ROBERTS v. BALICKI et al

Filing 119

MEMORANDUM OPINION AND ORDER granting Pltf's 118 Application insofar that Pltf may file his amended complaint with regard to defendants Richards and Jilla, etc. Signed by Judge Renee Marie Bumb on 1/5/2015. (drw)n.m.

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________________
:
ALBERT H. ROBERTS,
:
: Civil Action No. 11-1793 (RMB)
Plaintiff,
:
:
v.
: MEMORANDUM OPINION AND ORDER
:
KAREN BALICKI, et al.,
:
:
Defendants.
:
_______________________________________
:
This matter comes before this Court upon Plaintiff’s
statement, Docket Entry No. 118, effectively requesting an
opportunity to re-plead some of Plaintiff’s claims.

See id.

This matter was commenced more than three years ago when, on
March 17, 2011, Plaintiff executed a civil complaint challenging
the events that had taken place on April 23, 2009, i.e., more
than five years ago.

See Docket Entry No. 1.

raised many claims against various Defendants.
No. 4.

The complaint
See Docket Entry

Some of these claims were facially deficient and

warranted sua sponte dismissal; others were set forth in such
terms that this Court, out of an abundance of caution, found it
appropriate to direct service.

These other claims raised: (a)

Eighth Amendment denial-of-medical-care challenges against
Defendants Richards and Jilla; (b) Eighth Amendment excessive
force challenges against Defendants Richards, Jilla, Yacovelli,

Hogan, Horan, McCoy, Lago, Gandy and Volov; and (c) Eighth
Amendment challenges asserting verbal harassment by Defendants
King, Sheldon and Kenlowe.

See Docket Entry No. 4; see also

Docket Entry No. 113 at 1.

The Court, therefore, directed the

U.S. Marshal to serve summonses upon the aforesaid Defendants.
See Docket Entry No. 5.
The summonses returned executed as to Defendants Gandy,
Horan, Lago, McCoy, Rogan, Yacovelli and Volov (collectively,
“Served Defendants”).

See Docket Entry No. 113 at 1-2.

After a

year and a half of litigation, the Served Defendants moved for
summary judgment.

That motion was granted, and Plaintiff’s

claims against the Served Defendants were dismissed as not
exhausted administratively.

See Docket Entries Nos. 111 and 112.

A different fate, however, awaited Plaintiff’s claims
against Defendants King, Sheldon, Jilla, Richards and Kenlowe
(collectively, “No-Jurisdiction Defendants”).

The summonses

issued as to Defendants King, Sheldon, Jilla and Richards were
returned unexecuted, while the summons issued as to Defendant
Kenlowe produced no record of service.
at 2 (detailing the same).

See Docket Entry No. 113

This Court, therefore, directed re-

service upon Defendant Kenlowe; that re-service verified this
Defendant could not have been served on the basis of the
information provided by Plaintiff.

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The Court also directed Plaintiff to show cause as to why
his claims against the No-Jurisdiction Defendants should not have
been dismissed for failure to prosecute.
113 to 115.

See Docket Entries Nos.

When, six months later, no response was received

from Plaintiff, this Court dismissed Plaintiff’s claims against
the No-Jurisdiction Defendants for failure to prosecute.

See

Docket Entries Nos. 116 and 117 (relying on Fed. R. Civ. P. 41(b)
and Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d
Cir. 1984)).

Noting that Plaintiff failed to comply with his

responsibility to identify the No-Jurisdiction Defendants in a
fashion sufficient for the U.S. Marshal to execute service and
also did not cure the shortcomings of his complaint, this Court
concluded that future litigation against the No-Jurisdiction
Defendants would likely to be highly prejudicial because five
years have passed since the events Plaintiff asserted, the NoJurisdiction Defendants never had notice that they might be haled
to court to litigate these events, and the evidence upon which
the No-Jurisdiction Defendants might have relied could have been
destroyed. The Court also noted that the merits of Plaintiff’s
claims against the No-Jurisdiction Defendants were doubtful
because: (a) Plaintiff’s harassment claims against King, Sheldon
and Kenlowe were non-cognizable in § 1983 review as they were
allegations of purely verbal harassment (such as threats or

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laughter); and (b) Plaintiff’s excessive force claims against
Defendants Richards and Jilla appeared unexhausted.
However, out of an abundance of caution, this Court allowed
Plaintiff an opportunity to file a statement reflecting on the
merits and exhaustion of his excessive force claims and offering
a justification for Plaintiff’s failure to prosecute.
Entry No. 117.

The statement at bar followed.

See Docket

See Docket Entry

No. 118.
This statement essentially asserts that Plaintiff’s initial
pleading was executed by a paralegal who later abandoned
Plaintiff.

See id.

Without detailing the facts of his claims,

Plaintiff now: (a) alleges that the violation of his rights were
such that they offended the Constitution; and (b) moves for
amendment of his pleading.

See id.

He also asserts that he duly

exhausted his administrative remedies.

See id.

While Plaintiff’s claims based on verbal harassment are
facially deficient and cannot be revived, this Court finds it in
the interests of justice to allow Plaintiff one final opportunity
to properly identify defendants Richards and Jilla and detail
Plaintiff’s facts in support of his excessive force claim against
these defendants.

The Court stresses that Plaintiff, a

layperson, is not expected to produced a skilled legal document.
Rather, Plaintiff’s amended complaint must be a clear and concise
narrative detailing what exactly was done by Richards and Jilla,

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the circumstances of their use of excessive force, the time, the
injuries Plaintiff suffered, etc.

See In re Advanta Corp. Sec.

Litig., 180 F.3d 525, 534 (3d Cir. 1999) (Plaintiff’s allegations
must be factual, i.e., they must state “the who, what, when,
where, and how: the first paragraph of any newspaper story,” and
these allegations should be free of self-serving, bold
conclusions).
IT IS, therefore, on this 5th day of January 2015,
ORDERED that Plaintiff’s application, Docket Entry No. 118, is
granted insofar that Plaintiff may file his amended complaint
detailing the facts of the events related to his excessive force
allegations with regard to defendants Richards and Jilla and
identifying those defendant in the fashion sufficient for the U.S.
Marshal to execute service.

Such amended pleading shall be filed

within sixty days from the date of entry of this Memorandum Opinion
and Order; and it is further
ORDERED that the Clerk shall serve this Memorandum Opinion and
Order upon Plaintiff by regular U.S. mail.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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