EDWARDS v. STATE OF NEW JERSEY et al
OPINION filed. Signed by Judge Noel L. Hillman on 8/24/2015. (drw)n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STATE OF NEW JERSEY, et al.,
RENE D. EDWARDS,
Civ. No. 13-214 (NLH)
Rene D. Edwards, (# 219205B/658117)
Riviera Motel Inn
2120 Rt. 73 South
Pennsauken, NJ 08110
Plaintiff, pro se
John J. Hoffman
Attorney General of New Jersey
R. J. Hughes Justice Complex
25 Market St.
P.O. Box 112
Trenton, NJ 08625
Attorney for Defendants
HILLMAN, District Judge
This matter is presently before the Court on a Motion to
Dismiss (ECF No. 43) filed by Defendants, and various other
motions and submissions filed by Plaintiff.
For the reasons set
forth below, Defendants’ Motion to Dismiss will be DENIED and
Plaintiff’s motions will be DENIED without prejudice.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
A. PROCEDURAL HISTORY
On or about January 11, 2013, Plaintiff Rene D. Edwards,
formerly a prisoner confined at the East Jersey State Prison in
Rahway, New Jersey, filed this civil action asserting claims
pursuant to 42 U.S.C. § 1983. (ECF No. 1).
The case was
initially administratively terminated for failure to satisfy the
filing fee requirement. (ECF No. 14).
submitted an application to proceed in forma pauperis and the
case was reopened for review by a judicial officer.
also conducted its sua sponte screening for dismissal pursuant
to 28 U.S.C. §§ 1915(e)(2) (in forma pauperis actions) and 1915A
(actions in which prisoner seeks redress from a governmental
defendant), and 42 U.S.C. § 1997e (prisoner actions brought with
respect to prison conditions).
In an Order dated October 23, 2014, the Court granted
Plaintiff’s in forma pauperis application; dismissed with
prejudice Plaintiff’s claims against the State of New Jersey and
South Woods State Prison pursuant to the Eleventh Amendment; and
ordered that all claims against the fictitious defendants were
dismissed without prejudice. (ECF No. 23).
Amendment claim for failure to protect against Defendants Lt.
Taylor, Sgt. Jorner, C/O Ms. Scott, and C/O Ms. Williams was
allowed to proceed.
Likewise, this Court permitted Plaintiff’s
state-law claim for assault to proceed as against Defendant
Shortly after the entry of that Order, and before any
Defendants had filed a responsive pleading, Plaintiff began
Specifically, he filed the following: a Motion
to Appoint Pro Bono Counsel (ECF No. 25); a Motion for Summary
Judgment (ECF No. 31); and a second Motion to Appoint Pro Bono
Counsel (ECF No. 34). 1
During this time, Defendants had
requested and received extensions in their time to file an
Answer and, on January 9, 2015, they filed a Motion to Dismiss.
(ECF No. 43).
Plaintiff then filed a series of letters,
notices, objections, declarations, and additional motions —
including a second and third Motion for Summary Judgment (ECF
Nos. 47, 53); two Motions for Entry of Judgment (ECF No. 50,
56); and a third Motion for Pro Bono Counsel (ECF No. 63).
Court will address these filings in turn.
B. FACTUAL BACKGROUND
Plaintiff’s Complaint involves incidents of assault which
occurred at the South Woods State Prison.
that his cell mate, Raison Boyd (SB # 237852-C) (“Inmate Boyd”),
became unstable and violent after he was informed of the death
Plaintiff’s first and second Motions for Pro Bono Counsel (ECF
Nos. 25, 34) were denied in an Order dated January 8, 2015 (ECF
of one of his parents. (Compl. 6, ECF No. 1).
that Inmate Boyd first sexually assaulted him.
This assault was
reported and Inmate Boyd was reprimanded with loss of
privileges. (Compl. 8, ECF No. 1).
Plaintiff then states that
on December 28, 2011, Inmate Boyd placed a combination lock in a
sock and attacked Plaintiff, breaking his jawbone. (Id.).
In essence, Plaintiff’s Complaint asserts a failure to
protect claim against prison officials.
Plaintiff bases this
claim on the allegation that prison officials refused to remove
Inmate Boyd from the cell despite Plaintiff’s requests. (Compl.
6, 8, ECF No. 1).
Plaintiff states that prison officials knew
of the risk of sexual assault based on Plaintiff’s “’feminine’
appearance” and the fact that he is handicapped and, thus,
cannot defend himself. (Compl. 7, ECF No. 1).
Plaintiff alleges that prison officials were aware that Inmate
Boyd had a propensity to use a combination lock as a weapon, but
that the prison still sold the lock. (Compl. 6, ECF No. 1).
DEFENDANTS’ MOTION TO DISMISS
The Court first addresses Defendants’ Motion to Dismiss.
(ECF No. 43).
Although it is described, labeled on the docket,
and titled on the brief as a “Motion to Dismiss,” the motion is,
in its truest sense, a motion for summary judgment of which
Plaintiff has not received adequate notice.
forth below, it will be denied.
For the reasons set
Defendants have filed their motion pursuant to Rule
12(b)(6). (Defs.’s Br. 7, ECF No. 43-1).
When considering a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), a court must accept all well-pleaded allegations in
the complaint as true and view them in the light most favorable
to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir.
It is well settled that a pleading is sufficient if it
contains “a short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2).
Under the liberal federal pleading rules, it is not necessary to
plead evidence, and it is not necessary to plead all the facts
that serve as a basis for the claim. Bogosian v. Gulf Oil Corp.,
562 F.2d 434, 446 (3d Cir. 1977).
However, “[a]lthough the
Federal Rules of Civil Procedure do not require a claimant to
set forth an intricately detailed description of the asserted
basis for relief, they do require that the pleadings give
defendant fair notice of what the plaintiff's claim is and the
grounds upon which it rests.” Baldwin Cnty. Welcome Ctr. v.
Brown, 466 U.S. 147, 149–50 n. 3 (1984) (quotation and citation
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’” Bell Atlantic v. Twombly, 550 U.S. 544, 563 n. 8 (2007)
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil
actions'....”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009) (“Iqbal ... provides the final nail-in-the-coffin for
the ‘no set of facts' standard that applied to federal
complaints before Twombly.”).
In reviewing a Rule 12(b)(6), a court motion must only
consider the facts alleged in the pleadings, the documents
attached to or specifically referenced in the complaint if the
claims are based on those documents, and matters of judicial
notice. S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp.
Ltd., 181 F.3d 410, 426 (3d Cir. 1999); In re Bayside Prison
Litig., 190 F.Supp.2d 755, 760 (D.N.J. 2002); see also Winer
Family Trust v. Queen, 503 F.3d 319, 327 (3d Cir. 2007).
other matters outside the pleadings are presented to the court,
and the court does not exclude those matters, a Rule 12(b)(6)
motion must be treated as a summary judgment motion pursuant to
Rule 56. FED. R. CIV. P. 12(d).
The court has discretion to either convert a motion to
dismiss into a motion for summary judgment, or to ignore the
matters presented outside the pleadings and continue to treat
the filing as a motion to dismiss. Kurdyla v. Pinkerton Sec.,
197 F.R.D. 128, 131 (D.N.J. 2000); Kelly v. HD Supply Holdings,
Inc., No. 14-372, 2014 WL 5512251, at *2 (D.N.J. Oct. 31, 2014);
see also 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
PROCEDURE § 1366 Conversion of a Rule 12(b)(6) Motion Into a
Summary Judgment Motion (3d ed. 2015) (“As the language of the
rule suggests, federal courts have complete discretion to
determine whether or not to accept the submission of any
material beyond the pleadings that is offered in conjunction
with a Rule 12(b)(6) motion and rely on it, thereby converting
the motion, or to reject it or simply not consider it.”).
court should not convert a motion to dismiss into a motion for
summary judgment when little discovery has taken place.” Bobo v.
Wildwood Pub. Sch. Bd. of Educ., No. 13-5007, 2014 WL 7339461,
at *4 (D.N.J. Dec. 23, 2014) (citing Kurdyla, 197 F.R.D. at 131,
At this stage in the litigation, it is unclear what, if
any, discovery has been exchanged outside of the various motions
filed by the parties.
Moreover, as set forth above, the motion
is described in the cover letter, labeled on the docket, and
titled on the brief as a “Motion to Dismiss.”
suggestions that Defendants’ motion may be something other than
a motion to dismiss are references to summary judgment peppered
throughout the content of the supporting brief.
Given that, at
the time of filing, Plaintiff in this case was a prisoner
representing himself pro se, the Court is concerned with the
adequacy of the notice provided to Plaintiff that the motion to
dismiss might be converted to a motion for summary judgment, and
the implications of such a conversion. See Renchenski v.
Williams, 622 F.3d 315 (3d Cir. 2010) (establishing requirements
for adequate notice of conversion in a pro se prisoner context).
For these reasons, the Court declines to convert the motion to
dismiss into a motion for summary judgment.
In their Preliminary Statement, Defendants assert that the
“Complaint should be dismissed, or in the alternative, State
Defendants are entitled to judgment as a matter of law as to
Plaintiff’s claims because: (1) Plaintiff failed to exhaust his
administrative remedies pursuant to 42 U.S.C. § 1997, Prisoners
Litigation Reform Act (“PLRA”) and his complaint is therefore
barred; (2) State Defendants are entitled to summary judgment on
Plaintiff’s failure to protect claim because Plaintiff has not
and cannot produce any evidence to establish that State
Defendants knew of and disregarded a substantial risk of serious
harm, or that they acted with deliberate indifference; (3) State
Defendants are entitled to qualified immunity.” (Defs.’s Br. 6,
ECF No. 43-1).
Because Defendants request summary judgment in their second
ground for relief, and because this Court has declined to
convert this motion to a motion for summary judgment,
Defendants’ second ground for relief must be denied.
Additionally, in support of their argument for qualified
immunity — Defendants’ third ground for relief — Defendants
specifically rely on the summary judgment argument set forth in
their second ground for relief. (Defs.’s Br. 22, ECF No. 43-1).
Therefore, Defendants’ third ground must also be denied.
Remaining is Defendants’ first ground for relief: dismissal
based on Plaintiff’s failure to exhaust his administrative
However, exhaustion is an affirmative defense under
the Prison Litigation Reform Act (PLRA); therefore, Plaintiff is
not required to specially plead or demonstrate exhaustion in his
complaint. See Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166
L. Ed. 2d 798 (2007).
This Court cannot determine based on the allegations of the
Complaint and its attachments that Plaintiff has failed to
exhaust his administrative remedies.
motion to dismiss based on failure to exhaust is denied. See
e.g., Bowens v. Employees of the Dep't of Corr., No. 14-2689,
2015 WL 803101, at *4 (E.D. Pa. Feb. 26, 2015); Livingston v.
Appel, No. 11–2764, 2014 WL 6860539, at *3 (E.D. Pa. Dec.5,
2014) (declining to grant defendant’s motion to dismiss based on
exhaustion, or to convert defendant's motion into a summary
Each of the aforesaid denials is without
prejudice to Defendants raising the same issues in a properly
supported motion for summary judgment at the appropriate time.
III. PLAINTIFF’S MOTIONS
Currently pending are Plaintiff’s three motions for summary
judgment (ECF Nos. 31, 47, 53), two motions for entry of
judgment (ECF Nos. 50, 56), and a motion for pro bono counsel
(ECF No. 63).
For the reasons set forth below, Plaintiff’s
motions will be denied.
A. FAILURE TO PROTECT STANDARD
Under the Eighth Amendment, prison officials must take
reasonable measures “to protect prisoners from violence at the
hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotations
“Being violently assaulted in prison is simply ‘not
part of the penalty that criminal offenders pay for their
offenses against society.’” Id. at 834 (quoting Rhodes v.
Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59
To establish a § 1983 claim for failure to protect, a
plaintiff must show the following: (1) that he was “incarcerated
under conditions posing a substantial risk of harm”; (2) that
the prison official had a “sufficiently culpable state of mind,”
see Farmer, 511 U.S. at 834, that amounts to “deliberate
indifference to inmate health or safety”; and (3) that the
“official's deliberate indifference caused him harm.” See
Bistrian, 696 F.3d at 367.
B. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the Court is
satisfied that “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.’” Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing FED.
R. CIV. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A fact is
“material” if, under the governing substantive law, a dispute
about the fact might affect the outcome of the suit. Id.
considering a motion for summary judgment, a district court may
not make credibility determinations or engage in any weighing of
the evidence; instead, the nonmoving party's evidence ‘is to be
believed and all justifiable inferences are to be drawn in his
favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004) (citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment
always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence
of a genuine issue of material fact.” (citation omitted); see
also Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n. 2
(3d Cir. 2001) (“Although the initial burden is on the summary
judgment movant to show the absence of a genuine issue of
material fact, ‘the burden on the moving party may be discharged
by “showing” — that is, pointing out to the district court-that
there is an absence of evidence to support the nonmoving party's
case’ when the nonmoving party bears the ultimate burden of
proof.”) (citing Celotex, 477 U.S. at 325).
C. ECF No. 31 – MOTION FOR SUMMARY JUDGMENT
In this Motion for Summary Judgment, Plaintiff argues
simply that “the material ‘facts’ [of this case] are agreed on”
and he urges the Court to grant summary judgment in his favor.
(Summ. J. Mot. 4, ECF No. 31).
Plaintiff attaches several
documents to this motion, none of which are directly relevant to
Defendants’ alleged liability based on a failure to protect
Defendants file a letter brief in opposition. (ECF No. 37).
In this document, Defendants note that the attachments to
Plaintiff’s motion do not constitute evidence in support of his
Specifically, Defendants point out that the incident in
question occurred on December 28, 2011 but that the medical
records attached to Plaintiff’s motion are dated June 10, 2013
(Summ. J. Mot. 13, “Appendix 21A”, ECF No. 31), and December 28,
2012 (Summ. J. Mot. 39, ECF No. 31).
Further, Defendants state
that they have not had the opportunity to investigate the
allegations of the Complaint and, therefore, have not determined
what disputes of material fact may exist. (Defs.’s Letter Br. 5,
ECF No. 37).
With respect to this motion, the information provided by
Plaintiff is essentially a reiteration of the allegations
contained in his Complaint.
Plaintiff does not conclusively
establish in this motion or through its attachments that he
faced a substantial risk of assault or that the prison officials
possessed the requisite knowledge of that substantial risk and
disregarded it. See Farmer, 511 U.S. at 833, 837.
Plaintiff has failed to demonstrate the absence of a genuine
issue of material fact with respect to his failure to protect
claim and his Motion for Summary Judgment (ECF No. 31) is DENIED
without prejudice. See Celotex, 477 U.S. at 323.
C. ECF NO. 47 – MOTION FOR SUMMARY JUDGMENT
Plaintiff labels this document “Summary Judgment Order.”
In this submission, Plaintiff does not set forth an argument in
support of his request for summary judgment; nor does he attach
or refer to any documents which demonstrate the absence of a
genuine issue of material fact.
Rather, this document details
the method of payment and amount of damages he seeks.
extent Plaintiff intended this document to be considered a
motion for summary judgment, it is DENIED.
D. ECF No. 50 – MOTION FOR ENTRY OF JUDGMENT
In this document, Plaintiff requests the entry of a
judgment in his favor.
Because, as set forth above, the Court
determines that he is not entitled to a judgment at this time,
this request will be DENIED.
E. ECF No. 53 – MOTION FOR SUMMARY JUDGMENT
This document is a repetitive filing and includes the same
argument and attachments as Plaintiff’s previous Motion for
Summary Judgment (ECF No. 31), discussed above.
a brief in opposition (ECF No. 54) and argue that Plaintiff has
not met the standard for summary judgment.
For the same reasons
the Court denies Plaintiff’s previous motion for summary
judgment (ECF No. 31), set forth above, this motion for summary
judgment (ECF No. 53) is also DENIED.
F. ECF No. 56 – MOTION FOR ENTRY OF JUDGMENT
Like Plaintiff’s previous motion for entry of judgment (ECF
No. 50), discussed above, this document simply requests the
entry of a judgment in Plaintiff’s favor.
However, as set forth
above, the Court determines that Plaintiff is not entitled to a
judgment at this time.
Therefore, this request is DENIED.
G. ECF No. 63 – MOTION FOR PRO BONO COUNSEL
In this submission, Plaintiff requests the appointment of
pro bono counsel as well as a transfer of the case to Chief
As an initial matter, this Court denies
Plaintiff’s request for a transfer of this case to the Honorable
Jerome B. Simandle.
Local Civil Rule 40.1(a), (c), and (e)
establish that the “reallocation or reassignment of any case,
shall be upon the order of the Chief Judge.”
Thus, this Court
is without authority to grant Plaintiff’s request for transfer
Further, “[l]itigants do[ ] not have the right
to have [their] case heard by a particular judge,” and just
because the Chief Judge has the authority and discretion to
reassign a matter, he need not exercise that discretion. ALLYN Z.
LITE, NEW JERSEY FEDERAL PRACTICE RULES, cmt. 5 to L. CIV. R. 40.1 at
195 (citing In re Atamian, 247 F. App’x 373 (3d Cir. 2007)
(internal quotes omitted); see also Alboyacian v. BP Products N.
Am., Inc., No. 09-5143, 2010 WL 56036, at *1 (D.N.J. Jan. 4,
Nevertheless, Plaintiff may submit this request to the
Chief Judge if he so desires.
With respect to Plaintiff’s Motion for Pro Bono 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.”).
District 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,
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 Defendants’ attorney refuses to
“proper[ly] communicate with plaintiff” and because the “court
has not ‘order[ed]’ a mediator to help in any settlement[.]”
(Pro Bono Motion 2, ECF No. 63).
However, counsel for
Defendants is under no obligation to communicate regularly with
Plaintiff and Plaintiff does not allege in his present motion
that Defendants have refused any discovery requests or otherwise
failed to participate in this litigation.
Additionally, to the extent that Plaintiff implies that the
Court should have ordered mediation, the Court notes that this
type of case was not eligible for mediation.
Local Civil Rule 301.1(d) provides that no civil action
described in Local Civil Rule 72.1(a)(3)(C) shall be referred to
mediation. See L. CIV. R. 301.1(d).
Local Civil Rule 72.1, in
turn, describes an action in which one of the parties appears
pro se and is incarcerated. See L. CIV. R. 72.1(a)(3)(C)(i).
Because Plaintiff in this case appears pro se and, until
recently, was incarcerated, this civil action could not have
been referred to mediation. See L. CIV. R. 301.1(d).
Moreover, it is evident that Plaintiff is sufficiently able
to represent himself at this point.
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
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)).
As Judge Schneider pointed out in his January 8, 2015 Order
denying Plaintiffs’ request for the appointment of pro bono
counsel, “[t]he present case involves relatively straightforward
issues concerning an alleged physical and sexual assault by
plaintiff’s former cellmate.” (Order 6, Jan. 8, 2015, ECF No.
Likewise, this Court does not find the legal issues
regarding this claim to be unduly complex.
second Tabron/Parham factor weighs against the appointment of
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.
In his pending motions, Plaintiff does
not assert that he has had difficulty obtaining relevant
Indeed, Plaintiff has attached several exhibits,
including medical records, to his motions and he has previously
filed motions for discovery.
Accordingly, the third
Tabron/Parham factor weighs against the appointment of counsel.
The fourth factor for consideration is whether a case is
likely to turn on credibility determinations.
Though most 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,
In this case, the success or failure of Plaintiff’s
failure to protect claim will likely turn on the extent of the
information possessed by Defendants at the time of the incident.
Pursuant the Complaint, Plaintiff states that Defendants’
knowledge will be established, in part, through “evidence” in
“the unit log book,” (Compl. 8, 9, ECF No. 1), and through
“records of assault” and evidence of the sale of the combination
lock to Inmate Boyd (Compl. 6, ECF No. 1).
Given that Plaintiff
has expressly indicated he intends to prove his case, in part,
through documentation, it is unclear at this time how much of
the case will turn on credibility determinations.
the Court finds that the fourth Tabron/Parham factor is neutral.
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, it is unlikely that Plaintiff will
require expert testimony.
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.
case, Plaintiff has been granted leave to proceed in forma
pauperis; accordingly, the Court finds that the sixth
Tabron/Parham factor weighs in favor of granting Plaintiff’s
As discussed above, 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. 2
The Court notes that Plaintiff references an outstanding
request for pro bono counsel. Presumably, Plaintiff refers to
his letter dated January 19, 2015. (ECF No. 45). The Court has
reviewed the document and nothing in that submission alters the
Court’s analysis in the present Opinion. In the January 19,
2015 letter, Plaintiff complains that counsel for Defendants
refuses to communicate with him. As set forth above, regular
communication is not required. To the extent Plaintiff means to
assert that counsel for Defendants’ is withholding relevant
discovery — specifically, the first name of Defendant Williams —
Plaintiff may file a motion to compel discovery to address this
OTHER SUBMISSIONS BY PLAINTIFF
The Court notes that Plaintiff has filed numerous other
letter requests and submissions on the docket.
a Letter requesting a deadline for the case to be heard
(ECF No. 41);
a Letter regarding Approval of Summary Judgment (ECF No.
Objections to Defendants’ requests for Extensions of Time
(ECF Nos. 39, 44);
A Notice of Failure to Answer the Complaint (ECF No. 46);
A Notice of Failure to Protect (ECF No. 48);
A Notice of Mandamus (ECF No. 49);
An Order for Entry of Judgment / Failure to Protect (ECF
A Declaration of Entry of Default against Defendant Inmate
Boyd (ECF No. 55);
An Order for Entry of Judgment (ECF No. 57);
A Letter requesting assistance in the Entry of Judgment
(ECF No. 58);
A Letter requesting assistance in his two cases pending
before this Court: Case Nos. 13-214 & 13-7731 (ECF No. 59);
A Letter requesting the Entry of Judgment and exhibiting
Evidence of Contact with counsel for Defendants (ECF No.
A Letter requesting the Entry of Judgment and stating that
counsel for Defendants refused Plaintiff’s settlement offer
(ECF No. 61);
A letter request for the Entry of Judgment and requesting
that the Court set a deadline of July 6, 2015 (ECF No. 62);
The Court has carefully reviewed each of these documents
and determines that no action from the Court is warranted at
To the extent Plaintiff intended these submissions
to be considered as motions or informal requests, they are
However, for purposes of clarification — and to assist
Plaintiff in better understanding the legal process — the Court
will comment on two of Plaintiff’s submissions.
First, the Court notes that Plaintiff filed a Notice of
failure to Answer the Complaint (ECF No. 46), in which he states
that Defendants have not filed a response to his Complaint.
This document was received by the Court on January 30, 2015,
three weeks after Defendants filed their Motion to Dismiss (ECF
No. 43) on January 9, 2015.
Thus, it appears that Plaintiff may
believe that Defendants have not properly responded to his
However, pursuant to Federal Rule of Civil Procedure
12(b)(6), a defendant may file a motion to dismiss in lieu of
filing an Answer. See FED. R. CIV. P. 12(b)(6); see also, e.g.,
Gaymon v. Esposito, No. 11-4170, 2013 WL 4446973, at *26 (D.N.J.
Aug. 16, 2013).
In this case, Defendants filed their Motion to
Dismiss (ECF No. 43) in lieu of an Answer.
Thus, they have
provided a timely response to Plaintiff’s Complaint.
Second, in light of Plaintiff’s submission of his
“Declaration of Entry of Default against Defendant Inmate Boyd”
(ECF No. 55), the Court takes this opportunity to explain to
Plaintiff the procedure by which a plaintiff may seek a default
judgment against a defendant.
Under Federal Civil Procedure Rule 55, obtaining a default
judgment is a two-step process.
First, when a defendant has
failed to plead or otherwise respond, a plaintiff must request
the entry of default by the Clerk of the Court. See FED. R. CIV.
Second, after the Clerk has entered the party’s
default, a plaintiff may then obtain a judgment by default by
either (1) asking the Clerk to enter judgment, if the judgment
is a sum certain, or (2) applying to the Court. See FED. R. CIV.
P. 55(b); Nationwide Mut. Ins. Co. v. Starlight Ballroom Dance
Club, 175 F. App'x 519, 521, n.1 (3d Cir. 2006).
In this case, Plaintiff has titled this document
“Declaration for Entry of Default on Defendant,” however, the
content of his submission requests a “Motion for Judgment by
Default” and seeks the award of damages. (ECF No. 55).
Plaintiff has by-passed the first step of the process.
explained above, if he wishes to pursue a default judgment
against a defendant, he must first request the entry of default
against that defendant from the Clerk of the Court. See FED. R.
CIV. P. 55(a).
When, and if, the Clerk enters a default against
the defendant, the plaintiff may move on to the next step in the
process, as outlined above.
For the foregoing reasons, Defendants’ Motion to Dismiss
(ECF No. 43) is DENIED.
Defendants are permitted to raise the
issues presented in their motion to dismiss in the form of a
motion for summary judgment filed at the appropriate time.
Plaintiff’s pending motions (ECF Nos. 31, 47, 50, 53, 56, and
63) are DENIED for the reasons discussed above.
An appropriate Order follows.
_____s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
Dated: August 24, 2015
At Camden, New Jersey
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