1

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

__________________________________________

 :

BRADLEY C. PETERSON, :

 :

 Plaintiff, :

 : Civil Action No. 11-2594 (FLW)

 v. : 

 : OPINION

ADMINISTRATOR CHRISTOPHER :

HOLMES, et al., :

 :

Defendants. :

__________________________________________:

WOLFSON, United States District Judge:

Plaintiff Bradley C. Peterson (“Plaintiff”) initiated this action against Administrator 

Christopher Holmes, Chief James Keil, Captain R. Ortiz, Lieutenant Stephen Alaimo, Sergeant 

Mark Perkins, Sergeant Keith Newsom, Christopher Israel, Nathan Gundy, Daniel Powell, M. 

Lashley, Damien Albanese, Albert Matlock, Reginald Lewis, J. Barnes III, P. Fisher, John Doe 

Corrections Officers 1-10, and John Doe Supervisors 1-10 (collectively, “Defendants”), 

following an altercation between Plaintiff and several employees of the New Jersey Department 

of Corrections (“NJDOC”), while Plaintiff was an inmate at the New Jersey State Prison

(“NJSP”). In his Complaint (“First Amended Complaint”), Plaintiff asserts civil rights claims, 

pursuant to 42 U.S.C. § 1983 and the New Jersey Civil Rights Act (“NJCRA”), for excessive 

force, failure to intervene, conspiracy, and supervisory liability, as well as claims arising under 

state law. Presently before the Court is a Motion for Summary Judgment filed by Plaintiff, 

seeking to impose liability against individual Defendant Keith Newsom, on the ground that 

collateral estoppel precludes Defendant Newsom from relitigating factual findings rendered by 
2

an Administrative Law Judge in a prior disciplinary action against Newsom. Defendant Newsom 

has filed opposition to Plaintiff’s Motion, which was joined by co-defendant Stephen Alaimo. 

For the reasons that follow, the Court concludes that the application of collateral estoppel is not 

warranted here, and Plaintiff’s Motion for Summary Judgment is DENIED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY1

This matter arises out of an incident that occurred on July 13, 2010, at the NJSP. At the 

time of the alleged incident, Plaintiff was an inmate housed on Unit 3 Left. (Plaintiff’s 

Statement of Undisputed Material Facts (“Pl.’s Facts”), ¶ 2). 

At approximately 8:00 a.m. on the morning of July 13, 2010, Officers Albert Matlock and 

Reginald Lewis released Plaintiff from his cell for outside recreation. (Id. at ¶ 3). As Plaintiff 

exited his cell, Officer Lewis instructed him to tuck in his shirt, and a physical altercation 

erupted between Plaintiff and Officers Matlock and Lewis. (Pl.’s Resp. to Defs.’ Facts, ¶ 4).2

 

Officers Matlock and Lewis called in a Code 33, signifying to other officers that emergency 

assistance was needed. (Pl.’s Facts, ¶ 4). Plaintiff scampered under a nearby staircase to hide 

while additional officers arrived on the scene. (Id. at ¶ 4-5). 

The parties diverge as to who instigated the initial altercation, and on the sequence of 

events occurring thereafter. Plaintiff alleges that Officer Lewis attempted to throw a punch at 

Plaintiff’s head contemporaneously with his request that Plaintiff tuck in his shirt. (Pl.’s Resp. to 

Defs.’ Facts, ¶ 4). Plaintiff claims that after he dodged Lewis’ punch, he observed Officer 

 1 The Court only recounts the facts necessary for resolution of this Motion. All facts are 

undisputed unless otherwise noted. 

2 In Plaintiff’s Statement of Material Facts, he incorporates by reference his prior 

Counterstatement of Material Facts (“Pl.’s Resp. to Defs.’ Facts”) from Plaintiff’s Opposition to 

Defendants’ prior Motion for Summary Judgment. (Pl.’s Facts, ¶ 1). Accordingly, the Court, on 

this Motion, will consider that document, as well. 
3

Matlock swing for his face. (Id.). According to Plaintiff, he was tripped from behind as he

attempted to move towards the door of his cell, and Officers Matlock and Lewis landed a flurry 

of punches to his face as he fell to the floor. (Id.). 

Next, Plaintiff alleges that upon hearing the call for a Code 33, he hid under a nearby

staircase to protect himself while waiting for a supervisor to arrive. (Id. at ¶ 5). Plaintiff claims 

that Officer Albanese was the first person to respond to the Code 33, and, upon arriving on the 

scene, Albanese called for Plaintiff to emerge from under the stairwell. (Id. at ¶ 6-7). When 

Plaintiff refused to come out, Officer Albanese allegedly struck him on the legs. (Id. at ¶ 7). As 

other officers arrived on the scene, Plaintiff alleges that he was pulled out from under the 

staircase, flipped onto his stomach, and handcuffed. (Id. at ¶ 8, 16). Plaintiff avers that he 

continued to be beaten following his emergence from the stairwell. (Id. at ¶ 8-9). In that regard, 

Plaintiff testified in his deposition that he suffered numerous blows by way of baton and foot, 

and that the most damaging blow occurred after he had already been restrained. (Id. at ¶ 9-10). 

He did not, however, testify as to whether Defendant Newsom struck him. (See Pl.’s Dep. at 

45:13-22; 46:17-23). Rather, Plaintiff relies on the testimony of Officer Israel to allege that after 

Plaintiff was handcuffed, Defendant Newsom struck Plaintiff in the forehead twice with an 

expandable baton. (Pl.’s Facts, ¶ 9-10). Plaintiff further avers that Defendant Newsom then

directed Officer Israel to falsify a Special Custody Report regarding the incident. (Id. at ¶ 11). 

Defendant Newsom’s version of the facts stands in stark contrast. In particular, 

Defendant Newsom testified that Plaintiff provoked the altercation with Officers Matlock and 

Lewis. (Def. Newsom’s Counterstatement of Material Facts (“CSMF”), ¶ 9). Additionally, 

Defendant Newsom denies striking Plaintiff in the head with an expandable baton while Plaintiff 
4

was restrained. (Id. at ¶ 10). Defendant Newsom also denies that he directed Officer Israel to 

falsify the Special Custody Report. (Id. at ¶ 11). 

On January 9, 2013, Plaintiff filed the First Amended Complaint.

3

 On December 30, 

2014, while Plaintiff’s civil action was pending, the NJDOC issued a Final Notice of 

Disciplinary Action (“FNDA”) against Defendant Newsom, removing him from his position of 

employment as a Corrections Sergeant. Defendant Newsom appealed his removal to the Civil 

Service Commission on January 23, 2015. Thereafter, the Civil Service Commission transferred 

Defendant Newsom’s disciplinary matter to the New Jersey Office of Administrative Law 

(“OAL”) for adjudication, and the case was assigned to the Honorable Joseph A. Ascione, an 

Administrative Law Judge of the OAL (the “ALJ”). 

In the case before the ALJ, the NJDOC brought the following disciplinary charges 

against Defendant Newsom: Conduct Unbecoming a Public Employee, N.J.A.C. 4A:2-2.3(a)(6); 

Other Sufficient Cause, N.J.A.C. 4A:2-2.3(a)(11); C.11 Conduct Unbecoming an Employee, 

HRB 84-17; C.3 Physical or Mental Abuse of an Inmate, Patient, Client, Resident or Employee; 

and C.5 Inappropriate Physical Contact or Mistreatment of an Inmate, Patient, Client, Resident, 

or Employee, HRB 84-17. The ALJ conducted hearings in the administrative matter over the 

course of eight days, beginning on August 10, 2015, and concluding on October 15, 2015. While 

Defendant Newsom and multiple officers testified in the administrative proceedings, Plaintiff did 

not testify at the hearings.

4

 

 3 The specific Counts of the First Amended Complaint are addressed, infra. 4 Specifically, the NJDOC offered testimony from the following individuals: Senior Correction 

Officer Albert Matlock; Senior Correction Officer Reginald Lewis; Senior Correction Officer 

Damian Albanese; Senior Correction Officer Nathan Gundy; Senior Correction Officer 

Christopher Israel; Senior Correction Officer Michael Wohlfert; Lieutenant Marvin Ganesh; 

Lieutenant Mark Perkins; Leigh Johnson; Lieutenant Karen Ortman; Associate Administrator 

Antonio Campos; and Dr. Jonathan Briskin. Defendant Newsom testified on his own behalf, and 
5

In an opinion dated February 24, 2016, the ALJ sustained the charges of Conduct 

Unbecoming a Public Employee and Other Sufficient Cause, and affirmed Defendant Newsom’s 

removal from employment with the NJDOC. Specifically, the ALJ made the following findings 

of fact:

1. [Plaintiff’s] injuries were caused by more force than fist impacts to his facial area.

2. [Plaintiff’s] injuries were not caused by a kick to the facial area.

3. After [Plaintiff] had been restrained in handcuffs and leg shackles, and no longer 

presented a threat to Newsom or other prisoner personnel, Israel saw Newsom strike 

[Plaintiff’s] facial area two times with his [expandable baton].

4. Israel did not include this observation on his initial [Special Custody Report], as 

Newsom advised him to limit his report to the escort portion of his incident.

5. [Senior Correction Officer Nathan] Gundy’s report to the prosecutor acknowledged 

the contact made between Newsom’s [expandable baton] and [Plaintiff’s] face, after 

which [Plaintiff’s] bleeding increased profusely.

6. Newsom’s striking of [Plaintiff’s] face with his [expandable baton] constitutes the use 

of deadly force. 

7. [Senior Correction Officer Albert] Matlock’s altercation with [Plaintiff] may have 

resulted in some injury to Plaintiff’s face; however, Newsom’s striking of [Plaintiff’s] 

face with his [expandable baton] resulted in additional extensive injury.

(Kevin Newsom, OAL Dkt. No. CSR 01620-15, 23 (OAL Feb. 24, 2016) (A.L.J. Ascione) 

(“A.L.J. Op.”)). Based on those findings and his review of the testimony presented in the case, 

the ALJ concluded that “the preponderance of competent and credible evidence has established 

that [Newsom] violated both N.J.A.C. 4A:2-2.3(a)(6) and N.J.A.C. 4A:2-2.3(a)(11) by striking in 

the face the handcuffed, leg-shackled, and restrained [Plaintiff] with his [expandable baton].” 

 

also presented the testimony of: Senior Correction Officer David B. Lewis; Senior Correction 

Officer Jesse Barnes, III; Senior Correction Officer Phillip Fisher; Lieutenant DeWitt Gamble; 

Major Stephen Alaimo; Senior Correction Officer Robert McCormack; and Dr. Randy Tartacoff. 

Plaintiff was not available to testify at the administrative hearings due to his incarceration. (See

Kevin Newsom, OAL Dkt. No. CSR 01620-15, 19 (OAL Feb. 24, 2016) (A.L.J. Ascione)). 
6

(Id. at 25). Pursuant to N.J.A.C. 40A:14-204, the ALJ’s decision became final on April 25, 

2016. 

On January 8, 2016, Defendant Alaimo moved for summary judgment as to all claims 

against him. (ECF No. 125). Defendants Holmes, Ortiz, Perkins, Albanese, Barnes, Fisher, 

Gundy, Israel, Lashley, Lewis, Matlock, and Powell (collectively, the “State Defendants”) 

moved for summary judgment as to all claims against them on January 9, 2016. (ECF No. 126). 

Additionally, Defendant Keil moved for summary judgment on January 15, 2015. (ECF No. 

130). Plaintiff filed opposition to all three motions on February 23, 2016. (ECF No. 140). 

Defendant Alaimo and the State Defendants filed their respective reply briefs on March 1, 2016, 

and Defendant Keil filed his reply brief on March 2, 2014. (ECF Nos. 142-44). On August 30, 

2016, the Court issued an Opinion resolving the three motions. Pursuant to that Opinion, the

only Counts remaining in Plaintiff’s First Amended Complaint are as follows: (i) a § 1983 claim 

for excessive force, contrary to the Eight Amendment of the United States Constitution, against 

Defendants Matlock, Lewis, Albanese, Newsom, and Perkins; (ii) a NJCRA claim for failure to 

intervene against Defendants Matlock, Lewis, Albanese, Israel, Barnes, Gundy, Lashley, Fisher, 

Perkins, Powell, Alaimo, and Newsom; and (iii) a § 1983 claim for failure to intervene, in 

violation of the Eighth Amendment, against Defendants Matlock, Lewis, Albanese, Israel, 

Barnes, Gundy, Lashley, Fisher, Perkins, Powell, Alaimo, and Newsom.

II. STANDARD OF REVIEW

Summary judgment is appropriate where the Court is satisfied that “there is no genuine 

issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” 

FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Orson, Inc. v. 

Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). The moving party bears the burden of 
7

demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 322. 

Once the moving party has satisfied this initial burden, the opposing party must identify “specific 

facts which demonstrate that there exists a genuine issue for trial.” Orson, 79 F.3d at 1366.

Not every issue of fact is sufficient to defeat a motion for summary judgment; issues of 

fact are genuine “if the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Additionally, the 

nonmoving party cannot rest upon mere allegations; he must present actual evidence that creates 

a genuine issue of material fact. See FED. R. CIV. P. 56(e); Anderson, 477 U.S. at 249 (citing 

First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). In conducting a review of the 

facts, the nonmoving party is entitled to all reasonable inferences and the record is construed in 

the light most favorable to that party. See Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 

860, 864 (3d Cir. 1986). Accordingly, it is not the Court's role to make findings of fact, but to 

analyze the facts presented and determine if a reasonable jury could return a verdict for the 

nonmoving party. See Brooks v. Kyler, 204 F.3d 102, 105, n.5 (3d Cir. 2000) (citing Anderson, 

477 U.S. at 249); Big Apple BMW v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

III. DISCUSSION

Plaintiff moves for summary judgment against Defendant Newsom, arguing that the 

Court should apply collateral estoppel with respect to the factual findings of the ALJ in the 

disciplinary proceeding against Defendant Newsom, and that the ALJ’s findings regarding 

Defendant Newsom’s use of force entitle Plaintiff to summary judgment on his Eighth

Amendment claims against Defendant Newsom.5

 5 Plaintiff maintains that the ALJ’s findings, if accepted by this Court, constitute excessive force. 

However, because the Court finds that collateral estoppel is not warranted in this case, it need not 

reach those issues for the purposes of the present Motion. 
8

The doctrine of collateral estoppel, or issue preclusion, prevents a party from relitigating 

issues that were adjudicated in a prior lawsuit. In re Docteroff, 133 F.3d 210, 214 (3d Cir. 1997). 

Collateral estoppel exists to promote judicial consistency, encourage reliance on court decisions, 

and protect defendants from being forced to relitigate the same issues in multiple lawsuits. Allen 

v. McCurry, 449 U.S. 90, 94 (1980).

In general, federal courts accord preclusive effect to the adjudications of both state and 

federal administrative tribunals, so long as two requirements are met. First, the administrative 

tribunal must have have acted “in a judicial capacity,” resolved issues properly before it, and 

must provide the party against whom estoppel is asserted with a “full and fair opportunity” to 

litigate his claims, e.g., provide that party “ample opportunity to present his views and to crossexamine the witnesses against him.” Edmundson v. Borough of Kennett Square, 4 F.3d 186, 192 

(3d Cir. 1993). Second, pursuant to the Full Faith and Credit Clause, 28 U.S.C. § 1738, the 

federal court must look to the law of the adjudicating state to determine if a state court would 

accord the judgment of the administrative tribunal preclusive effect. Greenleaf v. Garlock, Inc., 

174 F.3d 352, 357 (3d Cir. 1999).

Nonetheless, while the Supreme Court has recognized that issue preclusion applies to the 

decisions of state and federal agencies, acting in a judicial capacity, see Astoria Fed. Sav. & 

Loan Ass'n v. Solimino, 501 U.S. 104, 107 (1991), the Court has cautioned that the suitability of 

applying administrative collateral estoppel “may vary according to the specific context of the 

rights at stake, the power of the agency, and the relative adequacy of agency procedures.” Id. at 

110. In section 1983 cases, such as the present matter, where an agency’s ruling is not reviewed 

by a state court, collateral estoppel is limited to administrative fact-finding. Edmundson, 4 F.3d 

at 189 (“[I]n section 1983 cases, only state administrative factfinding is entitled to preclusive 
9

effect in the federal courts when the agency ruling remains unreviewed by state courts.”). The 

Court will turn next to each of those requirements.

A. The Administrative Law Judge Acted in a Judicial Capacity

First, there is no dispute that the ALJ acted in a judicial capacity in the administrative 

proceeding when he found that Defendant Newsom violated N.J.A.C. 4A:2-2.3(a)(6) and 

N.J.A.C. 4A:2-2.3(a)(11). While Plaintiff was a non-party to the administrative proceedings, in 

determining whether the ALJ acted in a judicial capacity, the Court looks to the nature of the 

proceeding. Here, the ALJ heard testimony from more than twenty witnesses over eight days of 

hearings, and provided opportunity for the participating parties to advocate their respective 

positions. See O'Hara v. Board of Education, 590 F. Supp. 696, 701 (D.N.J. 1984) (finding that 

an agency acted in a judicial capacity where it “had a full hearing and provided an opportunity 

for both parties to appear and be represented by counsel, to present evidence and to call, examine 

and cross-examine witnesses.”). Following the hearing, the ALJ issued findings of fact and 

determined that Defendant Newsom violated N.J.A.C. 4A:2-2.3(a)(6) and (a)(11). Thus, the ALJ 

acted in a judicial capacity by employing the aforementioned procedures and resolving disputes 

of fact and law properly before him. 

B. Collateral Estoppel Under New Jersey Law

Second, because the administrative proceeding in this case took place in New Jersey, the 

Court must determine whether a New Jersey state court would accord the ALJ’s ruling preclusive 

effect. Under New Jersey law, a party seeking to invoke the doctrine of collateral estoppel must 

demonstrate that: (1) the issue to be precluded is identical to the issue decided in the prior 

proceeding; (2) the issue was actually litigated in the proceeding; (3) the court in the prior 

proceeding issued a final judgment on the merits; (4) the determination of the issue was essential 
10

to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in 

privity with a party to the earlier proceeding. Wildoner v. Borough of Ramsey, 316 N.J. Super. 

487, 506 (App. Div. 1998) (citing In re Dawson, 136 N.J. 1, 20 (1994)). In this case, Defendant 

Newsom concedes that only factors two and five remain in dispute.6 Applying those factors to 

the present matter, the Court finds that collateral estoppel does not apply to the ALJ’s findings. 

1. The Issues Were Not Actually Litigated in the Prior Proceeding

Defendant Newsom argues that the Court should not invoke collateral estoppel in this 

case, because the issues decided before the administrative tribunal were not “actually litigated”

in that forum. Under New Jersey law governing collateral estoppel, an issue is “actually 

litigated” where the party against whom the doctrine is applied had a “full and fair opportunity to 

litigate the issue in the prior proceeding.” See Houbigant, Inc. v. Fed. Ins. Co., 374 F.3d 192, 

204 (3d Cir. 2004) (quoting Pace v. Kuchinsky, 347 N.J. Super. 202, 214 (App. Div. 2002)). 

This is satisfied when a party had the opportunity to present his or her evidence to a competent 

tribunal. See Edmundson, 4 F.3d at 192 (finding that the plaintiff was given a full and fair 

opportunity to litigate an issue, where the administrative tribunal “gave plaintiff ample 

opportunity to present his views and to cross-examine the witnesses against him.”). Defendant 

Newsom argues that the “actually litigated” requirement is not satisfied here, since Plaintiff was 

not available to testify at the administrative hearings, and as such, Defendant Newsom contends 

that he was deprived of the ability to cross-examine Plaintiff. I agree. 

This Court cannot find, based on the record of the administrative proceedings before it, 

that the issue of whether Defendant Newsom used excessive force was “actually litigated” before 

 6 See Def.’s Opp’n to Pl.’s Mot. for Summ. J. 15 (“In this case, Plaintiff is unable to satisfy two 

(2) of the requirements for issue preclusion to be applied.”). As such, the Court will not address 

factors one, three, and four.
11

the ALJ. While the ALJ heard testimony from various individuals, he rendered his findings of

fact without considering the testimony of Plaintiff. Plaintiff was incarcerated at the time of the 

administrative hearings, and has provided no evidence that either the NJDOC or Defendant 

Newsom sought to compel him to testify before the ALJ. Additionally, the ALJ excluded

Plaintiff’s deposition testimony, which was given in the present matter, reasoning that the 

testimony had been obtained when the State was represented by different counsel. (See A.L.J. 

Op., at 19). The fact that Plaintiff was not present at the administrative proceedings to testify is 

probative to the assessment of the “actually litigated” element. 

Indeed, Defendant Newsom’s inability to question or cross-examine Plaintiff, or provide 

Plaintiff’s deposition testimony, supports a finding that the issue of whether Defendant Newsom 

struck Plaintiff in the facial area with an expandable baton was not “actually litigated.” 

Tellingly, Plaintiff’s deposition testimony given in this case regarding the alleged incident was 

equivocal. Specifically, Plaintiff testified that he recalled being struck in the facial area with 

fists and kicks, as well as to the body by fists, kicks, and batons, but, importantly, Plaintiff did 

not testify that he was struck in the facial area by way of baton. (See Pl.’s Dep. at 27:5-29:19; 

237:24-238:5). Additionally, Plaintiff had difficulty pinpointing any specific blow to his head, 

let alone identifying that it was Defendant Newsom that severely hit Plaintiff with a baton. (See 

Pl.’s Dep. at 31:3-8). In fact, Plaintiff admitted that he did not recall being struck by Defendant 

Newsom specifically, and that he only included Defendant Newsom in his Complaint because 

Newsom was an area supervisor. (Pl.’s Dep. at 45:13-22; 46:17-23). Absent an opportunity to 

question or cross-examine Plaintiff on those assertions, which might have been beneficial to 

Defendant Newsom’s position, the Court cannot find that the issue of excessive force was 

“actually litigated.” 
12

Additionally, the ALJ rejected the opinion of Defendant Newsom’s expert, Randy S. 

Tartacoff, M.D., on the grounds that Dr. Tartacoff relied on the deposition testimony of Plaintiff, 

which the ALJ elected not to consider. (A.L.J. Op. at 19) (“Dr. Tartacoff noted in his opinion 

that he relied on [Plaintiff’s] testimony; for the reasons set forth above, that testimony cannot be 

relied upon, and Dr. Tartacoff’s opinion that [Plaintiff’s] Y-shaped facial injuries resulted from a 

fist or boot is not accepted.”).7 Rather, the ALJ accepted the opinion of the NJDOC’s expert, 

Johnathan A. Briskin, M.D., that Plaintiff’s facial injuries resulted from being struck with an 

expandable baton, rather than a fist or boot. (See A.L.J. Op. at 18) (“Dr. Briskin did note that he 

received no evidence that any boot was involved in the injury to [Plaintiff]. For that reason, I 

accept Dr. Briskin’s opinion that the injury to [Plaintiff’s] face resulted from being struck with 

an [expandable baton].”). Had the ALJ considered Plaintiff’s testimony during the 

administrative proceedings, the ALJ might have reached a different conclusion regarding 

whether Defendant Newsom struck Plaintiff in the facial area with a baton, or whether to reject 

Dr. Tartacoff’s expert opinions. Thus, the Court finds that the issue of whether Defendant 

Newsom used excessive force was not “actually litigated” before the ALJ.

Furthermore, while Plaintiff maintains that Defendant’s arguments against the invocation 

of collateral estoppel are foreclosed by Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67 

(2012), that case is inapposite. In Winters, the Supreme Court of New Jersey was tasked with 

determining whether an employee was precluded from pursuing a retaliatory discharge claim 

against his employer, after an administrative tribunal had previously ruled that the employee’s 

dismissal for conduct unbecoming an employee was proper. 212 N.J. at 81-83. The employee 

 7 In opining that Plaintiff’s facial injuries resulted from fist or boot impact, Dr. Tartacoff relied 

upon Plaintiff’s testimony that he was kicked “all over [his] body including [his] face” while he 

was handcuffed and shackled. (Pl.’s Dep. at 244:11-246:10). 
13

argued that collateral estoppel was not applicable, because the issue of employer retaliation had 

not been expressly litigated in the administrative proceeding, although such a claim was raised in 

that forum. See id. at 82. In other words, the employee maintained that because he did not 

zealously pursue his retaliation claim before the administrative tribunal, it was not “actually 

litigated.” See id. The Court disagreed and held that the employee was estopped from 

proceeding with his retaliation claim. Id. at 92. Specifically, the Court found that the employee 

had “fairly been determined to have no entitlement to be returned to his position after a full 

opportunity to litigate the charges against him and the defense of retaliation that he posed,” 

because the administrative law judge conducted full hearings, where the employee raised the 

issue of retaliation, albeit indirectly and without the support of proofs. Id. at 90-92. The Court 

focused on the fact that the employee initially raised the retaliation claim before the 

administrative tribunal, but declined to pursue that claim. See id. at 88 (“[Plaintiff] cannot take 

advantage of his own tactic of throttling back on his claim of retaliation in the administrative 

proceeding after having initially raised it. Retaliation was a central theme of his argument and 

that he chose not to present there his comprehensive proof of that claim does not afford him a 

second bite at the apple in this matter.”).

Winters is factually distinguishable from the present matter. In Winters, the employee 

did not challenge the procedural sufficiency of the administrative proceedings. See id. at 88 (“In 

this case, plaintiff has not challenged the procedural sufficiency of the civil service proceedings. 

. . . Indeed, he concedes that he was afforded full hearings with all of the protections of due 

process, such as are provided litigants in a court of law.”). Indeed, the fact that the employee had 

the opportunity to litigate his claim before the administrative tribunal, but made a strategic 

decision to not aggressively do so, was central to the Court’s decision. By contrast, here, the 
14

procedural sufficiency of the administrative proceedings is directly at issue, in light of the fact 

that Plaintiff did not testify before that tribunal, precluding Defendant Newsom from crossexamining Plaintiff. Moreover, unlike Winters, here, co-defendants Alaimo, Albanese, Gundy, 

Lashley, Fisher, Perkins, and Israel (“Co-Defendants”) did not have the opportunity to 

participate in the administrative proceeding, other than as witnesses.8 Indeed, although the 

Winters Court recognized that, in general, “courts will accord administrative rulings that 

otherwise satisfy collateral estoppel standards preclusive effect,” id. at 87, it cautioned that those 

proceedings must “provide ‘significant procedural and substantive safeguards,’ similar to those 

that are provided to litigants in courts of law.” Id. (quoting Olivieri v. Y.M.F. Carpet, Inc., 186 

N.J. 511, 524 (2006)). Accordingly, the Court finds that the facts underlying the Winters decision 

are distinguishable from this case.

9

In short, the Court finds that Plaintiff has failed to meet his burden of establishing that the 

issues were actually litigated in the prior proceeding.

2. Non-Mutuality of the Parties

Next, Defendant Newsom argues that collateral estoppel does not apply, because neither 

Plaintiff nor the remaining Co-Defendants in this case were parties in the underlying 

administrative dispute. Collateral estoppel applies “if the party against whom preclusion is 

asserted was a party, or in privity with a party, to the proceeding.” Perez v. Rent-A-Center, Inc., 

186 N.J. 188, 199 (2006). “Complete identity of parties in the two suits is not required for the 

 8 For further discussion of Co-Defendants non-participation in the administrative proceedings, 

see Section III(B)(2), infra. 9 Furthermore, unlike the present case, Winters involved the use of defensive collateral estoppel 

by a party to the original administrative proceeding, the employer. By contrast, as discussed 

further in Section III(B)(2), infra, this case involves the use of offensive collateral estoppel by

Plaintiff, a non-party to the administrative proceeding.
15

application of issue preclusion.” Burlington N. R. Co. v. Hyundai Merch. Marine Co., 63 F.3d 

1227, 1232 (3d Cir. 1995). Here, Plaintiff, who was not a party to the administrative action, 

attempts to invoke issue preclusion against Defendant Newsom. Such an application of issue 

preclusion is referred to as “offensive, non-mutual collateral estoppel.” Id. Offensive collateral

estoppel was first recognized in Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), and 

“occurs whenever a plaintiff seeks to estop a defendant from relitigating an issue which the 

defendant previously litigated and lost against another plaintiff.” Raytech Corp. v. White, 54 

F.3d 187, 196, n. 5 (3d Cir. 1995).10

In Parklane Hosiery, the Supreme Court explained the inherent problems in applying 

offensive collateral estoppel. Specifically, the Parklane Hosiery Court explained that the 

offensive use of collateral estoppel “may be unfair to a defendant,” because if “a defendant in the 

first action is sued for small or nominal damages, he may have little incentive to defend 

vigorously, particularly if future suits are not foreseeable.” 439 U.S. at 330. That concern is not 

present here, however, since Defendant Newsom was defending a disciplinary proceeding that 

would end his employment with the NJDOC. Additionally, the Court acknowledged that 

“another situation where it might be unfair to apply offensive estoppel is where the second action 

affords the defendant procedural opportunities unavailable in the first action that could readily 

cause a different result”; e.g., where “the defendant in the first action was forced to defend in an 

inconvenient forum and therefore was unable to engage in full scale discovery or call witnesses . 

. . .” Id. at 330-31, n 15. Recognizing those problems, the Supreme Court concluded that district 

 10 The use of offensive collateral estoppel is “non-mutual” in this case, because Plaintiff is 

seeking to bind Defendant Newsom to a judgment in a previous case – the administrative action 

against Newsom – to which Plaintiff himself was not a participant or party. See Raytech Corp, 

54 F.3d at 196.
16

courts have “broad discretion” in determining whether to apply offensive collateral estoppel. Id.

at 331; see also Smith v. Borough of Dunmore, 516 F. App'x 194, 199 (3d Cir. 2013) (holding 

that although the technical requirements for collateral estoppel were met, it was not an abuse of 

discretion for the District Court to refuse to apply collateral estoppel). 

Cognizant of that broad discretion, I find that the equities weigh against applying 

offensive collateral estoppel in this case. Importantly, the administrative hearing before the ALJ 

falls squarely within the concerns outlined in Parklane Hosiery, because Defendant Newsom 

was unable to cross-examine a key witness to his defense, Plaintiff. Without an adequate 

opportunity to question or cross-examine Plaintiff regarding the altercation, and to attack his 

credibility, Defendant Newsom was unable to mount a full defense in the administrative 

proceeding. Indeed, as I explained above, I cannot find that the issue of whether Defendant 

Newsom struck Plaintiff in the facial area with a baton was actually litigated, in light of the fact 

that Plaintiff’s deposition testimony regarding the altercation was ambiguous, the ALJ refused to 

consider Plaintiff’s deposition testimony, and as a result, would not consider the opinions of 

Defendant Newsom’s expert, who relied on Plaintiff’s deposition testimony. Thus, the Court 

finds that, based on the facts of this case, it would be patently unfair to accord Plaintiff the 

benefit of the administrative decision in the present action against Defendant Newsom.

Furthermore, Co-Defendants argue that the Court should not invoke collateral estoppel, 

on the grounds that Co-Defendants were not parties in the underlying administrative case. 

Specifically, Co-Defendants maintain that if they are precluded from relitigating the issue of 

whether Defendant Newsom used excessive force, this would necessarily impact the claim 

against Co-Defendants for their alleged failure to intervene. I agree.
17

“Courts have held that a police officer has a duty to take reasonable steps to protect a 

victim from another officer's use of excessive force, even if the excessive force is employed by a 

superior.” Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). A police officer is liable for 

failure to intervene under § 1983 if the Plaintiff demonstrates that: (1) the officer had reason to 

know that excessive force was being used; and (2) the officer had a realistic opportunity to 

intervene. See id. at 650. To that end, where a plaintiff is unable to establish a claim for 

excessive force, he cannot establish a claim for failure to intervene. Lora-Pena v. Denney, 760 

F. Supp. 2d 458, 468 (D. Del. 2011) (“[B]y definition, if there was no excessive force then there 

can be no failure to intervene.”) (quoting Abdullahi v. City of Madison, 423 F.3d 763, 767–68 

(7th Cir. 2005)). 

Issue preclusion is inappropriate in this case because the party against whom preclusion 

is asserted is not simply Newsom, but also Co-Defendants, who were not parties in the 

administrative action, or in privity with a party to the administrative action. To that end, while 

Plaintiff moves for summary judgment on the basis of collateral estoppel against Defendant 

Newsom in this case, it is clear that the application of issue preclusion would adversely impact 

Co-Defendants. Indeed, Plaintiff seeks to preclude relitigation of the factual circumstances 

surrounding the alleged altercation between Plaintiff and Defendant Newsom, as well as on the 

ultimate issue of excessive force. By invoking collateral estoppel, Co-Defendants would be 

estopped from contesting the issue of whether force was used by Defendant Newsom; this 

determination is necessary to Plaintiff’s prima facie case for failure to intervene. Moreover, the 

fact that Co-Defendants share an interest with Defendant Newsom with respect to the excessive 

force claim does not establish privity for the purposes of issue preclusion. See Matter of Estate 

of Dawson, 136 N.J. 1, 22 (1994) (“That the parties may have similar interest in the outcome of 
18

the litigation . . . does not of itself establish privity of interest for purpose of issue preclusion.”) 

(quoting Stegmeier v. St. Elizabeth Hosp., 239 N.J. Super. 475, 487 (App. Div. 1990)). 

Accordingly, because Co-Defendants were not parties to the underlying action, the Court finds 

that collateral estoppel is not warranted in this case.11 

IV. CONCLUSION

For the foregoing reasons, the Court finds collateral estoppel is not applicable in this case, 

and thus, Plaintiff’s Motion for Summary Judgment is DENIED. 

Dated: May 2, 2017 /s/ Freda L. Wolfson 

 Hon. Freda L. Wolfson

 United States District Judge

 11 Finally, even assuming that the elements of collateral estoppel are satisfied in this case –

which they are not – the Court finds that the equities weigh against invoking collateral estoppel. 

Under New Jersey law, even where the five elements necessary to invoke collateral estoppel are 

established, “the court retains discretion to grant or deny preclusion.” Mann v. Estate of Meyers, 

61 F. Supp. 3d 508, 518 (D.N.J. 2014). Indeed, as I explained above, where a party attempts to 

invoke non-mutual collateral estoppel, courts are particularly concerned with reviewing whether 

the application of collateral estoppel would be unfair. See Raytech Corp., 54 F.3d at 195 (“The 

Supreme Court has granted district courts ‘broad discretion’ to determine when a plaintiff who 

has met the requisites for the application of collateral estoppel may employ that doctrine 

offensively.”). Without engaging in a more extensive recitation of the equitable reasons against 

applying collateral estoppel, the Court finds that it would be unfair to invoke collateral estoppel 

in this case for the reasons already expressed in this Opinion.