FULLER v. FCI MANCHESTER HEALTH SERVICE et al
OPINION FILED. Signed by Judge Noel L. Hillman on 8/24/15. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DARELL ANDRE FULLER,
Civ. No. 12-7025 (NLH)
FCI MANCHESTER HEALTH
SERVICE, et al.,
Darell Andre Fuller
1201 Cedar Lane Road
Greenville, SC 29617
Plaintiff, pro se
Elizabeth Ann Pascal
Office of the United States Attorney
401 Market St.
P.O. Box 2098
Camden, NJ 08101
Counsel for Defendants
HILLMAN, District Judge
This matter is before the Court upon Plaintiff’s
application to proceed in forma pauperis (ECF No. 26), a motion
filed by Defendants seeking dismissal and summary judgment (ECF
No. 32), and a letter received from Plaintiff on March 20, 2015
(ECF No. 33).
For the reasons set forth below, Plaintiff’s
request to proceed in forma pauperis will be granted, his
request for pro bono counsel is denied, and Defendants’ Motion
to Dismiss and for Summary Judgment is dismissed.
On or about June 20, 2012, Plaintiff Darell Andre Fuller
submitted a complaint pursuant to Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971), alleging that he received inadequate medical care for
injuries to his wrist and knee while incarcerated at several
different federal correctional institutions. (ECF No. 1).
On June 20, 2012, the United States District Court for the
Eastern District of Pennsylvania granted Plaintiff’s application
to proceed in forma pauperis and issued an Order to Answer. (ECF
On October 10, 2012, the Honorable Michael M. Baylson
ordered that the case be transferred from the Eastern District
of Pennsylvania to the District of New Jersey (ECF No. 9).
In light of the previously issued order to answer, this
Court issued summons and directed Defendants to file a
responsive pleading on December 3, 2012. (ECF No. 11).
1, 2013, the Court denied Plaintiff’s Motion to Appoint Pro Bono
Counsel. (ECF No. 16).
Plaintiff, who has been released from
prison since the filing of this Complaint, filed another
application to proceed in forma pauperis. (ECF No. 26).
On December 8, 2014, Defendants filed a Motion to Dismiss
and for Summary Judgment, which is currently pending before this
Court. (ECF No. 32).
To date, Plaintiff has not filed a
Instead, the Court received a letter from Plaintiff
on March 20, 2015, in which Plaintiff again requests the
appointment of pro bono counsel. (ECF No. 33).
A. In Forma Pauperis Application
The Court notes that Plaintiff was previously granted in
forma pauperis status by the district court in the Eastern
District of Pennsylvania. (ECF No. 2).
At that time, Plaintiff
was incarcerated; thus he was subject to the Prison Litigation
Reform Act's (“PLRA”) filing fee requirements and was “required
to pay the full amount of a filing fee,” subject to payment on
an installment plan. 28 U.S.C. § 1915(b)(1)-(2); see also Siluk
v. Merwin, 783 F.3d 421 (3d Cir. 2015), as amended (Apr. 21,
2015), as amended (Apr. 28, 2015).
Plaintiff’s subsequent release from prison does not relieve
him of his obligation under the PLRA to pay this filing fee, or
any portion thereof which has not yet been paid. See Drayer v.
Attorney Gen. of State of Delaware, 81 F. App'x 429, 430-31 (3d
Accordingly, Plaintiff filed an application to
proceed in forma pauperis. (ECF No. 26).
In his application, Plaintiff certifies that he is unable
to pay any fees and he submits an affidavit which includes a
statement of all assets.
The Court finds this application to be
complete pursuant to 28 U.S.C. § 1915(a).
Therefore, to the
extent Plaintiff owes any remaining amount of the filing fee,
the Court grants him leave to proceed in forma pauperis and he
is relieved of his obligation to pay the remainder. See 28
U.S.C. § 1915(b); Siluk, 783 F.3d at 433 n.71 (citing McGann v.
Comm'r, Soc. Sec. Admin., 96 F.3d 28, 30 (2d Cir. 1996)
(construing the PLRA to “require [ ] partial fee payments ...
only while the prisoner remains in prison, and that, upon his
release, his obligation to pay fees is to be determined, like
any non-prisoner, solely by whether he qualifies for i.f.p.
B. Appointment of Pro Bono Counsel
In his letter dated March 16, 2015 (ECF No. 33), Plaintiff
again requests the appointment of pro bono counsel.
Specifically, Plaintiff states that he has medical records and
paperwork from his worker’s compensation claim settlement that
he wishes to enter into evidence.
Plaintiff explains that he
has had four surgeries in the last two years and he states that
this case will require the testimony of expert witnesses.
Plaintiff asserts that this case involves legally complex issues
which warrant the appointment of counsel.
The court may, pursuant to § 1915(e), request an attorney
to represent an indigent plaintiff in a civil action. See 28
U.S.C. § 1915(e)(1) (“The court may request an attorney to
represent any person unable to afford counsel.”).
courts have broad discretion to request counsel for indigent pro
se litigants, but such appointment is a privilege, not a
statutory or constitutional right of the litigant. Brightwell v.
Lehman, 637 F.3d 187, 192 (3d Cir. 2011) (citation omitted);
Montgomery v. Pinchak, 294 F.2d 492, 498 (3d Cir. 2002); see
also Speller v. Ciccero, No. 13-1258, 2013 WL 1121377, at *1
(D.N.J. Mar. 12, 2013).
The decision to appoint pro bono counsel involves a twostep analysis.
First, a court must determine as a threshold
matter whether plaintiff’s claim has “some merit in fact and
law.” Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).
court finds that the action arguably has merit, it should then
consider the following factors (hereafter, the “Tabron/Parham
(1) the plaintiff’s ability to present his or her own
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue
(4) the amount a case is likely to turn on credibility
(5) whether the case will require the testimony of
(6) whether the plaintiff can attain and afford
counsel on his own behalf.
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997) (citing
Tabron, 6 F.3d at 155-56, 157 n.5).
This list is not
exhaustive, nor is any one factor determinative. Id. at 458.
Rather, the Tabron/Parham factors should serve as a guidepost to
ensure that courts will only appoint counsel in non-frivolous
If a pro se plaintiff is incarcerated, a court should
additionally consider constraints caused by detention, such as
whether photocopiers, telephones, and computers are made
available to the prisoner plaintiff’s use. Tabron, 6 F.3d at
This factor weighs against appointing counsel if a court
ultimately concludes that a plaintiff has the baseline ability
to adequately present his case. See Gordon v. Gonzalez, 232 F.
App’x 153, 157 (3d Cir. 2007).
In the present motion, Plaintiff states that pro bono
counsel is warranted because of the “complexity of the legal
issues” involved. (Letter Requesting Pro Bono Counsel 2, ECF No.
However, Plaintiff fails to address the remaining
Tabron/Parham factors which the Court outlined for him in its
previous Order denying the appointment of pro bono counsel. (ECF
With respect to the first Tabron/Parham factor, Plaintiff
has failed to “provide this Court with additional information
concerning his literacy, educational background and prior work
experience, or any other facts impacting his ability to present
this case” as instructed in the Court’s previous Order. (Order
Denying Pro Bono Counsel 4, ECF No. 16).
Moreover, it is
evident that Plaintiff is sufficiently able to represent
The contours of Plaintiff’s underlying argument are
clear and, as the record in this case reflects, Plaintiff is
capable of filing motions and other documents.
instant letter references, with accuracy, relevant case law and
specific filings on the docket. (ECF No. 33).
In light of
Plaintiff’s abilities, the first Tabron/Parham factor weighs
against the appointment of counsel.
The second factor for consideration is the complexity of
the legal issues presented.
A court should be more inclined to
appoint counsel when the legal issues are complex. See Tabron, 6
F.3d at 156 (“[W]here the law is not clear, it will often best
serve the ends of justice to have both sides of a difficult
legal issue presented by those trained in legal analysis.”)
(quoting Maclin v. Freake, 650 F.2d 885, 889 (7th Cir. 1981)).
Also, as Plaintiff points out, a “case alleging deliberate
indifference to a prisoner’s serious medical needs can raise
sufficiently complex legal issues to require appointment of
counsel.” Montgomery v. Pinchak, 294 F.3d 492, 502 (3d Cir.
This factor is the crux of Plaintiff’s argument.
The Third Circuit explained in Montgomery that deliberate
indifference allegations can raise sufficiently complex legal
issues because “even where ‘the ultimate [legal] issue appears
relatively simple ... [s]implicity in the allegation supporting
the claim does not translate into simplicity in the presentation
of the claim.”’ Id. (citing Parham, 126 F.3d at 459)).
Specifically, the plaintiff in Montgomery had difficulty
“complying with requirements for formulating discovery requests
[which] hindered the presentation of his claim.” Id. at 503.
In this case, however, Plaintiff does not allege that he
has had difficulty obtaining discovery.
To the contrary,
Plaintiff states that he “has all the documents to which factual
investigation will be necessary.” (Letter Requesting Pro Bono
Counsel 2, ECF No. 33).
Thus, Plaintiff already has in his
possession the medical records and documentation which he
believes support his claim.
Further, Defendants have filed
their responsive pleading, in the form of a Motion to Dismiss
and for Summary Judgment (ECF No. 33), and have attached
substantial documentation, including Plaintiff’s prison medical
Thus, the discovery issues present in Montgomery —
which rendered the case sufficiently legally complex to warrant
the appointment of counsel — are absent from the instant case.
The Court notes that Plaintiff asserts in his letter that “each
doctor [will] have to be interview[ed.]” (Letter Requesting Pro
Bono Counsel 2, ECF No. 33). To the extent Plaintiff believes
that additional discovery is needed, he may request same from
Defendants or file an appropriate motion, if necessary.
Moreover, Plaintiff may raise this argument in opposition to a
future motion filed by Defendants.
This Court does not find the legal issues regarding this claim
to be unduly complex; therefore, the second Tabron/Parham factor
weighs against the appointment of counsel.
The third factor is the degree to which factual
investigation will be necessary and the ability of the plaintiff
to pursue such investigation.
Where claims are likely to
require extensive discovery and compliance with complex
discovery rules, appointment of counsel may be warranted.
Tabron, 6 F.3d at 156.
As set forth above, Plaintiff does not
assert that he has had difficulty obtaining relevant information
and he indicates that he is in possession of medical records and
other documentation which support his claim.
third Tabron/Parham factor weighs against the appointment of
The fourth factor for consideration is whether a case is
likely to turn on credibility determinations.
Though many cases
turn on credibility determinations, this factor weighs towards
appointing counsel if the case is “solely a swearing contest.”
Parham, 126 F.3d at 460.
Thus, a court should be aware of
“the degree to which credibility is at issue.” Wassell v.
Younkin, No. 07-326, 2008 WL 73658, at *4 (W.D. Pa. Jan. 7,
Given the extensive documentation in this case and the
straightforward set of facts upon which Plaintiff’s claims are
premised, it is unlikely that the success or failure of
Plaintiff’s claims will turn on credibility determinations.
Accordingly, the Court finds that the fourth Tabron/Parham
factor weighs against the appointment of counsel.
The fifth factor for consideration is the extent to which
expert testimony may be required.
Appointed counsel may be
warranted where the case will require testimony from expert
witnesses. Tabron, 6 F.3d at 156.
However, the Third Circuit
clarified that the appointment of counsel is not required in
every case in which expert testimony may be warranted. See Lasko
v. Watts, 373 F. App’x 196, 202 (3d Cir. 2010).
In the case
presently before the Court, Plaintiff asserts, without
explanation, that expert testimony will be required.
clear standard for an Eighth Amendment deliberate indifference
claim, and given that relevant documentation has already been
produced by Defendants and is in the possession of Plaintiff,
the need for expert testimony is not apparent at this time.
Thus, the fifth Tabron/Parham factor weighs against the
appointment of counsel.
The final factor addressed by the Third Circuit in Tabron
and Parham is plaintiff’s financial ability to attain and afford
counsel on his own behalf. Parham, 126 F.3d at 461.
forth above, Plaintiff in this case has been granted leave to
proceed in forma pauperis; accordingly, the Court finds that the
sixth Tabron/Parham factor weighs in favor of granting
After consideration of the aforementioned factors, the
majority of the Tabron/Parham factors do not support the
appointment of pro bono counsel.
Therefore, the Court will deny
Plaintiff’s motion at this time.
C. Defendants’ Motion to Dismiss and for Summary Judgment (ECF
As discussed above, Defendants have not filed an Answer
and, instead, have filed a “hybrid motion” which includes
elements of a motion to dismiss in lieu of an answer, as well as
elements of a motion for summary judgment.
brief (ECF No. 32-1) does not specifically indicate the Rule(s)
under which its motion to dismiss is filed; nor does it set
forth the standard for a motion to dismiss, or the standard for
a motion for summary judgment. 2
Additionally, given that the
The Court notes that Defendants clarify in their Notice of
Motion (ECF No. 32) that their first ground for relief requests
dismissal based on lack of personal jurisdiction, pursuant to
Rule 12(b)(2); and that their third ground for relief seeks
dismissal of claims against PA Wickard because he is statutorily
immune from civil liability under 42 U.S.C. § 233(a), pursuant
to Rule 12(b)(1). See FED. R. CIV. P. 12(b)(2) (asserting defense
based on lack of personal jurisdiction); FED. R. CIV. P. 12(b)(1)
(asserting defense based on lack of subject-matter
jurisdiction). With respect to Defendants’ second ground for
relief — that Plaintiff failed to exhaust administrative
remedies — Defendants ask the Court to consider matters outside
the pleadings and, thus, the motion would have to be treated as
one for summary judgment. See FED. R. CIV. P. 12(d); see also
Third Circuit has emphasized the importance of notice
requirements, particularly when a plaintiff is a pro se
prisoner, see Renchenski v. Williams, 622 F.3d 315 (3d Cir.
2010), this Court is concerned with the adequacy of the notice
provided to Plaintiff in this case.
Moreover, this Court has reservations concerning the
appropriateness of such “hybrid motions” in general.
A court in
this district has discussed this issue and succinctly expressed
its disfavor for motions of this type:
Rule 12 authorizes and requires one pleading in
response to a complaint, i.e., an answer. See FED. R.
CIV. P. 12(a)(1) (A) (“A defendant must serve an
answer: (i) within 21 days after being served with the
summons and complaint; or (ii) if it has timely waived
service under Rule 4(d), within 60 days after the
request for a waiver was sent”); see also FED. R. CIV.
P. 7(a) (2). Rule 12(b), (e) and (f) require certain
motions to be made “before” filing an answer. Rule
12(b) provides that “[a] motion asserting any of the [
] defenses [specified in Rule 12(b)(1)-(6) ] must be
made before pleading if a responsive pleading is
allowed.” FED. R. CIV. P. 12(b). Rule 12(e) requires a
motion for a more definite statement to “be made
before filing a responsive pleading,” and Rule
12(f)(2) requires defendant to move to strike
redundant, immaterial, impertinent, or scandalous
matter “before responding to the pleading.” FED. R. CIV.
P. 12(e) and (f)(2).
The language of Rule 12(g) inhibits the joinder of
motions with a Rule 12 motion. See FED. R. CIV. P.
Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed. 2d 798
(2007) (plaintiff is not required to specially plead or
demonstrate exhaustion in his complaint). Finally, Defendants
explicitly seek summary judgment as to their fourth and fifth
grounds for relief. However, Defendants fail to set forth the
standard for summary judgment under Rule 56 in their brief.
12(g)(1) (“A motion under this rule may be joined with
any other motion allowed by this rule”). Rule 12(d)
permits a district court to convert a motion under
Rule 12(b)(6) or 12(c) to a summary judgment motion
under limited circumstances and after notice to the
non-moving party. See FED. R. CIV. P. 12(d) (“If, on a
motion under Rule 12(b) (6) or 12(c), matters outside
the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary
judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material
that is pertinent to the motion”). But, as will be
explained, Rule 12 does not authorize a motion for
summary judgment or a motion to dismiss and for
summary judgment, as made in this case, to be filed in
lieu of an answer.
Rule 56 authorizes a party to file a summary judgment
motion at any time until 30 days after the close of
discovery, see FED. R. CIV. P. 56(b), provided the
motion identifies each claim, or part of each claim,
on which summary judgment is sought. See FED. R. CIV.
P.56(a) (“A party may move for summary judgment,
identifying each claim or defense—or the part of each
claim or defense—on which summary judgment is
Compliance with the notice requirements and joinder
limitations of Rules 12 and 56 is particularly
important where the plaintiff is a pro se prisoner.
See Renchenski v. Williams, 622 F.3d 315, 340–41 (3d
Cir. 2010). In Renchenski, the Third Circuit
instructed “State and Federal Governments, as well as
our district courts, [to] work together to ensure pro
se prisoner-plaintiffs receive adequate notice of an
imminent motion for summary judgment.” Renchenski, 622
F.3d at 340–41. To this end, Renchenski requires the
following notice for pro se prisoners whenever the
court converts a Rule 12(b)(6) motion to a Rule 56
We agree with the majority of our sister circuits
that adequate notice in the pro se prisoner context
includes providing a prisoner-plaintiff with a paper
copy of the conversion Order, as well as a copy of
Rule 56 and a short summary explaining its import
that highlights the utility of a Rule 56(f)
Renchenski, 622 F.3d at 340 (footnote omitted).
The Renchenski Court cited several decisions of sister
circuits with approval, including Lewis v. Faulkner,
689 F.2d 100, 101 (7th Cir. 1982). In Lewis v.
Faulkner, the district court dismissed a pro se
prisoner's civil rights complaint where, instead of
filing an answer, defendants filed “something called
‘Motion To Dismiss, Or In The Alternative, For Summary
Judgment.’” Lewis, 689 F.2d at 101. The Seventh
Circuit reversed the district court's order of
dismissal on the ground that “a prisoner who is a
plaintiff in a civil case and is not represented by
counsel is entitled to receive notice of the
consequences of failing to respond with affidavits” to
a hybrid motion to dismiss or for summary judgment.
Id. at 102. As the Seventh Circuit explained:
The lack of explicit notice would not be troubling
if it were obvious to a layman that when his
opponent files a motion for summary judgment
supported by affidavits he must file his own
affidavits contradicting his opponent's if he wants
to preserve factual issues for trial. But this
aspect of federal civil practice is contrary to lay
intuition, which is that the first step in a civil
litigation is the filing of a complaint, the second
the filing of an answer, and the third the trial of
the case. The defendants here filed no answer.
Their first pleading was the motion. It would not
be realistic to impute to a prison inmate ... an
instinctual awareness that the purpose of a motion
for summary judgment is to head off a full-scale
trial by conducting a trial in miniature, on
affidavits, so that not submitting counter
affidavits is the equivalent of not presenting any
evidence at trial. We credit the plaintiff with
knowing that if his case was tried and he failed to
present evidence he would lose.... But we do not
think he can be charged with the further knowledge
that a failure to offer affidavits when his opponent
files something called “Motion to Dismiss, Or In The
Alternative, For Summary Judgment” is an equivalent
Lewis, 689 F.2d at 101.
In this case, without having filed an answer, a hybrid
motion like the one filed here, does not comply with
the above described requirements of Rules 12 and 56 or
satisfy the Renchenski court's directive to provide
clear notice to pro se prisoners regarding what they
must do to avoid losing a summary judgment motion. Cf.
Woods v. Carey, 684 F.3d 934 (9th Cir. 2012)
(specifying contents of notice and holding that notice
must be provided at the time the summary judgment
motion is made); Bryant v. Madigan, 91 F.3d 994 (7th
Cir. 1996) (finding notice provided confusing and
inadequate). It follows from Renchenski and Rule 12
that a defendant should avoid filing a hybrid motion
to dismiss and/or for summary judgment of the sort
filed here, which creates unnecessary confusion for a
pro se litigant. Instead, as required by Rule 12, a
defendant must file either an answer or a motion under
Rule 12(b), (e), or (f)(2), within the time limits set
forth in Rule 12(a)(1)(A).
Visintine v. Zickefoose, No. 11-4678, 2012 WL 6691783, at *1-3
(D.N.J. Dec. 21, 2012).
This Court finds the analysis in Visintine, and the cases
cited therein, to be persuasive. See also Mazariegos v. Monmouth
Cnty. Corr. Inst., No. 12-5626 FLW, 2014 WL 1266659, at *5
(D.N.J. Mar. 25, 2014) (“a defendant should avoid filing a
hybrid motion to dismiss that does not comply with the governing
rules, and which creates unnecessary confusion for a pro se
litigant”); Laboy v. Ontario Cnty., N.Y., 56 F. Supp. 3d 255,
260 (W.D.N.Y. 2014) (same) (collecting cases); Rivera-Santiago
v. Abbott Pharm. PR, Ltd., 608 F. Supp. 2d 216, 223 (D.P.R.
2008) (prohibiting hybrid motions to “avoid the confusion and
delay associated with a ‘hybrid motion to dismiss and/or summary
Accordingly, this Court finds that Defendants’
motion in this case is unnecessarily confusing, procedurally
improper, and inconsistent with the reasoning of Renchenski.
Furthermore, Plaintiff in this case has not responded to
Defendants’ motion, which indicates a lack of understanding
regarding the consequences of his failure to respond to the
For these reasons, the Court will dismiss Defendants’
Motion to Dismiss and for Summary Judgment (ECF No. 32).
Defendants are free to refile their motions as separate,
procedurally appropriate, filings.
For the foregoing reasons, Plaintiff’s request to proceed
in forma pauperis (ECF No. 26) is granted and Plaintiff’s
request for pro bono counsel (ECF No. 33) is denied without
Defendants’ Motion to Dismiss and for Summary
Judgment (ECF No. 32) is dismissed.
Defendants are free to
refile their motions as separate, procedurally appropriate,
An appropriate Order will follow.
__s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
Dated: August 24, 2015
At Camden, New Jersey
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