PRALL v. BOCCHINI et al

Filing 348

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/29/2016. (dmr)(n.m.)

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

TORMU E. PRALL,

HONORABLE JEROME B. SIMANDLE
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
ALEX ZOWIN, 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, J. Dominguez, James Drumm,
Chris Holmes, J. Ilardi, Suzanne Lawrence, Officer McNair,
Officer Moura, William J. Moleins, Kenneth Nelsen, Ruben Ortiz,
Michelle R. Ricci, Charles Warren, Sergeant Lindsey, and Vincent
Wojciechowicz
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

SIMANDLE, Chief Judge:
INTRODUCTION
This matter comes before the Court on Defendants’ Jimmy
Barnes, J. Dominguez, James Drumm, Chris Holmes, J. Ilardi,
Suzanne Lawrence, Officer McNair, Officer Moura, William J.
Moleins, Kenneth Nelsen, Ruben Ortiz, Michelle R. Ricci, Charles
Warren, Sergeant Lindsey, and Vincent Wojciechowicz (“DOC
Defendants”) Motion for Summary Judgment, (Docket Entry 339),
and Defendant James Keil’s Motion for Summary Judgment, (Docket
Entry 340). Pro se Plaintiff Tormu E. Prall filed opposition to
Defendants’ motions (Docket Entry 342). These motions are being
considered on the papers pursuant to Fed. R. Civ. P. 78(b). For
the reasons set forth below, the motions shall be granted.
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. (Complaint, 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.

2

On or about March 16, 2012, Plaintiff filed a motion for an
injunction, alleging that on March 10, 2012, NJSP Officers
Ilardi and McNair, Sergeant Lindsey, and two unknown officers
forced Plaintiff to perform oral sex on them. (Motion for
Injunction, Docket Entry 81 ¶ 1). Plaintiff also alleged Officer
Dominguez and one of the unknown officers “ransacked”
Plaintiff’s cell and threw away or confiscated Plaintiff’s legal
documents related to this case before the sexual assault
occurred, leaving Plaintiff’s cell in a “shambles.” (Id. ¶ 2).
Plaintiff further alleged that Sergeant 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. (Id. ¶ 3).
Plaintiff alleged in a later motion that the investigation
conducted by SID was a “sham,” and that the SID officers told
him that nothing would come of his allegations of sexual
assault. (Declaration in Support of Motion, Docket Entry 84 ¶
4). He also alleged that Disciplinary Hearing Officer C. Ralph
approached his cell on March 13, 2012, and told him that she was
present to adjudicate Plaintiff guilty on disciplinary charges.
Plaintiff replied that he had never been served with
disciplinary charges, at which time she allegedly told Plaintiff
3

that “her good friends Michelle R. Ricci, William J. Moleins,
Chris Holmes, James Drumm, Ron Wagner, James Keil, Captain
Ortiz, Prison Administrator Charles Warren, Education Supervisor
Shirley Stephens, Social Worker Crystal Raupp, School Teacher
Ishmael, Mental Health Doctor Flora J. Defilippo, and her good
friends” in the Attorney General’s Office “asked her to sanction
[Plaintiff] to administrative segregation.”

(Id. ¶¶ 5-6). He

then stated Officer Dominguez and two unknown officers came to
his cell, beat him, made him ingest hallucinating drugs, and
again forced him to perform oral sex on them. (Id. ¶ 8).
Thereafter, Plaintiff filed a second amended complaint
(“SAC”) without leave of court. (SAC, 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 that on March 10, 2012, Officers Dominguez and Moura
ransacked his cell, followed by Sergeant Lindsey, Officer
McNair, Officer Ilardi and two unknown correctional officers
forcing him to perform oral sex on them. (Id. ¶ 123). Plaintiff
further alleged that Officers Dominguez, Moura, and Ilardi, as
well as Sergeant 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 raised a retaliation
4

claim, asserting he received disciplinary sanctions at the
direction of defendants Holmes, Ricci, Barnes, Moleins, Warren,
Nelsen, Lawrence, and unidentified Attorney General staff in
order to punish him for pursuing this litigation. (Id. ¶ 124).
The SAC also included his claim that Officer Dominguez and two
unknown officers beat him, forced him to ingest hallucinating
drugs, and then forced him to perform oral sex on them on or
about March 14, 2012. (Id. ¶ 125).
This Court permitted portions of the second amended
complaint to proceed and directed the DOC and newly-added
defendants to respond to Plaintiff’s new allegations of physical
and sexual abuse. (December 21, 2012 Order, Docket Entry 164).
On December 26, 2012, this Court partially granted a previouslyfiled motion for summary judgment and dismissed all claims
against the DOC Defendants except the newly added physical and
sexual abuse, denial of medical care, and retaliation charges.
(December 26, 2012 Order, Docket Entry 167).
Throughout this litigation, Plaintiff sought to obtain
access to the footage of the video taken outside of his cell on
March 10, 2012. Senior SID Investigator Shawn Harrison indicated
he viewed the video as part of his investigation and 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.” (Harrison Declaration, Docket Entry 184-4
5

¶ 7). Harrison noted that after Plaintiff was 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.” (Id. 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,
Charles Warren, Stephen Alaimo, Kenneth Nelsen, J. Dominguez, M.
Moura, Sgt. J. Lindsey, Officer McNair, Officer J. Ilardi after
being informed the video could not be produced as the camera
footage had been overwritten. (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. (Docket
Entry 280). The DOC Defendants filed a motion for
reconsideration on June 26, 2014, (Docket Entry 285), which
Major Keil later joined. (Docket Entry 289).
The DOC Defendants and Major Keil filed motions for summary
judgment on Plaintiff’s claims of physical and sexual abuse.
(Docket Entries 298 and 300). The Court denied the DOC
Defendants’ and Major Keil’s motions for summary judgment on the
physical and sexual abuse claims as they were subject to the
6

spoliation inference at the time; however, the Court granted
leave to refile those motions in the event Magistrate Judge
Williams granted their motions for reconsideration. (Slip
Opinion, Docket Entry 317 at 37-38).
While the summary judgment motions were pending, Magistrate
Judge Williams granted the DOC Defendants’ and Major Keil’s
motions for reconsideration only to the extent that an
evidentiary hearing would occur to determine each defendant’s
degree of fault in the spoliation of the video footage. (Docket
Entry 312). She conducted the hearing on April 9, 2015, (Docket
Entry 319), and vacated the order imposing spoliation sanctions
on September 14, 2015. (Docket Entry 336). In reaching her
decision, she credited Investigator Harrison’s testimony
regarding “certain inconsistencies contained in his prior
declarations submitted on his behalf,” and held that “the
unavailability of the footage cannot be attributed to the
individual State Defendants and, therefore, sanctions would be
inappropriate.” (Id. at 3). 1 Plaintiff filed a motion for
reconsideration, (Docket Entry 341), which Magistrate Judge
Williams denied on November 20, 2015, (Docket Entry 347).

1

Plaintiff conceded at oral argument that Major Keil had no
knowledge of or involvement in the destruction of the video.
(Oral Argument Transcript, Docket Entry 327-2 at 14:1-6).
7

Shortly after the order vacating the spoliation inference,
the DOC Defendants and Major Keil filed the instant motions for
summary judgment. (Docket Entries 339 and 340). Plaintiff filed
opposition to both motions. (Docket Entry 345).
B. Statement of Facts
1.

Allegations in Pleadings

In the sole remaining claims from Plaintiff’s second
amended complaint, Plaintiff asserts on March 10, 2012, Officers
Dominguez and Moura ransacked his cell and Sergeant Lindsey,
Officer McNair, Officer Ilardi and two unknown correctional
officers forced Plaintiff to perform oral sex on them. (SAC ¶
123). Plaintiff also alleged that these officers, Sergeant
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 in retaliation for pursuing this litigation. (Id. ¶
124). He stated Officer Ralph informed him that her friends
“Holmes, Ricci, Barnes, Moleins, Warren, Nelsen, Lawrence, and
Attorney General staff” asked her to sanction Plaintiff because
he was pursuing this litigation. (Id.). He further alleged that
on or about March 14, 2012, Officer Dominguez and two unknown
officers beat and forced him to ingest hallucinating drugs
before making him perform oral sex on them. (Id. ¶ 125). SID
8

conducted an investigation, but Plaintiff contended it was a
sham as non-party Officer Schwartzer informed Plaintiff that
“nothing will come out of the complaint.” (Id.).
2. DOC Defendants’ Statement of Material Facts
The DOC Defendants adopt and resubmit SID Investigator
Harrison’s declaration submitted in response to this Court’s
Order to Show Cause. (DOC SOF, Docket Entry 339-1 ¶ 1). They
state that “[a]n SID investigation is conducted when incidents –
i.e. physical and/or sexual abuse of inmates – occur or are
known to occur at NJSP. SID is part of the Department of
Corrections’ Central Office, and is not under the direction of
individual institutions.” (Id. ¶ 4). According to the DOC
Defendants, Harrison was contacted on March 11, 2012 by NJSP
Lieutenant Mendez, a non-party, regarding Plaintiff’s
allegations of sexual assault. (Id. ¶ 5). Harrison opened an
investigation into the allegations shortly after this report.
(Id. ¶ 6).
During the investigation, Sergeant Scantling “reported that
Plaintiff threatened to throw urine at Senior Corrections
Officer Moura. He also reported that Plaintiff claimed officers
took his legal documents and allegedly forced him to perform
oral sex on them on March 10, 2012.” (Id. ¶ 7). Harrison
reviewed the video recording from Plaintiff’s housing unit,
which purportedly showed Plaintiff being placed in handcuffs and
9

escorted into his cell. (Id. ¶ 8). When he was interviewed by
Harrison on March 11, Plaintiff was unable to provide the names
or physical features of the officers who allegedly assaulted
him. (Id. ¶ 9). Sergeant Scantling also told Harrison that he
had taken Plaintiff to be evaluated by medical personnel
promptly after Plaintiff made his allegations, but Plaintiff
refused medical attention on March 10 and 11. (Id. ¶¶ 10-11). A
nurse noted that Plaintiff did not show any signs of physical
injury on those days. (Id. ¶ 11).
Between March 11 and 25, 2012, Harrison interviewed
Plaintiff, Sergeant Scantling, Officer Moura, Officer Ilardi,
Officer Dimichele, Officer McNair, and Sergeant Lindsey
regarding Plaintiff’s allegations. (Id. ¶¶ 12-16). All of the
officers denied anything inappropriate occurred. (Id.). Based on
his interviews and review of the video footage, Harrison
concluded there was no evidence to support Plaintiff’s
allegations. (Id. ¶ 17). According to Harrison, “[t]he
investigation did reveal that Plaintiff was upset with a routine
cell search of his cell, refused to lock back in his cell
afterwards, became angry and threatened custody officers;
therefore, Plaintiff was placed in pre-hearing detention.” (Id.
¶ 17). The DOC Defendants therefore assert Plaintiff has not
provided any evidence of the personal involvement of several of

10

the DOC Defendants or that he was physically and sexually
assaulted in March 2012.
3. Major James Keil’s Statement of Uncontested Facts
Major Keil argues Plaintiff has failed to demonstrate that
he was personally involved in the alleged sexual assault, denial
of medical care, and retaliation. (Keil SOF, Docket Entry 340-1
¶¶ 5-7). He states that as the only remaining claims in the
complaint do not implicate him, he should be dismissed from the
proceedings. (Id. ¶ 5). In support of his arguments, Major Keil
states he was not stationed at NJSP at the time of the alleged
actions in March 2012. (Id. ¶ 9). He asserts he does not have
any knowledge of the alleged actions against Plaintiff as he was
only stationed at NJSP between August 14, 2009 and December 3,
2011. (Id. ¶¶ 8-15). He further denies having instructed anyone
to abuse, deny medical care to, or retaliate against Plaintiff.
(Id. ¶¶ 13-15).
Major Keil also cites Plaintiff’s sworn interrogatories and
deposition testimony in support for his argument that Plaintiff
has not sufficiently demonstrated his personal involvement.
According to Major Keil, Plaintiff’s deposition testimony does
not implicate Major Keil as one of the persons who allegedly
instructed Officer Ralph to discipline Plaintiff after he filed
a grievance about the sexual assault. (Id. ¶ 17). Moreover,
Plaintiff’s answers to interrogatories “fail to identify any
11

specific involvement by Major Keil regarding the claims of (a)
physical and sexual abuse stemming from March 2012 incidents;
(b) denial of medical treatment for injuries allegedly sustained
during the March 2012 incidents; and (c) the retaliatory
disciplinary charges stemming from those incidents . . . .” (Id.
¶ 18). He cites Plaintiff’s answers regarding Major Keil as
follows:
Abuse of force forms or complaints filed by inmates
against correctional officers are forwarded to Ricci,
Barnes, Drumm, [Moleins], 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, forced 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, [Moleins], Keil, Alaimo, Ortiz, Lawrence
and Nelsen instructed or directed them to take these
actions.

(Id. at ¶¶ 19-20). 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.” (Id. ¶ 23). Finally, he argues that as Magistrate
Judge Williams vacated the spoliation inference against him,
there is no admissible evidence supporting Plaintiff’s
allegations against him. (Id. ¶¶ 31-33). He therefore asserts he
is entitled to judgment as a matter of law.
12

3.

Plaintiff’s Counter-Statement

Plaintiff submitted a letter brief in opposition to the
motions. (Plaintiff’s brief, Docket Entry 342). 2 Plaintiff did
not submit a statement of material uncontested facts but instead
indicated he would rely on this Court’s March 30, 2015 Opinion
and Order and his submissions in connection with his motion for
reconsideration. (Id. at 2-3). He states that he intends to call
Investigator Harrison, Deputy Attorney General Christine Kim,
and Deputy Attorney General Randy Miller as witnesses, asserting
they will testify that “Ms. Kim and Mr. Miller had Investigator
Harrison spoliate the video footage of the March 10th incident in
question to protect the Defendants from liability.” (Id. at 23).
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary
judgment is appropriate if “there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a
matter of law.” Alabama v. North Carolina, 560 U.S. 330, 344
(2010) (internal citations and quotation marks omitted); see
also Fed. R. Civ. Pro. 56(a). A “genuine” dispute of “material”

2

Plaintiff also filed an unauthorized sur-reply. (Docket Entry
345). As the sur-reply was filed in violation of Local Civil
Rule 7.1(d)(3) and Major Keil objects to the sur-reply, (Docket
Entry 346), the Court will not consider it for summary judgment
purposes.
13

fact exists where a reasonable jury's review of the evidence
could result in “a verdict for the non-moving party” or where
such fact might otherwise affect the disposition of the
litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Disputes over irrelevant or unnecessary facts, however,
will not preclude the entry of summary judgment. 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).
In order to survive a motion for summary judgment “‘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 cannot rely on the unsupported
allegations in his complaint, Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986), and “must present more than the ‘mere existence
of a scintilla of evidence’ in his favor.” Shah v. Bank of Am.,
346 F. App'x 831, 833 (3d Cir. 2009) (quoting Anderson, 477 U.S.
at 252). Moreover, the moving party may be entitled to summary
judgment merely by showing that there is an absence of evidence
14

to support an essential element of the nonmoving party's case
when the nonmoving party bears the burden of persuasion at
trial. Fed. R. Civ. Pro. 56(c)(1)(B); Celotex, 477 U.S. at 325.
DISCUSSION
Plaintiff has not responded to the motion other than to
indicate he wishes to rely on his motion for reconsideration and
this Court’s March 30, 2015 Opinion and Order. (Plaintiff’s
brief, Docket Entry 342). None of these items constitute a
responsive statement of facts for summary judgment purposes, see
Local Civ. R. 56.1(a) (“The opponent of summary judgment shall
furnish, with its opposition papers, a responsive statement of
material facts, addressing each paragraph of the movant's
statement, indicating agreement or disagreement and, if not
agreed, stating each material fact in dispute and citing to the
affidavits and other documents submitted in connection with the
motion . . . .”), therefore the Court deems the DOC Defendants’
and Major Keil’s statements of facts undisputed for summary
judgment purposes. Fed. R. Civ. Pro. 56(e)(2).
A. DOC Defendants
The DOC Defendants have moved for summary judgment only on
Plaintiff’s claims of physical and sexual abuse from March 2012.
They do not seek summary judgment on his denial of medical care
and retaliation claims. They argue Plaintiff has failed to
provide specific facts establishing the personal involvement of
15

Defendants Ricci, Moleins, Holmes, Barnes, Drumm, Ortiz, Warren,
Wojciechowicz, Lawrence, Nelsen, and Moura in the alleged
physical and sexual abuse that occurred in March 2012. (DOC
Brief, Docket Entry 339-3 at 13).
A plaintiff in a § 1983 action must demonstrate a
defendant's “personal involvement in the alleged wrongs.” Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). “A
plaintiff makes sufficient allegations of a defendant's personal
involvement by describing the defendant's participation in or
actual knowledge of and acquiescence in the wrongful conduct.”
Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 222 (3d Cir.
2015). He must “must portray specific conduct by state officials
which violates some constitutional right.” Id. (internal
citations and quotation marks omitted). “Although a court can
infer that a defendant had contemporaneous knowledge of wrongful
conduct from the circumstances surrounding a case, the knowledge
must be actual, not constructive.” Id. The Court finds that no
reasonable factfinder could conclude Defendants Holmes, Ortiz,
Drumm, and Wojciechowicz were personally involved in the alleged
physical and sexual abuse that occurred in March 2012. Those
defendants are therefore entitled to summary judgment on those
claims.
Plaintiff asserted in his interrogatory answers that

16

[a]buse of force forms or complaints filed by inmates
against correctional officers are forwarded to Ricci,
Barnes, Drumm, [Moleins], 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.
(Interrogatories, Docket Entry 300-4 ¶ 2). Plaintiff further
claimed Warren and Wojciechowicz “ordered or approved” the
physical and sexual abuse and that Warren, Ricci, Barnes, Drumm,
Moleins, Keil, Alaimo, Ortiz, Lawrence, and Nelsen “instructed
or directed” officers to take the actions previously alleged
(Id. ¶ 4).
In support of their motion, the DOC Defendants assert that
several of them were not working at NJSP at the time of the
incidents, relying on the April 8, 2015 declaration of DOC human
resources manager Judy Todd. (Todd Declaration, Docket Entry
327-3 at 23). Ms. Todd indicated that Drumm retired on September
1, 2010, (Id. ¶ 4); Captain Ortiz retired on July 1, 2011, (Id.
¶ 5); and Wojciechowicz separated from DOC employment on January
1, 2012, (Id. ¶ 6). Holmes also was not working at NJSP in March
2012, as he served as the Administrator of South Woods State
Prison from August 2011 to December 2012. (Holmes Declaration,
17

Docket Entry 327-3 at 7 ¶¶ 1-2). After that assignment, he began
working in the DOC’s Central Office. (Id. ¶ 2).
Plaintiff has not submitted any admissible evidence to
contradict the evidence that these defendants were not at NJSP
at the time of the alleged assaults. 3 His conclusory allegations
in his interrogatories cannot withstand a motion for summary
judgment in the absence of further support. See Gonzalez v.
Sec'y of Dept. of Homeland Sec., 678 F.3d 254, 263 (3d Cir.
2012). When considered with the other evidence before the Court,
no rational factfinder could credit those statements. See id. at
264; Irving v. Chester Water Auth., 439 F. App'x 125, 127 (3d
Cir. 2011). Any inference that Drumm, Ortiz, Holmes, and
Wojciechowicz colluded with the then-current NJSP officials to
violate Plaintiff's constitutional rights is not a reasonable
inference as it has no factual basis in the record. See Halsey
v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014) (“[A]n inference
based upon a speculation or conjecture does not create a
material factual dispute sufficient to defeat summary judgment.
Inferences must flow directly from admissible evidence.”
(internal citation and quotation marks omitted)). Therefore,
because Plaintiff failed to proffer any evidence contrary to the

3

The fact that Lawrence was working at NJSP on March 12, 2012,
prior to the second alleged assault, distinguishes her from
Drumm, Ortiz, Holmes, and Wojciechowicz. (Lawrence Declaration,
Docket Entry 327-3 at 10 ¶¶ 1-2).
18

DOC Defendants’ documentary evidence, the Court finds that no
genuine issue of material fact exists as to whether defendants
Drumm, Ortiz, Holmes, and Wojciechowicz were personally involved
in the March 2012 claims of physical and sexual abuse. Thus,
summary judgment in those defendants’ favor is appropriate with
regard to those claims. As Plaintiff does not allege
Wojciechowicz participated in the alleged retaliation or denial
of medical care, (see SAC ¶¶ 124-26; Interrogatories ¶¶ 2, 4),
he shall be dismissed from the case.
The DOC Defendants also move for summary judgment on the
grounds that Plaintiff has not carried his burden of proof in
establishing the March 2012 physical and sexual abuse. See
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (“[T]he
burden on the moving party may be discharged by ‘showing’ . . .
there is an absence of evidence to support the nonmoving party's
case.”). 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). 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. Wilkins v. Gaddy, 559 U.S. 34,
40 (2010). “Thus, courts considering a prisoner's claim must ask
19

both if ‘the 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 argue Plaintiff cannot
prove either the subjective or the objective component.
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 showed no sign of physical injury on those dates. (DOC
SOF ¶¶ 10; DOC brief at 19-20). As this Court previously noted,
evidence that Plaintiff was “medically cleared” on March 10 and
11 has no relevance to Plaintiff’s physical state after an
alleged beating took place on either March 13 or 14. (Slip
Opinion at 34). See also Smith v. Mensinger, 293 F.3d 641, 648
(3d Cir. 2002)(“[T]he 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.”); accord Wilkins, 559
U.S. at 40 n.2 (citing Mensinger).
That being said, in order to survive a motion for summary
judgment after the moving party has demonstrated there is a lack
of evidence supporting an essential element of the claim, “‘the
nonmoving party must come forward with specific facts showing
that there is a genuine issue for trial’ and do more than
20

‘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)); see also Fed. R. Civ. Pro. 56(c)(1)(B). In its
March 30, 2015 summary judgment opinion, the Court noted that
“Plaintiff has set forth no admissible evidence 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.” (Slip
Opinion at 35).
At the time of the previous summary judgment motions,
however, the DOC Defendants were subject to a spoliation
inference that served as evidence that could discredit their
version of the events on March 10 and the subsequent
investigation if accepted by a factfinder. On that record, there
was more than just a theoretical issue of material fact. The
spoliation inference has been lifted by Magistrate Judge
Williams, 4 however, and is no longer applicable on summary
judgment. Plaintiff has not submitted any other evidence to

4

Plaintiff did not appeal the magistrate’s ruling to this Court.
See Fed. R. Civ. P. 72(a); L. Civ. R. 72.1(c)(1)
21

support his claims of a cover-up; 5 thus, there is no factual
support for an inference that the failure to preserve the video
was intentional or in bad faith, or that the video would
undermine defendants’ evidence. See Halsey v. Pfeiffer, 750 F.3d
273, 287 (3d Cir. 2014).
Aside from Plaintiff’s deposition testimony, the record
remains virtually the same from the record before the Court in
March 2015. The addition of the testimony does not change the
Court’s previous analysis as the Third Circuit has extended the
rule on self-serving interrogatory answers to deposition
testimony. See Irving v. Chester Water Auth., 439 F. App’x 125,
127 (3d Cir. 2011). One self-serving piece of evidence supported
only by another self-serving piece of evidence does not suffice
to raise a genuine issue of material fact. A reasonable juror
considering those evidentiary items against the remainder of the
record, such as the results of the SID investigation and
accompanying affidavits, (SID Report, Docket Entry 339-2), could
not credit Plaintiff’s testimony. The DOC Defendants are

5

Plaintiff states that he intends to call witnesses to testify
that “Ms. Kim and Mr. Miller had Investigator Harrison spoliate
the video footage of the March 10th incident in question to
protect the Defendants from liability.” (Plaintiff’s Brief at 23). The Court cannot consider any hypothetical testimony as
there are no affidavits from these anticipated witnesses setting
forth the relevant facts to which they would testify. Fed. R.
Civ. P. 56(c)(1)(A).
22

therefore entitled to summary judgment on Plaintiff’s claims of
physical and sexual abuse.
B. Major Keil
Major Keil argues he is entitled to judgment as a matter of
law as there is no evidence supporting Plaintiff’s allegations
other than the general allegations made in Plaintiff’s answers
to interrogatories. (Docket Entry 340-2 at 9). The Court agrees,
and summary judgment must be awarded to Major Keil on all
remaining claims as no reasonable juror could find in favor of
Plaintiff.
In support of his motion, Major Keil has submitted a
certification stating he was not stationed at NJSP at the time
of the alleged abuse, denial of medical care, or retaliation
against Plaintiff as he left that position on December 3, 2011.
(Keil Certification, Docket Entry 340-3 ¶¶ 3, 5). He denies
having any personal knowledge of the incidents and personally
participating in any abuse of Plaintiff. (Id. ¶¶ 6-8). He
further denies directing others to abuse Plaintiff in any
manner. (Id. ¶¶ 9-10). Major Keil also submits a transcript of
Plaintiff’s February 27, 2013 deposition in support of his
motion. (Deposition Transcript, Docket Entry 340-5).
The only evidence of Plaintiff’s allegations against Major
Keil are his conclusory statements in his interrogatories,
wherein he accuses Major Keil of having “personal or actual
23

knowledge concerning [Plaintiff’s] ongoing physical abuse,”
(Interrogatories ¶ 2), and being among those who “instructed or
directed” the abuse and retaliation, (Id. ¶ 4). As previously
noted, unsupported, self-serving statements in interrogatories
are not enough to withstand summary judgment. Gonzalez v. Sec'y
for the Dept. of Homeland Sec., 678 F.3d 254, 263 (3d Cir.
2012). Accepting as true Major Keil’s uncontested statements
that he was not stationed at NJSP during the relevant time
period, L. Civ. R. 56.1(a), there is no reasonable basis for an
inference that he ordered or directed the physical and sexual
abuse of Plaintiff. Furthermore, Plaintiff’s deposition
testimony contradicts Plaintiff’s interrogatory answers that
implicate Major Keil in the denial of medical care and
retaliation that allegedly followed the assaults. 6
Plaintiff testified that Officer Ralph told him “her good
friends told her to sanction [him].” (Deposition Transcript
96:24-25). When asked to provide the names of those “good
friends,” Plaintiff responded: “Holmes. Now that’s another name,
too. Now that’s the name that came to me. He was one of the ones
who would make rounds on the unit. Holmes, Barnes, Ricci and

66

The interrogatory answers are also contradicted by Plaintiff’s
concession at the April 9, 2015 oral argument on the spoliation
sanction that the second amended complaint does not assert these
claims against Major Keil. (Oral Argument Transcript, Docket
Entry 327-2 at 14:1-6).
24

[Officer Ralph’s] friends at DOC.” (Id. at 98:7-10). Plaintiff
later identified the “friends at DOC” as “Raupp, Ricci, Barnes,
Moleins, Holmes.” (Id. at 98:12). Plaintiff did not mention
Major Keil’s name at all during his deposition. (Id. at 183).
No reasonable jury could find Major Keil liable on any of
the remaining claims against him on the record before the Court.
He is therefore entitled to judgment as a matter of law and
shall be dismissed from the case.
CONCLUSION
For the reasons stated above, the DOC Defendants’ motion
for summary judgment on Plaintiff’s physical and sexual abuse
claims (Docket Entry 339) is granted, and Wojciechowicz is
dismissed from the case. Major Keil’s motion for summary
judgment (Docket Entry 340) is granted, and he is dismissed from
the case. An accompanying Order will be entered.

March 29, 2016
Date

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

25