PRALL v. BOCCHINI et al

Filing 317

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/30/2015. (dmr) (n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

HONORABLE JEROME B. SIMANDLE

TORMU E. PRALL,
Plaintiff,

Civil Action
No. 10-1228 (JBS/KMW)

v.
JOSEPH L. BOCCHINI, JR., et
al.,

OPINION

Defendants.

APPEARANCES:
TORMU E. PRALL, Plaintiff pro se
#700294B/650739
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
LUCY E. FRITZ, DEPUTY ATTORNEY GENERAL
STATE OF NEW JERSEY OFFICE OF THE ATTORNEY GENERAL
25 Market Street, P.O. Box 112
Trenton, New Jersey 08625
Attorney for Defendants Jimmy Barnes, Jeffrey S. Chiesa, J.
Dominguez, James Drumm, Chris Holmes, J. Ilardi, Suzanne
Lawrence, J. Lindsey, Officer McNair, William J. Moleins,
Officer Moura, Kenneth Nelsen, Ruben Ortiz, Michelle R. Ricci,
Charles Warren, and Vincent Wojciechowicz
TIMOTHY K. SAIA, ESQ.
MORGAN MELHUISH ABRUTYN
651 W. Mt. Pleasant Avenue, Suite 200
Livingston, New Jersey 07039-1673
Attorney for Defendant Kevin Newsom

JOHN M. BOWENS, ESQ.
SCHENCK, PRICE, SMITH & KING, LLP.
220 Park Avenue
P.O. Box 991
Florham Park, New Jersey 07932
Attorney for Defendant James Keil
WILLIAM P. FLAHIVE, ESQ.
24 Arnett Avenue, Suite 103
Lambertville, New Jersey 08530
Attorney for Defendant Stephen Alaimo

SIMANDLE, Chief Judge:
INTRODUCTION
This matter comes before the Court on the motion of
Defendants Jimmy Barnes, Jeffrey S. Chiesa, J. Dominguez, James
Drumm, Chris Holmes, J. Ilardi, Suzanne Lawrence, J. Lindsey,
Officer McNair, William J. Moleins, Officer Moura, Kenneth
Nelsen, Ruben Ortiz, Michelle R. Ricci, Charles Warren, and
Vincent Wojciechowicz (“DOC Defendants”) for Summary Judgment
(Docket Entry 298); Defendant Kevin Newsom’s Motion for Summary
Judgment (Docket Entry 299); Defendant James Keil’s Motion for
Summary Judgment (Docket Entry 300); and Defendant Stephen
Alaimo’s Motion for Summary Judgment (Docket Entry 301)
(collectively “Defendants”). Pro se Plaintiff Tormu E. Prall
filed a Statement of Material Facts in Opposition to Defendants’
motions (Docket Entry 307).

These motions are being considered

on the papers pursuant to Fed. R. Civ. P. 78(b). For the reasons
set forth below, summary judgment is granted as to Jeffrey

2

Chiesa on Plaintiff’s Eighth Amendment claims, granted to Kevin
Newsom and Stephen Alaimo as to all remaining claims, and denied
without prejudice as to the remainder of the defendants.
BACKGROUND
A Procedural History
On or about March 8, 2010, Plaintiff, a prisoner at New
Jersey State Prison (“NJSP”), filed a civil Complaint, pursuant
to 42 U.S.C. § 1983, raising claims of constitutional
violations. (Docket Entry 1).

Since that time, several

defendants and claims have been added and dismissed, the history
of which is set forth in detail in this Court’s prior opinions
and orders (Docket Entries 10, 11, 18, 31, 32, 77, 78, 163, 164,
166, 167, 265 and 266). The history relevant to the instant
motions is set forth below.
On or about March 16, 2012, Plaintiff filed a motion for an
injunction, alleging that on March 10, 2012, NJSP correctional
officers, J. Ilardi, McNair, Sergeant J. Lindsey, and two
unknown correctional officers, forced Plaintiff to perform oral
sex on them. (Docket Entry 81 ¶ 1). In his motion, Plaintiff
also alleged that before the sexual assault occurred, Officer J.
Dominguez and one of the unknown correctional officers
“ransacked” Plaintiff’s cell and threw away or confiscated
Plaintiff’s legal documents related to this case. These officers
also left Plaintiff’s cell in a “shambles.” (Docket Entry 81 ¶
3

2). Plaintiff further alleged that Sergeant B. Gilmartin and
other unknown custody supervisors failed to contact the Special
Investigation Division (“SID”) about the incident, failed to
summon medical staff to provide medical treatment for Plaintiff,
and failed to prevent the officers under their command and
control from starving Plaintiff. (Docket Entry 81 ¶ 3). In sum,
Plaintiff alleged that, since his placement in the Management
Control Unit (“MCU”), the physical abuse alleged in his prior
motions “has not stopped,” and the NJSP defendants “are unable
and unwilling to prevent these abuses.” (Docket Entry 81 ¶ 4).
On March 26, 2012, Plaintiff filed a motion for supplies
(Docket Entry 84). While Plaintiff principally asked that he be
provided with pens, legal size note pads, white envelopes and
manilla envelopes so that he could prepare and file legal
documents with respect to his case before the Court, he also
argued that he did not receive responses to his grievances,
making prison administrative remedies “unavailable.” (Docket
Entry 84, Motion at ¶ 1, Declaration at ¶ 1).1

1

The Declaration submitted by Plaintiff in support of his motion
for supplies further reiterates the charges Plaintiff made
concerning the physical abuse, sexual assault, and ransacking of
his cell and confiscation/loss of his legal documents, which he
had alleged in his motion for injunctive relief. (Docket Entries
81; 84 ¶ 3). Plaintiff also alleged that, on March 11, 2012, the
SID conducted a “sham” investigation regarding Plaintiff’s
alleged sexual assault. The SID officers purportedly told
Plaintiff that nothing would come of his complaint because
“inmates are scum of the earth and prison officials [are]
4

Following the Court’s denial of Plaintiff’s motion for a
preliminary injunction, the NJSP defendants filed a motion to
dismiss the action and/or for summary judgment on March 30,
2012. (Docket Entry 85).2 Plaintiff filed an opposition to the
NJSP defendants’ motion, and his own cross motion for summary
judgment on or about April 18, 2012. (Docket Entries 91 and 92).

considered the good guys.” (Docket Entry 84 ¶ 4). Plaintiff
further alleged that, on March 13, 2012, Disciplinary Hearing
Officer (“DHO”) C. Ralph approached Plaintiff’s cell and told
Plaintiff that she was present to adjudicate Plaintiff guilty on
disciplinary charges. Plaintiff replied that he had never been
served with disciplinary charges. DHO Ralph allegedly told
Plaintiff that the named defendants in this civil action were
her “good friends” and asked her to sanction Plaintiff to
administrative segregation (Docket Entry 84 ¶¶ 5-6). Plaintiff
also alleged that an hour after the DHO came to his cell, he
received an adjudication of disciplinary charge form. Plaintiff
claimed that DHO Ralph lied about what Plaintiff had told her,
and sanctioned Plaintiff to 15 days loss of recreation, 15 days
detention, 60 days loss of communication, and 90 days
administrative segregation. (Docket Entry 84 ¶ 7). Plaintiff
further alleged that after he received the disciplinary report,
Officer Dominguez and two unknown officers came to Plaintiff’s
cell, beat Plaintiff, made him ingest hallucinating drugs, and
again forced Plaintiff to perform oral sex on them. These
officers allegedly then told Plaintiff that their coworkers
don’t care about anything the court has to say in this case.
(Docket Entry 84 ¶ 8). On May 29, 2012, Plaintiff filed a reply
to the NJSP defendants’ opposition to his motion for supplies,
arguing he had exhausted his administrative appeals, and that
the letters he wrote to the Chief Disciplinary Hearing
Office/Central office on appeal were not submitted by counsel
purposely as a cover-up. (Docket Entry 110).
2 The initial motion was filed on behalf of NJSP defendants,
Jimmy Barnes, James Keil, Michelle Ricci, and Chris Holmes. On
April 23, 2012, William Moleins, James Drumm, and Lt. Alaimo
asked to join the other NJSP defendants’ motion. (Docket Entry
94). On July 12, 2012, Ortiz also asked to join in the motion
for summary judgment. (Docket Entry 127).
5

The NJSP defendants filed a reply letter brief on April 30,
2012. (Docket Entry 99).
Thereafter, on or about September 4, 2012, Plaintiff filed
a second amended Complaint without leave of court. (Docket Entry
135). Plaintiff attempted to re-introduce claims that were
previously dismissed, add new parties, and add new claims
regarding his allegations of physical abuse. The new claims
included the allegations raised in his second motion for an
injunction and motion for supplies, in which he alleged that on
March 10, 2012, new defendants, Officers J. Dominguez and M.
Moura ransacked his cell and that Sgt. J. Lindsey, Officer
McNair, Officer J. Ilardi and two unknown correctional officers
forced Plaintiff to perform oral sex on them. (Docket Entry 135
¶ 123).

Plaintiff also alleged that these officers, Sgt.

Gilmartin and unknown nurses and custody supervisors refused to
provide Plaintiff medical treatment and covered up the incident
until it was reported to the SID on March 11, 2012. (Id.).
Plaintiff also alleged that he received disciplinary
sanctions as a result of the incident in retaliation for
Plaintiff pursuing this litigation. (Docket Entry 135 ¶ 124).
Additionally, Plaintiff alleged that on or about March 14, 2012,
Officer Dominguez and two unknown officers beat Plaintiff,
forced him to ingest hallucinating drugs and then forced him to
perform oral sex on them. SID conducted an investigation, but
6

Plaintiff contended the investigation was a sham. (Docket Entry
135 ¶ 125).
In an Opinion and Order entered on December 21, 2012, this
Court denied Plaintiff’s motion for legal supplies, granted in
part Plaintiff’s application to file a second amended Complaint,
and directed that the NJSP defendants, as well as the newly
added defendants, respond in writing to this Court within thirty
(30) days from the date of entry of the Order, addressing
Plaintiff’s new allegations of physical and sexual abuse in
March 2012, as alleged in Plaintiff’s motion for an injunction
and Second Amended Complaint. (Docket Entries 163 and 164). The
Court allowed Plaintiff’s claims of alleged sexual assault,
physical abuse and continuing torture, regarding the March 2012
incidents,
as well as the claims alleging denial of medical
treatment for injuries allegedly sustained during the
March 2012 incidents, and the retaliatory disciplinary
charges stemming from those incidents, to proceed
against the remaining NJSP defendants and the newly
named defendants, Officers J. Dominguez, M. Moura,
McNair, J. Ilardi, Sgt. J. Lindsey, and the two unknown
correctional officers who allegedly took part in the
alleged incidents of physical abuse against Plaintiff on
March 10, 2012 and March 14, 2012, and Charles Warren,
Administrator at NJSP, Vincent B. Wojciechowicz; NJSP
SID; Suzanne Lawrence, NJSP Assistant Superintendent;
and Kenneth Nelson, NJSP Associate Administrator.

(Docket Entry 166 at 9-10 & n.5; see also Docket Entries 163 and
164).

7

On March 20, 2012, Defendants Barnes, Holmes, Keil, and Ricci
filed a Motion to Dismiss and/or for Summary Judgment (Docket Entry
85).3

Plaintiff filed a cross-motion for summary judgment and for

discovery requests on April 18, 2012 (Docket Entry 92).

On

December 26, 2012, this Court granted in part the NJSP Defendants’
motion for summary judgment, dismissing all claims against the
NJSP Defendants except the newly added Eighth Amendment claims of
physical and sexual abuse “as well as the claims alleging denial
of medical treatment for injuries allegedly sustained during the
March 2012 incidents, and the retaliatory disciplinary charges
stemming from those incidents,” (Docket Entry 166 at 9-10 & n.5),
observing “that these new claims and defendants are not part of
these motions for summary judgment, and will be excluded from
consideration herein.” (Docket Entry 166 at 10). The Court also
denied Plaintiff’s motion for summary judgment and his requests
for discovery.

(Docket Entries 166 and 167).

On or about January 8, 2013, Plaintiff filed a motion to file
a third amended Complaint and to be relieved from this Court’s
December 21, 2012 and December 26, 2012 Opinions and Orders.
(Docket Entry 171). By Memorandum Opinion and Order dated March
28, 2013, this Court denied Plaintiff’s motion and ordered him to
cease his vexatious litigation practices. (Docket Entry 197). The

3

Defendants Moleins, Drumm, and Alaimo subsequently requested to
join the motion for summary judgment. (Docket Entry 94).
8

NJSP Defendants filed their answer to the Second Amended Complaint
on July 19, 2013, (Docket Entry 214), and defendants Ilardi,
Lawrence, Newsom, Moura, and Dominguez filed their answer on
February 14, 2014. (Docket Entry 255).
During the pendency of the litigation, Plaintiff sought to
obtain access to the footage of the video taken of his journey
to his cell on March 10, 2012, as Senior SID Investigator Shawn
Harrison’s declaration, which was included with the NJSP
Defendant’s response to this Court’s order to show cause why an
injunction should not issue (Docket Entries 163 and 164; 184-4),
referenced he viewed the video as part of his investigation.
Harrison declared that the footage showed Plaintiff “standing
outside of his cell, being placed in handcuffs and escorted back
into his cell, and secured in his cell.”
7).

(Docket Entry 184-4 ¶

In the investigative report attached to the declaration,

Harrison notes that after being escorted back into his cell
“custody staff entered inmate Prall’s [sic] and remained inside
for approximately two minutes before exiting the cell as inmate
Prall was secured inside the cell.” (Docket Entry 184-4 at 9).
The report further indicated “[a] copy of the video will remain
[in the] case file.”

Id.

On October 31, 2013, Plaintiff filed a motion for sanctions
against Michelle R. Ricci, William J. Moleins, Chris Holmes,
Jimmy Barnes, James Drumm, James Keil, Sgt. Newsom, Ortiz,
9

Charles Warren, Stephen Alaimo, Kenneth Nelsen, J. Dominguez, M.
Moura, Sgt. J. Lindsey, Officer McNair, Officer J. Ilardi as he
had been informed that the video from March 10, 2010 could not
be produced as the camera footage had been overwritten and
inmates could not view footage due to security concerns. (Docket
Entry 241 at 3). After briefing by the parties and a telephone
conference, Magistrate Judge Karen M. Williams granted
Plaintiff’s motions for sanctions in the form of an adverse jury
inference, but denied Plaintiff’s request to have certain counts
of his Second Amended Complaint deemed admitted. (Docket Entry
280). Defendant Sgt. Kevin Newsom filed a motion for
reconsideration on the grounds that he was not present at NJSP
in 2012, (Docket Entry 283), and the DOC Defendants filed a
motion for reconsideration on June 26, 2014. (Docket Entry 285).
Defendants Major Keil and Lt. Alaimo later joined the DOC
Defendants’ motion. (Docket Entries 289; 290).4
While those motions for reconsideration were pending, the
DOC Defendants and Major Keil filed the instant motions for
summary judgment on Plaintiff’s Eighth Amendment claims, (Docket
Entries 298; 300), and Sgt. Newsom and Lt. Alaimo filed their

4

Defendants Alaimo, Keil, and Newsom had been part of the NJSP
Defendants in previous motions, however substitution of
attorneys were filed on their behalf (Docket Entries 277, 279,
274), and are therefore not part of the DOC Defendants for the
purposes of this Opinion and Order.
10

motions for summary judgment as to all of the remaining claims,
(Docket Entries 299 and 301).

In the interim, Magistrate Judge

Williams granted Sgt. Newsom’s motion for reconsideration,
(Docket Entry 311), and granted the DOC Defendants’, Lt.
Alaimo’s, and Sgt. Keil’s motions for reconsideration only to
the extent that an evidentiary hearing would occur to determine
each defendant’s degree of fault, if any, in the spoliation of
the video footage. (Docket Entry 312).
B. Statement of Facts
1.

Allegations in Pleadings

Based on the foregoing complicated history of this case,
the Court will identify the remaining claims and defendants.

In

the sole remaining claims from Plaintiff’s Second Amended
Complaint, Plaintiff asserts on March 10, 2012, Officers J.
Dominguez and M. Moura ransacked his cell and that Sgt. J.
Lindsey, Officer McNair, Officer J. Ilardi and two unknown
correctional officers forced Plaintiff to perform oral sex on
them. (Docket Entry 135 ¶ 123).

Plaintiff also alleged that

these officers, Sgt. Gilmartin and unknown nurses and custody
supervisors refused to provide Plaintiff medical treatment and
covered up the incident until it was reported to the SID on
March 11, 2012. (Id.).
Plaintiff also alleged that he received disciplinary
sanctions as a result of the incident in retaliation for
11

Plaintiff pursuing this litigation. (Docket Entry 135 ¶ 124). He
stated DHO Ralph informed him that her friends, Holmes, Ricci,
Barnes, Moleins, Warren, Nelsen, Lawrence, and Attorey General
staff” requested she sanction Plaintiff for pursuing this
litigation (Id.).

He further alleged that on or about March

14, 2012, Officer Dominguez and two unknown officers beat
Plaintiff, forced him to ingest hallucinating drugs and then
forced him to perform oral sex on them again. SID conducted an
investigation, but Plaintiff contended it was a sham as nonparty Officer Schwartzer informed Plaintiff that “nothing will
come out of the complaint.” (Docket Entry 135 ¶ 125).
2.

DOC Defendants’ Statement of Material Facts

Whether Plaintiff exhausted his administrative remedies as
to the remaining claims is an issue.

The DOC Defendants set

forth the inmate grievance procedure for inmates at NJSP as
follows.

In accordance with N.J.A.C. 10A:8-1.1 to 10A:8-3.6,

the NJSP has adopted Inmate Handbooks that set forth the rights
and privileges of its inmates at NJSP.

The Inmate Handbook also

sets forth the inmate grievance procedure at NJSP. (Declaration
of Jessica Smith, Docket Entry 298-2 ¶¶ 3,5; Exhibit B at Docket
Entry 298-2).5 The handbook informs prisoners that they must fill
out an Inmate Remedy Form (“IRF”) and submit it to an

5

Exhibit B is the portion of the NJSP handbook referencing the
administrative remedies. (Docket Entry 298-2 ¶ 4).
12

appropriate staff member for delivery to a supervisor for review
(Smith Dec. 298-2 ¶ 7). When an inmate receives a response to
his IRF, they may appeal the response.

After an administrative

response has been provided to the inmate’s appeal, the inmate’s
administrative remedies have been exhausted. (Docket Entry 298-2
¶¶ 8-9 and Ex. B).
The DOC Defendants state Plaintiff has filed numerous IRFs
between March 1, 2012 and October 1, 2012, and attach them to
their response as Exhibit C to Smith’s Declaration. (See Docket
Entry 298-2).

They assert none of the IRFs filed by Plaintiff

during the aforementioned period were properly and fully
exhausted.6 Of the twenty-five IRFs submitted with the DOC
Defendants’ motion,7 only one IRF, dated March 13, 2012, mentions
the alleged sexual assault, claiming “Superintendent Barnes
masterminded my ill treatment and the rape I suffered on
03/10/12 . . . “(Docket Entry 298-2 at 35).

This IRF was

submitted in the context of Plaintiff asserting he has been
denied showers and food, and Lt. Gerdes responded “Inmate Prall
receives everything he is entitled to according to Institutional

6

The Court notes one IRF, unrelated to the sexual assault, has
notations in the “Inmate’s Administrative Appeal Information”
area. (Docket Entry 298-2 at 71).
7 The Court notes Docket Entries 298-2 at 54 and 65 are the same
IRF. Further, as discussed below, Plaintiff asserts he
submitted an IRF dated March 14, 2012, alleging the sexual
assault and the alleged denial of material treatment and coverup of the March 10th incident. See Part II.B.5, below.
13

and Unit policy and procedure” but did not respond to the rape
allegation. (Docket Entry 298-2 at 35).

Plaintiff did not

appeal this denial of his IRF; therefore, DOC Defendants assert
Plaintiff has failed to exhaust his administrative remedies.
Defendants reference SID Investigator Harrison’s
Declaration submitted in response to the Court’s order to show
cause, (Docket Entry 184-4), and resubmit it for the Court’s
consideration on summary judgment (Docket Entry 298-3).
Harrison indicates he was contacted on March 11, 2012 by NJSP
Lt. Mendez, a non-party, regarding Plaintiff’s allegations of
sexual assault.

As noted above, Harrison reviewed the video

recording of March 10, 2012 from Plaintiff’s housing unit,
purportedly showing Plaintiff being placed in handcuffs, being
escorted into his cell, and the officers leaving the cell two
minutes later (Docket Entry 298-1 ¶ 17; 298-3 ¶ 7). The report
attached to Harrison’s declaration asserts “[t]he video does not
depict any image to support Prall’s allegation.” (Docket Entry
293-3 at 9).

Between March 11 and 25, 2012, Harrison

interviewed Plaintiff, Sgt. Scantling, Officer Moura, Officer
Ilardi, Officer Dimichele, Officer McNair, and Sgt. Lindsey
regarding Plaintiff’s allegations (Docket Entry 298-3 ¶¶ 8-9,
11-15).

All denied anything inappropriate occurred.

Based on

his interviews and review of the video footage, Harrison
concluded there was “no evidence or information could be found
14

to support inmate Prall’s allegations. . . . Inmate Prall’s
allegations are deemed to be entirely without merit.” (Docket
Entry 298-3 at 12).
The DOC Defendants further noted Registered Nurse Milroy
attempted to evaluate Plaintiff on March 10 and 11, 2012,
however, he reportedly refused medical evaluation on both days.
RN Milroy indicated Plaintiff did not show any signs of physical
injuries, and he was medically cleared to remain in his housing
unit. (Docket Entry 298-3 ¶ 10). DOC Defendants therefore assert
Plaintiff has not given any evidence he was physically and
sexually assaulted in March 2012.
3. Sgt. Kevin Newsom’s Statement of Uncontested Facts
Sgt. Newsom notes, incorrectly,8 that this Court’s December
26, 2012 Opinion and Order granted the NJSP defendants’ motion
for summary judgment “with the exception of the plaintiff’s
newly added Eighth Amendment claim of physical and sexual abuse

8

This Court’s December 26, 2012 Opinion and Order specifically
stated the newly added Eighth Amendment claims of physical and
sexual abuse “as well as the claims alleging denial of medical
treatment for injuries allegedly sustained during the March 2012
incidents, and the retaliatory disciplinary charges stemming
from those incidents,” would be permitted to continue. (Docket
Entry at 9-10 & n.5). The Court further specifically stated
“these new claims and defendants are not part of these motions
for summary judgment, and will be excluded from consideration
herein.” (Docket Entry 166 at 10 (emphasis added)). As certain
defendants have not raised those issues in the present motions
for summary judgment, the Court will not rule on those claims as
to those defendants.
15

stemming from an incident of March 2012.” (Docket Entry 299-1 ¶
3).

He further asserts that he filed his Answer on February 14,

2014 (Docket Entry 255), and that he was not present in NJSP at
any time in 2012 (Certification of Kevin Newsom, Docket Entry
299-2 ¶ 1). As such, he asserts he is entitled to summary
judgment because the surviving claims from the Second Amendment
Complaint do not allege his involvement.
4. Major James Keil’s Statement of Uncontested Facts
Major Keil argues, again incorrectly,9 that this Court’s
December 26, 2012 Opinion and Order granted the NJSP defendants’
motion for summary judgment “with the exception of the
plaintiff’s newly added Eighth Amendment claim of physical and
sexual abuse stemming from an incident of March 2012.” (Docket
Entry 300-1 ¶¶ 3).

He asserts the Eighth Amendment claims of

physical and sexual abuse are “silent as to Defendant James
Keil[,]” and therefore did not answer those allegations in the
complaint (Docket Entry 300-1 ¶¶ 7, 9).

Major Keil asserts

Plaintiff’s answers to Interrogatories failed to identify “any
specific involvement by Maj. Keil regarding the caims [sic] of
physical and sexual abuse.” (Docket Entry 300-1 ¶ 11).10

He

cites Plaintiff’s answers regarding Major Keil as follows:

9

See supra note 8.
Major Keil also contends Plaintiff’s deposition on February
27, 2013 did not allege Major Keil’s involvement in the physical
and sexual abuse, however the deposition is not in the record
10

16

Abuse of force forms or complaints filed by inmates
against correctional officers are forwarded to Ricci,
Barnes, Drumm, Moliens, Keil, Lt. Alaimo, Ortiz,
Wojciechowicz, Warren, Lawrence. And have had personal
or actual knowledge concerning my ongoing physical
abuse.
. . . .
Disciplinary hearing officer C. Ralph and those who beat
me drugged me, forced me to perform oral sex on them,
and exposed me to disciplinary charges and sanctions
informed me that defendants Warren, Ricci, Barnes,
Drumm, Moliens, Keil, Alaimo, Ortiz, Lawrence and Nelsen
instructed or directed them to take these actions.

(Docket Entry 300-1 at 8 ¶ 12). Major Keil contends Plaintiff
admits “there are no additional facts and evidence than [sic]
those set forth in the second amended complaint and the
discovery documents you sent me.” (Docket Entry 300-1 ¶ 13).
Therefore, he asserts he is entitled to judgment as a matter of
law on Plaintiff’s Eighth Amendment claims of physical and
sexual abuse as there is no triable issue of fact. (Docket Entry
300-1 ¶ 14).
4. Lt. Stephen Alaimo’s Statement of Undisputed Material
Facts
Lt. Alaimo asserts he was suspended in November 2010 due to
allegations not concerning Plaintiff. (Docket Entry 301-2 ¶¶ 23).

As a result, Lt. Alaimo was not stationed at NJSP between

thus the Court will not consider this alleged fact.
Civ. P. 56(c)(1)(A).
17

See Fed. R.

November 2010 and October 2013, when he was cleared of all the
allegations leading to his suspension. (Docket Entry 301-2 ¶¶ 45).

Lt. Alaimo asserts he had “no reason to believe that any of

the Corrections Officers named in this suit would take the
actions alleged by the Plaintiff” before November 2010,
(Affidavit of Stephen Alaimo, Docket Entry 301-3 ¶ 9), and that
he has “learned no new information to suggest that plaintiff’s
allegations are accurate” since October 2013. (Docket Entry 3013 ¶ 10).

He therefore contends he is entitled to summary

judgment as he had no direct involvement in the allegations, or
knowledge or acquiescence of the alleged actions taken against
Plaintiff.
5.

Plaintiff’s Counter-Statement

Plaintiff submitted a brief counter-statement to
defendants’ motions (Docket Entry 307).

He indicated that he

relied on his claims related to excessive force, sexual assault,
denial of medical treatment and retaliatory disciplinary charges
this Court permitted to proceed. (Docket Entry 307 ¶ 1).

He

further stated he relied on Magistrate Judge Williams’ June 12,
2014 order, (Docket Entry 280), “as undisputed proof that the
defendants, their officers, agents, employers, and all persons
acting in concert or participation with them” spoliated evidence
that would have been beneficial to Plaintiff. (Docket Entry 307
¶ 2).
18

Plaintiff also submitted an IRF dated March 14, 2012
(“March 14 IRF”) reading:
On March 10, 2012, Officers Dominquez and Moura
ransacked my cell. Sgt. Lindsey, Officers McNair,
Ilardi, and two others I don’t know by name forced me to
perform oral sex on them. Unknown nurses, Sg. Gilmartin,
and Officers Dominguez, Moura, and Iliardi refused me
medical treatment to cover up.
On March 13, 2012
Officers Dominguez and two I don’t know by name beat me
forced me to perform oral sex on them, and forced me to
ingest hallucinating drugs. Hearing Officer Ralph said
defendants in Prall v. Bocchini No: 10-1228 asked her to
sanction me with disciplinary penalties for pursuing
this litigation. Staff mentioned above told me this is
what I get for filing a lawsuit.
(Docket Entry 307 at 7).

The Court assumes that this March 13th

incident is the same as what the parties elsewhere refer to as the
March 14th incident.

Plaintiff indicated this IRF was proof that

“he attempted to [exhaust administrative remedies] but prison
officials prevented him from exhausting administrative remedies.”
(Docket Entry 307 ¶ 3).
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is “material” only if it might affect the outcome
of the suit under the applicable rule of law. See ibid. Disputes
19

over irrelevant or unnecessary facts will not preclude a grant
of summary judgment. See id. The Court will view any evidence in
favor of the nonmoving party and extend any reasonable favorable
inferences to be drawn from that evidence to that party. See
Scott v. Harris, 550 U.S. 372, 378 (2007).
Where the nonmoving party bears the burden of persuasion at
trial, the moving party may be entitled to summary judgment
merely by showing that there is an absence of evidence to
support an essential element of the nonmoving party's case. Fed.
R. Civ. Pro. 56(c)(1)(B); Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). The Court must still determine, however,
whether the motion and supporting materials show that the movant
is entitled to it. Fed. R. Civ. P. 56(e)(3). Failure to oppose
the motion or respond to Statement of Facts permits the Court to
consider facts asserted by the moving party “undisputed for the
purposes of the motion.” Fed. R. Civ. Pro. 56(e)(2); see also
Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d
168, 175 (3d Cir. 1990) (failure to dispute a party's statement
of material facts is not in and of itself a sufficient basis for
the entry of a summary judgment).
DISCUSSION
A. Failure to Exhaust Administrative Remedies
Defendants first assert that Plaintiff’s claims are barred
as he has failed to exhaust his administrative remedies (Docket
20

Entries 298-4 at 12; 303; 304; 306). The Prison Litigation
Reform Act (“PLRA”) states:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted.

42 U.S.C. § 1997e(a).

Under this requirement, plaintiffs must

pursue all available administrative remedies to their end and
must do so properly.

“Failure to exhaust administrative

remedies is an affirmative defense that must be pled and proven
by the defendant. In appropriate cases, failure to exhaust may
be raised as the basis for a motion to dismiss.” Brown v. Croak,
312 F.3d 109, 111 (3d Cir. 2002) (internal citations omitted).
The PLRA exhaustion requirement contemplates that the
prisoner must bring a grievance to the attention of the
appropriate prison official in order that the official has an
opportunity to respond to the grievance on its merits before the
prisoner resorts to the courts. Spruill v. Gillis, 372 F.3d 218,
227 (3d Cir. 2004); see also Porter v. Nussle, 534 U.S. 516,
524-25 (2002) (indicating PLRA “afford[s] corrections officials
time and opportunity to address complaints internally before
allowing the initiation of a federal case.”). After filing an
initial complaint, the prisoner must carry the grievance through
any available appeals process. Nyhuis v. Reno, 204 F.3d 65, 67

21

(3d Cir. 2000). Thus, a prisoner has not exhausted
administrative remedies until the prisoner has pursued a
grievance through each level of appeal available within the
prison system. Spruill, 372 F.3d at 232.
The Court, in determining whether a prisoner has properly
exhausted administrative remedies, must evaluate the
“‘prisoner's compliance with the prison's administrative
regulations governing inmate grievances, and the waiver, if any,
of such regulations by prison officials.’” Jackson v. Ivens, 244
Fed. Appx. 508, 512 (3d Cir. 2007) (quoting Spruill, 372 F.3d at
222). “[C]ompliance with the administrative remedy scheme will
be satisfactory if it is substantial.” Nyhuis, 204 F.3d at 7778.
Defendants specifically rely on the declaration of SID
Senior Investigator Harrison as evidence of the meritlessness of
Plaintiff’s claims of physical and sexual abuse. (Docket Entry
298-3).

His declaration indicates that between March 11 and 25,

2012, he interviewed Plaintiff, Sgt. Scantling, Officer Moura,
Officer Ilardi, Officer Dimichele, Officer McNair, and Sgt.
Lindsey regarding Plaintiff’s allegations (Docket Entry 298-3 ¶¶
8-15).

He also viewed the March 10, 2012 video footage of

housing unit 4B-Right. (Docket Entry 298-3 at 9).

His report

concluded “no evidence or information could be found to support
inmate Prall’s allegations. . . . Inmate Prall’s allegations are
22

deemed to be entirely without merit.” (Docket Entry 298-3 at
12).
This report was submitted to Defendant NJSP Administrator
Charles Warren “for any action deemed appropriate.”

Ibid.

The

Court infers Administrator Warren concurred with and adopted
Harrison’s conclusions as no further actions were taken by NJSP
as the result of the investigation, see Scott v. Harris, 550
U.S. 372, 378 (2007); Pennsylvania Coal Ass'n v. Babbitt, 63
F.3d 231, 236 (3d Cir. 1995), thus Plaintiff’s allegations “have
been fully examined on the merits by the ultimate administrative
authority and have been found wanting.” Camp v. Brennan, 219
F.3d 279, 281 (3d Cir. 2000) (emphasis in original). “With that
substantive determination having already been made at the
highest level,” it would be pointless to require Plaintiff to
“jump through any further administrative hoops to get the same
answer. Thus judicial consideration is now open to him.”

Ibid.

Plaintiff has therefore exhausted his administrative remedies
regarding his Eighth Amendment claims of physical and sexual
abuse.11
Alternatively, Plaintiff has raised a serious question as
to whether NJSP prevented him from exhausting his administrative

11

The Court expresses no opinion as to whether Plaintiff
exhausted his administrative remedies for his denial of medical
and retaliation claims arising out of the March 2012 incidents
as the parties have not briefed the issues.
23

remedies.

The Third Circuit has recognized that certain

circumstances may make administrative remedies “unavailable” to
inmates, preventing the exhaustion of administrative remedies
and excusing inmates from failure to exhaust those remedies.
See Spada v. Martinez, 579 Fed. Appx. 82, 85 (3d Cir. 2014)
(“However, if a prison official thwarts a prisoner's ability to
exhaust his administrative remedies, those remedies are not
considered available within the meaning of § 1997e.”); see also
Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002)(administrative
remedies unavailable where prison officials gave inmate
erroneous instructions about grievance process); Camp, 219 F.3d
at 281 (administrative remedies unavailable where inmate was put
on grievance restriction).
In support of their motion, the DOC Defendants have
submitted the declaration of Jessica Smith, the Executive
Assistant II at NJSP, which provides various administrative
records pertaining to Plaintiff. (Docket Entry 298-2). They
argue, and Plaintiff does not dispute, that Plaintiff was well
aware of the grievance procedures in March 2012 as he has filed
many IRFs during his time in NJSP. Defendants have submitted
what purports to be all IRFs filed by Plaintiff between March 1
and October 1, 2012 as evidence that Plaintiff understands the
process and has availed himself of it many times.

They further

argue only one of twenty-five distinct IRFs mentions the alleged
24

sexual assault: “Superintendent Barnes masterminded my ill
treatment and the rape I suffered on 03/10/12 . . . .” (Docket
Entry 298-2 at 35).

This IRF is dated March 13, 2012, and has

no entries in the appeals section, thus it is clear that
Plaintiff did not appeal the March 13, 2012 IRF decision.12
However, Plaintiff submitted in his opposition papers an
IRF dated March 14, 2012 (“March 14 IRF”) that was not included
in the Defendants’ submission of “all” IRFs filed by Plaintiff.
The March 14 IRF reads:
On March 10, 2012, Officers Dominquez and Moura
ransacked my cell. Sgt. Lindsey, Officers McNair,
Ilardi, and two others I don’t know by name forced me to
perform oral sex on them. Unknown nurses, Sg. Gilmartin,
and Officers Dominguez, Moura, and Iliardi refused me
medical treatment to cover up.
On March 13, 2012
Officers Dominguez and two I don’t know by name beat me
forced me to perform oral sex on them, and forced me to
ingest hallucinating drugs. Hearing Officer Ralph said
defendants in Prall v. Bocchini No: 10-1228 asked her to
sanction me with disciplinary penalties for pursuing
this litigation. Staff mentioned above told me this is
what I get for filing a lawsuit.

(Docket Entry 307 at 7).

Plaintiff submits the March 14 IRF as

evidence Defendants prevented him from exhausting his
administrative remedies. (Docket Entry 307 ¶ 3).13

12

The Court further notes Plaintiff clearly was aware of the
appeal process as one IRF has notations in that section (Docket
Entry 289-2 at 71).
13 Defendants rely on this Court’s December 26, 2012 Order and
Opinion granting Defendants’ summary judgment motion in part due
to Plaintiff’s failure to exhaust administrative remedies,
(Docket Entries 166 and 167), for the proposition that
25

Attached to the March 14 IRF is a Corrective Action Form
(“CAF”) instructing Plaintiff to complete a DOC, Health Services
Request Form and Box (MR-007) form.14

The CAF further informs

Plaintiff:
This is not an IRSF matter, as there is an institutional
form to address this issue. You are directed to utilize
this form . . . which you can obtain from the unit
officer or a social worker. Whenever you have a medical
emergency, you are directed [to] NOT utilize the Inmate
Remedy System, as this system does not run on an emergent
basis . . . .
(Docket entry 307 at 6).

Defendants do not dispute the March 14

IRF was submitted to prison officials or that the CAF produced
by Plaintiff does not correspond with the March 14 IRF,
therefore the Court finds it admitted by Defendants that
Plaintiff submitted the March 14 IRF to NJSP and the CAF
corresponds with the March 14 IRF.
Defendants contend the March 14 IRF was not “properly
filed” without further explanation, (Docket Entry 310 at 3-4)
therefore the Court infers it was rejected due to the reasons
stated on the CAF.

The handbook states the IRF “is used to

Plaintiff’s present prevention argument is equally without
merit. Plaintiff’s Eighth Amendment claim pertaining to the
alleged sexual assault was not before the Court at that time,
nor was the March 14 IRF. The Court must therefore revisit this
issue anew taking into consideration the new evidence.
14 The DOC, Health Services Request Form and Box (MR-007) form
was not submitted to the Court, nor was the portion of the
handbook explaining the circumstances under which an inmate
should utilize that form instead of an IRF.
26

provide a procedures for requesting information from appropriate
staff persons and addressing, on a first step basis through the
inmate request coordinator, concerns, problems or complaints
which may be experienced on a day to day basis.”

(Docket Entry

298-2 at 30 (emphasis in original)). The statement on the CAF
that Plaintiff’s complaint could not be filed on an IRF
contradicts the aforementioned portion of the inmate handbook,
as well as the portion providing that requests deemed “urgent”
will be handled on an expedited basis, (Docket entry 298-2,
Exhibit B at 32 ¶ 9). It also contradicts Defendants’ arguments
in their moving briefs that Plaintiff never filled out an IRF
regarding the alleged sexual assault aside from the one dated
March 13, 2012. (Docket Entry 298-4 at 18; 298-2 at 35).

Both

of these statements imply an IRF was in fact the proper form for
submission of Plaintiff’s administrative complaint, making the
March 14 IRF’s rejection unjustified.
“Section 1997e(a) only requires that prisoners exhaust such
administrative remedies ‘as are available.’” Brown v. Croak, 312
F.3d 109, 112-13 (3d Cir. 2002) (quoting Camp v. Brennan, 219
F.3d 279, 281 (3d Cir. 2000)).

“‘Available’ means ‘capable of

use; at hand’” or “‘suitable; useable; accessible; obtainable;
present or ready for immediate use. Having sufficient force or
efficacy; effectual; valid.’” Id. at 113 (quoting Webster's II,
New Riverside University Dictionary 141 (1994 ed.); Black's Law
27

Dictionary 135 (6th ed. 1990)). Viewing the evidence in the
light most favorable to Plaintiff, the nonmoving party, the
stated reasons for the rejection of the form, which contradicts
the instructions the handbook, creates the impression the
administrative procedures were not accessible or effectual.
Thus even if this Court had not previously determined Plaintiff
had exhausted his Eighth Amendment claim, there is a genuine
question as to whether Defendants thwarted Plaintiff’s ability
to pursue his administrative remedies by making them unavailable
to him. See Spada v. Martinez, 579 Fed. Appx. 82, 85 (3d Cir.
2014); Brown, 312 F.3d at 112-13.

Defendants therefore have not

shown they are entitled to judgment as a matter of law for
Plaintiff’s failure to exhaust available remedies.
B. Eleventh Amendment Immunity
The DOC Defendants, joined by Major Keil, Sgt. Newsom, and
Lt. Alaimo, (Docket Entries 303, 304, and 306), seek dismissal
of Plaintiff’s federal civil rights claims against them in their
official capacities because they are entitled to Eleventh
Amendment sovereign immunity and are not “persons” within the
meaning of § 1983.

Plaintiff has not opposed on this ground.

(Docket Entry 307 at 3).

To the extent Plaintiff’s amended

complaint (Docket Entry 185) seeks redress from Defendants in
their official capacities, those claims must be dismissed with
prejudice.
28

The Eleventh Amendment provides: “The Judicial power of the
United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens of Subjects
of any Foreign State.” U.S. Const. amend XI. The “amendment has
been interpreted to make states generally immune from suit by
private parties in federal court.” MCI Telecomm. Corp. v. Bell
Atl. Pa., 271 F.3d 491, 503 (3d Cir. 2001). A suit against a
public official “‘in his or her official capacity is not a suit
against the official but rather is a suit against the official's
office . . . .’” Printz v. United States, 521 U.S. 898, 930–31
(1997) (quoting Will v. Mich. Dep't of State Police, 491 U.S.
58, 71 (1989)).

The Will Court concluded that “neither a State

nor its officials acting in their official capacities are
‘persons' under § 1983.” 491 U.S. at 71; see also Smith v. New
Jersey, 908 F. Supp. 2d 560, 563-64 (D.N.J. 2012).
It is uncontested by Plaintiff that the Defendants, a
former State Attorney General and various officials at NJSP, are
state officials. Therefore, insofar as Plaintiff asserts claims
against Defendants in their official capacities, those claims
must be dismissed with prejudice.

Having determined that

Plaintiff’s claims against Defendants cannot proceed against
them in their official capacities, this Court must determine

29

whether Plaintiff has set forth claims to proceed against
Defendants in their individual capacities.
C. Defendants’ Personal Involvement
The Defendants assert Plaintiff has failed to allege
specific facts establishing their personal involvement.

The DOC

Defendants, Major Keil, and Sgt. Newsom assert Plaintiff relies
primarily on the theory of respondeat superior (Docket Entries
298-4 at 23; 303; 304),15 entitling them to judgment as a matter
of law.
“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). State actors are liable only for their own
unconstitutional conduct. Bistrian v. Levi, 696 F.3d 352, 366
(3d Cir. 2012). The Third Circuit has identified two general
ways in which a supervisor-defendant may be liable for
unconstitutional acts undertaken by subordinates: (1) “liability
may attach if they, with deliberate indifference to the
consequences, established and maintained a policy, practice or
custom which directly caused [the] constitutional harm”; or (2)
“a supervisor may be personally liable under § 1983 if he or she

15

Lt. Alaimo has not adopted this argument, therefore he
apparently concedes Plaintiff does not rely on respondeat
superior for his claims against Lt. Alaimo (Docket Entry 306).
30

participated in violating the plaintiff’s rights, directed
others to violate them, or, as the person in charge, had
knowledge of and acquiesced in the subordinate's
unconstitutional conduct.” Barkes v. First Corr. Med., Inc., 766
F.3d 307, 316 (3d Cir. 2014) (internal citations omitted),
petition for cert. filed sub nom, Taylor v. Barkes, No. 14-939
(Feb. 2, 2015). “[U]nder Iqbal, the level of intent necessary to
establish supervisory liability will vary with the underlying
constitutional tort alleged.” Id. at 319.

In dicta, the Third

Circuit suggested deliberate action was required to substantiate
an excessive force claim made against a supervisor. Id. at 321
(citations omitted); see also Porro v. Barnes, 624 F.3d 1322,
1327-28 (10th Cir. 2010).
In his sworn answer to Interrogatories, Plaintiff asserted:
Abuse of force forms or complaints filed by inmates
against correctional officers are forwarded to Ricci,
Barnes, Drumm, Moliens, Keil, Lt. Alaimo, Ortiz,
Wojciechowicz, Warren, Lawrence. And have had personal
or actual knowledge concerning my ongoing physical
abuse.
Defendants Dominguez, Moura, Lindsey, McNair, Ilardi,
and two others forced me to perform oral sex on them on
March 10, 2012. These defendants, Sgt. Gilmartin and
unknown supervisors denied medical treatment.
I
received disciplinary sanctions for pursuing this
litigation.
On March 14, 2012, Defendant Dominguez and others beat
me, forced me to ingest drugs and perform oral sex.

31

(Docket Entry 300-4 ¶ 2).

This answer mirrors the allegation

made on the March 14 IRF (Docket Entry 307 at 7).

Plaintiff

further claimed Warren and Wojciechowicz “ordered or approved”
the physical and sexual abuse of Plaintiff, denial of medical
care, and retaliatory discipline charges, and that Warren,
Ricci, Barnes, Drumm, Moliens, Keil, Alaimo, Ortiz, Lawrence,
and Nelsen “instructed or directed” officers to take the actions
previously alleged (Docket Entry 300-4 at 10 ¶ 4).

Plaintiff

stated he was informed of the Defendants’ instructions by DHO
Ralph and “those who beat me, forced drugged me, forced me to
perform oral sex on them, and exposed me to disciplinary charges
and sanctions . . . .” (Docket Entry 300-4 ¶ 4). He indicated he
intends to call DHO Ralph as a witness during trial, among
others (Docket Entry 300-4 ¶ 3).

This answer specifically sets

forth where, when, and how Plaintiff received information
regarding Defendants’ actions.
With one exception, Plaintiff has stated in interrogatories
direct involvement by each of the DOC Defendants,16 as well as
Major Keil, in his physical and sexual assault claims in
conformance with one of the accepted bases of supervisor
liability. Barkes, 766 F.3d at 316. Therefore, except for

16

The lone exception is Jeffery Chiesa, against whom Plaintiff
has made no direct claims. (See generally Docket Entry 300-4).
Summary judgment in favor of Jeffery Chiesa shall be granted as
to Plaintiff’s Eighth Amendment claims.
32

Jeffrey Chiesa, they have not demonstrated that they are
entitled to judgment as a matter of law as the present record
indicates Plaintiff’s claims are not solely dependent upon their
supervisor status.
No facts have been alleged as to Newsom’s involvement
either in a direct capacity or as a supervisor.

Summary

judgment must therefore be granted in his favor.
D. Eighth Amendment Claim for Physical Abuse
The Eighth Amendment prohibits prison officials from
unnecessarily and wantonly inflicting pain in a manner that
offends contemporary standards of decency. See Hudson v.
McMillian, 503 U.S. 1, 8 (1992); Rhodes v. Chapman, 452 U.S.
337, 347 (1981)(The Eighth Amendment prohibits conditions which
involve the unnecessary and wanton infliction of pain or are
grossly disproportionate to the severity of the crime warranting
imprisonment). In an excessive force claim under the Eighth
Amendment, the inquiry is whether force was applied in a good
faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm. Brooks v. Kyler, 204 F.3d 102,
106 (3d Cir. 2000). Summary judgment in favor of a defendant is
not appropriate if it appears that the evidence, viewed in the
light most favorable to the plaintiff, will support a reliable
inference of wantonness in the infliction of pain. Id.

“Thus,

courts considering a prisoner's claim must ask both if ‘the
33

officials act[ed] with a sufficiently culpable state of mind’
and if the alleged wrongdoing was objectively ‘harmful enough’
to establish a constitutional violation.”

Hudson, 503 U.S. at 8

(quoting Wilson v. Seiter, 501 U.S. 294, 298, 303 (1991)). The
DOC Defendants, Major Keil, and Lt. Aliamo argue Plaintiff can
prove neither the subjective nor the objective component.
1.

DOC Defendants

Defendants assert Plaintiff has failed to produce any
evidence of injury in support of his claims of physical abuse,
noting that he refused medical evaluation on March 10 and 11,
2012 and that he showed no sign of physical injury, (Docket
Entries 298-1 ¶¶ 19-20; 298-3 at 20-21), negating any claim of
injury.

They do not address, however, the fact that Plaintiff

stated in his interrogatories that a beating took place either
on March 13 or 14 at the direction of the DOC Defendants, Major
Keil, and Lt. Alaimo. (Docket Entry 300-4 at 8 ¶ 2, 10 at ¶ 4).
Evidence that Plaintiff was “medically cleared” on March 10 and
11 has no relevance to Plaintiff’s physical state on March 13 or
14. Furthermore, the Third Circuit has explained “the Eighth
Amendment analysis must be driven by the extent of the force and
the circumstances in which it is applied; not by the resulting
injuries.” Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir. 2002).
That being said, in order to survive a motion for summary
judgment once the moving party has shown that there is an
34

absence of evidence to support an essential element of the
nonmoving party's case, Fed. R. Civ. Pro. 56(c)(1)(B); Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986), “‘the nonmoving
party must come forward with specific facts showing that there
is a genuine issue for trial’ and do more than ‘simply show that
there is some metaphysical doubt as to the material facts.’”
United States v. Donovan, 661 F.3d 174, 185 (3d Cir. 2011)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986) (internal quotation marks omitted)).
Plaintiff has set forth no admissible regarding the DOC
Defendants’ direct involvement other than his answers to
interrogatories. Without more, Plaintiff’s unsupported claims
that the DOC Defendants either participated in, knew of, or
ordered the abuse cannot withstand summary judgment.
However, this Court takes note that Defendants Ricci,
Moleins, Holmes, Barnes, Drumm, Ortiz, Warren, Lawrence, Nelsen,
Dominguez, Moura, Lindsey, McNair, Ilardi, Major Keil, and Lt.
Alaimo are presently subject to an order by Magistrate Judge
Williams imposing sanctions for spoliating video evidence
relevant to Plaintiff’s allegations stemming from the March 10th
incident in the form of an adverse inference jury instruction.
(Docket Entry 280).17

No defendant filed any objections with the

17

Defendant Newsom had been subject to the order, however upon
moving for reconsideration, (Docket Entry 283), Magistrate Judge
35

ruling. See Fed. R. Civ. P. 72(a); L. Civ. R. 72.1(c)(1);
Kounelis v. Sherrer, 529 F. Supp. 2d 503, 518 (D.N.J. 2008). The
DOC Defendants and Defendants Keil and Alaimo filed a motion for
reconsideration with Magistrate Judge Williams, (Docket Entry
285; 290), and Judge Williams granted the motions “for the
limited purpose of conducting an evidentiary hearing on each
Defendant’s degree of fault.” (Docket Entry 312 at 1). She
specifically declined to reconsider her determination that the
video evidence was in the control of the Defendants and her
finding of bad faith, subject to an evidentiary hearing yet to
take place. (Docket Entries 312 and 314).18 Plaintiff
specifically relies on the inference permitting a jury to infer
that the video would have discredited Defendants as “undisputed
proof” of his claims (Docket Entry 307 ¶ 2).
“The spoliation inference is a permissive inference that is
predicated on the ‘common sense observation’ that when a party

Williams granted relief and denied sanctions against him.
(Docket Entry 311).
18 Magistrate Judge Williams’ order is referenced only to
establish the fact that certain defendants are currently subject
to a spoliation inference, to which Plaintiff is entitled to
have this Court consider during motions for summary judgment.
This Court expresses no opinion and makes no findings regarding
the degree to which each defendant had control over the video
footage, with the sole exception of Lt. Alaimo as he was not at
NJSP during the relevant time period. For reasons discussed
below in Part III.D.3, it is undisputed that Lt. Alaimo was in
suspended status for unrelated reasons and that he could have
played no role in the events of 2012; therefore, no spoliation
inference can be applied to him.
36

to an adversarial proceeding destroys relevant evidence it is
likely done out of fear that the evidence would be harmful to
that party.” Kounelis, 529 F. Supp. 2d at 520.

The adverse

inference informs a jury that it is permitted, but not required,
to infer that the destroyed evidence might have been unfavorable
to Defendants' position. Id. at 521. Thus while the inference is
not “undisputed proof” of Defendants’ liability, Plaintiff is
entitled to the inference at this point in time. See Scott v.
IBM Corp., 196 F.R.D. 233, 249-50 (D.N.J. 2000). “The Court
emphasizes that plaintiff still bears the burden of proof should
this case proceed to trial. At this stage, it only finds that a
jury could find [in his favor] on account of this negative
inference.”

Scott, 196 F.R.D. at 249 (emphasis in original).

Such an inference would appear to be most relevant to
discrediting the Defendants’ versions of the March 10th incident,
and to support the claim of intentional cover-up and
notification of the March 10th conduct by supervisors.
With the exception of Jeffery Chiesa, Plaintiff has alleged
direct involvement by the DOC Defendants in the violation of his
Eighth Amendment rights to be free from physical abuse. On the
present record, which includes the spoliation inference, there
is more than just the metaphysical inference that the DOC
Defendants knew of or ordered the physical abuse.

The Court

shall therefore deny summary judgment without prejudice, so that
37

upon Judge Williams’ resolution of the spoliation issue, any
defendants determined not to be subject to the inference may
resubmit their motions.
2.

Major Keil

Major Keil’s motion for summary judgment must be denied at
this point in time for the same reason. Plaintiff’s
interrogatories specifically implicate Major Keil of having
“personal or actual knowledge concerning [Plaintiff’s] ongoing
physical abuse,” (Docket Entry 300-4 ¶ 2), thereby giving rise
to the inference he was involved in the physical and sexual
abuse. (Docket Entry 300-4 ¶ 4).19 Major Keil has submitted no
affidavits on his behalf, and as discussed above, Plaintiff is
entitled to the spoliation inference against Major Keil during
summary judgment on the present record, pending Judge Williams’
determination of culpability for the spoliation. (See Docket
Entries 280 and 312). Therefore his motion for summary judgment
on Plaintiff’s Eighth Amendment claims is denied without
prejudice, and he shall be permitted to refile for summary
judgment should Magistrate Judge Williams determine he is not
subject to the spoliation inference.

19

Major Keil claims Plaintiff’s deposition “was again silent as
to any involvement by Maj. Keil,” (Docket Entry 300-1 at 4 ¶
10), however as a transcript of the deposition is not part of
the record the Court will not consider this assertion. See Fed.
R. Civ. P. 56(c)(1)(A).
38

3.

Lt. Alaimo

Lt. Alaimo is entitled to summary judgment as to
Plaintiff’s Eighth Amendment and retaliation claims as Plaintiff
has failed to set forth specific evidence that supports his
allegations beyond mere speculation. The Court takes as true Lt.
Alaimo’s uncontested statements that he was suspended from his
duties for unrelated reasons between November 2010 and October
2013, when he was exonerated and reinstated, L. Civ. R. 56.1(a);
(Docket Entries 301-2 ¶ 2; 309 ¶ 3), and was therefore not
present at NJSP during the relevant period of time. Plaintiff
has submitted no admissible evidence to contradict Lt. Alaimo’s
sworn statements that he had “no reason to believe that any of
the Corrections Officers named in this suit would take the
actions alleged by the Plaintiff” before November 2010, and has
“learned no new information to suggest that plaintiff’s
allegations are accurate” since October 2013. (Docket Entry 3012 ¶ 10). Any inference that Lt. Alaimo colluded with NJSP
officials to violate Plaintiff’s constitutional rights while he
was suspended is not a reasonable inference and has no
evidentiary basis in the record.

Therefore no reasonable jury

could find Lt. Alaimo liable, and he will be dismissed as a
defendant in this case.

39

4.

Sgt. Newsom

Sgt. Newsom has also demonstrated that he is entitled to
judgment as a matter of law regarding Plaintiff’s remaining
claims.

His statement of uncontested facts indicate he was not

stationed at NJSP during 2012, and therefore it would have been
impossible for him to have participated in any abuse or
retaliation towards Plaintiff at that time. (Docket Entry 2992).

Nothing in Plaintiff’s response contradicts that fact, (see

generally 307).

Therefore pursuant to Local Civil Rule 56.1(a),

it is deemed undisputed for the purposes of this motion.
Although one could hypothesize that Sgt. Newsom might have
ordered or directed the alleged abuse and retaliation from afar,
such an inference would be unreasonable given that Plaintiff’s
interrogatories and March 14 IRF make no mention of Sgt.
Newsom’s involvement in the abuse, retaliation, or denial of
medical care. Thus while Sgt. Newsom incorrectly asserts the
only remaining claims in this case are the Eighth Amendment
claims, Plaintiff has never alleged Sgt. Newsom was involved in
the denial of medical care and retaliation against him.
The only claims contained in the Second Amendment Complaint
against Sgt. Newsom are that he physically assaulted Plaintiff
in 2010, (Docket Entry 185 ¶ 120), and participated in vaguely
warning Plaintiff to stop pursuing his beliefs, (Docket Entry
185 ¶ 129). These claims were previously dismissed by this
40

Court. As no reasonable juror could find Sgt. Newsom liable for
the remaining 2012 claims, Sgt. Newsom’s motion for summary
judgment is granted as to all of Plaintiff’s remaining claims.
Furthermore, as this Court has already dismissed the other
claims, Sgt. Newsom shall be terminated from this case.
5.

Qualified Immunity

The DOC Defendants and Major Keil finally argue that they
are entitled to qualified immunity on Plaintiff’s § 1983 claim
for use of excessive force in violation of his Eighth Amendment
rights on two grounds.20 First, because “there have been no
constitutional violations” as “[t]here is no evidence in the
record to support Plaintiff’s claims that he was physical or
sexually abused in March 2012,” and secondly because the law was
not clearly established to put them on notice their conduct was
unlawful. (Docket Entries 298-4 at 30-31; 303).
Qualified immunity is a defense available to government
officials that, in certain cases, shields them from litigation
arising from actions taken in the course of their duties. Doe v.
Groody, 361 F.3d 232, 237 (3d Cir. 2004). In order for a
defendant to be immune from liability, the Court must find that
the defendant's conduct has not violated any clearly established

20

Sgt. Newsom and Lt. Alaimo also argued they are entitled to
qualified immunity, (Docket Entry 304; 306) however as the Court
has granted their summary judgment motions on the merits, it is
unnecessary to address this issue.
41

statutory or constitutional right. Wilson v. Layne, 526 U.S.
603, 614 (1999). If, however, the Court finds that a reasonable
official would have known that the alleged conduct was in
violation of a clearly established federal right, then immunity
is forfeited.
In assessing a defendant's qualified immunity, the Court
conducts a two-step inquiry. Doe, 361 F.3d at 237. First, the
Court determines whether a plaintiff has alleged a violation of
a clearly established constitutional right. Leveto v. Lapina,
258 F.3d 156, 162 (3d Cir. 2001). If so, then the Court
determines whether the right was clearly established at the time
of the alleged violation. Id. A right is “clearly established”
when its contours are sufficiently defined, such that “a
reasonable official would understand that what he is doing
violates that right.” Shea v. Smith, 966 F.2d 127, 130 (3d. Cir.
1992).
Taking Plaintiff’s allegations as true, see Scott v.
Harris, 550 U.S. 372, 378 (2007) (noting that in qualified
immunity cases, “courts are required to view the facts and draw
reasonable inferences ‘in the light most favorable party
opposing the [summary judgment] motion,’” which “usually means
adopting . . . the plaintiff's version of the facts (quoting
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per
curiam)), Plaintiff was forced to perform oral sex on various
42

prison officers on two occasions, was denied medical care, and
was subjected to disciplinary charges at the direction of
several prison officials.

Again, accepting Plaintiff’s factual

allegations only for these purposes, he was also beaten and
forced to ingest hallucinogenic drugs by the same officers on
whom he was forced to perform oral sex.

Thereafter, according

to his facts, Plaintiff was specifically informed by DHO Ralph
that these actions were motivated in part by the desire to
punish Plaintiff for seeking redress in this Court. Plaintiff
has adequately pled facts supporting a claim for a violation of
the Eighth Amendment for sexual abuse against Defendants
Dominguez, Lindsey, McNair, Moura, and Ilardi as there can be no
serious debate that being forced to perform oral sex and
accompanying physical assault is sufficiently serious to support
an Eighth Amendment claim.
Defendants Dominguez, Lindsey, McNair, Moura, and Ilardi
next assert “the law was not clearly established to put them on
notice that their conduct was unlawful under the specific
circumstances present in this case.”

(Docket Entry 298-4 at

31). “A right is clearly established if ‘it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.’”

Reedy v. Evanson, 615 F.3d 197, 224

(3d Cir. 2010) (quoting Saucier v. Katz, 533 U.S. 194, 202
(2001)).

Although they do not describe the “specific
43

circumstances” present here that make it unclear that assaulting
an inmate and forcing an inmate to perform oral sex on an
officer is unlawful, this argument fails regardless as it is
clear that “[p]risoners have a clearly established right ‘not to
be sexually abused by a state employee while in confinement.’”
Connors v. Hochberg, 2014 WL 1294370, *2 (D.N.J. 2014) (quoting
Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir.
2001)); see also Estelle v. Gamble, 429 U.S. 97, 102–03 (1976);
Farmer v. Brennan, 511 U.S. 825, 833–34 (1970); Stoneking v.
Bradford Area School Dist., 882 F.2d 720, 726 (3d Cir. 1989).
Defendants Dominguez, Lindsey, Moura, McNair, and Ilardi are not
entitled to qualified immunity on Plaintiff’s Eighth Amendment
claim for sexual abuse.
Supervisors can violate constitutional rights by
“direct[ing] others to violate them . . . .” A.M. ex rel. J.M.K.
v. Luzerne County Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir.
2004); see also Barkes v. First Corr. Med., Inc., 766 F.3d 307,
316-17 (3d Cir. 2014), petition for cert. filed sub nom, Taylor
v. Barkes, No. 14-939 (Feb. 2, 2015). Again accepting
Plaintiff’s allegations as true for this purpose only, Plaintiff
has adequately plead facts establishing the remaining DOC
Defendants and Major Keil violated his constitutional rights by
ordering or approving Dominguez’s, Lindsey’s, Moura’s, McNair’s,
Ilardi’s, and John Doe officers’ actions, (see Docket Entry 30044

4 ¶¶ 2, 4), which have already been determined to state a claim
for violation Plaintiff’s clearly established right to be free
from physical and sexual abuse.
Plaintiff has also sufficiently plead facts, if accepted to
be true for this purpose, to indicate that the remaining DOC
Defendants and Major Keil violated his rights fueled, at least
in part, by the desire to retaliate against Plaintiff for
pursuing his right to petition a court for redress. (See Docket
Entries 300-4 ¶ 2 and 307 at 7). In addition to the clearly
established right to be free from physical and sexual abuse,
reasonable officers would have understood in March 2012 that
ordering physical and/or sexual assault in retaliation violated
the Constitution.

See generally Hudson v. McMillian, 503 U.S.

1, 6 (1992); Anderson v. Davila, 125 F.3d 148, 160-61 (3d Cir.
1997); Whichard v. Baylor, 2004 WL 792771, *2 (E.D. Pa. 2004).
Therefore the remaining DOC Defendants and Major Keil are not
entitled to summary judgment on qualified immunity grounds.

The

Court again emphasizes it is not making a finding that any of
Plaintiff’s allegations are true, and Plaintiff continues to
have the burden of proving them at trial.
CONCLUSION
For the reasons stated above, Plaintiff’s claims against
the Defendants in their official capacities are dismissed with
prejudice.

The DOC Defendants’ motion for summary judgment on
45

Plaintiff’s Eighth Amendment claims (Docket Entry 298) is
granted as to Jeffery Chiesa, and denied without prejudice as to
the remaining DOC Defendants. Lt. Alaimo’s motion for summary
judgment (Docket Entry 301) is granted.

Major Keil’s motion for

summary judgment (Docket Entry 300) is denied without prejudice.
Sgt. Newsom’s motion for summary judgment (Docket Entry 299) is
granted as to all of Plaintiff’s remaining claims.

An

accompanying Order will be entered.

March 30, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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