OKORIE v. SALEM COUNTY CORRECTIONAL FACILITY et al
Filing
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MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 10/2/2012. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TOOCHUKWU TOKX OKORIE,
Plaintiff,
HON. JEROME B. SIMANDLE
Civil No. 12-1230 (JBS/AMD)
v.
MEMORANDUM OPINION
SALEM COUNTY CORRECTIONAL
FACILITY, et al.
Defendants.
SIMANDLE, Chief U.S. District Judge:
Plaintiff Okorie has two pending motions before this Court:
a motion to amend his complaint pursuant to Fed. R. Civ. P. 15(a)
[Docket Item 5] and a motion for leave to extend time for service
of complaint and summons, under Rule 4(m) [Docket Item 7].
For
the reasons set forth below, the Court will grant the motion to
amend and grant the motion to extend time for service of
complaint and summons in its discretion, granting a 60-day
extension of time to serve process. The Court finds as follows:
1. Plaintiff Toochukwu Okorie was convicted of money
laundering and currently is a federal prisoner at F.C.I. Fort Dix
in Fort Dix, New Jersey. [Docket Item 2 at 4 n.2.] Plaintiff
filed a civil complaint on February 29, 2012, against the Salem
County Correctional Facility, Salem County and two correction
officers, Diciaccio and Welch, alleging that he was assaulted by
the officers and denied proper medical treatment while he was a
pre-trial detainee. [Compl. ¶¶ 4, 12-16; Docket Item 2 at 4 n.2.]
In its Order dated March 29, 2012, this Court dismissed claims
against the correctional facility, and construed Plaintiff’s
remaining claims against the officers as alleging due process
violations under Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971). [Docket Item 2 at 2 n.1., 4 n.2.]
2. On March 20, 2012, the Court issued summonses for
Defendants Diciaccio and Welch. [Docket Item 4.] However, on July
23, 2012, the summonses were returned unexecuted. [Docket Item
6.] The “Proof of Service” form completed by a U.S. Marshal
explained that the summonses were not executed because “no
response from plaintiff” and “no USM Form 285's submitted for
service - summons expired for all named defendants.” [Id.]
3. Plaintiff now requests leave to extend time for service
of the complaint and summons. [Docket Item 7.] He asserts that
did not learn that the summonses were returned unexecuted until
August 7, 2012, after the 120-day time limit for service of
process expired under Fed. R. Civ. P. 4(m). [Docket Item 7 ¶ 5,
8.] Plaintiff further alleges that the prison library did not
possess copies of Form 285, thus showing “good cause” for his
failure to attach the forms. [Id. ¶ 3, 6.] Presumably in response
to the explanation noted on the “Proof of Service” form,
Plaintiff adds that he was “able to locate copies [of the form]
from another inmate who happens to possess one, in the absence of
the court clerk sending such forms.” [Id. ¶ 7.]
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4. Rule 4(m) states that, if a defendant is not served
within 120 days after the complaint is filed, courts “must
dismiss the action without prejudice against that defendant or
order that service be made within a specified time.” However,
where the plaintiff shows good cause for failure to serve the
defendant timely, the court must extend time for service. Cain v.
Abraxas, 209 Fed. Appx. 94, 96 (3d Cir. 2006). If the Court does
not find good cause, the Court may nonetheless grant a
discretionary extension for time of service. Id.
5. The “primary focus” of the good cause analysis “is on the
plaintiff’s reasons for not complying with the time limit in the
first place.” MCI Telecomms. Corp. V. Teleconcepts, Inc., 71 F.3d
1086, 1097 (3d Cir. 1995). To show good cause, a plaintiff must
show “‘[1] good faith on the part of the party seeking an
enlargement and [2] some reasonable basis for non-compliance
within the time specified in the rules.’” Id. (quoting Petrucelli
v. Bohringer, 46, F.3d 1298, 1312 (3d Cir. 1995)(Becker, J.,
concurring in part and dissenting in part)). A pro se plaintiff
is “entitled to a certain degree of leniency so as to ensure that
her case is decided on its merits rather than a procedural
technically.” See e.g., Pickney v. Sheraton Soc’y Hill, No. 935198, 1994 WL 37862, at *2 (E.D. Pa. July 15, 1994) (finding good
cause for failure to comply with Rule 4(m)).
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6. Here, Plaintiff does not explicitly base his argument on
the fact that he was unaware that he needed to fill out copies of
Form 285 but seems to argue that the lack of forms in the prison
library should be sufficient to find good cause. [See Docket Item
7 ¶ 6 (“Plaintiff believes that the inavailiability [sic] of USM
forms 285 in the prison of location, is good cause to extend time
for service of summons and complaint.”).] The Court notes that
the letter sent to Plaintiff accompanying the summonses, written
to Plaintiff by the Clerk of this Court and dated March 30, 2012,
specifically explains that copies of Form 285 must be completed,
and the letter indicates that forms were enclosed for him to
complete.1 [Docket Item 4-1.] Plaintiff does not describe any
actions he took to obtain a copy of Form 285, other than check
the prison library, nor did Plaintiff contact this Court for
copies of the form, if indeed forms were not enclosed as promised
with the summonses. On these facts, in light of the legal showing
Plaintiff must make, the Court is unable to find good cause for
failing to comply with the requirements of 4(m).
7. However, the Court nonetheless will extend time for
Plaintiff to serve process effectively. Even after determining
there is not good cause to grant a motion for leave to extend
1
Plaintiff implies that no forms were enclosed with that
letter. [Docket Item 7 ¶ 7 (“Plaintiff was able to locate copies
from another inmate who happens to possess one, in the absence of
the court clerk sending such forms.”).]
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time to serve process, a court may, in its discretion, decide
whether to dismiss the case or to extend time for service.
Petrucelli, 46 F.3d at 1305. Among the factors that the court may
consider at this stage are the plaintiff’s pro se status and
whether the statute of limitations would bar the refiled action.
Cain, 209 Fed. Appx. at 97. Here, Plaintiff is suing pro se and
in forma pauperis. Relying on the U.S. Marshal, he was not
alerted to a deficiency in his summonses until after the 120-day
period had expired. Moreover, the statute of limitations arguably
has run in this case. In a Bivens action, the statute of
limitations is taken from the forum state’s personal injury
statute, which is two years in New Jersey. Hughes v. Knieblher,
341 Fed. Appx. 749, 752 (3d Cir. 2009). See also N.J. Stat. Ann.
¶ 2A:14-2. Plaintiff alleges that the assault occurred on
September 5, 2010, more than two years ago. Dismissing
Plaintiff’s motion without prejudice likely would extinguish
Plaintiff’s claim. Instead, in light of the leniency afforded pro
se plaintiffs proceeding in forma pauperis, the Court will extend
to Plaintiff sixty (60) days from the date of this Order in which
to serve Defendants Diciaccio and Welch. The Clerk of Court is
requested to issue a second set of summonses and Form 285's to
Mr. Okorie, and it is Mr. Okorie’s duty to fill out those forms
and return them immediately to the U.S. Marshal’s Office so that
the Marshal can make service within this new 60-day period.
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8. Plaintiff also moves to amend his complaint under Fed. R.
Civ. P. 15(a). Rule 15(a) permits a party to amend its pleading
as a matter of course within 21 days of serving it. As explained
above, there was no service in this case. Because the Court is
extending Plaintiff’s time to serve Defendants, Plaintiff is
entitled to amend his complaint once, as a matter of course,
within 21 days of serving process on Defendants. Plaintiff’s
motion is granted.
9. The accompanying Order will be entered.
October 2, 2012
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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