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:

Gurbir S. Grewal, Attorney General of New Jersey

Michael R. Sarno, Deputy Attorney General

Office of the New Jersey Attorney General

R.J. Hughes Justice Complex

PO Box 116

Trenton, NJ 08625

Counsel for Defendants Jerry Stretch, James McCabe, Kevin

Manning, Thomas Togno, Matthew Arrowood, Michael Ryan, Gerald

Gribble, Stephen Weldon, Brenda Hepner and Edward Soltys, i/p/a

Saltese

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.

The BSP Defendants and the Investigator Defendants now move

for summary judgment. ECF No. 131. 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

all moving defendants on the intentional infliction of emotional

distress claim and to Defendant Gerard Gribble on all 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, and Weldon as Defendant Reeves is proceeding

separately. Defendants Hepner and Soltys are referred

collectively to as the “Investigator Defendants.”

Defendants Edward Soltys and Brenda Hepner are entitled to

qualified immunity. The Court denies summary judgment on the

remainder of the claims.

The Court also considers the parties’ motions to seal their

exhibits filed in connection with the summary judgment motions

and opposition papers. ECF Nos. 152, 155, and 163. The Court

denies the motions to seal. The Clerk will lift the seals

currently on the docket, and the parties will directed to file

any exhibits not currently on the public docket within 20 days

of the issuance of this Opinion.

I. BACKGROUND

On April 12, 2013, Plaintiff Marianito Ruiz was an inmate

at Bayside State Prison’s E-Unit. ECF No. 139, Plaintiff’s

Statement of Facts (“PSOF”) ¶ 1; ECF No. 131-2, BSP Defendants’

Statement of Facts (“DSOF”) ¶ 1. Plaintiff became concerned for

his physical safety after inmates belonging to the “blood street

gang” began calling him “dog food”, implying that he was a

snitch.2 DSOF ¶¶ 2-3. During dinnertime on April 12, 2013,

Plaintiff approached Defendant Jerry Stretch and expressed his

concerns. Id. ¶ 4. Defendant Stretch told Plaintiff to

2 The BSP Defendants and Investigator Defendants recite

Plaintiff’s version of events but do not agree with it. They

did not respond to Plaintiff’s supplemental statement of facts

as required by Local Civil Rule 56.1(a).

retrieve his paperwork from his cell. Id. Plaintiff left his

cell, located on the upper level, and saw Defendant Stretch

standing at the bottom of the steps wearing blue latex gloves.

Id. ¶ 6. Plaintiff also observed a “lady guard” and an “officer

with red hair” standing with Defendant Stretch. Id. ¶ 7.

Plaintiff handed Defendant Stretch his paperwork, at which

time Defendant Stretch punched Plaintiff. Id. ¶ 8. Plaintiff

stated he “‘purposefully’ dropped to the ground and ‘was on his

face.’” Id. ¶ 9. Plaintiff did not recall if the “lady guard”

or “officer with red hair” struck him. Id. ¶ 10. Plaintiff

felt blows from different places and different parts of his

body, but only saw Defendant Stretch strike him. Id. ¶ 11.

Plaintiff was lying face down on the ground and does not know

how long the officers assaulted him. Id. ¶¶ 12-13.

He was eventually handcuffed and pepper sprayed, and he

states that he was hit again after the handcuffs were placed on

him. Id. ¶ 13. Plaintiff testified that he was also slammed

onto the ground several times. Id. ¶ 14. Plaintiff testified

that he heard “the guards discussing that the situation was

‘bad’ and that ‘somebody is going to take one in the face.’”

Id. ¶ 15. He also testified that he heard some say “‘the sarg

is here, the sarg is here’” before he was taken to the

infirmary. Id. ¶ 16-17.

Plaintiff was charged with three disciplinary violations:

two counts of assault and one count of conduct that disrupts the

orderly running of the institution. Id. ¶ 18. Plaintiff

testified at his hearing that “he didn’t touch anyone.” Id. ¶

19. The disciplinary hearing officer (“DHO”) relied on the

officers’ reports and testimony to conclude that Plaintiff had

“initially refused a command and then suddenly ‘charged at’

[Defendant Officer McCabe] and punched [Defendant McCabe] ‘in

the left eye with a closed fist,’ which started the

altercation.” Id. ¶ 20. The DHO further concluded, based on

Defendant McCabe’s written report, “that Officer Stretch arrived

and they ‘attempted to restrain the inmate however he continued

punching [them].’” Id. ¶ 21. Someone called a Code 33, an

emergency signal, “and other officers ‘assisted in taking the

inmate to the ground where he continued to fight by kicking [the

officers] with his legs and refusing all verbal commands to be

placed in hand restraints.’” Id. (alteration in original).

Defendant McCabe wrote that OC spray3 needed to be used “‘to gain

control of [Plaintiff’s] arms and place him in hand

restraints.’” Id. ¶ 22.

Defendant Stretch’s report largely mirrored Defendant

McCabe’s, adding that he “delivered a closed-fist strike to

3 The reference is to Oleoresin capsicum spray, colloquially

known as pepper spray.

Plaintiff’s facial area ‘to gain control and take him to the

ground.’” Id. ¶ 25. Defendant Officers Togno, Weldon, Reeves,

and Manning all submitted reports stating they observed

Plaintiff fighting with Defendants McCabe and Stretch. Id. ¶¶

30-32, 34. Defendant Manning “assisted in taking Ruiz to the

ground” and stated he used the OC spray on Plaintiff’s face

because Plaintiff was not complying with orders to place his

hands behind his back. Id. ¶¶ 33-34. Defendant Officer

Arrowood reported he witnessed Plaintiff punch Defendant McCabe

in the face and “assisted the officers in taking Plaintiff to

the ground . . . .” Id. ¶¶ 37-38.

Defendant Sergeant Ryan reported that “the incident caused

a delay in ‘mess’ time, a cancellation of ‘gym movement,’ and

disrupted the ‘orderly operation of the institution,’

particularly given that several officers had to be removed from

their normal duties to perform additional tasks without a meal

break.” Id. ¶ 29. On April 15, 2013, the DHO concluded

Plaintiff assaulted Defendants McCabe and Stretch and disrupted

the orderly operation of the institution. Id. ¶¶ 40-42. The

Administrator upheld the DHO decision and Plaintiff’s appeal was

dismissed by the New Jersey Superior Court, Appellate Division.

Id. ¶¶ 43-44.

The Special Investigations Division (“SID”) opened an

internal investigation into Plaintiff’s allegations that he was

assaulted without provocation. Id. ¶ 45. According to the

final report, Defendant Investigator Brenda Hepner served as the

lead investigator and Defendant Investigator Edward Soltys was

the principal investigator. Id. ¶ 46. Defendants Hepner and

Soltys reviewed the medical reports, interviewed Plaintiff and

the involved officers, interviewed other inmates, and reviewed

“other pertinent materials.” Id. ¶ 52. Defendant Hepner

concluded that no other witnesses corroborated Plaintiff’s

version of events. Id. ¶ 53. “[T]he SID investigation ‘was

unable to find any evidence to substantiate inmate Ruiz’s

allegations.’” Id. ¶ 54. The report also indicated that the

Cumberland County Prosecutor’s Office concluded there was

insufficient evidence to establish criminal conduct. Id. ¶ 55.

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 non-moving 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.

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

The BSP and Investigator Defendants move for summary

judgment on Plaintiff’s amended complaint. ECF No. 131.

Plaintiff concedes the intentional infliction of emotional

distress claim, the official capacity claims, and his claims

against Gerald Gribble must be dismissed. He opposes summary

judgment on the remainder of the claims. ECF No. 141.

The principal issues to be decided are (1) whether

Defendants Soltys and Hepner are entitled to qualified immunity;

(2) 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; (3) whether Plaintiff is precluded from

arguing any facts that conflict with the facts found at the

disciplinary hearing; (4) whether the BSP Defendants are

entitled to judgment as a matter of law on Plaintiff’s excessive

force and failure to intervene claims; (5) whether the BSP

Defendants are entitled to qualified immunity or immunity under

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

Defendants are entitled to judgment as a matter of law on the

remainder of Plaintiff’s claims.

A. Investigator Defendants

Defendants Hepner and Soltys, the SID investigators charged

with conducting the internal investigation of Plaintiff’s

allegations, argue they are entitled to qualified immunity on

Plaintiff’s conspiracy, supervisory liability, and federal civil

rights violation claims.4

“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).

4 Plaintiff consented to dismissal of the intentional infliction

of emotional distress claim.

“[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))).

The Court concludes Defendants Hepner and Soltys are

entitled to qualified immunity. Plaintiff argues that

Defendants Hepner and Soltys “depriv[ed] the plaintiff of his

8th Amendment and 14th Amendment rights resulting in the use of

unlawful excessive force against the plaintiff through their

participation in a conspiracy to conceal the unlawful acts of

the corrections officers, implicitly and expressly condoning and

accepting the violent and illegal acts of all defendants.” ECF

No. 141 at 11-12. Essentially, Plaintiff argues that the

investigators were part of an after-the-fact conspiracy denying

him a full and fair investigation by internal prison

authorities.

Plaintiff has not shown sufficient facts from which a

reasonable jury could find, under existing law, a violation of a

constitutional right by Defendants Hepner and Soltys.

Plaintiff’s argument fails to the extent it is couched as a

denial of access to the courts claim. The injury stemming from

an after-the-fact conspiracy is not the instigating incident,

such as excessive force, but a denial of access to the courts

because the injured party cannot proceed with their claims

against the actual aggressors due to the agreement to cover up

the incident. See, e.g., Jutrowski v. Twp. of Riverdale, 904

F.3d 280 (3d Cir. 2018); Estate of Smith v. Marasco, 318 F.3d

497, 511-12 (3d Cir. 2003).

Here, there is no indication that Plaintiff has been denied

access to the Court as Plaintiff has brought his civil claim

against the relevant parties, and he does not suggest in his

opposition that there are parties whose identities are unknown

because of Defendants Hepner and Soltys. Moreover, as set forth

infra, the Court will not apply the bar of Heck v. Humphrey, 512

U.S. 477 (1994) at this time. “[E]ven assuming that [Plaintiff

has] proffered sufficient evidence for a jury to conclude that

there was a cover-up, the alleged conduct did not prevent [him]

from filing suit or render [his] access to the courts

ineffective or meaningless.” Estate of Smith, 318 F.3d at 512.

Plaintiff cannot state a conspiracy claim against the

Investigators by alleging that Defendants Hepner and Soltys

interfered with the internal investigation by improperly

bolstering the credibility of the DHO’s finding of guilt. “To

prevail on a conspiracy claim under § 1983, a plaintiff must

prove that persons acting under color of state law ‘reached an

understanding’ to deprive him of his constitutional rights.”

Jutrowski, 904 F.3d at 293–94 (citing Adickes v. S.H. Kress &

Co., 398 U.S. 144, 150-52 (1970)). Here other than conclusory

assertions and rank suspicion, Plaintiff offers no admissible

evidence that Hepner and Soltys agreed to falsify the results of

the investigation. That they reached a conclusion different

from the version of the underlying event proffered by Plaintiff

does not, standing alone, make them co-conspirators to deny

Plaintiff his due process rights.5

This claim also fails to the extent the Hepner and Soltys

investigation could be said to assess the conduct of the

officers in the underlying altercation. The Supreme Court has

never held that prisoners have due process rights during

5 It is well established that prisoners have due process rights

during prison disciplinary proceedings. See Wolff v. McDonnell,

418 U.S. 539, 556 (1974)(holding). However, Plaintiff’s claims

against Hepner and Soltys do not arise from Plaintiff’s

disciplinary proceeding but rather from a separate internal

investigation of the conduct of the officers instigated by

Plaintiff’s allegations that he had been set up for an assault.

internal prison investigations into staff conduct. Plaintiff

cannot prove a § 1983 conspiracy claim where the object of the

conspiracy is interference with an internal prison investigation

because Plaintiff did not have a federal due process right

arising from such an investigation. In other words, Defendants

Hepner and Soltys cannot have conspired to violate Plaintiff’s

due process rights where none existed. Since there is no

underling constitutional violation, Plaintiff’s supervisory

liability claim also fails under the first prong of the

qualified immunity analysis.

In the absence of a violation of a clearly established

constitutional right, this Court is required to grant qualified

immunity to Defendants Hepner and Soltys on Plaintiff’s

conspiracy, supervisory liability, and federal civil rights

violation claims.

B. Heck v. Humphrey

The BSP Defendants next argue that Plaintiff’s claims are

barred by the Supreme Court’s decisions in Heck v. Humphrey, 512

U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997).

ECF No. 131-1 at 35. 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:4-4.1(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.’”).

The BSP Defendants also argue that Plaintiff cannot offer

any evidence that contradicts the findings of the disciplinary

hearing officer. They assert the Court must find that Plaintiff

struck Officer McCabe first and resisted officers’ efforts to

subdue him. They rely on Concepcion v. Morton, which stated

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). See ECF No. 131-1

at 36-37.

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. The BSP Defendants cite

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 a 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.6

6 It appears quite clear to this Court that one of more of the

Defendants have not been truthful at all times about the

underlying altercation. Officer Reeves was present for the

C. Federal Claims

Beginning with the premise that the Court must apply the

Heck bar, the BSP Defendants next argue that they are entitled

to judgment as a matter of law on Plaintiff’s federal claims of

excessive force, failure to intervene, supervisory liability,

and federal civil rights violation claims. Having concluded

that Heck does not bar the claims entirely or estop Plaintiff

from arguing his version of events, the Court finds that the BSP

Defendants are not entitled to judgment as a matter of law.

“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

altercation, participated in the internal investigation which

cleared the other Officers and has now apparently approached

Plaintiff’s counsel with a very different version of events.

Importantly, her newer statement if true directly corroborates

Plaintiff’s assertion that he was not the instigator. It

remains to be seen which version of the altercation is true, but

this Court will not rely on an investigative and adjudicative

process that will prove to be so plainly corrupted if Reeves’

latest version is turns out to be true.

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).

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. 146-25 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. 146-27. He

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

146-27 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.

Plaintiff has submitted evidence that the BSP Defendants

conspired to assault Plaintiff. See generally ECF No. 146-7

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

her Fifth Amendment right against self-incrimination during her

second deposition, including to the question “Was Mr. Ruiz’s

incident falsely called a Code 33 to give an excuse for an

assault on him by correction officers?” ECF No. 146-3 8:18-20.

“Unlike 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 there was a pre-planned attack on

Plaintiff.7 Graystone Nash, Inc., 25 F.3d at 191. With an

adverse inference against an alleged co-conspirator, a

reasonable jury could find the BSP Defendants used excessive

force from the record before the Court.8

7 Assuming the availability of a competent witness to testify to

it, Defendant Reeves’ out of court statement may also be

admissible at trial under a hearsay exception. Fed. R. Evid.

804(b)(3)(statement against interest, declarant unavailable

because of privilege or refusal to testify).

8 Defendants rely on the Heck bar to conclude Plaintiff cannot

state an excessive force claim and conclude from there that he

cannot make any “derivative” claims. ECF No. 131-1 at 40.

D. Qualified Immunity

The BSP Defendants also argue they are entitled to

qualified immunity on Plaintiff’s excessive force claim because

the evidence shows “a good faith effort to maintain and restore

discipline after Plaintiff initiated an altercation and then was

noncompliant and resisted restraints.” ECF No. 131-1 at 47.

The Court denies qualified immunity to the BSP Defendants

at this time because there are disputed issues of fact on

Plaintiff’s claims. In order to grant qualified immunity to the

BSP Defendants, the Court must accept their version of events.

The Court has declined to estop Plaintiff from arguing his

version of events and cannot resolve factual disputes in the BSP

Defendants’ favor on summary judgment. Tolan v. Cotton, 572

U.S. 650, 656 (2014) (per curiam); see also Giles v. Kearney,

571 F.3d 318, 327 (3d Cir. 2009) (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”). A reasonable jury could

conclude that the BSP Defendants violated Plaintiff’s clearly

established right to be free from an unprovoked beating. See

Hill v. Algore, 85 F. Supp. 2d 391, 409 (D.N.J. 2000) (“The

Because the Court concludes Plaintiff can state an excessive

force claim and Defendants do not brief the other claims in any

substance, the Court will not address them further.

right to be free from an unprovoked beating is clearly

established.”); 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.

A reasonable factfinder could also determine that the BSP

Defendants violated Plaintiff’s clearly established right to

have officers intervene to prevent an unprovoked beating. “[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).9

The BSP Defendants also assert they are immune from suit

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

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

9 Again, Defendants do not substantively address the other

claims. “The burden of establishing the affirmative defense of

qualified immunity lies with the party seeking to invoke it.”

Murphy v. Middlesex Cty., 361 F. Supp. 3d 376, 390–91 (D.N.J.

2019) (citing Thomas v. Indep. Twp., 463 F.3d 285, 292 (3d Cir.

2006)).

if 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 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 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 formed a

“blue wall of silence” and told the Investigators and DHO that

Plaintiff had been the aggressor. This false story was repeated

in official reports, interviews, and Plaintiff’s disciplinary

proceedings. It was only after Defendant Reeves’ first

deposition that the truth of the matter was revealed.

If these disturbing facts are true, a reasonable jury could

conclude that the BSP Defendants did not act in good faith,

objectively or subjectively. Moreover, there is evidence that

their 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 his

conduct was outside the scope of his employment or constituted a

crime, actual fraud, actual malice or willful misconduct.”).

Therefore, the BSP Defendants are not entitled to immunity under

the NJTCA at this time.

E. “Related and Derivative” Claims

The BSP Defendants argue that Plaintiff cannot meet his

burden of proof on the rest of his claims. Plaintiff concedes

the intentional infliction of emotional distress claim must be

dismissed. The Court will otherwise deny summary judgment.

The BSP Defendants argue the remaining “related and

derivative causes of action” must be dismissed because Plaintiff

is precluded by Heck from arguing any facts other than those

found by the DHO. ECF No. 131-1 at 39. “In other words, given

that the officers did not employ excessive force in the

underlying incident the [BSP] Defendants, consequently, could

not have committed any related wrongdoing arising from their

supposed use of unlawful force.” Id. at 40. The Court has

already decided that Heck does not so preclude Plaintiff and has

already identified disputed issues of fact on Plaintiff’s Eighth

Amendment claim in the context of the BSP Defendants’ qualified

immunity argument. Although corrections officers are permitted

to use reasonable force to bring a prisoner into compliance,

they are not permitted to use excessive force in any

circumstances. The Court denies summary judgment on the

“related and derivative causes of action” because of the genuine

issues of material fact concerning the use of force against

Plaintiff.

F. Motions to Seal

The final issue the Court must resolve are the parties’

motions to seal their exhibits filed in connection with the

summary judgment motion and opposition briefs. ECF Nos. 152,

155, and 163. The Court will deny the motions.

“It is well-settled that there exists, in both criminal and

civil cases, a common law public right of access to judicial

proceedings and records. The public's right of access extends

beyond simply the ability to attend open court proceedings.

Rather, it envisions a pervasive common law right to inspect and

copy public records and documents, including judicial records

and documents.” In re Cendant Corp., 260 F.3d 183, 192 (3d Cir.

2001) (internal citations and quotation marks omitted). A party

seeking to seal portions of the judicial record from public view

“bears the heavy burden of showing that the material is the kind

of information that courts will protect and that disclosure will

work a clearly defined and serious injury to the party seeking

closure.” Millhouse v. Ebbert, 674 F. App’x 127, 128 (3d Cir.

2017) (per curiam) (internal quotation marks and citations

omitted).

Despite being given another opportunity after their first

motions did not comply with the local rules, the parties have

still failed to comply with Local Rule 5.3 and this Court’s

Order. See ECF No. 160. Defendants have not filed their

unredacted materials on the docket under temporary seal; several

exhibits on the docket are single pages marked “Pursuant to the

DCO only hard copies will be provided.” See, e.g., 131-4 at 4.

The Court finds that the documents the parties seek to seal

do not meet the high standard to be kept from public disclosure.

The fact that a document is subject to a discovery

confidentiality order does not necessarily mean that it meets

the standard to be sealed on the public docket. The parties

have not satisfactorily explained why the Amended Complaint and

Defendant Reeves’ answer, which are public pleadings filed

elsewhere on the public docket, need to be sealed as Plaintiff’s

Exhibits D & E. Nor does the Court find persuasive the

expressed reasons for sealing Plaintiff’s Exhibit C, Defendant

Reeves’ Second Deposition; Plaintiff’s Exhibit F, Plaintiff’s

counsel’s certification which was previously publicly docketed

at ECF No. 44-9; Plaintiff’s Exhibit G, the deposition of

Plaintiff’s counsel; or Plaintiff’s Exhibit U, the photographs

of Plaintiff’s injuries. These documents do not contain the

kind of information that should not be disclosed to the public.

In fact, the conflicting stories are the best proof they

represent the kind of information the public should be made

aware of as whether jails are, or are not, run in a manner

consistent with the Constitution should be a matter of public

interest and concern to all citizens and the fourth estate.

Likewise, the BSP Defendants’ exhibits contains information that

would be disclosed at trial; therefore, the Court sees no reason

to seal them on the docket.

The motions to seal will be denied. To the extent any

exhibits are not filed on the public docket, the parties will

file them within 20 days of this Opinion and Order.

IV. CONCLUSION

For the reasons set forth above, the Court will grant

summary judgment to all BSP Defendants on the intentional

infliction of emotional distress claim and to Defendant Gerard

Gribble on all claims. Defendants Edward Soltys and Brenda

Hepner are entitled to qualified immunity. The Court denies

summary judgment on the remainder of the claims.

The motions to seal are denied. The Clerk will lift the

seals currently on the docket, and the parties are directed to

file any exhibits not currently on the public docket within 20

days.

An appropriate Order follows.

Dated: May 1, 2020 s/ Noel L. Hillman

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