# RUIZ v. NEW JERSEY DEPARTMENT OF CORRECTIONS

> District Court, D. New Jersey · May 1, 2020

URL: https://www.frixlaw.com/law-library/cases/10267993

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** May 1, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10267993

## How later opinions describe it (automated extraction)

- 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”
- 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”
- 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)

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10267993. Public record. Not legal advice.