NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1601-08T31601-08T3

JOSEPH BERNSTEIN, individually

and as Administrator Ad Prosequendum

of The Estate of ALEXANDER BERNSTEIN,

and ANN MARIE TALLON,

Plaintiffs-Appellants,

v.

STATE OF NEW JERSEY, NEW JERSEY STATE

DEPARTMENT OF CORRECTIONS, EAST JERSEY

STATE PRISON, SCO STACY GRANT, SCO ROBERT

TONE, SCO RONALD WILLIAMS, SCO DESMA FLORES,

SCO GABRIEL BAEZ, SCO DIANE PALMER, SGT.

ROBERT BONILLA, SGT. ROBERT MITCHELL, SCO

GEORGE COLELLO, SGT. ROBERT LAPENTA, SCO

BRYANT FLORES, CAPTAIN FRANCIS PASCUCCI,

SCO VINCENT ALBERTO, SCO LAWRENCE ARTIST,

SCO DOUGLAS FRANK, LT. DENNIS WALSH, HRYSSO

FERNBACH PSY.D., DR. MILLER, DONALD R. REEVES,

M.D., LCSW VALERIE L. YORKER, and LCSW ADRIAN

SERAFIN,

Defendants,

and

COMMISSIONER DEVON BROWN, CHIEF OF STAFF

CHARLES ELLIS, ADMINISTRATOR TERRANCE MOORE,

LT. JAMES MATTIA, SGT. JOHN CUNNINGHAM, ACTING

DIRECTOR OF CUSTODY OPERATIONS JOSEPH RING,

LT. JOSEPH CIFELLI, SCO GERARD SHEEHAN, SCO

ELEANOR HOUSTON, SCO ROBERT MARETZ, SCO PATRICK

SCULLY, SGT. MYRON POPOWYCH, SCO DOUGLAS SMITH,

SCO DOUGLAS ROKISKY, SCO MILTON ALEXANDER, SCO

ERIC HASTINGS, SCO KEITH SMITH, SCO LINDA BOSWELL,

SGT. ROBERT MIKULAK, SGT. MICHAEL MORRIS,

ASSISTANT SUPERINTENDENT MICHAEL POWER,

ASSISTANT CHIEF ADMINISTRATOR CHRISTOPHER

HAMMER,

Defendants-Respondents.

________________________________________________

Submitted December 8, 2009 - Decided

Before Judges Carchman, Parrillo and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2922-06.

O'Connor, Parsons, & Lane, L.L.C., attorneys for appellants (William R. Lane, of counsel; Jose D. Roman, on the brief).

Anne Milgram, Attorney General, attorney for respondents (Melissa H. Raksa, Assistant Attorney General, of counsel; Karen L. Jordan, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

PARRILLO, J.A.D.

Plaintiff Joseph Bernstein, administrator ad prosequendum of the estate of his son, Alexander Bernstein, appeals from the September 30, 2008 summary judgment dismissal of his state common law tort and federal civil rights lawsuit against the State of New Jersey, its Department of Corrections (DOC), East Jersey State Prison, and numerous DOC officials and employees (collectively, State defendants). We affirm.

The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Seconds before 7:00 a.m. on May 5, 2004, plaintiff's decedent, Alexander Bernstein, was attacked and killed by a fellow inmate, Hassan Doss, during breakfast in the inmate dining room (IDR) at East Jersey State Prison. Doss had been sitting at a table, when he suddenly ran to where Bernstein was standing and began the attack. Bernstein was beaten for approximately four-and-one-half minutes before an emergency response team ended the incident.

As soon as he saw Doss attack, Sergeant John Cunningham, one of several corrections officers observing the mess hall from protective cages suspended above the mess hall floor, immediately activated the riot bell, then used a bullhorn to direct Doss to end the attack. When Lieutenant James Mattia, the shift commander, heard the riot bell, he alerted the star sergeant as to the incident's location, and activated the riot alarm system. Video cameras were then directed at Doss. Upon hearing the riot bell, designated officers reported to the ready room.

Two emergency response teams, each manned by twelve officers and one supervisor, assembled and donned their protective equipment, which took less than one minute. Once the teams were ready, Lieutenant Cifelli gave Cunningham the order to open the gate. Sergeants Popowych and Mikulak lead the first team in while the second team remained in stand-by.

The first team secured Doss, and reached Bernstein at 7:05:18 a.m. The victim's dire condition was immediately apparent, and the shift commander was notified by radio to call for an ambulance. Medical personnel were sent in after the IDR was secured, placing Bernstein on a gurney at about 7:08:18 a.m., approximately eight minutes and thirty-five seconds after the attack began. The nurses escorted Bernstein to the institutional hospital, which is approximately fifteen feet from the IDR's exit, and CPR was initiated. At 7:24 a.m., the Woodbridge Township Ambulance Rescue Squad arrived. Treatment continued, and at 7:30 a.m., paramedics from JFK Hospital arrived. At 7:36 a.m., Bernstein was pronounced dead by Dr. Hershkowitz of Correctional Medical Services (CMS), the independent contractor that provided medical services for the DOC.

Doss had multiple incidents of "[s]pecific assaultive behavior," while in prison, including one in 1994 resulting in the hospitalization of a corrections officer. Two of eight incidents in 1999 involved Doss cutting fellow inmates with a razor. In 2000, Doss pushed a corrections officer to the floor.

Doss has a history of paranoia and hostility. He had been prescribed antipsychotic medication in September 2001, but from late December 2003, was taking the medication only sporadically, despite the intense efforts of CMS psychiatrist Donald Reeve and psychiatric social worker Valerie Yorker to get Doss on a regular routine, lest he become more irritable. Dr. Reeve, at first, did not seek emergency or forced medication because he found Doss had not "behaved in an aggressive, provocative, or paranoid manner in the last two months." However, on March 18, 2004, a DOC sergeant brought Doss to Dr. Reeve's office, because a "wing officer note[d] that Mr. Doss [was] withdrawn and hostile and [did] not appear himself." Because of this shift in behavior, Doss was placed on suicide watch for a short while and then returned to his prison cell. On April 2, 2004, Dr. Reeve ordered that Doss be involuntarily injected with medication every two weeks for thirty days, beginning April 9, 2004, although he was not diagnosed as either suicidal or homicidal. Doss was injected again on April 23, 2004 and the next injection was scheduled for May 6, 2004, the day after he attacked Bernstein. On April 29, 2004, it was reported that Doss "was very clear in stating that he knows how to control his anger and he would never do anything to harm anyone here and he is not trying to intimidate staff, etc." In his meeting with Dr. Reeve the next day, Doss reiterated that he had "no thoughts of hurting himself or anyone else."

The corrections officers who were deposed testified that they did not have access to, or knowledge of, Doss' medical records, nor did they have information that would suggest that Doss was planning an attack. Terrance Moore, the prison's former administrator, denied any knowledge of Doss' violent history, and said he was never approached with concerns over Doss. He said that the March 18, 2004 incident where an officer brought Doss for psychological evaluation was not a rare occurrence, as "[i]t's not out of the ordinary" for an inmate to be brought to the mental health department. According to Moore, CMS has an obligation to alert DOC when, in its opinion, an inmate may harm himself or others, and Moore was not aware of any such communication between CMS and prison staff.

Neither were Lieutenant James Mattia, the shift commander stationed in the center control room at the time of the attack, Lieutenant Cunningham, or Lieutenant Myron Popowych aware of any of Doss' psychological problems in the months leading up to the attack. In fact, Captain Thomas Kirk, the area lieutenant on second shift at the time of the attack, characterized Doss as a "[r]ather quiet inmate [who] kept to himself for the most part."

Plaintiff filed a sixteen-count complaint against the State, the DOC, East Jersey State Prison, as well as forty-three individual defendants, including the DOC Commissioner, his assistant, the prison administrator, assistant superintendent, assistant chief, supervisors and numerous corrections officers, alleging state common law tort claims sounding in negligence (Counts I-IX), federal civil rights claims arising under 42 U.S.C.A.