeable dangers threatening the physical safety of attorneys constitutionally assigned to represent committed patients. The expert testimony presented suggested that the level of violence at Ancora was unique to that institution. In the two years before B.R.’s assaultive conduct, defendants kept records of thousands of assaults committed by patients at Ancora, including hundreds of assaults committed against staff and visitors, such as Gormley. No one can argue that defendants did not have time to deliberate over those dismal statistics. Defendants are not called to answer because of a split-second decision made in the heat of some immediate crisis. Giving Gormley the benefit of the most favorable evidence and inferences, defendants executed a policy, over a course of years, in complete disregard of the known danger that mentally disturbed patients were attacking professionals, such as Gormley, in the ward’s day room. The Constitution required that Gormley or some other attorney represent B.R. at her upcoming commitment hearing. Gormley was totally dependent on Ancora to provide for her safety while she was in the facility. Cf. Youngberg, supra, 457 U.S. at 324, 102 S.Ct. at 2462,
When the evidence is viewed in the light most favorable to Gormley, as it must be at this stage, we conclude that a rational jury could find that all four factors in the Bright test have been met and that defendants therefore violated Gormley’s substantive-due-process right to be free from state-created dangers under the Fourteenth Amendment of the United States Constitution.
B.
A brief response to the dissent is in order, keeping in mind that the facts must be viewed in the light most favorable to Gormley. What makes the egregious — and hopefully rare — facts in this case conscience-shocking is the totality of the circumstances — a standard commonly used in our constitutional jurisprudence. See, e.g., State v. Yohnnson, 204 N.J. 43, 64,
Based on the factual record here, our finding that the conduct has crossed a constitutional threshold will not open a floodgate of litigation against public entities. The level of violеnce at Ancora was unique among psychiatric hospitals, and the dissent has cited to no comparable case involving other public facilities. No one has intimated, for example, that it is commonplace in schools for students and teachers to be physically attacked daily while their administrators stand about and look on indifferently to their physical safety.
Additionally, Congress passed the Federal Civil Rights Act to provide remedies not available under state law. See Haywood v. Drown, 556 U.S. 729, 741-42, 129 S.Ct. 2108, 2118,
We adopt the Bright test for conscience-shocking behavior, including its deliberate-indifference component. The dissent accepts this standard as well. Post at 119-20,
For these reasons we part ways with the dissent.
A.
We next consider whether the Appellate Division properly dismissed the civil-rights claims against defendants on the ground of qualified immunity.
Qualified immunity is a doctrine that shields government officials from a suit for civil damages when “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, 2738,
For a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039,
B.
We conclude that the right to be free from state-created dangers was clearly established at the time of the assault on Gormley in 2005. Since DeShaney, most federal circuit courts of appeals have adopted the state-created danger doctrine, including the Third Circuit in Kneipp in 1996. Significantly, in 1992, the Ninth Circuit applied the doctrine to an institutional setting analogous to Ancora. L.W., supra,
We therefore reverse the Appellate Division, which dismissed the federal civil-rights claim on qualified-immunity grounds.
VIII.
Last, we add that the Appellate Division erred to the extent that it barred Gormley’s claim for injunctive relief based on qualified immunity. First, we disagree with defendants’ argument that Gormley waived her injunctive-relief claim by not asserting it before the Appellate Division. Gormley succeeded before the trial court, and her injunctive relief claim was a live claim. She had no reason to bring the matter before the Appellate Division. Therefore, the doctrine of waiver has no applicability here.
More importantly, qualified immunity does not bar actions for injunctive relief. See, e.g., Wood v. Strickland, 420 U.S. 308, 314 n. 6, 95 S.Ct. 992, 997 n. 6,
IX.
We reverse the judgment of the Appellate Division granting qualified immunity to defendants and dismissing Gormley’s federal civil-rights claims. We affirm the judgment of the Appellate Division based on the summary-judgment record, finding that the danger created by defendants that resulted in foreseeable injuries to Gormley violated the substantive-due-process guarantee of the United States Constitution. We determine here only that, viewing the evidence in the light most favorable to Gormley, the trial court properly denied defendants’ motion for summary judgment.
Notes
The Appellate Division did not address Gormley's state constitutional claim.
The Division of Mental Health Advocacy was transferred to the Office of the Public Defender in 2010. L. 2010, c. 34, § 30 (codified at N.J.S.A. 52:27EE-37).
"Personal-capacity suits ... seek to impose individual liability upon a government officer for actions taken under color of state law." Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 362, 116 L.Ed.2d 301, 309 (1991). When an official is sued in his individual capacity, he is personally liable for any judgment resulting from his violation of another’s federal rights. Ibid.
In contrast, an official-capacity suit "is not a suit against the official [personally] but rather is a suit against the official’s office." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45, 58 (1989). "[A]n award of damages against an official in his personal capacity can be executed only against the official's personal assets,” whereas an award against him in his official capacity can be executed against the government entity itself, which is the real party in interest. Kentucky v. Graham, 473 U.S. 159, 166, 105. S.Ct. 3099, 3105, 87 L.Ed.2d 114, 121 (1985).
It bears mentioning that, for the most part, the facts are not in dispute.
One staff member stated otherwise but, as noted earlier, at this procedural posture the evidence must be viewed in the light most favorable to plaintiff.
It is noteworthy that, at the summary-judgment hearing, the Deputy Attorney General representing defendants expressed that he did not believe that Gormley's status as "a state employee impacts on her federal rights."
The Appellate Division rejected defendants’ contention that plaintiff was barred from suit as their employee. See id. at 438,
Despite the allegations in her complaint, Gormley did not advance or develop her claim that defendants violated the substantive-due-process guarantee of the New Jersey Constitution — not in her argument before the trial court, not in her brief to the Appellate Division, and not in her brief to or oral argument before this Court. On none of those occasions did she mention Article I, Paragraph 1 of our State Constitution as a substantive-due process source for a state-created-danger doctrine. The failure to squarely address this potential claim may be one reason why the Appellate Division is entirely silent on the issue in its opinion. Only after this Court forwarded a letter to counsel inquiring about the status of the state constitutional claim did Gormley explain that she “reads the Appellate Division's silence on the state statutory and state constitutional claims as not significant. We believe that the Appellate Division would apply its [federal civil rights/constitutional] analysis to the state civil rights statutoiy/constitutional claims." In other words, Gormley perceives no distinction between the federal and state constitutional analysis.
We decline to address for the first time a potentially new doctrine under our state constitution in light of Gormley's failure to argue or brief the issue, or develop the type of record that would assist the Court in resolving so important a matter. We consider the state-constitutional claim to have lapsed, and we will resolve only the federal constitutional claim, which has been fully briefed and argued.
See, e.g., Pena v. DePrisco, 432 F.3d 98, 107-10 (2d Cir.2005); Robinson v. Lioi, 536 Fed.Appx. 340, 342 (4th Cir.2013); Jasinski v. Tyler, 729 F.3d 531, 538 (6th Cir.2013); Reed v. Gardner,
At the summary-judgment hearing, defendants did not argue that the Workers' Compensation Act barred Gormley's federal and state civil-rights claims. Because “issues not raised below will ordinarily not be considered on appeal,” N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 339,
Moreover, we do not have the benefit of a record or argument on which to determine whether the alleged federal and state civil-rights violations constitute an “intentional wrong” sufficient to overcome the workers' compensation bar. See Laidlow v. Hariton Mach. Co., 170 N.J. 602, 617,
We do not address Gormley’s argument that her "special-relationship" with Ancora is a separate basis for liability because, in the context of the facts before us, that relationship is subsumed within state-created-danger liability. Indeed, some courts have questioned whether there is a distinction between special-relationship and state-created-danger liability. See Paine v. Cason,
On the record before us, defendants moved collectively for relief and did not differentiate the strength of Gormley’s evidence against each individual defendant.
Dissenting Opinion
dissenting.
Plaintiff, Lorraine Gormley, a Public Defender lawyer for involuntarily committed psychiatric patients, was attacked by a client, B.R., in a community “day room” in Ancora Psychiatric Hospital while meeting the newly committed woman for the first time. The unprovoked attack caused plaintiff serious injuries. Although plaintiff sought relief on a number of theories, in this appeal we consider her claim against State Department of Human Services officials and Ancora’s past and present administrators based on the theory that those defendants violated her substantive due process right to be free from state-created danger. Through that alleged due process violation, plaintiff seeks civil damages under
As the majority acknowledges, neither Section 1983 nor the CRA confers affirmative rights upon plaintiff. Therefore, plaintiff must establish a colorable substantive due process constitutional deprivation. I cannot agree with the majority’s conclusion that a substantive due process state-created-danger claim has been presented in this matter. Moreover, even if I were to agree with the majority that a debatable claim has been set forth, I cannot conclude thаt such a claim was clearly established at the time plaintiff suffered her injuries. Thus, I would affirm the Appellate Division’s judgment that found applicable the doctrine of qualified immunity, which shields the individual defendants from personal civil damages. I agree with the majority that claims for injunctive relief are not barred by the doctrine of qualified immunity. Nonetheless, for the reasons that follow, I respectfully dissent from the judgment of the Court.
I.
It is important at the outset to recognize that plaintiff was injured by a private actor, not a state actor. Generally, a state does not violate the Due Process Clause of the Fourteenth Amendment if it fails to protect its citizen from private violence. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195-96, 109 S.Ct. 998, 1003,
The Supreme Court allowed for the viability of a Section 1983 claim based on a violation of substantive due process when a special relationship arises that imposes on the state affirmative duties of care and protection, such as when the state takes a person into custody against his will. By way of example, the Supreme Court discussed a duty to provide medical services to involuntarily committed mental patients, to providе medical services to people injured in the process of being arrested, and perhaps to avoid moving a child in state custody into an abusive foster home. Id. at 199-201 & n. 9, 109 S.Ct. at 1005-06 & n. 9,
A comment by the Supreme Court provides the genesis for a second theory of Section 1983 liability on the basis of an alleged substantive due process violation. This “state-created danger” exception arises from the DeShaney Court’s statement that
The Court of Appeals for the Third Circuit endorsed a state-created danger cause of action in Kneipp, and refined the elements for such an action in Bright. As established in Bright, supra, a state-created-danger cause of action arises when:
(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 defendаnt’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.
[443 F.3d at 281 (internal quotation marks and footnotes omitted).]
Like my colleagues in the majority, I accept that a Section 1983 claim may be advanced based on an alleged violation of substantive due process on state-created-danger and special relationship theories of liability, notwithstanding that the United States Su
The Bright formulation employed by the Court of Appeals for the Third Circuit has much to commend it. It requires an affirmative act or acts by the state that created the danger or rendered the plaintiff more vulnerable. Bright, supra,
II.
In this appeal, plaintiff argues two theories of liability under Section 1983: special relationship and state-created danger.
A.
In respect of special relationship, I disagree that, as a visitor to Ancora, a state psychiatric hospital, plaintiff held a status equivalent to that of the institutionalized persons residing in that hospital. Persons committed to hospitalization are committed to the State’s care. Although plaintiff is a lawyer whose professional obligation necessitated a consultative visit with her client, she shares the status of any family member, friend, or privately retained attorney or medical professional who enters the facility to visit a committed patient. As such, she is far from the equivalent of a patient committed to the custody of the psychiatric institution against her will. See DeShaney, supra, 489 U.S. at 199, 109 S.Ct. at 1005,
Special relationship cases hinge on custody or a similar deprivation of liberty. See, e.g., Henderson, supra,
That district court case is distinguishable from this case because no direct affirmative act was taken toward plaintiff by state officials. The fact that Ancora’s general visitation policy provided for plaintiff and certain other visitors to meet with patients anywhere on the ward generally, or in the community day room where patients congregated, does not, in my view, meet the level of control over plaintiffs personal behavior generally that gives rise to a special relationship. State actors exerted no direct control over plaintiffs movement, seating, or actions within the day room in which this attack took place. Nothing in this case comes close to resembling the direct assertion of control over the prison visitоr that was central to the court’s decision in Glaspy. See id. at 895. In sum, because plaintiff was never under custodial control in any sense that fits the DeShaney Court’s test for physical custody, I find it impossible to conclude that, on these facts, plaintiff presents a ease of special relationship liability.
B.
The analysis for state-created danger requires a different examination, specifically one that entails use of the four Bright factors:
(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.
[Bright, supra,443 F.3d at 281 (internal quotation marks omitted).]
(1) a state actor exercised his or her authority,
(2) the state actor took an affirmative action, and
(3) this act created a danger to the citizen or rendered the citizen more vulnerable to danger than if the state had not acted at all.
[484 F.3d at 638-39 .]
That is the test that I would apply to plaintiffs claim. It is a rigorous test and, for me, it is far from clear that plaintiff has advanced a cause of action that is even debatable.
That plaintiff was subjected to serious injuries in the course of performing her professional obligation is deplorable. But the sympathy to which she is entitled does not help fashion a constitutional rule of law in this matter that promotes desirable public policy and predictability in application. Indeed, I believe that, by letting plaintiffs claim go to the jury, the majority effectively embraces extensive Section 1983 state liability on the basis of state-created danger to persons visiting inpatients in state psychiatric hospitals.
Foreseeability, a necessary element under the Bright test, is not advanced by this statistical history of incidents involving past patients and conditions that may not bear any resemblance to conditions in the day room on the day in which plaintiff suffered her injuries. Bright’s test requires that the danger must have been foreseeable and fairly direct. For me, information about other patients’ behavior in the past does not make the harm visited on plaintiff foreseeable and fairly direct.
In sum, in my view plaintiff does not present a set of facts that debatably rise to a substantive due process violation. The Bright standard of conduct that shocks the conscience is not satisfied and therefore this claim should not advance past summary judgment.
III.
Even if I were to agree with the majority’s indulgent view of these facts, I would nonetheless conclude that plaintiffs case should only be allowed to go to the jury in limited fashion. I would not allow her novel claim for civil damages against the state
The doctrine of qualified immunity shields government officials from personal liability under Section 1983 “insofar as their [discretionary] 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, 2738,
Respectfully, I believe the majority overstates any similarity between this case and L.W., supra, in which a nurse, who was sexually assaulted by the prison inmate with whom she was assigned to work, had been affirmatively and falsely told that she would be under the protective supervision of guards throughout her assigned tаsk. 974 F.2d at 120. Unlike in L.W., no affirmative promises or false statements were given to plaintiff in this ease. Similarly, the state officials in Glaspy, supra, exercised a degree of direct control over the father’s actions that goes well beyond identifying places for visitors to meet with patients, as defendants did in this case. 134 F.Supp.2d at 892-93. Neither the majority nor the parties cite any other cases that more persuasively establish the applicability of a state-created-danger cause of action in circumstances similar to those of this case.
In sum, if a cause of action were cognizable on these facts, I would find that the doctrine of qualified immunity applies in this instance. The doctrine should shield the defendant governmental officials from this action seeking to impose personal liability on them in their capacity as State Department of Human Services officials or administrators of Ancora Psychiatric Hospital. I do not believe that a state-created-danger theory for a cause of action like the one that plaintiff advances in this matter was clearly established under law when the events underlying this action took place. Certainly, in my view, no case had been decided that found an actionable state-created-danger claim that resembled this one.
Moreover, I am concerned that this new theory of constitutional violation for state-creatеd danger will supplant the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and its careful delineation of public entity and individual liability. Under the Tort Claims Act, willful and wanton action will render a governmental employee bereft of state indemnification and therefore personally responsible for civil damages. See N.J.S.A. 59:10-1 (providing for indemnification of public employee when defended by Attorney General); N.J.S.A. 59:10A-2 (allowing Attorney General to refuse to defend public employee for act or omission not in scope of employment or fraud, willful misconduct, or actual malice). The majority’s analysis, as applied in this ease, suggests that a lesser showing will permit recovery against individual governmental officials under this new constitutional violation.
Thus, I would apply the doctrine of qualified immunity to bar plaintiffs money damages claims. As the majority notes, plaintiff also sought injunctive relief. Because qualified immunity does not act as a bar to equitable relief, Hill v. Borough of Kutztown,
For the foregoing reasons, I respectfully dissent from the judgment of the Court.
For affirmance in part; reversal in part and remandment— Chief Justice RABNER, Justice ALBIN, and Judge RODRÍGUEZ (temporarily assigned) — 3.
For dissent — Justices LaVECCHIA and PATTERSON — 2.
Not Participating — Judge CUFF (temporarily assigned) — 1.
In DeShaney, supra, a young boy was severely beaten by his father, resulting in permanent and substantial brain damage. 489 U.S. at 192-93, 109 S.Ct. at 1001-02, 103 L.Ed.2d at 256-57. Prior to the incident that caused the brain damage, the county department of social services had failed to remove the boy
The majority also fashions on these facts a new CRA claim based on state-created danger. Circuit Courts reflect no consensus on the precise elements of a federal state-created-danger claim because the United States Supreme Court has not yet recognized the action. See generally Jeremy Daniel Kernodle, Note, Policing the Police: Clarifying the Test for Holding the Government Liable under 42 U.S.C. § 1983 and the State-Created Danger Theory, 54 Vand. L.Rev. 165 (2001). However, our Court has locked onto this case as a basis for establishing this new state-created-danger claim that will have the capacity to greatly expand tort-like liability for governmental actors. See Lewis, supra, 523 U.S. at 848, 118 S.Ct. at 1718,
B.R. was on "close visual observation" status, meaning an Ancora employee was required to maintain visual observation of her; there is no proximity requirement with this status. Aides were present in the day room when the attack took place.
It bears noting that, on remand, the jury in L.W. determined that the defendant had acted with gross negligence, but not recklessness or deliberate indifference. L.W. v. Grubbs,
Indeed, the majority’s analysis fails to provide the slightest guidance on whether giving notice of such watch status would have been enough to avoid a substantive due process claim. Instead, my colleagues cite to a totality-of-the-circumstances approach that will leave government officials constantly uncertain as to whether they are at risk of personal liability. That is not the basis for sound governmental operation. Indeed, the Supreme Court has noted its reluctance to expand substantive-due-process liability "because guideposts for