RUIZ v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 55

MEMORANDUM OPINION AND ORDER, granting 44 Motion for Leave to File Amended Complaint; Amended Complaint due 7/28/17. Signed by Magistrate Judge Joel Schneider on 7/25/17. (js)

[Doc. No. 44]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MARIANITO RUIZ,
Plaintiff,
Civil No. 15-3304 (RBK/JS)
v.
NEW JERSEY DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
MEMORANUM OPINION AND ORDER
This matter is before the Court on plaintiff’s Motion for
Leave

to

File

Amended

Complaint.

[Doc.

No.

44].

The

Court

received defendants’ response [Doc. No. 50], plaintiff’s reply
[Doc. No. 52], and held oral argument on July 24, 2017. For the
reasons to be discussed, plaintiff’s motion will be GRANTED.
Background
The

background

potentially
inmate

at

complaint

facts

explosive.
Bayside

was

that

On

State

are

fairly

April

12,

Prison.

Corrections

straightforward
2013,

The

Officers

plaintiff

focus

of

(“C.O.”)

though
was

an

plaintiff’s
Stretch

and

McCabe beat him up and maced him for no reason, resulting in
serious injuries. On March 25, 2015, plaintiff filed suit in
state court naming as defendants the New Jersey Department of
Corrections, Bayside State Prison, C.O. Stretch, C.O. McCabe and
1

John and Jane Does. The case was removed to federal court on May
13, 2015.
After the Honorable Robert B. Kugler granted and denied in
part

defendants’

motion

to

dismiss,

the

Fed.

R.

Civ.

P.

16

Scheduling Conference was held on August 31, 2016. The resulting
Scheduling

Order

set

an

October

31,

2016

date

to

amend

pleadings. The deadline was later extended to February 15, 2017.
On

March

22,

2017,

plaintiff

took

the

depositions

of

C.O.’s

Togno and Arrowood. These officers essentially testified to the
“party line” that plaintiff was subdued after he assaulted C.O.
McCabe. C.O. Reeves was deposed on April 12, 2017. Her testimony
confirmed part of her written statement that plaintiff first
assaulted

McCabe.

After

allegedly

told

plaintiff’s

testimony

was

not

plaintiff

was

set

Reeves’
counsel

truthful.
up

to

deposition,
off

Reeves

be

the

record

allegedly

beaten

by

however,
that

stated

several

she
her
that

correction

officers, and that Stretch punched McCabe in the face to make it
look like McCabe was injured by plaintiff. On May 4, 2017 [Doc.
No. 42], the Court granted plaintiff leave to re-depose Reeves.
At her second deposition on May 19, 2017, Reeves did not answer
any

substantive

questions

and

asserted

the

Fifth

Amendment.

Plaintiff filed the instant motion shortly thereafter on June 9,
2017.

2

Plaintiff’s motion seeks leave to amend his complaint to
add defendants C.O.’s Manning, Togno, Arrowood, Ryan, Reeves,
Gribble and Weldon, and Internal Affairs Investigators Hepner
and Soltese. The gravamen of plaintiff’s amendment is that the
C.O.s engaged in a conspiracy to attack plaintiff and then with
the aid of their supervisors and investigators, covered up the
events

and

conspired

to

accuse

plaintiff

of

instigating

an

assault warranting the use of excessive force. Plaintiff’s Brief
(“PB”) at 1. Plaintiff alleges the named C.O.’s covered up their
conspiracy by falsely claiming that plaintiff first struck C.O.
McCabe requiring that plaintiff be subdued. Plaintiff alleges
Stretch hit McCabe in the face to make it appear McCabe was
struck by plaintiff.
Defendants oppose plaintiff’s motion arguing it is late,
plaintiff

cannot

defendants

and

establish
the

new

good

cause

parties

will

for
be

his

undue

prejudiced

delay,
by

the

amendment, and the amendment is futile because it is barred by
the

statute

of

limitations.

Plaintiff

counters

that

at

all

relevant times he acted diligently and that he promptly moved to
amend after receiving sufficient information to name the new
individual defendants. Plaintiff also argues joinder is proper
under

Fed.

R.

Civ.

P.

15

(c)(1)

and

16

(b)(4),

and

in

conformance with N.J.R. 4:26-4. Therefore, plaintiff argues, the
proposed amendment is not barred by the statute of limitations.
3

Discussion
Pursuant to Fed. R. Civ. P. 15(a), leave to amend pleadings
“shall be freely given when justice so requires.” Leave shall be
freely

given

in

the

absence

of

undue

delay,

bad

faith

or

dilatory motive on the part of the movant, repeated failure to
cure

deficiencies

in

previous

amendments,

undue

prejudice

or

futility of the amendment. Foman v. Davis, 371 U.S. 178, 182
(1962); see also Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.
2000). “[A]bsent undue or substantial prejudice, an amendment
should

be

grounded

allowed
in

unexplained

bad

under
faith

delay,

Rule
or

15(a)

dilatory

repeated

unless

‘denial

[can]

be

truly

undue

or

deficiency

by

motive,

failure

to

cure

amendments previously allowed or futility of amendment.’” Long
v.

Wilson,

393

F.3d

390,

400

(3d

Cir.

2004)(emphasis

in

original) (quoting Lundy v. Adamar of New Jersey, Inc., 34 F.3d
1173, 1196 (3d Cir. 1994)). An amendment sought pursuant to Rule
15(a)

shall

be

permitted

unless

it

would

be

inequitable

or

futile. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002). 1
Further,

since

plaintiff’s

motion

was

filed

after

the

Court’s February 15, 2017 deadline to amend pleadings, plaintiff
must

satisfy

the

standard

set

forth

in

Fed.

R.

Civ.

P.

6(b)(1)(B). This rule provides that when an act may or must be
1

Defendants do not argue plaintiff acted in bad faith or
repeatedly failed to cure deficiencies in previous amendments.
4

done in a specified time the Court may, for good cause, extend
the time on motion made after the time has expired if the party
failed to act because of “excusable neglect.” In determining
whether a party has demonstrated excusable neglect the Court
must consider the following five factors:
1) whether the inadvertence reflected professional
incompetence such as ignorance of rules of procedure,
2) whether an asserted inadvertence reflects an easily
manufactured excuse incapable of verification by the
court, 3) counsel’s failure to provide for a readily
foreseeable
consequence,
4)
a
complete
lack
of
diligence, or 5) whether the inadvertence resulted
despite counsel’s substantial good faith efforts
towards compliance.
Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir.
1988).

The

Supreme

Court

has

explained

that

the

“excusable

neglect” inquiry is “at bottom an equitable one, taking account
of all relevant circumstances surrounding the party’s omission,”
including, “the danger of prejudice to the [other party], the
length

of

the

delay

and

its

potential

impact

on

judicial

proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the
movant acted in good faith.” Pioneer Inv. Serv. Co. v. Brunswick
Assoc. Ltd. Partnership, 507 U.S. 380, 395 (1993).
1.

Good Cause, Undue Delay and Excusable Neglect

For the reasons to be discussed, the Court finds there is
good cause to grant plaintiff’s amendment, the amendment was not
unduly delayed, and plaintiff has established excusable neglect
5

for why his motion was not filed earlier. It is not remarkable
that plaintiff could not identify the names of all the persons
who participated in his alleged assault, conspiracy and cover-up
when he filed his complaint. This sort of information is not
easily retrievable. On the rare occasions when conspiratorial
evidence exists, it is not typically revealed, if at all, until
the end of a case. This case is in the early stage of discovery.
The nature of the information plaintiff recently learned
explains why he only named C.O.’s Stretch and McCabe in his
complaint. Plaintiff had no good reason not to identify other
responsible defendants. The Court credits plaintiff’s statement
that the off the record statements made by Reeves after her
first deposition, combined with her refusal to answer questions
at

her

second

deposition,

created

the

basis

of

plaintiff’s

inferences against the new proposed defendants. Plaintiff Reply
Brief (“PRB”) at 2. Also significant is the fact that key audio
interviews

were

not

produced

until

April

4,

2017,

after

the

February 15, 2017 deadline to amend pleadings.
Defendants
deposition

and

minimize
argue

the

she

significance
did

not

of

reveal

Reeves’
any

second

substantive

information. However, defendants fail to recognize plaintiff is
seeking to join Reeves as a party. The Fifth Amendment does not
forbid adverse inferences against parties to civil actions when
they refuse to testify in response to probative evidence against
6

them. Baxter v. Palmigiano, 425 U.S. 308, 318 (1976); SEC v.
Graystone Nash, Inc., 25 F.3d 187, 190 (3d Cir. 1994)(reliance
on

the

Fifth

Amendment

in

civil

cases

may

give

rise

to

an

adverse inference against the party claiming its benefits.)
For

the

foregoing

and

other

reasons

plaintiff

also

satisfies the “excusable neglect” standard in Fed. R. Civ. P.
6(b)(1)(B). Plaintiff’s failure to file his motion earlier was
not due to inadvertence and plaintiff acted diligently and in
good faith. The Court does not know if plaintiff’s allegations
are true or not. However, given that the “excusable neglect”
standard is grounded in equity (Dominic, supra), justice demands
that plaintiff be given an opportunity to find out if he was
subject to an unprovoked attack by his Correction Officers.
The

Court

rejects

defendants’

argument

that

the

new

information plaintiff relies upon was available before February
15, 2017. Defendants’ Brief (“DB”) at 2. Promptly after Reeves’
second deposition on May 19, 2017, plaintiff moved to amend his
complaint.

Prior

to

May

19,

2017,

the

depositions

of

C.O.’s

Togno and Arrowood merely confirmed the defendants’ party line.
It

cannot

be

seriously

argued

that

until

Reeves’

revelation

plaintiff had no basis in fact to believe that a conspiracy
existed to assault him and to cover-up this fact. It was not
until after Reeves’ second deposition that plaintiff had enough
information to justify joining the new parties.
7

Defendant
opportunity

to

argues
join

plaintiff

the

new

had

parties

adequate
much

knowledge

earlier

and

because

he

learned of their names in connection with plaintiff’s April 15,
2013

disciplinary

hearing,

and

the

officers’

reports

were

produced during discovery. However, none of this evidence gave
plaintiff a clue as to the alleged conspiracy and cover-up that
may have existed. Plaintiff is not to be faulted because he did
not “rush to judgment” to join every C.O. who had any connection
to his incident. In fact, plaintiff’s prudence is refreshing. No
one can seriously contest plaintiff’s position that none of the
documents he was provided with in discovery gave an indication
that his assault was pre-planned and a conspiracy existed to
cover it up. PRB at 7.
The mere fact that plaintiff’s motion could have been filed
earlier is not determinative on whether his proposed amendment
should be granted. See Adams v. Gould, Inc., 739 F.2d 858, 869
(3d Cir. 1984)(the mere passage of time, without more, does not
require that a motion to amend a complaint be denied): Deakyne
v. Commissioners of Lewes, 416 F.2d 290, 300 n. 19 (3d Cir.
1969)(delay

alone

is

an

insufficient

ground

to

deny

an

amendment). It is not unusual for pleadings to be amended long
after a complaint is filed and even at the summary judgment
stage of a case. Adams, 739 F.2d at 869. Indeed, amendments may
be made during trial, after the close of testimony, or even
8

after judgment. See Wright, Miller & Kane, Federal Practice and
Procedure Civil 2d '1494, pp. 51-52. In contrast to these cases,
plaintiff’s motion was filed at a relatively early stage in the
case. Also, not much time elapsed between the deadline to amend
pleadings and when plaintiff’s motion was filed. In addition,
much discovery and depositions remain to be taken before the
record is closed.
Defendants

also

argue

plaintiff

did

not

obtain

any

new

credible evidence after February 15, 2017, that led him to now
seek to amend. DB at 10. Defendants are wrong since they ignore
the off the record conversation with Reeves on April 12, 2017,
and Reeves’ refusal to answer questions on May 19, 2017. The
Court agrees with plaintiff that “[i]t was not until April 12,
2017,

during,

and

more

specifically

after

the

deposition

of

proposed defendant, Lauren Reeves, that plaintiff learned of the
proposed named defendants’ actions and roles in planning, and
carrying

out

the

unwarranted

assault

on

plaintiff

and

the

efforts to cover up same.” PRB at 2. The Court will not punish
plaintiff because he prudently waited until he received alleged
incriminating facts before he moved to join the new parties. Had
plaintiff done otherwise, defendants would have likely argued
plaintiff indiscriminately joined new parties without supporting
facts. The mere fact that the names of the new parties were

9

listed in documents did not give plaintiff a reason to believe
they were involved in a conspiracy and cover-up.
The Court rejects any notion that plaintiff did not act
diligently to seek relevant discovery. Plaintiff first sought to
depose C.O.’s in January 2017, but the depositions were moved to
March 23, 2017, through no fault of plaintiff. Plaintiff will
not be penalized because he appropriately accommodated opposing
counsel’s scheduling conflict. Further, promptly after Reeves’
first

deposition

plaintiff

requested

leave

to

depose

her

a

second time over defendants’ objection. In addition, plaintiff
moved to amend promptly after Reeves’ second deposition. This
evidences that at all relevant times plaintiff acted diligently
without undue delay.
2.

Futility

Defendant argues plaintiff’s amendment is futile because it
is

barred

by

the

statute

of

limitations. 2

The

statute

of

limitations that applies to plaintiff’s civil rights and tort
claims is two years. Walls v. County of Camden, C.A. No. 06-5961
(JEI), 2008 WL 4934052, at *3 (D.N.J. Nov. 13, 2008); N.J.S.A.
'2A:14-2. Plaintiff’s original complaint was filed on March 25,

2

Plaintiff also argues there is no good cause to name C.O.’s
Arrowood, Weldon and Ryan, C.O. Gribble, and investigators
Hepner and Soltese. The Court disagrees. Based on what Reeves
told plaintiff’s counsel, plaintiff may reasonably infer that a
conspiracy of silence existed amongst all the C.O.’s and
investigators involved with plaintiff’s incident. The Court is
of course not weighing in on the merits of Reeves’ accusations.
10

2015. Since the present motion was filed on June 9, 2017, more
than two (2) years after the complaint was filed, plaintiff’s
claims

are

barred

by

the

statute

of

limitations

unless

they

relate back to the filing of the original complaint.
Pursuant to Rule 15(c)(1)(A), an amended complaint relates
back to the filing of the original complaint if relation back is
allowed under the law that provides the applicable statute of
limitations,
Jersey

in

Rule,

this

R.

case,

4:26-4,

New

which

Jersey
applies

law.
to

The

relevant

actions

in

New

which

fictitious or John Doe parties are named, provides:
[I]f the defendant's true name is unknown to the
plaintiff, process may issue against the defendant
under a fictitious name, stating it to be fictitious
and adding an appropriate description sufficient for
identification. Plaintiff shall on motion, prior to
judgment, amend the complaint to state defendant's
true name, such motion to be accompanied by an
affidavit stating the manner in which that information
was obtained.
As the Rule states, when pleading fictitiously the pleading
party

must

defendant

not

and

know

must

the

true

include

in

identity
the

of

the

fictitious

an

appropriate

pleading

description sufficient to identify the defendant. N.J.R. 4:26-4;
Rutkowski v. Liberty Mut. Ins. Co., 209 N.J. Super. 140, 146
(App. Div. 1986). 3

Additionally, the “fictitious party rule may

be

the

used

only

if

plaintiff

3

exercised

due

diligence

to

The John and Jane Doe parties were identified in plaintiff’s
complaint. See Compl. ¶¶ 4-8, Doc. No. 44-2. Defendants do not
challenge
whether
the
John
and
Jane
Doe
parties
were
appropriately identified.
11

ascertain the defendant's true name before and after filing the
complaint.” DeRienzo v. Harvard Industries, Inc., 357 F.3d 348,
353 (3d. Cir. 2004). “A plaintiff will be precluded from using
R.

4:26-4

if,

through

the

use

of

diligence,

the

defendant’s

identity could have been determined prior to the running of the
statute

of

limitations.”

04-2406

(JBS),

2008

v.

City

of

408423,

WL

Monaco

Camden,

at

*4-5

(D.N.J.

C.A.

No.

February

13,

2008).
As

the

“standard

New

Jersey

definition”

Supreme

of

due

Court

has

not

diligence,

its

provided
meaning

a
is

determined on a case-by-case basis. DeRienzo, 357 F.3d at 354
(citing

O’Keefe

standard,

v.

however,

Snyder,
is

not

83

N.J.

onerous.

478,

See,

499

e.g.,

(1980)).
Ortiz

ex

The
rel.

Rivera v. City of Camden, C.A. No. 11-2300 (NLH/AMD), 2013 WL
1811895, at *4-5 (D.N.J. Apr. 29, 2013) (plaintiffs, though “not
tenacious in their quest to identify the officers” to be named
in the complaint, satisfied the due diligence requirement by
naming them after their names were revealed through discovery).
While the definition is fluid, “[t]he New Jersey Supreme Court
has

instructed

that

[the

district]

court

should

broadly

interpret the diligence requirement to one of a ‘good faith’
effort

by

plaintiff

to

determine

the

fictitious

party's

identity.” Ortiz, 2013 WL 1811895, at *5 (citation omitted).

12

Application of the fictitious party rule must not prejudice
the

defendant

“by

the

delay

in

[his]

identification

as

a

potentially liable party and service of the amended complaint.”
Claypotch v. Heller, Inc., 360 N.J. Super. 472, 480 (App. Div.
2003) (citing Farrell v. Votator Div. of Chemetron Corp., 62
N.J.

111,

122

(1973)).

Factors

which

New

Jersey

courts

have

found to constitute substantial prejudice include destruction or
alteration

of

frustration

evidence

of

after

attempts

at

the

initial

subsequent

discovery

period,

examination,

witness

unavailability, or memory lapse due to delay. DeRienzo, 357 F.3d
at

356.

Thus,

whether

plaintiff

may

avail

herself

of

N.J.R.

4:26-4 turns on three factors: (1) whether plaintiff exercised
due

diligence

whether

the

in

identifying

lapse

of

the
has

time

proposed

defendants;

prejudiced

the

(2)

proposed

defendants; and (3) whether plaintiff acted with due diligence
in

substituting

identified.

The

the

proposed

Court

finds

defendants

that

plaintiff

once

they

has

met

were
these

requirements.
For the same reasons already discussed, the Court finds
plaintiff

exercised

due

diligence

to

identify

the

proposed

defendants. Plaintiff promptly undertook written discovery and
depositions and followed up with a second deposition of Reeves
after the key off the record conversation took place. Although
the names of the proposed defendants may have been mentioned in
13

some

documents

exchanged

in

discovery,

this

did

not

put

plaintiff on notice of defendants’ alleged conspiracy and coverup. The applicable case law requires due, not perfect diligence.
Plaintiff satisfied this standard and unquestionably made a good
faith effort to identify the John and Jane Doe parties. Ortiz ex
rel.

Rivera,

supra.

Further,

plaintiff

acted

diligently

to

substitute the new parties after their potential liability came
to his attention. Plaintiff’s motion was filed promptly after
Reeves’ second deposition.
The Court disagrees with defendants that the new parties
will be prejudiced by their joinder. These parties’ versions of
what happened on April 12, 2013 is well documented in written
statements and oral recordings.
have

no

recollection

recollections

will

It is unlikely these parties

what

be

not

of

happened

refreshed

by

or
the

that

their

evidence

and

statements that already exist. Further, it is not alleged that
any

relevant

witnesses

are

no

longer

available

or

that

key

evidence has been lost or destroyed. The Court acknowledges the
joinder of the new parties will lengthen the case, create more
discovery and delay the ultimate outcome.

However, this is not

the sort of prejudice that warrants denying plaintiff’s motion.
The Court will adjust the current scheduling deadlines to assure
that

defendants

and

the

new

parties

have

a

reasonable

opportunity to prepare and present their defense. To the extent
14

any

relevant

foisted

on

evidence

is

plaintiff.

investigation

of

not

All

available,

relevant

plaintiff’s

blame

evidence

incident

was

will

not

regarding
in

be
the

defendants’

exclusive possession.
Since plaintiff adequately described the fictitious parties
in his complaint, plaintiff exercised due diligence to identify
the new defendants, the proposed defendants are not prejudiced
by

their

joinder,

and

plaintiff

acted

diligently

to

move

to

substitute the new parties after they were identified, plaintiff
has

satisfied

Thus,

the

plaintiff’s

relation
amendment

back
is

criteria

not

barred

in

N.J.R.

by

the

4:26-4.

statute

of

limitations.
3.

Prejudice

The

Court

proposed

rejects

defendants

the

are

argument

prejudiced

that
by

defendants
granting

and

the

plaintiff’s

motion. Prejudice to the nonmoving party is the “touchstone” for
the denial of an amendment pursuant to Fed. R. Civ. P 15(a).
Cornell & Co., Inc. v. Occupational Safety and Health Review
Comm’n, 573 F.2d 820, 823 (3d Cir. 1978). The burden of proving
prejudice resulting from an amendment is on the nonmoving party.
In

re

Bristol-Myers

Squibb

Securities

Litigation,

228

F.R.D.

221, 228 (D.N.J. 2005). Prejudice in this context involves a
showing that “an unfair disadvantage or deprivation will result
by

allowing

the

amendment.”

Id.
15

“Prejudice”

for

purposes

of

deciding whether to permit a proposed amendment involves serious
impairment

of

the

non-party’s

ability

to

present

its

case.

Harter v. GAF Corp., 150 F.R.D. 502, 509 (D.N.J. 1993). Further,
undue prejudice exists where the nonmoving party shows it would
be

unfairly

disadvantaged

or

deprived

of

the

opportunity

to

present facts or evidence that it would have offered. Harrison
Beverage Co. v. Dribeck Importers, Inc., 113 F.R.D. 463, 468
(D.N.J. 1990).
No undue prejudice will result from granting plaintiff’s
motion. All relevant evidence should still be available and the
current scheduling order will be amended to give all parties a
fair opportunity to conduct discovery and present their claims
and defenses. Given the extensive investigation of plaintiff’s
April 12, 2013 incident, defendants cannot credibly argue that
relevant evidence is not readily available.
relevant

evidence

since

the

relevant

under

defendants’

is

not

available,

investigation
exclusive

To the extent any

defendants

reports

possession.

and

are

to

recordings

Defendants’

blame
were

possible

spoliation will not inure to their benefit.
Conclusion
Accordingly, for all the foregoing reasons, it is hereby
ORDERED this 25th day of July, 2017, that plaintiff’s Motion for
Leave to File Amended Complaint is GRANTED. By July 28, 2017,
plaintiff shall file his proposed amended complaint [Doc. No.
16

44-7]

and

serve

Rules

of

Civil

the

pleading

Procedure.

in
This

accordance
Order

is

with

the

entered

Federal
without

prejudice to the rights of the defendants and new parties to
assert all appropriate defenses.
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: July 25, 2017

17