Rosetta Dasaro v. County of Monmouth

                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-1336
                                       __________

                       ROSETTA DASARO, Individually, and
            as the Administratrix of the Estate of Anthony Dasaro, Deceased,
                                                         Appellant

                                             v.

     COUNTY OF MONMOUTH; MONMOUTH COUNTY CORRECTIONAL
INSTITUTION; CORRECT CARE SOLUTIONS LLC; JOHN DOES 1-10, first and last
  name being fictitious and representing unnamed Police Officers and/or Corrections
      Officers, individually and in their official capacity as Corrections Officers;
       MARTIN MARINO; PAULINE TYAS; KABEERUDDIN HASHINI;
  IBIRONKE MACAULAY; ASHLEY LABARBERA; ALICIA CAPUTO-SMITH
                      ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                         (D.C. Civil Action No. 3:14-cv-07773)
                      District Judge: Honorable Peter G. Sheridan
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 22, 2020

               Before: AMBRO, PORTER and SCIRICA, Circuit Judges

                             (Opinion filed October 26, 2020)
                                      ___________

                                        OPINION*
                                       ___________


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Rosetta Dasaro (“Appellant”) appeals pro se from the District Court’s order

granting summary judgment against her in this civil action stemming from the death of

her estranged husband, Anthony Dasaro (“Decedent”), who committed suicide while

detained at the Monmouth County Correctional Institution (“MCCI”). For the reasons

that follow, we will affirm the District Court’s order.

                                              I.

       On April 28, 2014, police in Manalapan Township, New Jersey, arrested

Decedent, a 62-year-old retired New York City police officer, after he allegedly

attempted to harm Appellant by driving over her foot while he backed out of a parking

space. A New Jersey Municipal Court judge set Decedent’s bail at $2500 and ordered

that Decedent be detained at MCCI until his next scheduled court appearance. MCCI

contracts with Correct Care Solutions, LLC (“CCS”), to provide medical and mental

health care to MCCI’s inmates.

       As part of the booking process upon Decedent’s arrival at MCCI on April 28,

2014, he was evaluated by Ashley LaBarbera, a CCS licensed practical nurse, and Dr.

Alicia Caputo-Smith, a clinical psychologist who served as CCS’s Director of Mental

Health at MCCI. During these evaluations, Decedent indicated that he suffered from

post-traumatic stress disorder, and that he was taking valium.1 Although Decedent was


1
  Decedent also indicated that, in 1993, at which point he had retired and was having
family difficulties, he was treated by a psychiatrist, who prescribed him an anti-
depressant. Decedent reported that he took that medication for a few months.
                                              2
initially upset during these evaluations — Dr. Caputo-Smith indicated during her

deposition testimony that it was common for inmates to be distressed during booking —

Decedent collected himself and was cooperative. During Dr. Caputo-Smith’s evaluation

of Decedent, she concluded, after balancing the risk factors for suicide (such as his

incarceration and his being estranged from his wife and adult children) with the

“protective” factors (such as his Catholic belief against committing suicide and his desire

to reconnect with his family), that he did not pose a threat for committing suicide.

         Decedent was also screened by MCCI Corrections Officer Rick Lombardo to

identify any special medical needs and determine Decedent’s custody classification. 2

During that screening, Decedent denied having any mental or medical health problems,

drug or alcohol problems, or thoughts of suicide. Because of Decedent’s use of valium,

LaBarbera had recommended that he be placed in MCCI’s “detox housing” — “an open

dormitory setting, where inmates are under twenty-four[-]hour supervision.” (Dist. Ct.

Mem. entered Feb. 21, 2018, at 2 [hereinafter Dist. Ct. Mem.].) However, at Decedent’s

request, he was instead placed in protective custody — where he was assigned to an

individual cell — in view of his having been a police officer.

         Between the evening of April 28, 2014, and the morning of May 3, 2014,

Decedent was evaluated 12 times by CCS staff for suicidal tendencies. The paperwork

documenting those evaluations indicates that, during each evaluation, Decedent (1) did

not express thoughts about killing himself, (2) did not have a suicide plan or suicide



2
    At the time of his deposition, Lombardo had risen to the rank of Sergeant.
                                              3
instrument in his possession, and (3) did not express feelings of helplessness or

hopelessness. Decedent was also evaluated by CCS’s mental health department during

rounds on May 1, 2014. The report memorializing that evaluation indicates that

Decedent was cooperative and calm, and that his mood and affect were normal.

       Around 1 p.m. on May 3, 2014, an MCCI corrections officer found Decedent

unresponsive in his cell with a bedsheet tied around his neck. An autopsy ruled

Decedent’s death a suicide by hanging. Later that year, Appellant, acting individually

and as the administratrix of Decedent’s estate, filed a counseled complaint in the District

Court. Appellant subsequently amended that complaint twice; her second amended

complaint (“SAC”) is the operative pleading here. The SAC was brought against CCS,

several CCS medical and mental health providers (including Dr. Caputo-Smith and

LaBarbera), MCCI, Monmouth County, and ten John Doe defendants. The SAC raised

negligence claims under New Jersey law and alleged that the defendants had violated

Decedent’s constitutional rights.3

       After discovery, MCCI and Monmouth County (hereinafter collectively referred to

as “the Monmouth Defendants”) jointly moved for summary judgment, as did CCS and

the CCS medical and mental health providers (hereinafter collectively referred to as “the


3
 The SAC also included a claim for loss of consortium brought by Appellant on her own
behalf. Because (1) that claim is derivative of one or more of the other claims in the SAC
and (2) we will affirm the District Court’s grant of summary judgment against Appellant
as to those other claims (for the reasons discussed in Section III, infra), we need not
separately analyze the loss-of-consortium claim. See, e.g., Weir v. Mkt. Transition
Facility of N.J., 

723 A.2d 1231

, 1236 (N.J. Super. Ct. App. Div. 1999) (“The derivative
claim can rise no higher than the personal injury claim of the other spouse.” (quoting
Tichenor v. Santillo, 

527 A.2d 78

, 82 (N.J. Super. Ct. App. Div. 1987))).
                                             4
CCS Defendants”). Appellant, meanwhile, cross-moved for summary judgment. On

February 21, 2018, the District Court granted the defendants’ motions, denied

Appellant’s cross-motion, and directed the District Court Clerk to close the case. In

doing so, the District Court explained that Appellant’s negligence claims could not

proceed because she had not complied with N.J. Stat. Ann. § 2A:53A-27’s affidavit of

merit (“AOM”) requirement or submitted expert testimony regarding whether the

defendants had deviated from the applicable standard of care. As for Appellant’s

constitutional claims, the District Court explained that those claims (1) could not proceed

against MCCI because it is not a “person” under 42 U.S.C. § 1983, and (2) failed on the

merits as to the remaining defendants.

       Several months after the District Court entered its summary-judgment decision,

Appellant, who was no longer proceeding with counsel, moved for reconsideration. The

District Court denied that motion, and then Appellant filed a notice of appeal. In

December 2018, we dismissed that appeal for lack of jurisdiction, indicating that the

appeal was premature because the District Court had not adjudicated the defendants’

cross-claims for contribution and indemnification. (See Dec. 12, 2018 Order entered in

C.A. No. 18-2983 (citing, inter alia, Owens v. Aetna Life & Cas. Co., 

654 F.2d 218

, 220

n.2 (3d Cir. 1981)).) We explained that “[n]othing in our [dismissal] order . . . prevents

Appellant from filing a new notice of appeal once the District Court enters a final

decision in this case.” (Id. at 2.)

       Thereafter, the defendants jointly filed in the District Court a stipulation

voluntarily dismissing their respective cross-claims. On January 29, 2019, the District

                                              5
Court approved that voluntary dismissal. A week later, Appellant filed the appeal that is

now before us.4

                                            II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.5 We review

the District Court’s summary-judgment decision under a plenary standard. See Barna v.

Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 

877 F.3d 136

, 141 (3d Cir. 2017).6

Summary judgment is appropriate when the movants “show[] that there is no genuine

dispute as to any material fact and the movant[s] [are] entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). Although the non-movant’s evidence “is to be believed, and

all justifiable inferences are to be drawn in h[er] favor in determining whether a genuine

factual question exists,” summary judgment should be granted “unless there is sufficient


4
  The Monmouth Defendants and the CCS Defendants have each moved to supplement
the limited appendix filed by Appellant. The Monmouth Defendants’ motion to
supplement is granted. The CCS Defendants’ motion to supplement is granted in part; it
is denied to the extent that it includes documents from the record that were included in
Appellant’s appendix. The CCS Defendants’ motion to seal Volume II of its
supplemental appendix is denied, for they have failed to meet the burden for that relief,
see In re Cendant Corp., 

260 F.3d 183

, 194 (3d Cir. 2001), particularly given that the vast
majority, if not all, of the material contained in Volume II is publicly available on the
District Court’s docket (it does not appear that the CCS Defendants or any other party
moved the District Court to seal this material).
5
  The Monmouth Defendants and the CCS Defendants argue that this appeal is untimely
because it was filed more than 30 days after the District Court entered its February 21,
2018 summary-judgment order. But this argument lacks merit, for the 30-day appeal
period under Federal Rule of Appellate Procedure 4(a)(1)(A) did not begin to run until
the District Court disposed of the defendants’ cross-claims on January 29, 2019. See

Owens, 654 F.2d at 220

n.2. Because Appellant filed her notice of appeal within 30 days
after the District Court’s January 29, 2019 order, this appeal is timely.
6
 In this appeal, Appellant does not challenge the District Court’s August 2018 order
denying her motion to reconsider that court’s summary-judgment decision.
                                             6
evidence for a jury to reasonably find for the nonmovant.” Barefoot Architect, Inc. v.

Bunge, 

632 F.3d 822

, 826 (3d Cir. 2011) (internal quotation marks omitted).

                                             III.7

       In her brief, Appellant does not discuss her constitutional claims, and while she

does discuss the issue of negligence, she fails to address the bases on which the District

Court resolved her negligence claims (i.e., her failure to file an AOM or submit expert

testimony). Furthermore, on four occasions during the course of this appeal, Appellant

did not respond to the Clerk’s directive to file briefing on certain issues.8

       It is a “well-established rule that the failure to identify or argue an issue in an

opening brief constitutes waiver of that issue on appeal.” United States v. Pelullo, 

399 F.3d 197

, 222 (3d Cir. 2005); see Emerson v. Thiel Coll., 

296 F.3d 184

, 190 n.5 (3d Cir.

2002) (per curiam) (applying this rule to a pro se appeal). Because Appellant failed to

brief any of her constitutional claims, we deem those claims forfeited. As for her


7
  As noted above, Appellant brought this case individually and as administratrix of
Decedent’s estate. In Murray ex rel. Purnell v. City of Philadelphia, 

901 F.3d 169

, 170
(3d Cir. 2018), we held “that a non-attorney who is not a beneficiary of the estate may
not conduct a case pro se on behalf of the estate.” Furthermore, courts have held that a
non-attorney administrator cannot litigate a case pro se unless he or she is the only
beneficiary. See

id. at 171

n.3 (collecting cases). Here, it is not clear to what extent
Appellant is a beneficiary of Decedent’s estate. But we need not resolve this issue to
decide this appeal. Regardless of whether Appellant may proceed pro se on behalf of the
estate in this appeal (in addition to proceeding pro se on her own behalf), we conclude
that, for the reasons discussed in this section, the District Court’s summary-judgment
order should be affirmed.
8
  Two of the Clerk’s four briefing-related orders concerned the question of appellate
jurisdiction, while the other two orders concerned a video exhibit that Appellant
submitted to this Court.

                                               7
negligence claims, although her brief made no mention of the AOM and expert-testimony

requirements, we liberally construe her brief’s discussion of the negligence claims as

arguing that the “common knowledge” exception to the AOM and expert-testimony

requirements should apply in this case. See Higgs v. Att’y Gen., 

655 F.3d 333

, 339 (3d

Cir. 2011) (noting the obligation to liberally construe a pro se litigant’s filings).

However, as explained below, we find that argument unpersuasive.

       Under New Jersey law, the “common knowledge” exception applies only in the

“exceptionally rare” case in which “an expert is not needed to demonstrate that a

defendant professional breached some duty of care [because] the carelessness of the

defendant is readily apparent to anyone of average intelligence.” Cowley v. Virtua

Health Sys., 

230 A.3d 265

, 274 (N.J. 2020) (internal quotation marks omitted). Here,

Appellant’s negligence claims revolved around the contention “that Defendants should

have identified that Decedent posed a risk of suicide and should have been placed in

detox housing” (notwithstanding Decedent’s request to instead be placed in protective

custody due to his law enforcement background). (Dist. Ct. Mem. 11.) But as the

District Court explained, “this is not a case where Defendants failed to evaluate Decedent

altogether, or that he was in any other way neglected, such that [one] could reasonably

infer negligence.” (Id.) In short, we agree with the District Court that the “common

knowledge” exception does not apply to this case because it is not “readily apparent to

anyone of average intelligence” that there was a breach of the duty of care. Since this

exception does not apply here, and because Appellant does not otherwise challenge the

grounds on which the District Court resolved her negligence claims, we see no reason to

                                               8
disturb the District Court’s decision to grant summary judgment against her as to those

claims.

       In view of the above, we will affirm the District Court’s February 21, 2018 order
granting summary judgment against Appellant.9




9
 Appellant’s requests for leave to file a video exhibit are denied as unnecessary, as that
exhibit is already part of the District Court record.
                                             9
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