New Jersey Protection and Advocacy, Inc.
William Emmett Dwyer, Esq.
Pursuant to R.1:21-3(c)
210 South Broad Street, Third Floor
Trenton, New Jersey 08608
(609) 292-9742
Attorney for Plaintiffs, Elizabeth D. o/b/o Nile D.
: SUPERIOR COURT OF NEW JERSEY
Elizabeth D. o/b/o Nile D.; New Jersey : LAW DIVISION
Protection and Advocacy, Inc., : MONMOUTH COUNTY
:
Plaintiffs, : DOCKET NO. MON-L-
vs. :
:
: Civil Action
Department of Human Services; ALAN :
KAUFMAN, Director, Division of Mental :
Health Services; RAYMOND GRIMALDI :
former Chief Executive Officer, Brisbane Child : COMPLAINT
Treatment Center, WONDERFUL REEDER :
Human Services Assistant, Brisbane Child :
Treatment Center; and RASHUN MALLORY, :
Human Services Assistant, Brisbane Child :
Treatment Center, :
:
Defendants. :
___________________________________________ :
PRELIMINARY STATEMENT
Within the first hour of his admission to the Arthur Brisbane Child Treatment Center on July 17, 2003, sixteen-year-old Nile D. was attacked twice by other boys in two separate incidents. At the time of the beatings, staff was ordered to stay within an arm’s length of Nile because he was at risk for suicide. These two brutal attacks on Nile, within the first hour of his hospital admission while staff was within an arm’s length of him, are the direct result of the failure of the supervisory structure of Arthur Brisbane Child Treatment Center and the failure to supervise the children in that facility.
PARTIES
1. Plaintiff Elizabeth D. is the mother of Nile D., a sixteen-year-old boy
who stands five feet, seven inches tall and weighs approximately 137 lbs. He
has a history of psychiatric illness, including a previous hospitalization
for hearing voices. At the time of the assaults alleged in this complaint,
he was hospitalized at the Arthur Brisbane Child Treatment Center for suicidal
gestures by attempting to choke himself with a sock and drown himself in a
toilet while in state custody at the New Jersey Training School for Boys in
Jamesburg, New Jersey.
2. Nile D. appears in this case through his next friend, his mother, Elizabeth
D., who resides in Patterson, New Jersey.
3. Plaintiff NJP&A is New Jersey's designated, federally-funded protection
and advocacy system for individuals with disabilities pursuant to the Protection
and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. §§ 10801
et seq. NJP&A's mandate is to advocate for the human, civil, and legal
rights of individuals with disabilities residing throughout the state. Congress
has vested protection and advocacy programs such as NJP&A with the authority
to pursue administrative, legal, and other appropriate remedies to ensure the
protection of individuals with mental illness who are receiving care or treatment
in the State. 42 U.S.C. § 10805(a)(1)(B). NJP&A's advisory boards
and board of directors are composed of individuals with disabilities. Moreover,
all individuals with disabilities in the State of New Jersey are constituents
of NJP&A. As such, NJP&A has independent standing in this matter to
bring litigation on behalf of individuals with disabilities against public
entities pursuant to 42 U.S.C. § 10805.
4. Defendant Department of Human Services was the state agency responsible
for administering the Arthur Brisbane Child Treatment Center during the time
of the events alleged in this complaint.
5. Individual defendants named in this complaint were employees of the State
of New Jersey and were acting in their capacity as state employees at the time
of the assaults alleged in this complaint.
6. Defendant Alan Kaufman was the Director of the Division of Mental Health
Services at the time of the assaults alleged in this complaint. Pursuant to
N.J.S.A. 30:1-9, it was the responsibility of Defendant Kaufman to oversee
all state-operated psychiatric hospitals in the State of New Jersey, including
the Arthur Brisbane Child Treatment Center (Brisbane Center or Brisbane), and
to ensure that the Brisbane Center was a safe facility for children, including
Nile D.
7. Defendant Raymond Grimaldi was the Chief Executive Officer of the Brisbane
Center at the time of the assaults alleged in this complaint. Pursuant to N.J.S.A.30:4-4
to 4-6, and 4-177.6, Defendant Grimaldi was responsible for the proper conduct
and management of the institution, including the conduct of all employees appointed
by him and the custody, control, care, and treatment of all of the residents
of the Brisbane Center, including Nile D.
8. Defendant Wonderful Reeder was a state employee who worked at the Brisbane
Center as a Human Services Assistant at the time of the assaults alleged in
this complaint. It was the responsibility of Defendant Reeder to be within
an arm’s length of one of the assailants of Nile at the time of the assault.
9. Defendant Rashun Mallory is a state employee who worked at the Brisbane
Center as a Human Services Assistant at the time of the assaults alleged in
this complaint. It was the responsibility of Defendant Mallory to be within
an arm’s length of Nile at the time of the two assaults.
FACTS
10. On or about July 16, 2003, Nile D. was incarcerated in the New Jersey
Training School for Boys at Jamesburg, New Jersey (Jamesburg).
11. On or about July 16, 2003, while in custody at Jamesburg, Nile D. tried
to commit suicide by choking himself with a sock and drowning himself by placing
his head inside a toilet.
12. In response to Nile D’s attempted suicide, an application for his
involuntary commitment was filed, and he was taken to the Brisbane Center.
13. The Brisbane Center is the only inpatient psychiatric hospital for children
operated by the State of New Jersey.
14. The Brisbane Center is located in rural Farmington, New Jersey. It was
opened in 1947 as a state hospital for the care and treatment of children with
a mental illness. Since the late 1980’s, Brisbane has functioned as an
acute, psychiatric inpatient facility for children ages 11 to 17 years.
15. After arriving at Brisbane, Nile D. was assigned to Cottage B. This housing
unit was built over 45 years ago to be a school building. The bedrooms and
recreation areas are on different floors, obstructing the supervision of the
patients.
16. At Brisbane, male patients who are on detainer status from a juvenile justice
facility are assigned to Cottage B, where they are mixed with the general population
of male patients.
17. Because of the lack of housing options for boys at Brisbane, Cottage B
is often crowded even when the total population at Brisbane is not over capacity.
18. Usually, the children from Jamesburg spend almost the entire day inside
Cottage B. They leave Cottage B only for mealtime and, if there is sufficient
staff, for two 15-minute recreation periods a day. They are not allowed out
of Cottage B to attend school. Instead, they are provided with a tutor for
one hour each day inside the unit.
19. There have been incidents in which children from Jamesburg have threatened
and assaulted staff at Brisbane, leading staff to believe that Cottage B is
out of their control. There have been times when the unit staff called the
Human Services Police for assistance, but the Human Services Police did not
respond.
20. There is no back-up or emergency plan if a serious disturbance breaks out
in Cottage B involving multiple children.
21. There is a shortage of staff at Brisbane and a lack of proper and adequate
training of staff to ensure the safety of the children.
22. When there is a staffing shortage on a unit, the children’s opportunities
for recreation are severely limited. For example, children who are housed in
Cottage B, as was the plaintiff and his attackers, are not taken outside of
their cottage for any recreation on days when there are staffing shortages.
23. The children in Cottage B spend much of their day lounging in front of
a television with little else to do.
24. Because there is a lack of proper and timely discharge of children from
Brisbane, overcrowding is a chronic problem. Although many of the children
at Brisbane are no longer dangerous to themselves or others, and consequently
do not meet the commitment criteria, they remain at Brisbane because there
are no community-based placement options for them. Instead, they are placed
on a legal status called Conditional Extension Pending Placement (CEPP), pursuant
to R. 4:74-7(h)(2). The percentage of children on CEPP status at Brisbane has
reached as high as 80%.
25. This prolonged wait for discharge while on CEPP status has a detrimental
impact on the children at Brisbane. Their mental health often deteriorates
as months pass and they continue to wait for another placement. Some children
on CEPP status regress so much that they have to be re-committed to the hospital.
26. During the past 15 years, the Brisbane Center has been the subject of many
detailed reports by outside experts and by state officials documenting the
inappropriateness of the physical layout for a children’s psychiatric
hospital and the severe problems with clinical services, staffing, training,
supervision, and safety. There have been a series of expert recommendations,
including the call to close the institution, state remedial work plans, and
media coverage.
27. In 1989, the Public Advocate of the State of New Jersey filed a report
by Dr. Barry Nurcombe concerning the conditions at Brisbane in the case Slocum
v. Perseley, Docket No. L-86-2715, (Law Div. filed June 27, 1986).
28. Dr. Nurcombe cited severe deficiencies at the Brisbane Center in his 1989
Report including the following:
a. Although the patient population was to be no higher than 40, it had climbed
to approximately 80.
b. The buildings were shabby and overcrowded, and the cottages were poorly designed as hospital units.
c. Staff members verbally intimidated patients.
d. There were serious deficiencies in diagnostic, therapeutic, and educational services.
e. There was indiscriminate mixing of children who had serious psychotic disorders with children who had conduct disorders, leaving psychotic children vulnerable to harassment from the more streetwise patients.
f. Brisbane did not provide separate treatment programs for patients with substance abuse disorders and developmental disabilities or for patients who had been traumatized by sexual abuse.
g. Staff was not adequately trained in reliable methods of safe manual restraints. Patients had sustained avoidable injuries because of inept efforts by the staff to restrain them.
h. Patients who were ready to leave were not being discharged because no appropriate placements were available. As they waited for placement, some patients regressed and then needed to be re-committed to Brisbane.
29. In response to the report prepared by Dr. Nurcombe, the court appointed
Robert M. Friedman, Ph.D., to advise the court on conditions at Brisbane.
30. Dr. Friedman filed a report with the court in August 1990, recommending
that Brisbane be closed as of January 1, 1992.
31. Dr. Friedman found many of the same problems at Brisbane as had Dr. Nurcombe,
including severe overcrowding with a population of 70 patients; lack of a clear
mission; inadequate treatment programs and behavioral management; lack of adequate
discharge planning; lack of staff training, particularly in the management
of aggressive physical behavior; failure to provide strong linkages to community
providers; and lack of family involvement.
32. Contemporaneous with the reports filed in connection with Slocum v. Perseley,
the Mental Health Association of Monmouth County issued a detailed and critical
report in December 1989, entitled Report on Investigation into Quality of Care
at Arthur Brisbane Child Treatment Center (White Paper).
33. The White Paper concluded the following:
a. Brisbane failed to provide a safe and therapeutic environment for children.
b. Children were not separated by diagnosis which led to violence and victimization of children.
c. Long term placement and discharge planning was inadequate.
d. Staff was not properly trained to deal with the current population.
e. Brisbane was overcrowded, bleak, and depressing.
34. The White Paper made many recommendations to the state including the
following:
a. Create a less depressing, more therapeutic environment and redesign units for maximum patient surveillance.
b. Separate children by diagnosis.
c. Hire sufficient numbers of staff to eliminate overtime, and develop staff training.
d. Develop a statewide comprehensive system of care for children with serious emotional disturbances.
35. In March 1990, the Department of Human Services responded to the Mental
Health Association of Monmouth County’s White Paper with the Report of
the Arthur Brisbane Management Team, which documented system-wide deficiencies
with mental health care for children and internal problems at Brisbane.
36. At the same time, the Department of Human Services issued the Workplan
to Implement Recommendations of the Management Team for the Arthur Brisbane
Child Treatment Center (Workplan), which included a time-table for changes
in the following areas: organizational structure and administration; therapeutic
environment; clinical services; programming; discharge process; risk management
and incident reporting; patient advocacy; medication and restraint; staff training;
and systems issues.
37. In July 1991, the Mental Health Association of Monmouth County released
a new report, entitled Follow-up Report on Investigation into Quality of Care
at the Arthur Brisbane Child Treatment Center, which noted that the Brisbane
Center continued to have many serious unresolved problems. This Follow-up Report
called for New Jersey to restructure children’s mental health services
so that children would not be placed inappropriately at Brisbane nor remain
there beyond the appropriate time.
38. Conditions at Brisbane did not significantly change as a result of this
series of reports, the White Paper, and the state Workplan. In 1996 and 1997,
New Jersey Protection and Advocacy received an increase in complaints of staff
physically and verbally abusing patients. In March 1997, two Brisbane staff
members sent a letter to Governor Whitman protesting the verbal and physical
abuse of patients by staff members and the lack of investigation by DYFS. In
September 1997, the state Medicaid examiners noted that there were frequent
complaints by patients that the non-professional staff was too rough, too quick
to use physical restraint, and too distrustful and disrespectful. Also in 1997,
nurses at Brisbane filed a health and safety grievance that alleged that nursing
levels were so low that patients were put in danger.
39. On January 4, 1998, Kelly Young, a patient at Brisbane, died of asphyxiation
as a result of an improper use of a basket restraint hold administered by a
youth worker.
40. The state conducted an administrative investigation into Kelly Young’s
death, which concluded that the youth worker involved failed to follow Brisbane’s
policies and procedures, including:
a. Not maintaining the established staff to patient ratio of 1:4. The one nurse
assigned to the unit had left the unit in order to obtain medication requested
by Kelly and one of the other staff had left for his dinner, leaving the unit
with only half of its assigned staff.
b. Not using the full continuum of crisis interventions, specifically verbal de-escalation techniques.
c. Initiating physical restraint contact when apparent danger to self, others or property was not established because Kelly was in a locked unit.
d. Applying what appeared to the investigators to by an improper basket hold.
41. Kelly Young’s death intensified the growing concerns about the treatment
of children at Brisbane, which was documented in the media. Newspaper articles
included details of the history of Brisbane, including the Public Advocate
litigation, the 1989 White Paper from the Mental Health Association of Monmouth
County, and more recent complaints of verbal and physical abuse of children
by staff members, e.g.; Star Ledger, Mental hospital where teen died has been
focus of complaints, January 8, 1998; The Times, Abuse reported before patient
died, January 14, 1998; Asbury Park Press, Rift at Brisbane, January 18, 1998.
42. In May 1998, the state issued another Brisbane Action Plan, entitled Arthur
Brisbane Child Treatment Center Action Plan, which echoed the March 1990 Workplan.
Recommendations included:
a. Elimination of the basket hold and replacement with a hold considered safer
with older adolescents.
b. Staff training to reduce reliance on physical restraint and reduce staff’s verbal harassment of patients.
c. Improvement of family relations.
d. Hiring new youth workers.
e. Increasing clinical services.
43. Although Brisbane was now under special scrutiny, problems persisted in
the areas of physical restraint, supervision, and patient care. A 13-year-old
boy claimed that he was sexually assaulted by three other boys while he was
a patient at Brisbane. A patient on two separate occasions tried to commit
suicide in the shower. Another patient disappeared from Brisbane’s grounds
and was not returned for almost four hours.
44. In May 1999, New Jersey Protection and Advocacy released the Brisbane Report:
A Review of Care and Treatment Provided by New Jersey’s Arthur Brisbane
Child Treatment Center, (Brisbane Report). The Brisbane Report noted that Kelly
Young’s tragic death highlighted critical and long-standing issues at
Brisbane, including:
a. The lack of proper staffing and supervision in the living units.
b. Staff members’ verbal harassment of patients, leading to poor behavior.
c. Brisbane’s isolated setting and unsuitable physical plant which compromise safety and supervision.
d. New Jersey’s failure to develop a system of home-and-community based mental health services for children and adolescents, resulting in the reliance on Brisbane as a “place to wait” until less-restrictive placement is found.
45. The Brisbane Report called on the state to address the fact that this
institution was detrimental to the children sent there and that it should be
replaced by a continuum of community-based mental health services for children.
46. Despite the reports and recommendations that have been generated over the
past fifteen years, the violence, the sexual assault, and the death of Kelly
Young, little has changed at Brisbane. The lack of discharge planning, the
overcrowding, and the staff shortage create a climate of tension and despair
at Brisbane that is anti-therapeutic and often results in violence and victimization.
46. Under federal law, New Jersey is required to provide alternatives to hospitalization
in Brisbane for children with severe mental illness. Medicaid’s Early
and Periodic Screening, Diagnosis and Treatment program (EPSDT) mandates that
low-income children have the right to necessary home and community mental health
services, including in-home services, school-based services and family supports.
The availability of the full array of these wraparound services allows children
with the most severe mental disabilities to receive treatment without psychiatric
hospitalization or extended residential treatment. Unlike many federal programs,
Medicaid provides a source of funding for New Jersey to fulfill its legal obligation
under federal law.
47. If these mandated home-and-community mental health services were developed
statewide, many children with severe mental illness would be able to receive
treatment in the community, without hospitalization at Brisbane. Those children
who required treatment in a hospital setting would be able to leave Brisbane
as soon as they were stabilized, rather than waiting weeks or months for an
appropriate placement.
48. New Jersey state officials have recognized the need for system-wide reform
of the mental health care for children for over four years. In her January
2000 Budget Address, Governor Whitman introduced a children’s mental
health care initiative to provide community-based mental health services for
children across New Jersey that would meet or exceed the federal Medicaid EPSDT
standards. She stated, “Right now, we spend $167 million a year on various
services for troubled youngsters. Yet far too often, these children and their
families don’t receive the full-range of services they need, when they
need them. The system has become too fragmented. It’s time to fix it.
The budget begins a four-year effort to totally reform the way we deliver services
to these children.”
49. This children’s mental health initiative has not been implemented
statewide and has not had a meaningful impact on the conditions at Brisbane
or the care and safety of the children placed there.
50. On October 14, 2003, the Office of the Child Advocate launched a formal
inquiry into Brisbane, noting that parents, community advocates and union members
have raised serious concerns about the facility, including:
a. A pattern of physical and sexual abuse of patients by facility staff.
b. A pattern of patient neglect.
c. Tampering with surveillance videotapes to cover up acts of abuse and neglect as well as other acts of negligence and unprofessional behavior by staff.
51. According to A New Beginning: The Future of Child Welfare in New Jersey,
the state plan to overhaul the child welfare system, released February 17,
2004, Brisbane is one of the areas that will receive immediate attention from
the newly-created Division of Child Behavioral Health. The plan noted that
Brisbane “continues to struggle to meet child safety requirements. Some
of the struggle relates directly to the physical plant, which was not designed
for the current population.”
52. Defendant Kaufman had been the Director of the Division for Mental Health
Services for approximately fifteen years at the time of the assaults alleged
in this complaint. Defendant Kaufman had the authority, power, and responsibility
over the supervision and safety of the children at Brisbane.
53. Defendant Kaufman was aware of the severe and enduring problems at Brisbane.
Defendant Kaufman was aware of the perpetually high number of children on CEPP
status, who are being warehoused at Brisbane while they wait for an appropriate
community placement; overcrowding in the housing units; the housing of patients
with severe mental illness with patients with conduct disorders; the housing
of patients from juvenile justice facilities with other patients; the staffing
problems at Brisbane and the negative impact that inadequate staffing has had
on the therapeutic environment of the facility; and incidents of violence at
Brisbane.
54. Furthermore, it was the responsibility of Defendant Kaufman to inform his
superiors of the conditions at Brisbane and of the development and implementation
of community alternatives to Brisbane.
55. Defendant Grimaldi was the CEO of Brisbane for approximately seven years.
At the time of the assaults alleged in this complaint, Defendant Grimaldi had
the authority, power, and responsibility over the supervision and safety of
the children at Brisbane.
56. It was Defendant Grimaldi’s direct responsibility to insure that
Brisbane was properly staffed; that the staff members were properly trained;
that children in Brisbane were provided with a safe and therapeutic environment;
that the housing units were not overcrowded; that patients with severe mental
illness were not housed with patients with conduct disorders; that patients
from juvenile justice facilities were not housed with other patients; and that
children who were ready to be discharged were moved quickly to an appropriate
less-restrictive placement.
57. It was the direct responsibility of Defendant Grimaldi to advocate for
a continuum of appropriate home-and-community wraparound mental health services
for children at Brisbane so that the facility would not warehouse children
on CEPP status, thereby creating a dangerous environment for all the children
at Brisbane.
58. Furthermore, it was the responsibility of Defendant Grimaldi to inform
his superiors of any shortcomings in the operation of Brisbane.
59. Neither Defendant Kaufman nor Defendant Grimaldi took proactive steps that
have resulted in the statewide operation of community-based mental health treatment
alternatives to Brisbane even though federal funding is available.
60. Neither Defendant Kaufman nor Defendant Grimaldi took proactive steps that
have resulted in the elimination of children on CEPP status from Brisbane or
the separation of children who are on detainer status from juvenile justice
facilities from non-detainer status children.
61. Neither Defendant Kaufman nor Defendant Grimaldi took proactive steps to
insure that staff shortages do not occur at Brisbane.
62. At the time of the assaults alleged in this complaint, Defendants Kaufman
and Grimaldi were responsible for and had knowledge of the overcrowding, the
lack of properly trained staff, the shortage of staff, and the mixing of children
with disparate diagnoses at Brisbane.
63. The overcrowding, the lack of properly trained staff, the shortage of staff,
and the mixing of children with disparate diagnoses at Brisbane were the proximate
cause of the two assaults on the plaintiff.
64. On July 17, 2003, at approximately 9:30 a.m., the plaintiff was admitted
to Brisbane.
65. Because he had attempted suicide, Nile D. was placed on a ”one-to-one” status,
which required staff to remain at an arm’s length of him at all times.
66. On July 17, 2003, at approximately 9:40 a.m., Nile D. and his one-to-one
escort, Rashun Mallory, sat in front of a television set on the second floor
of Cottage B.
67. Nile D, had chosen a seat that was next to another child, R.G., who, unknown
to Nile D., was severely disturbed. R.G. had a history at Brisbane of attacking
people without warning or provocation. His sudden, violent behavior was well
known to the staff and was the principal reason why R.G. also had a one-to-one
escort, Defendant Wonderful Reeder.
68. Neither Defendant Reeder nor Defendant Mallory warned Nile D. not to sit
next to R.G. despite the fact that they both knew that R.G. was severely disturbed
and regularly and randomly punched children and staff in the face.
69. Shortly after Nile D. sat down, R.G. stood up, walked over to Nile D. and
punched him in his face several times causing a bloody nose. Neither Defendant
Reeder nor Defendant Mallory prevented R.G. from assaulting Nile D. despite
being within an arm’s length of both of the boys.
70. Defendants Reeder and Defendant Mallory, with knowledge that R.G. had propensity
for violent and aggressive behavior toward other children and staff at Brisbane,
failed to warn Nile D. of the danger of being assaulted by R.G. and failed
to protect Nile D. from the assault by R.G. As a proximate consequence of Defendant
Reeder’s and Defendant Mallory’s failure to warn Nile D. and protect
Nile D., he was assaulted by R.G. and suffered physical and psychological injuries.
71. R.G. was removed from the room, and Nile D. went into the bathroom to clean
the blood off his face.
72. After cleaning himself, Nile D. returned to the same seat in front of the
television, and another child, J.H., sat next to him.
73. Nile D. and the other child, J.H., knew each other from Jamesburg.
74. J.H. began teasing Nile D. about being punched in the face by R.G.
75. As J.H.’s teasing escalated, Nile D. became agitated. Nile D. remarked
to J.H. that he had not been in any fights while at Jamesburg. In reply, J.H.
stood up, walked over to Nile D. and punched him in the nose, giving Nile D,
yet another bloody nose.
76. Despite the escalating verbal teasing of Nile D. by J.H., neither Defendant
Mallory, who was within an arm’s length of Nile D., nor any other staff
who was present, intervened to protect Nile D. from verbal harassment or physical
assault. Defendant Mallory had plenty of time to redirect J.H. to another part
of the unit so that Nile D. would not have to endure the taunts and teasing
of J.H. merely only minutes after being assaulted by R.G.
77. Defendant Mallory, with knowledge that Nile D. was in danger of another
assault, failed to protect Nile D. from J.H. As a proximate consequence of
Defendant Mallory’s failure to protect Nile D., he was assaulted by J.H.
and suffered physical and psychological injuries.
78. After the second assault on Nile D., the staff decided that Nile D. should
be transported to an emergency room for treatment.
79. Due to the fact that the Nile D. was from Jamesburg, he was deemed to be
an escape risk. The policy at Brisbane is that only Human Services Police can
transport such children to an outside hospital for treatment.
80. Since there were no Human Services Police at Brisbane, Human Services Police
had to be summoned from Trenton, over an hour away.
81. Human Services Police eventually arrived from Trenton and transported Nile
D. to the Jersey Shore Medical Center, where he was treated for pain and a
broken nose and returned to Brisbane.
82. For his own safety, Nile D. was ordered to sleep in the television room
that night.
83. As a proximate consequence of being assaulted at Brisbane, Nile D. was
severely injured physically and psychologically, enduring pain, suffering and
injuries.
FIRST CAUSE OF ACTION
Failure To Protect From Harm
Defendants Department of Human Services
Kaufman and Grimaldi
84. Paragraphs 1 through 83 are incorporated within this cause of action by
reference.
85. Nile D. has a substantive due process right under the New Jersey Constitution,
Article 1, and under the Fourteenth Amendment to the Constitution of the United
States pursuant to 42 USC 1983, to be free from harm as an involuntary patient
in the custody of the State of New Jersey.
86. The actions and inactions of Defendants Department of Human Services and
Kaufman and Grimaldi demonstrated their deliberate indifference to the safety
of Nile D. and all other children at Brisbane.
87. The actions and inactions of Defendants Department of Human Services and
Kaufman and Grimaldi created a dangerous environment where many children, including
Nile D., have been the victims of violence.
88. Due to the deliberate indifference of Defendants Department of Human Services
and Kaufman and Grimaldi, Nile D. was brutally assaulted twice in violation
of his rights under state and federal law to be free from harm.
SECOND CAUSE OF ACTION
Failure To Protect From Harm
Defendants Reeder and Mallory
89. Paragraphs 1 through 83 are incorporated within this cause of action by
reference.
90. Nile D. has a substantive due process right under the New Jersey Constitution,
Article 1, and under the Fourteenth Amendment to the Constitution of the United
States pursuant to 42 USC 1983, to be free from harm as an involuntary patient
in the custody of the State of New Jersey.
91. The deliberate failure of Defendants Reeder and Mallory to warn Nile D.
not to sit next to R.G. and their subsequent failure to intervene between R.G.
and Nile D. when they were at an arm’s length from both R.G. and Nile
D. caused Nile D. to be injured.
92. Defendant Mallory had an opportunity to intervene when J.H. was verbally
accosting Nile D., before J.H.’s aggressive behavior escalated and J.H.
assaulted Nile D., who was still recovering from the first assault that had
had occurred only a few minutes earlier. Instead, Defendant Mallory did nothing,
allowing J.H. to assault Nile D.
93. The actions and inactions of Defendants Reeder and Mallory demonstrated
their deliberate indifference to the safety of Nile D.
94. Due to the deliberate indifference of Defendants Reeder and Mallory, Nile
D. was brutally assaulted twice in violation of his right under state and federal
law to be free from harm.
THIRD CAUSE OF ACTION
Claim for Negligence
Defendants Department of Human Services
Kaufman and Grimaldi
95. Paragraphs 1 through 83 are incorporated within this cause of action by
reference.
96. At the time of the assaults alleged in this complaint, Defendants Department
of Human Services and Kaufman and Grimaldi were responsible for and had knowledge
of the overcrowding, the lack of properly trained staff, the shortage of staff,
and the mixing of children with disparate diagnosis at Brisbane.
97. The actions and omissions of Defendants Department of Human Services and
Kaufman and Grimaldi which created the dangerous environment at Brisbane, including
the overcrowding, the lack of properly trained staff, the shortage of staff,
and the mixing of children with disparate diagnosis, were palpably unreasonable.
98. The overcrowding, the lack of properly trained staff, the shortage of staff,
and the mixing of children with disparate diagnosis at Brisbane were the proximate
cause of the two brutal assaults on Nile D..
99. As a proximate consequence of being assaulted twice at Brisbane, Nile D.
was severely injured physically and psychologically, enduring pain, suffering
and injuries.
100. Within the time required by law, a written claim was filed by the plaintiff
mother with Defendants Department of Human Services and Kaufman and Grimaldi.
A copy of the claim is attached, marked Exhibit A, and incorporated by reference.
101. The claim was timely filed under the provisions of N.J.S.A. 59:8-1 et
seq. Defendants Department of Human Services and Kaufman and Grimaldi have
failed and neglected to take any action on the plaintiff’s claim for
six months, and the plaintiff elects to treat the claim as rejected and to
sue for relief in this action.
FOURTH CAUSE OF ACTION
Claim for Negligence
Defendants Reeder and Mallory
102. Paragraphs 1through 83 are incorporated within this cause of action by
reference.
103. Defendants Reeder and Defendant Mallory, with knowledge that R.G. had
propensity for violent and aggressive behavior toward other children and staff
at Brisbane, failed to warn Nile D. of the danger of being assaulted by R.G.
and failed to protect Nile D. from the assault by R.G. As a proximate consequence
of Defendant Reeder’s and Defendant Mallory’s failure to warn and
protect Nile D., he was assaulted by R.G. and suffered severe injuries.
104. Defendant Mallory, with knowledge that Nile D. was in danger of another
assault, failed to protect him from J.H. As a proximate consequence of Defendant
Mallory’s failure to protect Nile D., he was assaulted by J.H. and suffered
severe injuries.
105. The actions and omissions of Defendants Reeder and Mallory were within
the scope of their employment. The failure to warn Nile D. that he was in danger
of assault and the failure to protect him from assault were the proximate cause
of Nile D.’s injuries.
106. As a proximate consequence of being assaulted twice at Brisbane, Nile
D. was severely injured physically and psychologically, enduring pain, suffering
and injuries.
107. Within the time required by law, a written claim was filed by the Plaintiff
with Defendants Reeder and Mallory. A copy of the claim is attached, marked
Exhibit A, and incorporated by reference.
108. The claim was timely filed under the provisions of N.J.S.A. 59:8-1 et
seq. Defendants Reeder and Mallory have failed and neglected to take any action
on the Plaintiff’s claim for six months, and the Plaintiff elects to
treat the claim as rejected and to sue for relief in this action.
FIFTH CAUSE OF ACTION
Patients’ Bill of Rights
109. Paragraphs 1 through 83 are incorporated within this cause of action
by reference.
110. Nile D. has a right under N.J.S.A. 30:4-24.2 et seq. to be free from harm
while an involuntary patient in the custody of the State of New Jersey.
111. The actions and inactions of the defendants caused serious physical and
psychological harm to Nile D. in violation of his right under state law to
be free from harm.
SIXTH CAUSE OF ACTION
Child Placement Bill of Rights Act
112. Paragraphs 1 through 83 are incorporated within this cause of action
by reference.
113. Nile D. has a right under N.J.S.A. 9:6B-1 et seq. to be free from physical
or psychological abuse while placed by the state outside his home.
114. The actions and inactions of the defendants caused serious physical and
psychological harm to Nile D. in violation of his right under state law to
be free from harm.
RELIEF
Wherefore, Plaintiffs Elizabeth D. on behalf of Nile D. demands judgment
against defendants:
a. Declaring that Nile D.’s rights under the constitutions of the United
States and New Jersey and under the laws of the State of New Jersey were violated.
b. Awarding compensatory and punitive damages for all injuries to Nile D.
c. Requiring the Defendant Department of Human Services to take action to protect the safety of the residents of the Brisbane Child Treatment Center, including, but not limited to, a staff training, education, and monitoring program acceptable to the Plaintiffs, and providing Plaintiff NJP&A with copies of all incident reports involving the assault on or injury to a resident of the Center.
d. Awarding attorney fees including fees pursuant to 42 USC 1988.
e. Awarding interest and costs of suit.
f. All other relief to which the plaintiff is entitled.
NEW JERSEY PROTECTION AND ADVOCACY, INC.
By:______________________________
William Emmett Dwyer, Esq.
Attorney for Plaintiffs, Elizabeth D.
o/b/o Nile D.
DATED: June 7, 2004 Pursuant to R.1:21-3(c)
DESIGNATION OF TRIAL COUNSEL
In accordance with R. 4:25-4, William Emmett Dwyer, is hereby designated as trial
counsel for the Plaintiffs Elizabeth D. and New Jersey Protection and Advocacy, Inc. in the
above matter.
NEW JERSEY PROTECTION AND ADVOCACY, INC.
By:______________________________
William Emmett Dwyer, Esq.
DATED: June 7, 2004 Attorney for Plaintiffs, Elizabeth D.
o/b/o Nile D.
Pursuant to R.1:21-3(c)
CERTIFICATION
I hereby certify that the matter in controversy is not the subject of any
other action pending in any other Court and is likewise not the subject of
any pending arbitration proceeding. The Plaintiff further certifies that he
has no knowledge of any contemplated action or arbitration proceeding which
is contemplated regarding the subject matter of this action. On the basis of
present knowledge, I am not aware of any other parties who should be joined
in this action. The only exception to the above is Charlie and Nadine H. v.
McGreevey, U.S. District Court, District of New Jersey, No. 99-3678(GEB), which
is omnibus litigation seeking the reform of the Division of Youth and Family
Services within the Department of Human Services. The residents of the Brisbane
Child Treatment Center may be affected by the litigation in Charlie and Nadine
H.
NEW JERSEY PROTECTION AND ADVOCACY, INC.
By:______________________________
William Emmett Dwyer, Esq.
Attorney for Plaintiffs, Elizabeth D.
DATED: June 7, 2004 o/b/o Nile D.
Pursuant to R.1:21-3(c)
DEMAND FOR TRIAL BY JURY
Please take notice that Plaintiffs hereby demand a trial by jury of six persons on
all issues.
NEW JERSEY PROTECTION AND ADVOCACY, INC.
By:______________________________
William Emmett Dwyer, Esq.
Attorney for Plaintiffs, Elizabeth D.
DATED: June 7, 2004 o/b/o Nile D.
Pursuant to R.1:21-3(c)
CERTIFICATION OF SERVICE
I, Pegeen Zielinski, of full age, hereby certify as follows:
1. I am secretary to William Emmett Dwyer, attorney for the Plaintiffs.
2. On, June 7, 2004, I did deposit in the regular mail a copy of the within
Complaint, Designation of Trial Counsel and Jury Demand addressed to Clerk,
Superior Court of Monmouth County, 71 Monument Park, Freehold, New Jersey 07728.
I certify that the foregoing statements made by me are true. I am aware that
if any of the foregoing statements made by me are willfully false, I am subject
to punishment.
_________________________________
PEGEEN ZIELINSKI
DATED: June 7, 2004