RUIZ v. NEW JERSEY DEPARTMENT OF CORRECTIONS

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

MARIANITO RUIZ, :

:

Plaintiff, : Civ. No. 15-3304 (NLH) (JS)

:

v. : OPINION

:

:

NEW JERSEY :

DEPARTMENT OF CORRECTIONS, :

et al., :

Defendants. :

:

______________________________:

APPEARANCES:

John C. Connell, Esq.

Jeffery M. Scott, Esq.

Nicholas Franchetti, Esq.

Archer & Greiner, P.C.

One Centennial Square

P.O. Box 3000

Haddonfield, NJ 08033-0968

Counsel for Defendant Lauren Reeves

Richard A. Stoloff, Esq.

Law Offices of Richard A. Stoloff

605 New Road

Linwood, NJ 08221

Counsel for Plaintiff Marianito Ruiz

HILLMAN, District Judge

Plaintiff Marianito Ruiz, a former state prisoner, alleges

Jerry Stretch, James McCabe, Kevin Manning, Thomas Togno,

Matthew Arrowood, Michael Ryan, Gerald Gribble, Stephen Weldon,

Brenda Hepner, Edward Soltys, and Lauren Reeves1 conspired to

inflict excessive force on Plaintiff and to cover-up that

assault by claiming Plaintiff was the aggressor. ECF No. 57.

He raises federal claims of excessive force, conspiracy, failure

to intervene, supervisory liability, and federal civil rights

violations. Id. at 9-16. He also raises state tort claims of

assault, battery, and intentional infliction of emotional

distress. Id. at 16-19.

This matter comes before the Court on Defendant Lauren

Reeves’ motion for summary judgment. ECF No. 130. Plaintiff

opposes the motion. ECF No. 135. The Court has subject-matter

jurisdiction over this case pursuant to 28 U.S.C. § 1331, as it

concerns a federal question, and supplemental jurisdiction over

the state law claims under 28 U.S.C. § 1367(a).

For the reasons that follow, the Court will grant summary

judgment to Defendant Reeves on the intentional infliction of

emotional distress claim. Summary judgment is denied on the

remainder of the claims.

1 For ease of reference, the Court will use “Defendants” when

referring to all defendants and “BSP Defendants” when referring

just to defendants Stretch, McCabe, Manning, Togno, Arrowood,

Ryan, Gribble, Weldon, Hepner, and Soltys as Defendant Reeves is

proceeding separately.

I. BACKGROUND

The facts of this case are largely disputed. The parties

agree that on April 12, 2013, Plaintiff Marianito Ruiz was an

inmate housed in Bayside State Prison’s E-Unit. ECF No. 136,

Plaintiff’s Statement of Facts (“PSOF”) ¶ I.3; ECF No. 130-3,

Reeves’ Statement of Facts (“RSOF”) ¶ 3. The parties further

agree that a Code 33, defined as a “an emergency involving an

inmate attack on an officer,” was called over the radio by one

of the officers. PSOF ¶ I.4; RSOF ¶ 4. Multiple officers

arrived in response to the Code 33. PSOF ¶ I.4; RSOF ¶ 4. The

parties vigorously dispute the reason the code was called and

what happened after the code was called.

Defendant Reeves asserts Plaintiff was combative towards

the responding officers, which required the officers to use

force to bring him into compliance. RSOF ¶ 4. The parties

agree that OC spray2 was used and that Plaintiff was handcuffed,

but they dispute the necessity of both actions. Defendant

Reeves testified in her first deposition that she took

Plaintiff’s feet “because he was kicking a little bit.” RSOF ¶

5.3

2 Oleoresin capsicum spray, colloquially known as pepper spray.

3 Plaintiff admits Defendant Reeves testified to this fact but

disputes its accuracy. PSOF ¶ I.5.

Plaintiff was charged with three disciplinary violations on

April 15, 2013: two counts of assault and one count of conduct

that disrupts the orderly running of the institution. PSOF ¶

II.7. Plaintiff testified at his hearing that “he didn’t touch

anyone.” Id. The disciplinary hearing officer (“DHO”) relied

on the officers’ reports and testimony to conclude that

Plaintiff had initiated the encounter by charging Defendant

James McCabe and striking him in the face with a closed fist.

Id. The DHO further concluded that Plaintiff struck Defendant

Jerry Stretch several times while Defendant Stretch was

attempting to restrain Plaintiff. Id. “As a result of these

actions, movements were cancelled, mess was delayed, the crime

scene took 30 minutes to clean. Also several staff were removed

from their normal duties to suit up [and] escort the non-

compliant [inmate] to detention.” RSOF ¶ 7 (alterations in

original). As a result, the DHO found Plaintiff guilty of

disrupting the orderly running of the institution. PSOF ¶ II.7.

Plaintiff lost 940 days of commutation time as a sanction. Id.

He appealed the charges, but the charges were upheld. Id.

In his Supplemental Statement of Facts,4 Plaintiff presents

a vastly different account of the encounter. He asserts

Defendant Stretch struck him first, and “after he was first

4 Defendant Reeves did not respond to Plaintiff’s supplemental

facts as required by Local Civil Rule 56.1(a).

struck by defendant, Stretch, he fell purposefully and

immediately to the ground because he knew he was going to

continue to be struck by Stretch and the other officers in the

Unit.” Plaintiff’s Supplemental Statement of Facts (“PSSOF”),

ECF No. 136 ¶ III.1. Defendant Steven Welden testified that he

did not see Plaintiff punch anyone. Id. ¶ III. 4. Defendant

Thomas Togno testified he only saw Plaintiff strike Defendant

McCabe once. Id. ¶ III.5. He stated he did not see Plaintiff

strike any other officer and that it seemed that the responding

officers had the situation under control. Id. Defendant

Reeves testified in her first deposition that she did not recall

seeing Plaintiff strike any guard. Id. ¶ III.2.

Dr. Wayne Ross, a forensic pathologist, “concluded that

Ruiz’[s] injuries were as a result of multiple strikes to his

head and body and being choked, while the injuries to defendant,

Stretch’s hand are as a result of multiple blows landed during

the incident.” Id. ¶ III.10. Dr. Ross also concluded Plaintiff

did not land any “sufficient strikes to anybody during the

incident” based on the lack of injuries to Plaintiff’s hands.

Id. ¶ III.11. Plaintiff had multiple facial fractures that

required surgery to implant hardware. Id. ¶ III.12.

At the conclusion of her first deposition,5 Defendant Reeves

approached Plaintiff’s counsel, Richard Stoloff, and stated that

“plaintiff had been set up to be assaulted, that he did not

strike any officer, that one officer struck another officer to

make it appear that plaintiff did it and that she lied regarding

the incident because she was afraid.” Id. ¶ III.3.

II. STANDARD OF REVIEW

Summary judgment should be granted when the pleadings,

depositions, answers to interrogatories, admissions on file, and

affidavits show that there is no genuine dispute as to any

material fact and that the moving party is entitled to a

judgment as a matter of law. Fed. R. Civ. P. 56(c). A disputed

fact is material when it could affect the outcome of the suit

under the governing substantive law. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party. Id. at 250. The Court should view the

facts in the light most favorable to the non-moving party and

make all reasonable inferences in that party’s favor. Hugh v.

Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

Initially, the moving party must show the absence of a

genuine issue concerning any material fact. See Celotex Corp.

5 Defendant Reeves was not a party at the time of her first

deposition and was not represented by counsel.

v. Carrett, 477 U.S. 317, 323 (1986). Once the moving party has

satisfied its burden, the non-moving party, “must present

affirmative evidence in order to defeat a properly supported

motion for summary judgment.” Anderson, 477 U.S. at 257.

“While the evidence that the non-moving party presents may be

either direct or circumstantial, and need not be as great as a

preponderance, the evidence must be more than a scintilla.”

Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).

If the court determines that “the record taken as a whole

could not lead a rational trier or fact to find for the non-

moving party, there is no ‘genuine issue for trial.’”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986) (quoting First Nat’l Bank of Arizona v. Cities Serv.

Co., 391 U.S. 253, 289 (1968)). Rule 56 mandates the entry of

summary judgment against the party who fails to make a showing

sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden

of proof at trial. Celotex Corp., 477 U.S. at 322.

III. DISCUSSION

Defendant Reeves moves for summary judgment on Plaintiff’s

amended complaint. ECF No. 130. Plaintiff concedes the

intentional infliction of emotional distress claim must be

dismissed but opposes summary judgment on the remainder of the

claims.

The principal issues to be decided are (1) whether the

Supreme Court’s decisions in Heck v. Humphrey, 512 U.S. 477

(1994) and Edwards v. Balisok, 520 U.S. 641 (1997) bar

Plaintiff’s claims; (2) whether Plaintiff is precluded from

arguing any facts that conflict with the facts found at the

disciplinary hearing; (3) to the extent there may have been a

violation, is Defendant Reeves entitled to qualified immunity;

(4) does the Court have supplemental jurisdiction over any

remaining state tort claims; (5) whether Defendant Reeves is

immune under the New Jersey Tort Claims Act; and (6) whether

Defendant Reeves is entitled to judgment as a matter of law on

Plaintiff’s state tort claims.

A. Heck v. Humphrey

In Heck, the Supreme Court held that before a § 1983

plaintiff may “recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence

invalid,” he must first “prove that the conviction or sentence

has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court's

issuance of a writ of habeas corpus[.]” 512 U.S. at 486-87.

The Court extended Heck's “favorable termination” rule to prison

disciplinary sanctions which alter the duration of a prisoner's

term of incarceration, including the loss of good time credits.

Edwards, 520 U.S. 641.

It is uncontested that the DHO found Plaintiff committed

the infractions of assault, N.J.A.C. § 10A:4-4.1(a)(1)(ii); and

conduct that disrupts the orderly running of the institution,

N.J.A.C. § 10A(a)(2)(xxix). It is also uncontested that the

infractions have not been expunged or otherwise reversed by the

Department of Corrections or by any court.

Plaintiff argues Heck and Edwards should not apply to him

at all because he is no longer in state custody and the habeas

remedy is no longer available to him. This position has been

rejected by the Third Circuit. See Williams v. Consovoy, 453

F.3d 173, 177 (3d Cir. 2006) (“[A] § 1983 remedy is not

available to a litigant to whom habeas relief is no longer

available.”); Gilles v. Davis, 427 F.3d 197, 209–10 (3d Cir.

2005) (“Heck's favorable termination rule applies to all § 1983

plaintiffs, not just those in state custody.”). Therefore,

Plaintiff’s claims are barred if his success “would necessarily

demonstrate the invalidity of [his] confinement or its

duration.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005).

The Court finds that Plaintiff’s claims do not necessarily

demonstrate the invalidity of Plaintiff’s confinement or

duration of his sentence. Unlike federal good time credits, New

Jersey “good time” does not “necessarily” mean an earlier

release date as the credits are used to compute the prisoner’s

parole eligibility date. N.J.S.A. § 30:4-140. “Parole

eligibility is different from parole suitability. The fact that

a prisoner is eligible for parole means only that the paroling

authority must consider his application for parole under the

relevant parole guidelines.” Thomas v. Brennan, 961 F.2d 612,

614 n.3 (7th Cir. 1992). Therefore, “restoration of

[Plaintiff’s] good-time credits would afford him only speedier

consideration for discretionary parole, rather than ensure

speedier release.” Marshall v. Milyard, 415 F. App'x 850, 855

(10th Cir. 2011) (finding retaliation claim was not Heck

barred). See also Wilkinson 544 U.S. at 82 (finding suit

challenging state procedures used to deny parole eligibility was

not Heck barred because “it means at most new eligibility

review, which at most will speed consideration of a new parole

application.” (emphasis in original)). Because restoration of

Plaintiff’s good time credits would have only presented the

possibility of earlier release as opposed to the surety, Heck

does not necessarily bar his claims. See also Nelson v.

Campbell, 541 U.S. 637, 647 (2004) (“[W]e were careful in Heck

to stress the importance of the term ‘necessarily.’”).

Defendant Reeves alternatively argues that even if

Plaintiff’s claims are not categorically barred by Heck and

Edwards, Plaintiff cannot offer any evidence that contradicts

the findings of the disciplinary hearing officer. In essence,

she argues Plaintiff must admit that he struck Office McCabe

first and resisted officers’ efforts to subdue him. Defendant

Reeves relies on Concepcion v. Morton’s pronouncement that “the

Court may not consider evidence that implies that the

disciplinary punishments imposed against the plaintiffs are

invalid.” 125 F. Supp. 2d 111, 123 (D.N.J. 2000), overruled on

other grounds, 306 F.3d 1347 (3d Cir. 2002).

First, the Supreme Court has never held that parties are

collaterally estopped from contesting facts from prison

disciplinary findings. See Simpson v. Thomas, 528 F.3d 685, 694

(9th Cir. 2008) (“Since the inception of the rule in Heck, the

Court has only addressed this issue a few times, and in none of

those cases did the Court address the use of Heck to bar

evidence.”). Second, the principles of collateral estoppel do

not warrant application in this case. Defendant Reeves cites

the Third Circuit’s statement in Roth v. Koppers Industries,

Inc., that “[w]ith respect to section 1983, the [Supreme] Court

examined congressional intent and the policies underlying common

law rules of preclusion, and concluded that unreviewed

administrative factfindings should be given preclusive effect in

subsequent section 1983 actions.” 993 F.2d 1058, 1061 (3d Cir.

1993). However, the Court of Appeals clarified in a footnote

that this preclusive effect is limited to “‘when a state agency

acting in a judicial capacity . . . resolves disputed issues of

fact properly before it which the parties have had an adequate

opportunity to litigate . . . .’” Id. at 1061 n.3 (quoting

Univ. of Tennessee v. Elliott, 478 U.S. 788, 798 (1986)) (first

omission in original).

The late Judge Dickinson R. Debevoise of this District

noted in a case like this one that Concepcion “conditions the

preclusive effect of a disciplinary hearing's findings on the

validity of that process.” Kounelis v. Sherrer, 529 F. Supp.

2d. 503, 529 (D.N.J. 2008). In Kounelis, defendants argued that

plaintiff could not proceed with his excessive force claim

because he had been found guilty of unauthorized touching at a

disciplinary proceeding. Id. at 528-29. Plaintiff submitted

evidence that defendants failed to preserve the surveillance

video, and Judge Debevoise concluded spoliation sanctions were

warranted. Id. at 520. “Although Defendants accurately observe

that the disciplinary hearing officer's finding of guilt has not

been reversed, Defendants' argument ignores the fact that the

disciplinary hearing itself is subject to attack and was

impaired by the spoliation of evidence—evidence that may have

supported Kounelis's version of events and resulted in a finding

of not guilty.” Id. at 529. “Thus, there is sufficient

evidence that Kounelis's disciplinary hearing was impaired and,

if so, Kounelis is not precluded from presenting evidence in

support of his § 1983 claim for violation of his Eighth

Amendment rights.” Id.

As set forth in more detail below, Plaintiff has presented

the Court with enough evidence of a conspiracy by Defendants –

evidence coming from one of the Defendants herself - to suggest

that Plaintiff’s disciplinary proceeding was not an “adequate

opportunity to litigate” the issues. It would be perverse

injustice to rely on a corrupted disciplinary process and a

result procured by perjury to shield a defendant from the

consequences of an intentional attack on an inmate by prison

guards. Heck and Edwards must be read in light of the

constitutional protections afforded the incarcerated which would

include a disciplinary process free of perjury and deceit. In

the unique circumstances of this case, the Court will not

preclude Plaintiff from arguing his version of events to a jury.

B. Qualified Immunity

“Qualified immunity shields government officials from civil

damages liability unless the official violated a statutory or

constitutional right that was clearly established at the time of

the challenged conduct.” Taylor v. Barkes, 135 S. Ct. 2042,

2044 (2015) (internal citation and quotation marks omitted).

The first prong of the analysis “asks whether the facts, [t]aken

in the light most favorable to the party asserting the

injury,... show the officer’s conduct violated a [federal]

right[.]” Tolan v. Cotton, 572 U.S. 650, 655-56 (2014) (per

curiam) (internal quotation marks and citations omitted)

(alterations and omissions in original). “The second prong of

the qualified-immunity analysis asks whether the right in

question was ‘clearly established’ at the time of the

violation.” Id. at 656 (internal citation and quotation marks

omitted). “When properly applied, [qualified immunity] protects

all but the plainly incompetent or those who knowingly violate

the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)

(internal quotation marks omitted).

“[I]n ruling on a motion for summary judgment, ‘[t]he

evidence of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor.’” Tolan, 572 U.S. at

651 (second alteration in original) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986)). “[C]ourts may not

resolve genuine disputes of fact in favor of the party seeking

summary judgment.” Id. at 656; see also Bistrian v. Levi, 912

F.3d 79, 83 n.2 (3d Cir. 2018) (“In assessing an assertion of

qualified immunity, we take the facts in the light most

favorable to ‘the party asserting the injury’....” (quoting

Scott v. Harris, 550 U.S. 372 (2007))). Defendant Reeves

asserts she is entitled to qualified immunity on Plaintiff’s

excessive force, failure to intervene, and conspiracy claims.

The Court denies qualified immunity at this time because

there are disputed issues of fact on Plaintiff’s claims. “The

test for whether a claim of excessive force is constitutionally

actionable is ‘whether force was applied in a good faith effort

to maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm.’” Giles v.

Kearney, 571 F.3d 318, 328 (3d Cir. 2009) (quoting Whitley v.

Alber, 475 U.S. 312, 319 (1986)). The relevant factors for

consideration are:

(1) the need for the application of force; (2) the

relationship between the need and the amount of force

that was used; (3) the extent of injury inflicted; (4)

the extent of the threat to the safety of staff and

inmates, as reasonably perceived by the responsible

officials on the basis of the facts known to them; and

(5) any efforts made to temper the severity of a forceful

response.

Id.; see also Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000).

In order to grant Defendant Reeves qualified immunity, the

Court must accept her version of events, namely that Plaintiff

struck the first blow against Defendant McCabe and resisted

Defendants’ efforts to restrain him. The Court cannot resolve

factual disputes in Defendant Reeves’ favor on summary judgment.

Tolan, 572 U.S. at 656; see also Giles, 571 F.3d at 327

(reversing district court for finding qualified immunity in

excessive force case where “such a legal conclusion ... rests on

a factual presumption that is inappropriate on summary

judgment”).

If the Court accepts Plaintiff’s version of events for

summary judgment purposes, he has easily stated an excessive

force claim. There was no need for the application of force

because Plaintiff had not done anything to warrant force being

used against him, nor was there any safety risk to the staff.

Plaintiff was struck in the head, face, and ears and was held in

a choke hold. ECF No. 145-26 at 4. He was pepper sprayed. Id.

If there was an attempt to temper the use of force it is well

hidden from the Court.

Among other injuries, Plaintiff sustained a “comminuted

right orbital floor fracture into the zygomatic bone, comminuted

right maxillary sinus fracture and zygomatic arch fracture.”

Id. Cooper Hospital confirmed multiple facial fractures, and CT

scans showed “extensive swelling and bruises to the front, sides

and back of the head.” Id.; see also ECF No. 145-28. He

underwent surgery to implant metal plates and screws. ECF No.

145-28 at 3. Using these facts, a reasonable jury could

conclude that the force was not inflicted as part of a “good

faith effort to maintain or restore discipline” because

Plaintiff testified he had done nothing to provoke the assault.

Moreover, Defendant Reeves is subject to an adverse

inference. Defendant Reeves argues there is no evidence that

she participated in the assault beyond holding down Plaintiff’s

legs. However, Plaintiff has submitted evidence that Defendant

Reeves was aware of and participated in the alleged conspiracy

with the BSP Defendants. See generally ECF No. 145-7

(deposition of Richard A. Stoloff). Defendant Reeves invoked

her Fifth Amendment right against self-incrimination during her

second deposition, see generally ECF No. 145-3, and “[u]nlike

the rule in criminal cases . . . reliance on the Fifth Amendment

in civil cases may give rise to an adverse inference against the

party claiming its benefits.” S.E.C. v. Graystone Nash, Inc.,

25 F.3d 187, 190 (3d Cir. 1994). A reasonable factfinder

combining Plaintiff’s testimony, Mr. Stoloff’s testimony, and

Defendant Reeves’ invocation of the Fifth Amendment could infer

that Defendant Reeves was more involved in the conspiracy than

she testified at her first deposition. Graystone Nash, Inc., 25

F.3d at 191. From that adverse inference, a reasonable

factfinder could conclude Defendant Reeves did more than just

hold down Plaintiff’s legs.

“The right to be free from an unprovoked beating is clearly

established.” Hill v. Algore, 85 F. Supp. 2d 391, 409 (D.N.J.

2000); see also Thompson v. Montemuro, 383 F. Supp. 1200, 1203

(E.D. Pa. 1974). Under the version of events most favorable to

Plaintiff, Defendants purposefully inflicted severe pain on

Plaintiff for no reason. A reasonable officer would have known

that this behavior was not lawful.

Granting Defendant Reeves qualified immunity on Plaintiff’s

failure to intervene claim also requires the Court to accept her

version of events, which it may not do on summary judgment.

“[A] corrections officer's failure to intervene in a beating can

be the basis of liability for an Eighth Amendment violation

under § 1983 if the corrections officer had a reasonable

opportunity to intervene and simply refused to do so.” Smith v.

Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). A reasonable

factfinder could determine using the version of events most

favorable to Plaintiff that Defendant Reeves had a realistic

opportunity to intervene but did not do so. Mr. Stoloff

testified that Defendant Reeves admitted to him that “[a]ll the

COs knew” about how Plaintiff had been “set up to be beat.” ECF

No. 146-7 at 18:3, 17:8.

A reasonable inference from this testimony is that

Defendant Reeves knew the assault on Plaintiff was unjustified

but did not intervene to stop it. “[I]t would be clear to a

reasonable officer that failing to intervene when a fellow

officer employs excessive force” against an inmate who was not

resisting and had not provoked the use of force against him was

unlawful. Abrahante v. Johnson, No. 07-5701, 2009 WL 2152249,

at *12 (D.N.J. July 14, 2009) (collecting cases that recognize

an officer’s duty to intervene when a fellow officer employs

excessive force).

Finally, Defendant Reeves argues she is entitled to

qualified immunity on Plaintiff’s conspiracy and federal civil

rights violation claims because Plaintiff has failed to allege

an underlying constitutional violation. ECF No. 130-1 at 27-28.

The existence of the conspiracy is a disputed issue of fact that

must be determined at trial; whether Defendant Reeves is

entitled to qualified immunity depends entirely on whether the

ultimate factfinder believes Plaintiff’s version of events.

Because resolution of these issues implicates “disputes over

facts that might affect the outcome of the suit under the

governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986), summary judgment on qualified immunity grounds is

not appropriate at this time. “Just as the granting of summary

judgment is inappropriate when a genuine issue exists as to any

material fact, a decision on qualified immunity will be

premature when there are unresolved disputes of historical fact

relevant to the immunity analysis.” Curley v. Klem, 298 F.3d

271, 278 (3d Cir. 2002). Therefore, the Court will not grant

summary judgment to Defendant Reeves on the basis of qualified

immunity at this time.

C. Supplemental Jurisdiction

The success of Defendant Reeves’ next argument, that the

Court lacks supplemental jurisdiction over any remaining state

tort claims, depends on dismissal of all of the claims over

which this Court has original jurisdiction. See 28 U.S.C. §

1367(c)(3). As the Court denies summary judgment on the federal

claims, the Court retains supplemental jurisdiction over

Plaintiff’s state law claims. 28 U.S.C. § 1367(a).

D. New Jersey Tort Claims Act

Defendant Reeves also argues that she is immune from suit

under the New Jersey Tort Claims Act (“NJTCA”). The NJTCA

states in relevant part that “[a] public employee is not liable

if [s]he acts in good faith in the execution or enforcement of

any law.” N.J.S.A. § 59:3-3. “In order to meet the good faith

standard, [a] public employee either must demonstrate objective

reasonableness or that [s]he behaved with subjective good faith.

The burden of proof is upon the employee, who must prove either

of those components in order for the good faith immunity to

attach.” Toto v. Ensuar, 952 A.2d 463, 470 (N.J. 2008)(first

alteration in original) (internal quotation marks and citation

omitted).

Accepting Plaintiff’s version of events for summary

judgment purposes, Defendant Stretch struck Defendant McCabe in

the face and then called a Code 33 based on the false premise

that Plaintiff was the one to strike Defendant McCabe. Other

officers, including Defendant Reeves, responded to the Code 33

and then participated in the assault or failed to prevent other

officers from assaulting Plaintiff even though he was not

resisting or being combative in any way. Finally, “[a]ll the

COs” knew that Defendant Stretch had really been the one to

strike Defendant McCabe but concealed the truth in a “blue wall

of silence” until the truth was finally revealed after Defendant

Reeves’ first deposition. ECF No. 145-7 at 6, 18:3.

Before admitting the truth, Defendant Reeves submitted

false reports stating Plaintiff “charged at S.C.O. McCabe and

punched him with a closed fist in the left side of the fact.”

ECF No. 145-2 at 7-8. She testified in her first deposition

that she “took his feet because he was kicking a little bit.”

Id. at 19. She denied having any idea “why this incident

occurred[.]” Id. at 23.

If these disturbing facts are true, a reasonable jury could

conclude that Defendant Reeves did not act in good faith.

Moreover, there is evidence that her actions may constitute a

crime or willful misconduct. See N.J.S.A. § 59:3-14 (“Nothing

in this act shall exonerate a public employee from liability if

it is established that [her] conduct was outside the scope of

[her] employment or constituted a crime, actual fraud, actual

malice or willful misconduct.”). Defendant Reeves is therefore

not entitled to immunity under the NJTCA at this time.

E. Substantive State Tort Claims

Defendant Reeves’ final argument is that Plaintiff cannot

meet his burden of proof on his state tort claims. Plaintiff

concedes the intentional infliction of emotional distress claim

must be dismissed. The Court denies summary judgment on the

assault and battery claims.

“A person is subject to liability for the common law tort

of assault if: ‘(a) [she] acts intending to cause a harmful or

offensive contact with the person of the other or a third

person, or an imminent apprehension of such a contact, and (b)

the other is thereby put in such imminent apprehension.’” Leang

v. Jersey City Bd. of Educ., 969 A.2d 1097, 1117 (N.J. 2009)

(quoting Wigginton v. Servidio, 734 A.2d 798, 806 (N.J. Super.

Ct. App. Div. 1999)). Imminent apprehension is interpreted to

mean that the person “must believe that the act may result in

imminent contact unless prevented from so resulting by the

other’s self-defensive action or by his flight or by the

intervention of some outside force.” Restatement (Second) of

Torts § 24. “The tort of battery rests upon a nonconsensual

touching.” Leang, 969 A.2d at 1117.

The Court denies summary judgment to Defendant Reeves on

the assault claim because Plaintiff has presented evidence that

she put him in a state of imminent apprehension prior to the

incident. Plaintiff testified at his deposition that he became

afraid when he came down the stairs and saw the “lady guard” and

“the guard with the red hair” standing there:

It just, it just felt wrong. It felt like something was

going to happen, just their body language, the way

everything was set up. The way it felt when I came down,

I knew something was going to happen. When I got to the

bottom of the step, I knew something was going to happen,

something bad was going to happen, I could tell.

ECF No. 147 117:25 to 118:6. There is evidence from which a

reasonable jury could conclude Defendant Reeves intentionally

put Plaintiff in imminent apprehension of contact.

Defendant Reeves argues Plaintiff cannot succeed on his

battery claim because “corrections officers are privileged to

commit a battery against a prisoner so long as the force used is

reasonable and does not violate the Eighth Amendment.” ECF No.

103-1 at 31. The Court has already identified a disputed issue

of fact on Plaintiff’s Eighth Amendment claim in the context of

Defendant Reeves’ qualified immunity argument. The Court denies

summary judgment on the battery claim because a reasonable jury

could conclude on the current record that Defendant Reeves used

excessive force.

IV. CONCLUSION

For the reasons set forth above, Defendant Reeves is

awarded summary judgment on the intentional infliction of

emotional distress claim. The remainder of her motion is

denied.

An appropriate Order follows.

Dated: March 9, 2020 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.