RUIZ v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al
Filing
161
OPINION. Signed by Judge Noel L. Hillman on 3/9/2020. (rss, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Plaintiff,
:
:
v.
:
:
:
NEW JERSEY
:
DEPARTMENT OF CORRECTIONS,
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et al.,
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Defendants.
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______________________________:
MARIANITO RUIZ,
Civ. No. 15-3304 (NLH) (JS)
OPINION
APPEARANCES:
John C. Connell, Esq.
Jeffery M. Scott, Esq.
Nicholas Franchetti, Esq.
Archer & Greiner, P.C.
One Centennial Square
P.O. Box 3000
Haddonfield, NJ 08033-0968
Counsel for Defendant Lauren Reeves
Richard A. Stoloff, Esq.
Law Offices of Richard A. Stoloff
605 New Road
Linwood, NJ 08221
Counsel for Plaintiff Marianito Ruiz
HILLMAN, District Judge
Plaintiff Marianito Ruiz, a former state prisoner, alleges
Jerry Stretch, James McCabe, Kevin Manning, Thomas Togno,
Matthew Arrowood, Michael Ryan, Gerald Gribble, Stephen Weldon,
Brenda Hepner, Edward Soltys, and Lauren Reeves 1 conspired to
inflict excessive force on Plaintiff and to cover-up that
assault by claiming Plaintiff was the aggressor.
ECF No. 57.
He raises federal claims of excessive force, conspiracy, failure
to intervene, supervisory liability, and federal civil rights
violations.
Id. at 9-16.
He also raises state tort claims of
assault, battery, and intentional infliction of emotional
distress.
Id. at 16-19.
This matter comes before the Court on Defendant Lauren
Reeves’ motion for summary judgment.
opposes the motion.
ECF No. 135.
ECF No. 130.
Plaintiff
The Court has subject-matter
jurisdiction over this case pursuant to 28 U.S.C. § 1331, as it
concerns a federal question, and supplemental jurisdiction over
the state law claims under 28 U.S.C. § 1367(a).
For the reasons that follow, the Court will grant summary
judgment to Defendant Reeves on the intentional infliction of
emotional distress claim.
Summary judgment is denied on the
remainder of the claims.
1
For ease of reference, the Court will use “Defendants” when
referring to all defendants and “BSP Defendants” when referring
just to defendants Stretch, McCabe, Manning, Togno, Arrowood,
Ryan, Gribble, Weldon, Hepner, and Soltys as Defendant Reeves is
proceeding separately.
2
I.
BACKGROUND
The facts of this case are largely disputed.
The parties
agree that on April 12, 2013, Plaintiff Marianito Ruiz was an
inmate housed in Bayside State Prison’s E-Unit.
ECF No. 136,
Plaintiff’s Statement of Facts (“PSOF”) ¶ I.3; ECF No. 130-3,
Reeves’ Statement of Facts (“RSOF”) ¶ 3.
The parties further
agree that a Code 33, defined as a “an emergency involving an
inmate attack on an officer,” was called over the radio by one
of the officers.
PSOF ¶ I.4; RSOF ¶ 4.
arrived in response to the Code 33.
Multiple officers
PSOF ¶ I.4; RSOF ¶ 4.
The
parties vigorously dispute the reason the code was called and
what happened after the code was called.
Defendant Reeves asserts Plaintiff was combative towards
the responding officers, which required the officers to use
force to bring him into compliance.
RSOF ¶ 4.
The parties
agree that OC spray 2 was used and that Plaintiff was handcuffed,
but they dispute the necessity of both actions.
Defendant
Reeves testified in her first deposition that she took
Plaintiff’s feet “because he was kicking a little bit.”
RSOF ¶
5. 3
2
Oleoresin capsicum spray, colloquially known as pepper spray.
3
Plaintiff admits Defendant Reeves testified to this fact but
disputes its accuracy. PSOF ¶ I.5.
3
Plaintiff was charged with three disciplinary violations on
April 15, 2013: two counts of assault and one count of conduct
that disrupts the orderly running of the institution.
II.7.
PSOF ¶
Plaintiff testified at his hearing that “he didn’t touch
anyone.”
Id.
The disciplinary hearing officer (“DHO”) relied
on the officers’ reports and testimony to conclude that
Plaintiff had initiated the encounter by charging Defendant
James McCabe and striking him in the face with a closed fist.
Id.
The DHO further concluded that Plaintiff struck Defendant
Jerry Stretch several times while Defendant Stretch was
attempting to restrain Plaintiff.
Id.
“As a result of these
actions, movements were cancelled, mess was delayed, the crime
scene took 30 minutes to clean.
Also several staff were removed
from their normal duties to suit up [and] escort the noncompliant [inmate] to detention.”
original).
RSOF ¶ 7 (alterations in
As a result, the DHO found Plaintiff guilty of
disrupting the orderly running of the institution.
PSOF ¶ II.7.
Plaintiff lost 940 days of commutation time as a sanction.
He appealed the charges, but the charges were upheld.
Id.
Id.
In his Supplemental Statement of Facts, 4 Plaintiff presents
a vastly different account of the encounter.
He asserts
Defendant Stretch struck him first, and “after he was first
4
Defendant Reeves did not respond to Plaintiff’s supplemental
facts as required by Local Civil Rule 56.1(a).
4
struck by defendant, Stretch, he fell purposefully and
immediately to the ground because he knew he was going to
continue to be struck by Stretch and the other officers in the
Unit.”
Plaintiff’s Supplemental Statement of Facts (“PSSOF”),
ECF No. 136 ¶ III.1.
Defendant Steven Welden testified that he
did not see Plaintiff punch anyone.
Id. ¶ III. 4.
Defendant
Thomas Togno testified he only saw Plaintiff strike Defendant
McCabe once.
Id. ¶ III.5.
He stated he did not see Plaintiff
strike any other officer and that it seemed that the responding
officers had the situation under control.
Id.
Defendant
Reeves testified in her first deposition that she did not recall
seeing Plaintiff strike any guard.
Id. ¶ III.2.
Dr. Wayne Ross, a forensic pathologist, “concluded that
Ruiz’[s] injuries were as a result of multiple strikes to his
head and body and being choked, while the injuries to defendant,
Stretch’s hand are as a result of multiple blows landed during
the incident.”
Id. ¶ III.10.
Dr. Ross also concluded Plaintiff
did not land any “sufficient strikes to anybody during the
incident” based on the lack of injuries to Plaintiff’s hands.
Id. ¶ III.11.
Plaintiff had multiple facial fractures that
required surgery to implant hardware.
5
Id. ¶ III.12.
At the conclusion of her first deposition, 5 Defendant Reeves
approached Plaintiff’s counsel, Richard Stoloff, and stated that
“plaintiff had been set up to be assaulted, that he did not
strike any officer, that one officer struck another officer to
make it appear that plaintiff did it and that she lied regarding
the incident because she was afraid.”
II.
Id. ¶ III.3.
STANDARD OF REVIEW
Summary judgment should be granted when the pleadings,
depositions, answers to interrogatories, admissions on file, and
affidavits show that there is no genuine dispute as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.
Fed. R. Civ. P. 56(c).
A disputed
fact is material when it could affect the outcome of the suit
under the governing substantive law.
Inc., 477 U.S. 242, 248 (1986).
Anderson v. Liberty Lobby,
A dispute is genuine if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.
Id. at 250.
The Court should view the
facts in the light most favorable to the non-moving party and
make all reasonable inferences in that party’s favor.
Hugh v.
Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
Initially, the moving party must show the absence of a
genuine issue concerning any material fact.
5
See Celotex Corp.
Defendant Reeves was not a party at the time of her first
deposition and was not represented by counsel.
6
v. Carrett, 477 U.S. 317, 323 (1986).
Once the moving party has
satisfied its burden, the non-moving party, “must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment.”
Anderson, 477 U.S. at 257.
“While the evidence that the non-moving party presents may be
either direct or circumstantial, and need not be as great as a
preponderance, the evidence must be more than a scintilla.”
Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).
If the court determines that “the record taken as a whole
could not lead a rational trier or fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting First Nat’l Bank of Arizona v. Cities Serv.
Co., 391 U.S. 253, 289 (1968)).
Rule 56 mandates the entry of
summary judgment against the party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.
Celotex Corp., 477 U.S. at 322.
III. DISCUSSION
Defendant Reeves moves for summary judgment on Plaintiff’s
amended complaint.
ECF No. 130.
Plaintiff concedes the
intentional infliction of emotional distress claim must be
dismissed but opposes summary judgment on the remainder of the
claims.
7
The principal issues to be decided are (1) whether the
Supreme Court’s decisions in Heck v. Humphrey, 512 U.S. 477
(1994) and Edwards v. Balisok, 520 U.S. 641 (1997) bar
Plaintiff’s claims; (2) whether Plaintiff is precluded from
arguing any facts that conflict with the facts found at the
disciplinary hearing; (3) to the extent there may have been a
violation, is Defendant Reeves entitled to qualified immunity;
(4) does the Court have supplemental jurisdiction over any
remaining state tort claims; (5) whether Defendant Reeves is
immune under the New Jersey Tort Claims Act; and (6) whether
Defendant Reeves is entitled to judgment as a matter of law on
Plaintiff’s state tort claims.
A.
Heck v. Humphrey
In Heck, the Supreme Court held that before a § 1983
plaintiff may “recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid,” he must first “prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's
issuance of a writ of habeas corpus[.]”
512 U.S. at 486-87.
The Court extended Heck's “favorable termination” rule to prison
disciplinary sanctions which alter the duration of a prisoner's
8
term of incarceration, including the loss of good time credits.
Edwards, 520 U.S. 641.
It is uncontested that the DHO found Plaintiff committed
the infractions of assault, N.J.A.C. § 10A:4-4.1(a)(1)(ii); and
conduct that disrupts the orderly running of the institution,
N.J.A.C. § 10A(a)(2)(xxix).
It is also uncontested that the
infractions have not been expunged or otherwise reversed by the
Department of Corrections or by any court.
Plaintiff argues Heck and Edwards should not apply to him
at all because he is no longer in state custody and the habeas
remedy is no longer available to him.
rejected by the Third Circuit.
This position has been
See Williams v. Consovoy, 453
F.3d 173, 177 (3d Cir. 2006) (“[A] § 1983 remedy is not
available to a litigant to whom habeas relief is no longer
available.”); Gilles v. Davis, 427 F.3d 197, 209–10 (3d Cir.
2005) (“Heck's favorable termination rule applies to all § 1983
plaintiffs, not just those in state custody.”).
Therefore,
Plaintiff’s claims are barred if his success “would necessarily
demonstrate the invalidity of [his] confinement or its
duration.”
Wilkinson v. Dotson, 544 U.S. 74, 82 (2005).
The Court finds that Plaintiff’s claims do not necessarily
demonstrate the invalidity of Plaintiff’s confinement or
duration of his sentence.
Unlike federal good time credits, New
Jersey “good time” does not “necessarily” mean an earlier
9
release date as the credits are used to compute the prisoner’s
parole eligibility date.
N.J.S.A. § 30:4-140.
“Parole
eligibility is different from parole suitability.
The fact that
a prisoner is eligible for parole means only that the paroling
authority must consider his application for parole under the
relevant parole guidelines.”
614 n.3 (7th Cir. 1992).
Thomas v. Brennan, 961 F.2d 612,
Therefore, “restoration of
[Plaintiff’s] good-time credits would afford him only speedier
consideration for discretionary parole, rather than ensure
speedier release.”
Marshall v. Milyard, 415 F. App'x 850, 855
(10th Cir. 2011) (finding retaliation claim was not Heck
barred).
See also Wilkinson 544 U.S. at 82 (finding suit
challenging state procedures used to deny parole eligibility was
not Heck barred because “it means at most new eligibility
review, which at most will speed consideration of a new parole
application.” (emphasis in original)).
Because restoration of
Plaintiff’s good time credits would have only presented the
possibility of earlier release as opposed to the surety, Heck
does not necessarily bar his claims. See also Nelson v.
Campbell, 541 U.S. 637, 647 (2004) (“[W]e were careful in Heck
to stress the importance of the term ‘necessarily.’”).
Defendant Reeves alternatively argues that even if
Plaintiff’s claims are not categorically barred by Heck and
Edwards, Plaintiff cannot offer any evidence that contradicts
10
the findings of the disciplinary hearing officer.
In essence,
she argues Plaintiff must admit that he struck Office McCabe
first and resisted officers’ efforts to subdue him.
Defendant
Reeves relies on Concepcion v. Morton’s pronouncement that “the
Court may not consider evidence that implies that the
disciplinary punishments imposed against the plaintiffs are
invalid.”
125 F. Supp. 2d 111, 123 (D.N.J. 2000), overruled on
other grounds, 306 F.3d 1347 (3d Cir. 2002).
First, the Supreme Court has never held that parties are
collaterally estopped from contesting facts from prison
disciplinary findings.
See Simpson v. Thomas, 528 F.3d 685, 694
(9th Cir. 2008) (“Since the inception of the rule in Heck, the
Court has only addressed this issue a few times, and in none of
those cases did the Court address the use of Heck to bar
evidence.”).
Second, the principles of collateral estoppel do
not warrant application in this case.
Defendant Reeves cites
the Third Circuit’s statement in Roth v. Koppers Industries,
Inc., that “[w]ith respect to section 1983, the [Supreme] Court
examined congressional intent and the policies underlying common
law rules of preclusion, and concluded that unreviewed
administrative factfindings should be given preclusive effect in
subsequent section 1983 actions.”
1993).
993 F.2d 1058, 1061 (3d Cir.
However, the Court of Appeals clarified in a footnote
that this preclusive effect is limited to
11
“‘when a state agency
acting in a judicial capacity . . . resolves disputed issues of
fact properly before it which the parties have had an adequate
opportunity to litigate . . . .’”
Id. at 1061 n.3 (quoting
Univ. of Tennessee v. Elliott, 478 U.S. 788, 798 (1986)) (first
omission in original).
The late Judge Dickinson R. Debevoise of this District
noted in a case like this one that Concepcion “conditions the
preclusive effect of a disciplinary hearing's findings on the
validity of that process.”
Kounelis v. Sherrer, 529 F. Supp.
2d. 503, 529 (D.N.J. 2008).
In Kounelis, defendants argued that
plaintiff could not proceed with his excessive force claim
because he had been found guilty of unauthorized touching at a
disciplinary proceeding.
Id. at 528-29.
Plaintiff submitted
evidence that defendants failed to preserve the surveillance
video, and Judge Debevoise concluded spoliation sanctions were
warranted.
Id. at 520.
“Although Defendants accurately observe
that the disciplinary hearing officer's finding of guilt has not
been reversed, Defendants' argument ignores the fact that the
disciplinary hearing itself is subject to attack and was
impaired by the spoliation of evidence—evidence that may have
supported Kounelis's version of events and resulted in a finding
of not guilty.”
Id. at 529.
“Thus, there is sufficient
evidence that Kounelis's disciplinary hearing was impaired and,
if so, Kounelis is not precluded from presenting evidence in
12
support of his § 1983 claim for violation of his Eighth
Amendment rights.”
Id.
As set forth in more detail below, Plaintiff has presented
the Court with enough evidence of a conspiracy by Defendants –
evidence coming from one of the Defendants herself - to suggest
that Plaintiff’s disciplinary proceeding was not an “adequate
opportunity to litigate” the issues.
It would be perverse
injustice to rely on a corrupted disciplinary process and a
result procured by perjury to shield a defendant from the
consequences of an intentional attack on an inmate by prison
guards.
Heck and Edwards must be read in light of the
constitutional protections afforded the incarcerated which would
include a disciplinary process free of perjury and deceit.
In
the unique circumstances of this case, the Court will not
preclude Plaintiff from arguing his version of events to a jury.
B.
Qualified Immunity
“Qualified immunity shields government officials from civil
damages liability unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.”
Taylor v. Barkes, 135 S. Ct. 2042,
2044 (2015) (internal citation and quotation marks omitted).
The first prong of the analysis “asks whether the facts, [t]aken
in the light most favorable to the party asserting the
injury,... show the officer’s conduct violated a [federal]
13
right[.]”
Tolan v. Cotton, 572 U.S. 650, 655-56 (2014) (per
curiam) (internal quotation marks and citations omitted)
(alterations and omissions in original).
“The second prong of
the qualified-immunity analysis asks whether the right in
question was ‘clearly established’ at the time of the
violation.”
omitted).
Id. at 656 (internal citation and quotation marks
“When properly applied, [qualified immunity] protects
all but the plainly incompetent or those who knowingly violate
the law.”
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)
(internal quotation marks omitted).
“[I]n ruling on a motion for summary judgment, ‘[t]he
evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor.’”
Tolan, 572 U.S. at
651 (second alteration in original) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)).
“[C]ourts may not
resolve genuine disputes of fact in favor of the party seeking
summary judgment.”
Id. at 656; see also Bistrian v. Levi, 912
F.3d 79, 83 n.2 (3d Cir. 2018) (“In assessing an assertion of
qualified immunity, we take the facts in the light most
favorable to ‘the party asserting the injury’....” (quoting
Scott v. Harris, 550 U.S. 372 (2007))).
Defendant Reeves
asserts she is entitled to qualified immunity on Plaintiff’s
excessive force, failure to intervene, and conspiracy claims.
14
The Court denies qualified immunity at this time because
there are disputed issues of fact on Plaintiff’s claims.
“The
test for whether a claim of excessive force is constitutionally
actionable is ‘whether force was applied in a good faith effort
to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.’”
Giles v.
Kearney, 571 F.3d 318, 328 (3d Cir. 2009) (quoting Whitley v.
Alber, 475 U.S. 312, 319 (1986)).
The relevant factors for
consideration are:
(1) the need for the application of force; (2) the
relationship between the need and the amount of force
that was used; (3) the extent of injury inflicted; (4)
the extent of the threat to the safety of staff and
inmates, as reasonably perceived by the responsible
officials on the basis of the facts known to them; and
(5) any efforts made to temper the severity of a forceful
response.
Id.; see also Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000).
In order to grant Defendant Reeves qualified immunity, the
Court must accept her version of events, namely that Plaintiff
struck the first blow against Defendant McCabe and resisted
Defendants’ efforts to restrain him.
The Court cannot resolve
factual disputes in Defendant Reeves’ favor on summary judgment.
Tolan, 572 U.S. at 656; see also Giles, 571 F.3d at 327
(reversing district court for finding qualified immunity in
excessive force case where “such a legal conclusion ... rests on
15
a factual presumption that is inappropriate on summary
judgment”).
If the Court accepts Plaintiff’s version of events for
summary judgment purposes, he has easily stated an excessive
force claim.
There was no need for the application of force
because Plaintiff had not done anything to warrant force being
used against him, nor was there any safety risk to the staff.
Plaintiff was struck in the head, face, and ears and was held in
a choke hold.
ECF No. 145-26 at 4.
He was pepper sprayed.
Id.
If there was an attempt to temper the use of force it is well
hidden from the Court.
Among other injuries, Plaintiff sustained a “comminuted
right orbital floor fracture into the zygomatic bone, comminuted
right maxillary sinus fracture and zygomatic arch fracture.”
Id.
Cooper Hospital confirmed multiple facial fractures, and CT
scans showed “extensive swelling and bruises to the front, sides
and back of the head.”
Id.; see also ECF No. 145-28.
underwent surgery to implant metal plates and screws.
He
145-28 at 3.
ECF No.
Using these facts, a reasonable jury could
conclude that the force was not inflicted as part of a “good
faith effort to maintain or restore discipline” because
Plaintiff testified he had done nothing to provoke the assault.
Moreover, Defendant Reeves is subject to an adverse
inference.
Defendant Reeves argues there is no evidence that
16
she participated in the assault beyond holding down Plaintiff’s
legs.
However, Plaintiff has submitted evidence that Defendant
Reeves was aware of and participated in the alleged conspiracy
with the BSP Defendants.
See generally ECF No. 145-7
(deposition of Richard A. Stoloff).
Defendant Reeves invoked
her Fifth Amendment right against self-incrimination during her
second deposition, see generally ECF No. 145-3, and “[u]nlike
the rule in criminal cases . . . reliance on the Fifth Amendment
in civil cases may give rise to an adverse inference against the
party claiming its benefits.”
S.E.C. v. Graystone Nash, Inc.,
25 F.3d 187, 190 (3d Cir. 1994).
A reasonable factfinder
combining Plaintiff’s testimony, Mr. Stoloff’s testimony, and
Defendant Reeves’ invocation of the Fifth Amendment could infer
that Defendant Reeves was more involved in the conspiracy than
she testified at her first deposition.
F.3d at 191.
Graystone Nash, Inc., 25
From that adverse inference, a reasonable
factfinder could conclude Defendant Reeves did more than just
hold down Plaintiff’s legs.
“The right to be free from an unprovoked beating is clearly
established.”
Hill v. Algore, 85 F. Supp. 2d 391, 409 (D.N.J.
2000); see also Thompson v. Montemuro, 383 F. Supp. 1200, 1203
(E.D. Pa. 1974).
Under the version of events most favorable to
Plaintiff, Defendants purposefully inflicted severe pain on
17
Plaintiff for no reason.
A reasonable officer would have known
that this behavior was not lawful.
Granting Defendant Reeves qualified immunity on Plaintiff’s
failure to intervene claim also requires the Court to accept her
version of events, which it may not do on summary judgment.
“[A] corrections officer's failure to intervene in a beating can
be the basis of liability for an Eighth Amendment violation
under § 1983 if the corrections officer had a reasonable
opportunity to intervene and simply refused to do so.”
Mensinger, 293 F.3d 641, 650 (3d Cir. 2002).
Smith v.
A reasonable
factfinder could determine using the version of events most
favorable to Plaintiff that Defendant Reeves had a realistic
opportunity to intervene but did not do so.
Mr. Stoloff
testified that Defendant Reeves admitted to him that “[a]ll the
COs knew” about how Plaintiff had been “set up to be beat.”
ECF
No. 146-7 at 18:3, 17:8.
A reasonable inference from this testimony is that
Defendant Reeves knew the assault on Plaintiff was unjustified
but did not intervene to stop it.
“[I]t would be clear to a
reasonable officer that failing to intervene when a fellow
officer employs excessive force” against an inmate who was not
resisting and had not provoked the use of force against him was
unlawful.
Abrahante v. Johnson, No. 07-5701, 2009 WL 2152249,
at *12 (D.N.J. July 14, 2009) (collecting cases that recognize
18
an officer’s duty to intervene when a fellow officer employs
excessive force).
Finally, Defendant Reeves argues she is entitled to
qualified immunity on Plaintiff’s conspiracy and federal civil
rights violation claims because Plaintiff has failed to allege
an underlying constitutional violation.
ECF No. 130-1 at 27-28.
The existence of the conspiracy is a disputed issue of fact that
must be determined at trial; whether Defendant Reeves is
entitled to qualified immunity depends entirely on whether the
ultimate factfinder believes Plaintiff’s version of events.
Because resolution of these issues implicates “disputes over
facts that might affect the outcome of the suit under the
governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986), summary judgment on qualified immunity grounds is
not appropriate at this time.
“Just as the granting of summary
judgment is inappropriate when a genuine issue exists as to any
material fact, a decision on qualified immunity will be
premature when there are unresolved disputes of historical fact
relevant to the immunity analysis.”
271, 278 (3d Cir. 2002).
Curley v. Klem, 298 F.3d
Therefore, the Court will not grant
summary judgment to Defendant Reeves on the basis of qualified
immunity at this time.
19
C.
Supplemental Jurisdiction
The success of Defendant Reeves’ next argument, that the
Court lacks supplemental jurisdiction over any remaining state
tort claims, depends on dismissal of all of the claims over
which this Court has original jurisdiction.
1367(c)(3).
See 28 U.S.C. §
As the Court denies summary judgment on the federal
claims, the Court retains supplemental jurisdiction over
Plaintiff’s state law claims.
D.
28 U.S.C. § 1367(a).
New Jersey Tort Claims Act
Defendant Reeves also argues that she is immune from suit
under the New Jersey Tort Claims Act (“NJTCA”).
The NJTCA
states in relevant part that “[a] public employee is not liable
if [s]he acts in good faith in the execution or enforcement of
any law.”
N.J.S.A. § 59:3-3.
“In order to meet the good faith
standard, [a] public employee either must demonstrate objective
reasonableness or that [s]he behaved with subjective good faith.
The burden of proof is upon the employee, who must prove either
of those components in order for the good faith immunity to
attach.”
Toto v. Ensuar, 952 A.2d 463, 470 (N.J. 2008)(first
alteration in original) (internal quotation marks and citation
omitted).
Accepting Plaintiff’s version of events for summary
judgment purposes, Defendant Stretch struck Defendant McCabe in
the face and then called a Code 33 based on the false premise
20
that Plaintiff was the one to strike Defendant McCabe.
Other
officers, including Defendant Reeves, responded to the Code 33
and then participated in the assault or failed to prevent other
officers from assaulting Plaintiff even though he was not
resisting or being combative in any way.
Finally, “[a]ll the
COs” knew that Defendant Stretch had really been the one to
strike Defendant McCabe but concealed the truth in a “blue wall
of silence” until the truth was finally revealed after Defendant
Reeves’ first deposition.
ECF No. 145-7 at 6, 18:3.
Before admitting the truth, Defendant Reeves submitted
false reports stating Plaintiff “charged at S.C.O. McCabe and
punched him with a closed fist in the left side of the fact.”
ECF No. 145-2 at 7-8.
She testified in her first deposition
that she “took his feet because he was kicking a little bit.”
Id. at 19.
occurred[.]”
She denied having any idea “why this incident
Id. at 23.
If these disturbing facts are true, a reasonable jury could
conclude that Defendant Reeves did not act in good faith.
Moreover, there is evidence that her actions may constitute a
crime or willful misconduct.
See N.J.S.A. § 59:3-14 (“Nothing
in this act shall exonerate a public employee from liability if
it is established that [her] conduct was outside the scope of
[her] employment or constituted a crime, actual fraud, actual
21
malice or willful misconduct.”).
Defendant Reeves is therefore
not entitled to immunity under the NJTCA at this time.
E.
Substantive State Tort Claims
Defendant Reeves’ final argument is that Plaintiff cannot
meet his burden of proof on his state tort claims.
Plaintiff
concedes the intentional infliction of emotional distress claim
must be dismissed.
The Court denies summary judgment on the
assault and battery claims.
“A person is subject to liability for the common law tort
of assault if: ‘(a) [she] acts intending to cause a harmful or
offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and (b)
the other is thereby put in such imminent apprehension.’”
Leang
v. Jersey City Bd. of Educ., 969 A.2d 1097, 1117 (N.J. 2009)
(quoting Wigginton v. Servidio, 734 A.2d 798, 806 (N.J. Super.
Ct. App. Div. 1999)).
Imminent apprehension is interpreted to
mean that the person “must believe that the act may result in
imminent contact unless prevented from so resulting by the
other’s self-defensive action or by his flight or by the
intervention of some outside force.”
Restatement (Second) of
Torts § 24. “The tort of battery rests upon a nonconsensual
touching.”
Leang, 969 A.2d at 1117.
The Court denies summary judgment to Defendant Reeves on
the assault claim because Plaintiff has presented evidence that
22
she put him in a state of imminent apprehension prior to the
incident.
Plaintiff testified at his deposition that he became
afraid when he came down the stairs and saw the “lady guard” and
“the guard with the red hair” standing there:
It just, it just felt wrong. It felt like something was
going to happen, just their body language, the way
everything was set up. The way it felt when I came down,
I knew something was going to happen. When I got to the
bottom of the step, I knew something was going to happen,
something bad was going to happen, I could tell.
ECF No. 147 117:25 to 118:6.
There is evidence from which a
reasonable jury could conclude Defendant Reeves intentionally
put Plaintiff in imminent apprehension of contact.
Defendant Reeves argues Plaintiff cannot succeed on his
battery claim because “corrections officers are privileged to
commit a battery against a prisoner so long as the force used is
reasonable and does not violate the Eighth Amendment.”
103-1 at 31.
ECF No.
The Court has already identified a disputed issue
of fact on Plaintiff’s Eighth Amendment claim in the context of
Defendant Reeves’ qualified immunity argument.
The Court denies
summary judgment on the battery claim because a reasonable jury
could conclude on the current record that Defendant Reeves used
excessive force.
IV.
CONCLUSION
For the reasons set forth above, Defendant Reeves is
awarded summary judgment on the intentional infliction of
23
emotional distress claim.
The remainder of her motion is
denied.
An appropriate Order follows.
Dated: March 9, 2020
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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